fi-EFA
VnfttdStatM
EnvfronnwntBl Protection
Agwicy
Office of
WMU Programs Enforowiwnl
Office of Solid Witt* and
ColMWara
RCRA Ground-Water
Monitoring Compliance
Order Guidance
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&EPA
Name of Contact Person
Lori Heise
Lead Off in n
,-. U OUST
LJ OERR Q QwpE
LJ osw Q
United States Environmental Protection Agency
Washington. DC 204«0
OSWER Directive Initiation Request
Originator Information
Interim Directive Number
9931.1
AA-OSWER
Title
Mail Code
WH-527
Telephone Number
475-9360
Approved for Review
Signature of Office Director
Lloyd Guerci, Director, RCRA Enforcement
Date
RCRA Ground-Water Monitoring Compliance Order Guidance
xEnforcement authorities; [270.14(c)(4)] permit, application requirements;
Administrative order.
Summary of Directive
The RCRA Ground-water Monitoring Compliance Order Guidance provides guidance
on developing administrative orders for correcting ground-water problems at RCRA
land disposal facilities. The guidance includes:
1. a technical and legal strategy for compelling facilities to determine
whether or not they are leaking in a faster more definitive manner than
the Part 265 regulation (based on accelerated sampling for site-specific
constituents rather than generic indicator parameters)
2. an easy-to-understand explanation of the ground-water monitoring regulations
and a comparison of available order authorities [§3008(a), §3013, §3008(h)]
3. guidance on developing technical remedies for incorporation in orders.
4. a.model ground-water order with guidance on writing phases AOs.
Type of Directive (Mtnutl. Policy Directive. Announcement. etc.)
Guidance Manual
Does th!$ Directive Supersede Prtviou» Directive^)? \_J Yes
H "Yes" to Either Question, What Directive (number, title)
Status
D Draft
Final
D New
I—J Revision
No Does It Supplement Previous Directive^)?
^M^H^BHl^^^HM
Review Plan
D AA-OSWER D OUST
D OERR D OVVPE
D Regions
D OECM
D OGC
D OPPE
D Other (Sptcifyj
~~" fci^ nvyipnv L^ u
'his Request Meets OSWER Directives System Formal
Signature of Lead Office Directives Officer
Signature of OSWER Directives Officer
EPA Form 1316-17(10-85)
Date
Date
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TABLE OF CONTENTS
page
1. INTRODUCTION
1.1 Purpose and Objectives 1-1
1.2 Significance of Che Interim Status to Permitting Transition 1-2
1.2.1 Plume Characterization Under §270ol4(c)(4) 1-4
1.3 Overview of the Enforcement Process 1-6
1.3.1 Case Initiation 1-8
1.3.2 Facility Management Planning 1-11
1.4 Relationship to "Late and Incomplete Part B Policy" 1-13
1.5 Structure of this Document 1-14
2. REGULATORY OVERVIEW
2.1 Interim Status Ground-Water Monitoring - Part 265 2-1
2.1.1 Detection Monitoring 2-2
2.1.2 Assessment Monitoring 2-5
2.2 Permit Regulations for Ground-Water Monitoring - Part 264
2.2.1 Detection Monitoring 2-8
2.2.2 Compliance Monitoring 2-9
2.2.3 Corrective Action 2-12
2.3 Permit Application Regulations - Part 270
2.3.1 Information Requirements of §270.14(c) 2-14
2.3.2 Information Requirements for Appropriate 2-16
Part 264 Ground-Water System
3. REGULATORY COMPARISONS
3.1 Part 265 vs. Part 264 Detection Monitoring
3.1.1 Well Placement 3-2
3.1.2 Indicator Parameters 3-5
3.1.3 Sampling Frequency 3-5
3.1.4 Appropriate Sampling Techniques 3-5
3.1.5 Statistical Comparisons 3-7
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TABLE OF CONTENTS (con't.)
page
3.2 Part 264 Detection Monitoring vs. Part 264 Compliance Monitoring
3.2.1 Well Placement and Network Design 3-8
3.2.2 Establishing Background Concentrations 3-10
3.2.3 Sampling Frequency 3-11
3.2.4 Statistical Comparisons 3-11
3.3 Part 265 Assessment Monitoring vs.
5270.14(c)(4) Plume Characterization 3-12
4. OVERVIEW OF ORDER AUTHORITIES
4.1 Comparison of 53008(a), S3008(h), and $3013 Orders
4.1.1 Actions the Orders May Require 4-2
4.1.2 Conditions for Order Issuance 4-5
4.1.3 Formal Administrative Proceedings 4-17
4.2 Selection Among Order Authorities 4-18
5. FASHIONING A REMEDY AND DEVELOPING THE ENFORCEMENT STRATEGY
5.1 Types of Violators 5-1
5.2 Profile of a "Transition-Period" Violator 5-3
5.3 Outline of the Remedy 5-4
5.4 Discussion of the Remedy 5-9
5.4.1 Design and Installation of the Monitoring Network 5-9
5.4.2 Confirmation of Leakage Based on Expanded Sampling 5-11
5.4.3 Fulfillment of Applicable Part 270 Requirements 5-13
5.5 Application of Enforcement Authorities to the Remedy 5-15
5.5.1 Selection of the Order Authority 5-16
5.5.2 Securing the Model Remedy Through a. §3008(a) Order 5-18
5.6 Variations on the Model Scenario 5-20
6. DEVELOPING ORDERS
6.1 Importance of Specificity 6-1
6.2 Phased Orders for Ground-Water Monitoring Violations 6-3
ii
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TABLE OF CONTENTS (continued)
Page
6.3 Technically Specific Orders 6-6
6.4 §3008(a) Orders 6-13
6.5 S3013 Orders 6-16
6.6 $3008(h) Orders 6-17
TABLE OF FIGURES
1.1 Model of Che Enforcement Process 1-7
3.1 Relationship of the Waste Management Area to 3-4
the Point of Compliance
3.2 Well Placement in Compliance Monitoring 3-9
4.1 Comparison of Order Authorities 4-3
4.2 Ground-Water Performance Standards 4-8
4.3 Relationship of Technical Inadequacies to Ground-Water
Performance Standards 4-9
5.1 Violator-Classification Scheme 5-2
5.2 Ground-Water Monitoring Sequence as Originally Envisioned 5-6
5.3 New Ground-Water Compliance Strategy Based on Condensed
Monitoring Sequence 5-10
5.4 Model Remedy with Regulatory Citations 5-18
5.5 Variations on Model Remedy and Enforcement Response 5-24
6.1 Possible Elements of a Technically-Specific Order 6-8
LIST OF APPENDICES
Appendix A: Model Phased Order . A-l
Appendix B: Diagram of Administrative Proceedings B-l
iii
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CHAPTER 1
INTRODUCTION
1.1 Purpose and Objectives
The purpose of this document is to guide enforcement officials in develop-
ing administrative orders to address RCRA ground-water monitoring violations at
interim status land disposal facilities.! The document's primary objective is
to promote the development of orders that correct interim status violations
in a manner that is consistent with the needs of the RCRA permitting process.
Enforcement personnel are encouraged to involve permit writers in the formu-
lation of technical remedies to ensure that enforcement remedies are consistent
with the long-term monitoring responsibilities of the facility.
The guidance is Intended to apply to the RCRA-authorized States as well
as to EPA regional offices. While State and Federal enforcement authorities
may differ (e.g., states may have different order authorities or different
maximum penalties), the States and EPA are enforcing essentially the same
set of regulations. Therefore, remedies designed by State enforcement
officials should be similar to those outlined in this document.
The document will not be concerned with policy matters such as how to
decide which cases to pursue or how to decide between administrative and
1 This document covers only the requirements for ground-water monitoring
that apply to hazardous waste management units that were in existence on November
19, 1980. It does not address monitoring requirements that may be imposed on
solid waste management units as a result of the "continuing releases" provision,
§3004(u) of RCRA, as amended by the Solid and Hazardous Waste Act Amendments
of 1984.
1-1
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judicial response. Instead, the document focuses on the formulation of
technical remedies and on the appropriate technical content of orders.
Specifically, it concentrates on how to fashion ground-water remedies for
facilities operating during the transition period between interim status
and permitting.
1.2 Significance of the Interim Status to Permitting Transition Period
The Agency and the regulated community are now entering a period unique
in the life of the RCRA program — the period after which all Part B permit
applications are due, but before all facilities have been permitted. EPA
and the States have already received many Part B applications. By November
8, 1985 the Part B permit applications of all the nation's land disposal
facilities will be due.2 It is likely, however, that it may take several
years for EPA to process and finalize permits for all these facilities. As
a result, many facilities will face a fairly long period of time between the
due date of their application and the issuance or denial of a permit.
The existence of this transition period is significant because it is
the only time in the life of the RCRA program that land disposal facilities
will be bound by the interim status ground-water regulations (Part 265) and
the permit application regulations (Part 270). It is the first time, therefore,
2 The Solid and Hazardous Waste Act Amendments of 1984 require all
land disposal facilities to submit a Part B permit application within twelve
months after the enactment of the Amendments or lose interim status. See
§3005(e) of the Resource Conservation and Recovery Act (RCRA).
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that enforcement officials can draw upon the authorities of both Part 265
and 270 when fashioning technical remedies at interim status facilities.
As described in Chapter 3, the Part 270 regulations impose additional
monitoring and information generating requirements on the owner/operators
of interim status facilities. The Agency designed the interim status
(Part 265), permit application (Part 270), and permitting regulations
(Part 264) to be followed in sequence. A facility moves from one phase of
monitoring to the next (and from Interim to permitted status) by building
upon the information generated during the previous stage. The monitoring
and cleanup obligations of an owner/operator also expand as the facility
approaches permitting and/or the evidence of ground-water contamination
increases.
Unfortunately, certain facilities have not adequately implemented even
the first phase of the monitoring sequence, the installation of a competent
detection monitoring network. Consequently, these owner/operators cannot
provide the sampling data or plume characterization required for a Part B
permit application.
Enforcement officials can help solve this problem by crafting technical
remedies that integrate the requirements of Parts 265 and 270. Facilities
that have failed to progress through the monitoring sequence as planned,
should be required to condense the sequence so as to prepare the faci.'.ity
for permitting as rapidly as possible. Much of this document concentrates
on exploring how enforcement officials can use the requirements of Parts
1-3
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265 and 270, and other svailnbJ-e authorities to design remedies chat will
ease the transition between interim and permitted status.
1.2.1 Plume Characterization Under §270.14(c)(4)
In terms of ground-water monitoring, the most significant requirement
of the Pare 270 regulations is the provision outlined in §270.14(c)(4).
This provision requires applicants to describe any plume of contamination
that has entered ground water and define its extent, and provides EPA with
the authority to compel sampling for the broad list of constituents listed
in Appendix VIII of Part 261 (hereafter referred to as "Appendix VIII").
This provision applies to all facilities that have detected plumes
under interim status monitoring and to facilities that have not detected
plumes if the facility's interim status system is not capable of detecting
a plume should it occur.^ Facilities with inadequate 265 monitoring
systems should not be allowed to avoid Appendix VIII sampling and assessment
activities simply because they have avoided compliance with R.CRA ground-water
monitoring requirements in the past. Moreover, such facilities should not
be allowed to delay undertaking the more comprehensive assessment and
sampling activities mandated by 5270.14(c)(4), by first going back and
3 This interpretation has been consistently advanced in all previous
guidance documents that address this is-;uj. (See: the RCRA Permit Writer's
Guidance Manual For Ground-water Protection, October 1983, p. 204; and the
November 29, 1984 policy memorandum from Lee Thomas and Courtney Price,
entitled, "Part B Applications with Incomplete Ground-water Monitoring
Data.") Moreover, this expectation has been made known to facility owners
through the Permit Applicant's Guidance Manual, May 1984 (See pps. 9-42
and 9-43).
1-4
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implementing Che less demanding monitoring protocol established in Part
265. Requiring these facilities to sample for Appendix VIII constituents
is consistent with the language of §270.14(c)(4) and the general purposes
of the Part 265 requirements.
One of the purposes of the Part 265 regulations was to prepare facili-
ties for permitting. EPA assumed that data from detection and assessment
monitoring under Part 265 would identify facilities that had contaminated
ground water. These data would serve as the foundation for developing the
ground-water information required to be submitted in Part B of the permit
application [§270.14(c)]. Where an owner/operator has not complied with
Part 265 monitoring requirements, however, EPA cannot determine whether
the facility has contaminated ground water and hence cannot easily determine
which ground-water monitoring program should be written into the facility's
permit.
At this point in the program, allowing an applicant to comply with
the literal requirements of Part 265, however, would cause unacceptable
delays. An applicant that needed to "start-over" by installing or relocat-
ing monitoring wells could require as much as two and one-half years to
complete the entire Part 265/Part 270 monitoring sequence (see timeline in
Figure 5.2). Consequently, where EPA finds that an applicant has not
instituted an adequate monitoring program under Part 265, the Agency will
require owner/operators to condense the Part 265/Part 270 monitoring sequence
in order to generate the ground-water data necessary for permitting (closure
or post-closure) as quickly as possible. This condensed monitoring program
is described in more detail in Chapter 5.
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1.3 Overview of the Administrative Enforcement Process
The unique character of the transition period from interim status to
permitting demands both increased coordination between permit writers and
enforcement staff and a new conceptual approach to. the enforcement process.
The cornerstone of this new approach is the fashioning of technical ground-
water remedies that satisfy the Agency's long term regulatory objectives.
To implement this approach, the Agency recommends a three-step enforce-
ment process (see Figure l.l). STEP 1 is to outline the technical remedy
sought. In most cases, this step will require considerable planning and
close coordination between the enforcement staff and the permitting staff.
Enforcement officials and permit writers must work together to construct
remedies that generate the information necessary for permitting while
correcting deficiencies in the facility's interim status monitoring system.
STEP 2 is to develop an enforcement strategy to secure the desired
remedy. Central to this effort is the selection of the order authority
best suited to compel the remedy. If regulatory provisions have been
violated, the enforcement staff should determine whether the desired remedy
can be secured through a S3008(a) order citing these violations. (See Chapter
4 for a description of the order authorities and a discussion of their use.)
If there is a question whether the entire remedy can be compelled using a
§3008(a) order, enforcement staff should consider using a different
enforcement authority (e.g., §3008(h), $3013, S7003 or CERCIA §106 orders)
or a combination of authorities if necessary.
1-6
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Figure 1.1 MODEL OF THE ENFORCEMENT PROCESS
CASE INITIATION
Enforcement Initiated
a) Routine inspection
b) Intensive ground-
water Inspection
c) File review
d) Outside referral
(e.g., State agency)
STEP 1
STEP 2
STEP 3
FASHIONING THE
TECHNICAL REMEDY
DESIGNING THE
ENFORCEMENT STRATEGY
DEVELOPING THE
ORDER
Permit Initiated
a) Referral to enforce-
ment for historically
recalcitrant owner
b) Referral to enforce-
ment after unsuccessful
attempt to gain compliance
through NOD process
c) Referral to enforcement
•after abbreviated technical
assessment conducted
during "completeness"
review
Persons involved;
Technical enforce-
ment staff
Permit writer
Persons involved;
1. Technical enforce-
ment staff
2. Regional
Counsel
Persons involved;
1. Technical enforce-
ment staff
2. Regional
Counsel
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STEP 3 of Che administrative enforcement process is the development
of the order. The order is the mechanism by which the Agency ensures that
the desired remedy is actually executed by the facility. The goal of this
step is to formalize exactly what actions the respondent must take in
order to come into compliance. The more explicitly the Agency can express
its expectations, the less opportunity there is for misunderstanding,
wasted effort, and delay. As Chapter 6 explains, it is important to develop
this specificity as early in the enforcement process as possible, although
unless default is expected, it may not be necessary to express it in the
compliance order accompanying the complaint. Chapter 6 provides guidance
on how to write orders that are easily enforced and effective at achieving
the remedy developed in STEP 1.
1.3.1 Case Initiation
Targeting cases for this enforcement process is the responsibility of
both the enforcement staff and the permits staff.
In the enforcement program, cases generally evolve from the discovery of
an inadequate interim status monitoring program. Inadequate systems may be
identified as a result of routine facility inspections, more detailed ground-
water inspections, or enforcement file reviews. Once a problem-facility
is identified, enforcement staff should immediately contact the permits
staff to determine the facility's status vis a vis the permitting program.
Early coordination with the permits staff is important for two reasons.
First, the permits staff may have information on the site that could aid
1-8
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in the development of an enforcement action against the facility. Where
complete, for example, a Part B application can provide valuable informa-
tion regarding a facility's wastes, the hydrogeology of a site, etc. Even
where deficient, a Part B application can prove useful to enforcement officials
by highlighting gaps in the facility owner's understanding of his/her site.
Second, coordination is necessary to avoid duplication of effort and to
ensure that actions taken by the enforcement division 'are "consistent with"
and "supportive of" the permitting process. Consistency is important so
that the Agency presents a unified front to the facility. For example,
before issuing a complaint the enforcement staff should know whether there
is an outstanding Notice of Deficiency (NOD) compelling the same activities.
"Supportive of permitting" implies consideration of the permit writer's
informational needs when designing remedies. The permit writer oust become
involved in the enforcement process early on so that (s)he can ensure that
his/her own permit-writing needs and the facility's future Part 264 monitoring
needs are accurately represented and accounted for during the development
of the remedy.
Cases may also enter the enforcement process via the permits staff. In
fact, permit writers (by virtue of their Part B reviews) are often in the best
position to Identify problem cases. Permit writers are encouraged to refer
cases to enforcement and use enforcement staff to facilitate the permit
process.
Enforcement involvement may be appropriate, for example, when a facility
has submitted a highly deficient Part B and past dealings with the company have
1-9
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demonstrated chat the owner/operator is unlikely to correct deficiencies in
a prompt and-forthright manner. In such cases, the permit writer should
consider referring the case to enforcement immediately after issuing a
general NOD that requires the submittal of the missing information within
a very short period of time. Historically recalcitrant applicants should
not be given long periods of time under the informal NOD process to generate
data/information that they should have developed by the due date of their
permit; rather they should be compelled to develop this information on an
enforceable compliance schedule pursuant to an order. Likewise, if a permit
writer has failed ro make progress using the NOD mechanism, (s)he should
work with the enforcement division to use formal mechanisms to compel
compliance rather than continue to issue NODs.
Permit writers should also expand their initial "completeness" review
of incoming Part Bs to Include an abbreviated technical assessment of the
ground-water monitoring portion of the application. While the permitting
staff clearly does not have the resources to consider all Part B applications
in full as they arrive, there are benefits in focusing briefly on the parts
of each application that are particularly troublesome for the regulated
community, are environmentally sensitive, or will require a long time for
the facility to revise if the application is inadequate. Some aspects of
an application are so central to the adequacy of the permit in general
that it may be wise to perform an abbreviated assessment up front, rather
than wait until the entire permit can be reviewed to discover and correct
major deficiencies (e.g., the facility must Install an entirely new well
system before it can generate the data necessary for permitting).
1-10
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The consequences of not identifying such deficiencies up front could
be significant Delays in the permitting process or a weakening of future
enforcement cases because so much time has elapsed between the submittal of
the application and the issuance of a complaint. If permit writers did
conduct abbreviated reviews on the ground-water portion of incoming applica-
tions, they could refer cases with major deficiencies to the enforcement
staff. Enforcement officials could then use the combined authorities of
Parts 265 and. 270 (or other authorities as necessary) to advance the facility
to the point where the ground-water monitoring portion of the permit could
be easily writte.: -vJ-.en che facility's full application comes up for review.
1.3.2 Facility Management Planning
The enforcement process as described above demands a high level of
coordination between the enforcement and permitting staffs. For any parti-
cular facility, the Agency and States must decide whether ground-water
problems should be addressed through enforcement or through the permitting
process. Facility Management Planning (FMP) is the mechanism that Regions
and States should use to orchestrate this division of labor.
As described in the Revised FY85 and FY86 RCRA Implementation Plans
(RIP), the draft National Permit Strategy (April 8, 1985), and the draft FMP
guidance (July 12, 1985), Facility Management Planning is an Agency tool
for coordinating effort and resources between the Regions/States and
enforcement/permitting. Regions must develop a Facility Management Plan
for all "environmentally significant" facilities according to a schedule
laid out in the RIP. Each plan must identify: 1) what action(s) should
1-11
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be taken at (or by) a facility; 2) what tool (e.g., order, NOD, post-closurs
permit) should be used to compel the action; and 3) who (State or Region,
enforcement or permitting) has lead responsibility for ensuring that the
action is completed.
Decisions regarding the above points evolve from a "facility analysis"
conducted by representatives from Regional and State permitting and enforce-
ment offices. During the facility analysis, the various representatives
review the information available on a facility (e.g., Part B, inspection
reports, etc.) and begin formulating a strategy for handling that facility
in the short and long term. All strategies devised for individual facilities
must be in accord with the RIP and other Agency policies.
Where actual or potential ground-water contamination exists, the
strategy will generally include data or Information gathering to support
the long-term goal of either Issuing the facility an operating permit or
closing the facility and implementing corrective action for releases
into ground water.
It is during the facility management planning process that enforcement
officials and permit writers can Initiate the type of coordination necessary
to implement a range of options including this guidance. The review group,
for example, may decide that eventually a facility should be issued a
permit, but in the interim the Agency should use an order to compel the
facility to investigate possible ground-water contamination and develop
the appropriate permit application data and plans. At this point, the
lead enforcement official should solicit the assistance of the permit
1-12
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writer In formulaeing the technical remedy necessary to advance the facility
toward permitting.
1.4 Relationship to "Late and Incomplete Part B Policy"
On September 9, 1983, Lee Thomas and Courtney Price issued a memorandum
entitled, "Guidance on Developing Compliance Orders Under Section 3008 of
the Resource Conservation and Recovery Act; Failure to Submit and Submittal
of Incomplete Part B Permit Applications." This memo, commonly referred to
as the "Late and Incomplete Part B Policy," affirmed the Agency's authority
to take enforcement action for late and incomplete permit applications. It
set out the procedures for addressing Part B violators and established a
flat penalty amount that should be assessed in each case.
The Late and Incomplete Part B policy has been largely superseded by
more recent policies and is further modified by this document. First, the
"Enforcement Response Policy" (December 21, 1984) established that submittal
of a late, incomplete or inadequate Part B is a Class I violation (see page
18). In addressing Class I violations the Enforcement Response Policy states
that EPA and the States may issue warning letters prior to §3008(a) complaints
if they wish but are not required to do so. Therefore, the directive in the
Late and Incomplete Part B Policy that warning letters should always precede
§3008(a) complaints is superseded.
Second, the Late and Incomplete Part B Policy established a flat
penalty amount of $5,000.00. That requirement has since been superseded by
the "RCRA Civil Penalty Policy" (May 8, 1984), which establishes a matrix
that should be used to determine administrative penalty amounts. The matrix
1-13
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is based on two factors, Che degree of a handler's deviation from regulatory
requirements and the potential for harm presented by the violation. Thus,
penalty amounts should be determined individually for each Part B violator;
the flat $5000.00 amount should not be applied automatically.
Finally, the Late and Incomplete Part B Policy envisioned issuing complaints
that require, simply, the submittal of missing information. The Agency has
since realized, however, that incomplete Part B's seldom represent mere over-
sights on the part of the applicant. More often, Part B's are incomplete
or inadequate because the applicant failed to generate the required informa-
tion and/or failed to comply with interim status requirements.
When issuing a complaint against a Part B violater, the Region or State
should not merely require the respondent to "submit the information required
in Section 'XYZ' of the regulations." Rather enforcement officials should
determine the underlying reasons for the poor fart B and detail in the
proposed order what needs to be done to ensure a proper submittal. Often
the reasons behind an inadequate Part B are extremely complex, especially
when the deficiencies involve ground-water monitoring. Enforcement officials
can help ensure the adequacy of the next submittal by outlining in the
order the nature and scope of the work to be performed. Further, Regions
and States should generally assess penalties for all Part 270 violations
and any contributing Part 265 violations.
1.5 Structure of this Document
This document is divided into six chapters. Chapter 2 presents an in
depth discussion of the Part 265 and Part 264 ground-water monitoring regular
1-14
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tions. Chapter 3 builds upon this framework and explores Che interrelation-
•
ship between the two sets of regulations. These two chapters are designed
to give enforcement officials the regulatory perspective they will need to
design ground-water remedies that are consistent with and supportive of the
permitting process.
Chapter 4 provides an overview of the enforcement tools available to
secure desired remedies. It compares and contrasts the various order author-
ities and discusses some of the factors enforcement officials should consider
when designing enforcement strategies.
Chapter 5 discusses how to fashion a technical remedy. The chapter
uses a case-study approach to illustrate how enforcement officials can
construct remedies that correct present violations while advancing a facility
toward permitting. The chapter develops a model remedy for a typical "transi-
tion-period" facility and then describes how to use the combined authorities
of Parts 265 and 270 to secure that remedy.
Finally, Chapter 6 discusses how to write an order to secure the
desired remedy. The chapter emphasizes the importance of specificity in
order writing and explores various strategies that may be followed in
developing and issuing administrative orders. Appendix A includes a model
order that illustrate some of the principles developed in this chapter.
The Agency has also prepared a draft document entitled, RCRA Ground-
Water Monitoring Technical Enforcement Guidance (TEGD). This document
addresses specific technical elements of ground-water monitoring system
design. For example, it discusses the types of well construction methods
1-15
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that the Agency considers acceptable for yielding representative water
samples. The draft final version of the TEGD is dated August, 1985 and
is available from the Office of Waste Programs Enforcement (OWPE).
1-16
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7U/J
CHAPTER 2
REGULATORY OVERVIEW
This chapter provides an overview of the Part 265 and Part 264 ground-water
monitoring regulations. It attempts to abstract from the regulatory language
and describe how the programs were intended to function in the real world.
Enforcement and permitting officials are strongly encouraged to read this
chapter even if they are familiar with the regulations.
The chapter discusses only the requirements that apply to hazardous waste
management units. In accordance with the Solid and Hazardous Waste Amendments
of 1984, permitted facilities may soon be required to monitor solid waste
management units as well as hazardous wast? management units. However, the
specific requirements applicable to these units have not yet been established
and will not necessarily be identical to the current Subpart F program detailed
below.
2.1 Interim Status Ground-Water Monitoring - Part 265. Subpart F
The goal of the Part 265 regulations Is to ensure That owners and
operators of interim status landfills, land treatment facilities, and surface
impoundments evaluate the impact of their facility on the uppermost aquifer
underlying their site. To achieve this goal, the regulations establish a
two-stage ground-water program designed to detect and characterize the
migration of any wastes that escape from a facility.
The focus of both stages of the program is on evaluating the nature and
extent of leakage, not on the removal or treatment of contamination should it
2-1
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be detected. Removal and treatment of contamination deeaed unacceptable
must be dealt with through the exercise of the Agency's enforcement author-
ities under S3008(h) or §7003 of RCRA, §106 of CERCLA, or through the RCRA
permitting process (See Chapter 4 on Order Authorities and Section 2.2.3
of this chapter).
2.1.1 Detection Monitoring
Detection monitoring, the first stage of interim status monitoring,
Is required at interim status land disposal facilities unless the owner/
operator can demonstrate that there Is a low potential for migration of
hazardous waste from hi3/'hor facility to water supply wells or to surface
water. The objective of detection monitoring is to determine whether a land
disposal facility has leaked hazardous waste into an underlying aquifer
in quantities sufficient to cause a significant change in ground-water
quality.
To accomplish this objective, the regulations direct the owner/operator
to install a monitoring network which Includes wells located downgradient
from the facility at the limit of the waste management area and wells
located upgradient that are capable of providing samples representative of
ground water unaffected by the facility. Although the regulations recognize
that for a small site with the simplest hydrogeologic subsurface three
downgradient wells and one upgradient veil might suffice, the number,
depth, and location of wells must ultimately be selected so that the network
meets the regulatory performance standard of immediately detecting any
2-2
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'?2> 1 - 1
c
/
migration of statistically significant amounts of hazardous waste or hazard-
ous waste constituents into the uppermost aquifer [§265.91(a)].
To determine whether leakage has occurred, the owner/operator must
compare monitoring data collected downgradient from his/her facility to
background water quality data established over an initial period of one
year. The comparison is based on three sets of parameters designed to
characterize water unaffected by the facility and to predict possible
leakage of hazardous waste.
The first set of twenty parameters, listed in Part 265 Appendix III,
defines the general suitability of the aquifer as a drinking water supply.
These parameters were selected because they are recognized by the Safe
Drinking Water Act as important to overall drinking water suitability.
The second set of parameters (chloride, iron, manganese, phenols, sodium,
and sulfate) establish general ground-water quality and can be used to
characterize the suitability of ground water for a variety of non-drinking
uses. Information on these parameters is largely collected in anticipation
of future confirmation of leakage. Should detailed assessment of ground
water prove necessary, historical data on these major ion groups will
help owner/operators predict the mobility of hazardous waste under actual
site conditions.
The final set of parameters includes four measures selected as gross
indicators of whether contamination of ground water has occurred. These
four indicators - pH, specific conductance, total organic carbon (TOC), and
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total organic halogen (TOX) - were chosen because of their widespread use,
their well-established test procedures, and their general ability to reflect
changes in the organic and inorganic composition of ground water. Faced
with designing a monitoring program that would be responsive to a large
undefined set of chemical compounds at unspecified concentrations, the
Agency chose to rely on broad, surrogate neasures that could predict whether
significant contamination had occurred.
The regulations require the owner/operator to sample and analyze for all
three sets of p^rarierers quarterly for one year. Quarterly sampling is
required so that seasonal effects will be incorporated into the characteri-
zation of background water quality. At the end of the first year, the owner/
operator must establish background for each contamination indicator by
averaging the quarterly measurements obtained for that parameter from the
upgradient wells. These upgradient mean values are important because they
establish the initial background concentrations to which all subsequent
upgradient and downgradient concentrations will be compared.
After initial background is established, the owner/operator continues
sampling on a less frequent schedule. The ground-water quality parameters
(chloride, phenol, etc.) must be analyzed at least annually and the contam-
ination indicators (TOX, pH, etc.), at least semi-annually.
At this point, however, detection monitoring begins to focus more
specifically on the four contamination indicators. Each time a facility
samples for a contamination indicator, the owner/operator must compare the
values obtained from his/her upgradient and downgradient wells with the
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mean values obtained for that parameter during the first year of background
sampling. (Note that both upgradient data and downgradient data are compared
to first year mean data derived from upgradient wells). The regulations
specify that the facility owner should use a Student's t-test to the .01
level of significance when making comparisons [265.93(b)j.
If a Student's t-test for an upgradient well shows a significant increase
in the concentration or value of an indicator parameter (or any change in pH),
it may mean that sources other than the facility are affecting ground water.
Alternately, a obi.-.gc in upgradient water quality could be due to mounding of
contaminated ground water beneath the facility or a change in hydraulic
gradient such that originally upgradient wells are now downgradient relative
to the facility. (This condition would be reflected in changes in ground-
water elevation measurements over time.) Whatever the cause, a significant
change in upgradient water quality should be investigated and noted in the
company's annual report to the Agency [§265.94(a)(2)(ii)].
A Student's t-test for a downgradient well that shows an increase in an
indicator parameter (or any change in pH), signals potential ground-water
contamination and is the first indication that a facility may be leaking.
If a statistically significant change is detected, the facility moves into
the second phase of interim status monitoring, ground-water assessment.
2.1.2 Assessment Monitoring
Once a significant change in water quality triggers a facility into
assessment, the owner/operator must notify the Agency and submit a proposed
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program for determining whether hazardous wastes or their constituents have
entered ground water and if so, their concentration, rate, and extent of
migration [§265.93(d)(2) ]. Because detection monitoring parameters are
non-specific, a. statistically significant change in one parameter may not
necessarily represent migration of hazardous waste constituents int" ground
water. For example, pH could change independent of contamination if recharge
patterns at the site shifted such that ground water infiltrated through
formations with significant buffering capacity. The first step in assess-
ment monitoring, therefore, is to determine whether hazardous waste
constituents have indeed migrated into ground water.
In many cases, the detection monitoring network already installed at
the site can be used for this purpose. Of course, use of the existing
system assumes that the network is capable of detecting low part per billion
levels of hazardous waste constituents (listed Appendix VII of Part 261
and in §§261.24 and 261.33) in the uppermost aquifer. If sampling reveals
no contamination, the owner/operator may returr r.o his original detection
protocol or enter Into a consent agreement with EPA to follow a revised
protocol designed to avoid future false triggers. If, on the other hand,
contamination is confirmed, the owner/operator must begin characterizing
the rate and extent of migration.
Normally, assessment monitoring will require installation of arid*,- ,
tional well clusters Iccrtrd to define the vertical and horizontal extent
of the plume. Unlike detection monitoring where wells would be placed
more or less evenly along the downgradient border of the waste management
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area, wells in assessment monitoring could be concentrated in one area of
the site so as to track the migration of a localized discharge. In addition
to direct sampling for hazardous waste constituents, the owner/operator
may rely on indirect techniques, such as electrical resistivity or ground-
penetrating radar, to help define the boundaries of a plume.
Based on these techniques, the owner/operator must submit to EPA (as
soon as technically feasible), a written report assessing the quality of
ground water at the facility (§265.93(d)(5)). After this initial assess-
ment of ground-water contamination, the facility must continue assessment
monitoring at least quarterly until the facility closes or is permitted.
Additionally, the owner/operator oust continue detection monitoring in any
wells unaffected by the initial leak (i.e., wells away from the edge of
the plume where no hazardous waste constituents have been detected or
wells around other non-leaking units).
It is important to note that no direct regulatory consequences flow
from a finding of contamination in assessment monitoring. The purpose of
assessment monitoring is strictly to acquire Information to support future
decisions regarding the need for corrective action. The purpose does not
include determinations of whether or not such facilities are environmentally
acceptable. Strategies for cleaning up unacceptable contamination must be
developed through the permitting process or through enforcement action
under §3008(h), §7003, or under CERCLA §106.
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2.2 Permit Regulations for Ground-water Monitoring - Part 264. Subpart F
The primary goal of Part 264 ground-water monitoring is to ensure
that owners and operators of facilities handling hazardous waste detect any
release of contamination into ground water and take corrective action when
such contamination threatens human health or the environment. To achieve
this goal, the regulations establish a three-stage program designed to
detect, evaluate, and correct ground-water contamination arising from leaks
or discharges from hazardous waste management facilities. The program is
graduated so that the monitoring and clean-up responsibilities of the
owner/operator expand as the impact of the facility on ground water becomes
better understood.
2.2.1 Detection Monitoring
The first stage of the program, detection monitoring, is Implemented at
facilities where no hazardous constituents are known to have migrated from
the facility to ground water. Applicants who are seeking permits for new
facilities or for interim status facilities that have not triggered into
assessment, would generally qualify for Part 264 detection monitoring (the
latter assumes, of course, that the interim status monitoring network is
adequate to detect contamination).
The actual monitoring requirements of Part 264 detection are similar to
those already imposed under the interim status regulations. In the preamble
to the regulations EPA expressed the expectation that properly designed
interim status networks would be sufficient for most permit detection
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systems. In Part 264 detection monitoring, however, the permittee routinely
monitors for a select set of indicator parameters specified in the permit
rather than for the four indicator parameters specified in the Part 265 reg-
ulations. Should the arrival of leachate from the facility be Indicated
by an increase (or pH decrease) of any of the parameters relative to background,
the permittee must immediately sample for all constituents listed in Appendix
VIII in order to determine the chemical composition of.the leachate.^ In
addition, the owner/operator oust submit, within 180 days, an engineering
feasibility plan that outlines an approach for cleaning up ground water should
clean up prove necessary [§264.98(h)(5)]. The facility in turn is obliged
to move into the next phase of the Part 264 ground-water program - compliance
monitoring.
2.2.2 Compliance Monitoring
The goal of compliance monitoring is to ensure that leakage of hazardous
constituents (Part 261 Appendix VIII constituents) into ground water does not
exceed acceptable levels. Through the permit, therefore, the Agency and
the facility must specify what level of each constituent will be considered
environmentally acceptable and.then establish a program of routine monitoring
to ensure that acceptable levels are not exceeded. If concentration limits
4 The Agency may use enforcement discretion so as not to require sampling
for those substances that are unstable in ground water or for which there
exists no EPA-approved test method. For a list of these substances see the
August 16, 1984 memo from Courtney Price and Lee Thomas entitled, "Enforcing
Ground-Water Monitoring Requirements in RCRA Part B Permit Applications."
The Agency has also proposed to waive monitoring requirements for such sub-
stances (See 49 FR 38786, October 1, 1984).
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are exceeded, Che permittee must Institute a corrective action program
designed to bring the concentration levels back within acceptable limits.
The permit writer establishes the framework for a compliance monitoring
program by incorporating a ground-water protection standard into the permit.
The standard consists of four elements, each of which must be specified in
the permit.
The first element of the standard is a listing of all Appendix VIII
hazardous constituents present in ground water that could reasonably have
been derived from the facility. The burden of demonstrating that a particular
Appendix VIII constituent could not reasonably be derived from a facility,
lies with the owner/operator. Claims of exclusion must be based on a
detailed chemical analysis of the facility's waste and must consider possible
chemical reactions that could occur in the facility or during the migration
of leachate into ground water. An exclusion is also available for an
individual constituent if the owner/operator can demonstrate that it is
incapable of posing a substantial present or potential hazard to human health
or the environment. Given this standard of proof, however, exclusions will
be granted rarely; the ground-water protection standard of most facilities,
therefore, will include all Appendix VIII constituents detected in ground
water.
The basis for Identifying the Appendix VIII constituents present in
ground water will vary depending on the status of the facility at the time of
establishing the protection standard. Facilities that are operating under
detection monitoring permits will have identified the Appendix VIII const!-
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tuencs present in ground water as part of their detection monitoring respon-
sibilities [see §264.98(h)(2)]. Facilities that have not yet received
permits and are operating under Part 265 assessment monitoring, however,
may have to perform additional sampling because assessment monitoring
requires the determination of Appendix VII substances rather than the full
complement of constituents listed in Appendix VIII. (Appendix VII is but a
subset of Appendix VIII - see section 3.3 for further explanation of this
point). Consequently, the facility owner in Part 265 assessment monitoring
will have to undertake additional sampling and analysis before the facility
can be permitted. [Note: the permit application regulations (Part 270)
require facilities to characterize plumes with respect to Appendix VIII
constituents (see §270.14(c)(4))].
The second element of the ground-water protection standard is the
specification of a concentration limit for each hazardous constituent
listed in the facility permit. Where possible, concentration limits must
be based on well established numerical concentration limits for specific
constituents. Where established standards are not available, the permit
writer must set concentration limits so as to prevent degradation of water
quality unless the owner/operator can demonstrate that a higher limit will
not adversely affect public health or the environment. Following this
approach, concentration limits must be set at either:
1) the maximum concentration limit for drinking water established
by the National Interim Primary Drinking Water Regulations
(where applicable);
2) the background level of the constituent in ground water; or
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3) an alternate concentration limit (ACL) if the owner/operator
can demonstrate that a higher concentration will not pose a
substantial present or potential hazard to human health or the
environment (§264.94).
The third and fourth elements of the ground-water protection standard
are the point of compliance and the compliance period. The compliance
point is the location at which the ground-water protection standard applies
and hence is the point where monitoring must occur. The regulations
specify that the point of compliance is the vertical surface located at
the downgradient limit of the waste management area (§264.95). The com-
pliance period is the period during which the ground-water protection
standard applies. This period is equal to the active life of the facility
plus the closure period [§264.96].
After the ground-water protection standard is established, the
permittee must monitor ground water to ensure that the facility continues
to comply with its protection standard. If properly designed and constructed,
the monitoring network established for detection monitoring should be
adequate for this purpose. In addition, the permittee must sample annually
for Appendix VIII constituents to detect any additional substances that
may have entered ground water. Should sampling reveal a new constituent,
the permit writer must amend the protection standard to include a concentra-
tion limit for the new constituent.
2.2.3 Corrective Action
If compliance monitoring reveals that a facility is exceeding its
ground-water protection standard (i.e., the concentration of a hazardous
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constituent in ground water exceeds the maximum limit established in the
permit), the facility trust institute a corrective action program. The
goal of corrective action is to bring the facility back into compliance
with its protection standard. To achieve this goal, the facility must
develop a plan for removing the hazardous constituents or for treating the
constituents in place [§264.99(i)(2)]. If approved by the Agency, the
permit writer will incorporate this plan into the facility permit.
The permit writer must also include in the permit a program of ground-
water monitoring adequate to demonstrate the effectiveness of the corrective
action measures [§264.100Cd)]. At the limit of the waste management area,
this program will be essentially the same as the compliance monitoring
program although permit writers may want to increase the number of wells
and the frequency of monitoring art or near the compliance point where the
plume appears to be concentrated. Also, owner/operators will be required
to install additional monitoring wells near the downgradient edge of the
plumt s>o that the Agency can monitor the effectiveness of the corrective
action program.
The permittee must implement corrective action measures until compliance
with the ground-water protection standard is achieved. Once contamination
has been reduced below the concentration limit set in the permit, the facility
may discontinue corrective action measu~c-
-------
specified in Che permit, the permittee oust continue corrective action
until monitoring shows that the ground-water protection standard has not
been exceeded for three years [§264.100(f)].
2.3 Permit Application Regulations - Part 270
Part 270 of the regulations specifies the information an applicant
must submit to the Agency when applying for a permit. The information
requirements related to ground-water monitoring can be organized into two
basic groups. The first group, outlined in §270.14(c), establishes the
nature of the facility's impact on ground water, as well as the hydro-
geologic characteristic^ of the site's subsurface and the extent of the
waste management area. The second group includes the information necessary
to establish one of the three Part 264 ground-water monitoring and response
programs (detection monitoring, compliance monitoring, and/or corrective
action).
2.3.1 Information Requirements of §270.14(c)
Section 270.14(c) includes four basic information requirements.
First, applicants must present the data collected during interim status
monitoring (where applicable). If the facility has implemented a satis-
factory monitoring system under interim status, these data should provide
information useful for determining whether hazardous constituents have
entered ground water. The Permit Applicant's Guidance Manual for Hazardous
Waste Land Treatment, Storage, and Disposal Facilities (May, 1984) states
that this provision requires submlttal of background information to support
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these data as well as Che data themselves. For example, the Applicant's
manual instructs owner/operators to submit:
o a map showing the location of upgradient and downgradient
wells;
o a copy of the facility's sample and analysis plan;
o a description of the stati.=>cical procedure used in proces-
sing the data submitted;
o copies of water analysis results; and
o a description of the design and construction of each well.
Second, the applicant must identify the uppermost aquifer and liydruul-
ically interconnected aquifers beneath the facility property. The application
must indicate ground-water flow directions and provide the basis for the
aquifer identification (i.e., a report written by a qualified hydrogeologlst
on the hydrogeologlc characteristics of the facility property supported by
at least the well drilling logs and available professional literature).
This information is needed to evaluate the adequacy of the ground-water
monitoring system that the applicant proposes to operate after the permit
is issued. (Readers are referred to the Permit Applicant's Manual for a
discussion of what constitutes an adequate hydrogeologic investigation;
additional guidance will be provided by the 'final TEGD).
Third, $270.]4(c)(3) requires the applicant to delineate the waste
management area, the property boundary, and the proposed point of compliance.
This information should be transposed onto a topographic map along with, to
the extent possible, the designation of the uppermost and any interrelated
aquifers.
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Finally,-$270.14(c)(4) requires applicants to describe any plume of
contamination that has entered ground water by:
o delineating the extent of the plume; and
o identifying the concentration of each Appendix VIII.
constituent throughout the plume or identifying the
maximum concentrations of each Appendix VIII con-
stituent in the plume.
This requirement applies to the following three categories of facilities:
1. Facilities where no interim status monitoring data are available
(e.g., waste piles, facilities that wrongly claimed a waiver
from interim status ground-water monitoring requirements);
2. Facilities whose interim status data indicate contamination; and
3. Facilities whose Part 265 detection monitoring system is inadequate
to determine whether or not a plume of contamination exists.
As the Permit Applicant's Guide indicates (page 9-42), the permit writer
will evaluate the ability of the facility's well network and sample and
analysis plan to determine the presence of a plume. If EPA determines that
the interim status monitoring program was inadequate to detect contamination,
the applicant will be instructed to provide the information required by
S270.14(c)(4).
2.3.2 Information Requirements for Appropriate Part 264 Ground-water System
Part 270 also requires permit applicants to submit information sufficient
to establish the appropriate ground-water monitoring program under Part 264.
The information requirements relevant to any particular facility depend on the
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status of that.facility at the time of permitting. If monitoring conducted
pursuant to Part 265 and Section 270.14(c)(4) has not revealed contamination,
the applicant must submit the information, data, and analysis necessary to
implement a detection monitoring program. If monitoring has revealed the
presence of hazardous constituents in ground water at the point of compliance,
the applicant must outline a program of compliance monitoring and submit
a study that estimates the engineering feasibility of various forms of
corrective action [§270.14(c)(7)]. Where the concentration of a hazardous
constituent exceeds background or an alternate concentration level proposed
by the applicant, (s)he must instead submit a detailed plan for corrective
action and a description of the monitoring program intended to demonstrate
the adequacy of the corrective measures [$270.14(c)(8>]. Detail concerning
the specific Information required to support each type of monitoring program
is provided in the regulations and expanded upon in the Permit Applicant's
Guidance Manual §§ 9.6 - 9.8.
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CHAPTER 3
REGULATORY COMPARISONS
In order Co devise enforcement strategies that are consistent with
and supportive of the permitting process, it is important to have an under-
standing of how the Parts 265 and 264 ground-water monitoring regulations
interrelate. As mentioned previously, the Agency envisioned the interim
status period as a time in which to develop, among other things, the infor-
mation necessary to support permitting. Indeed, one of the overall goals
of interim status monitoring was to generate the data necessary to decide
whether the facility p^uuc should Include a detection monitoring program,
a compliance monitoring program, or a program for corrective action.
In short, the Agency envisioned a smooth transition from interim status
detection monitoring, through assessment, to final permitting. A facility
would proceed from one phase of monitoring to the next by building upon the
monitoring system implemented during the previous stage. While interim
status monitoring focused on a smaller number of constituents in order to
limit the routine monitoring obligations of the owner/operator, the Agency
never considered the physical well networks of the Part 265 and Part 264
programs fundamentally different. Sampling protocols and schedules would
change to be consistent with the new objectives of each monitoring phase,
but the physical well network (if properly designed) could serve throughout
the life of a facility. A Part 265 detection system, for example, may
need to be expanded to meet the needs of compliance monitoring, but with
proper foresight, the existing wells need not be replaced.
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Unfortunately, certain interim status monitoring systems are insufficient
in quality and breadth to meet the Part 265 standards. Of those that meet
the minimum standards, few have been designed in expectation of the facility's
future monitoring obligations. As a r^sal:, facilities that should be
close to meeting their Part 264 ground-water obligations, are in fact not
prepared for the permitting process.
If enforcement officials are going to help bridge this gap, they must
have a thorough understanding of exactly how the Part 265 and Part 264
regulations interrelate. To aid officials in this effort, this chapter
will outline the major similarities and differences between the requirements
of three ground-water monitoring programs: Part 265 detection vs. Part 264
detection; Parts 264/265 detection vs. compliance monitoring; and Part 265
assessment monitoring vs. plume characterization activities conducted pursuant
to $270.14(c)(4).
3.1 Part 265 vs. Part 264 Detection Monitoring
3.1.1 Well Placement
For all practical purposes, the requirements governing, well placement
are the same for both Part 265 and Part 264 detection monitoring. Whereas the
regulatory language differs slightly, a network designed to meet the Part 265
standard should be substantially the same (In terms of well locations and
depths) as one designed to meet the Fa^t 264 standard.
Both programs Include a performance standard for background well place-
ment that requires a sufficient number of wells, installed at appropriate
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locations and depths, to yield ground-water samples that are: 1) representative
of the background'water quality in the uppermost aquifer; and 2) unaffected
by leakage from the facility [Compare 5265.91(a)(l) with §264.97(a)(l) and
§264.97(a)(2)J.
Both programs also include similar language regarding the placement of
downgradient wells, although the Part 265 regulations require placement at
the "limit of the waste management area," whereas the Part 264 regulations
require placement at the "point of compliance" [cf., 26S.9l(a)(2) and
264.97(a)(2)]. While worded differently, the physical well location dictated
by both programs is, by definition, essentially the same. The regulations
define the "waste management area" as "the limit projected in the horizontal
plane of the area on which waste will be placed during the active life of a
regulated unit" [S264.95(b)].5 Where there is more than one unit at a facility,
the waste management area is described by an Imaginary line circumscribing
the various units* Hence, wells in Part 265 detection monitoring must be
placed at the edge of the waste management area.
5 The Permit Applicant's Manual further qualifies this definition by
noting that for Part 265 systems, EPA will evaluate the areal extent of the
waste management area at an expanding facility against the regulatory man-
date to choose well locations so as "to immediately detect" the migration
of hazardous waste into the uppermost aquifer. For permit applications,
EPA will evaluate the proposed waste management area against the policy of
designing monitoring programs so as to give an early warning of the release
of contaminants. In either case, EPA does not recommend that facility
owners propose a waste management area whose limit is geographically remote
from the active waste handling zone. Rather, monitoring wells should be
closely associated with the active zone even if this means redefining the
waste management area as a facility expands.
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Wells in Part 264 detection oust also be placed at the edge of the
waste management area because the point of compliance is, by definition,
the edge of the waste management area projected downward into the uppermost
aquifer [see S264.95(a)]. The point of compliance is, therefore, the limit
of the waste management area described in three dimensional space (See
Figure 3.1). Both regulations mandate, consequently, that wells are located
along the same thin land surface. Parts 265 and 264 similarly require
well spacings and depths capable of detecting statistically significant
contamination in the uppermost aquifer.
Figure 3.1
RELATIONSHIP OF THE WASTE MANAGEMENT AREA
TO THE POINT OF COMPLIANCE
LIMIT Of THE
WASTE MANAGEMENT
AREA
THREE DIMENSIONAL
POINT OF COMPLIANCE
UPPER MOST AQUIFIER
GROUND-WATER
FLOW
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3.1.2 Indicator Parameters
The concept of sampling for parameters designed "to indicate contami-
nation" Is the same for both Parts 265 and 264 detection monitoring. The
Part 265 regulations mandate the use of four specific indicators for all
facilities, whereas the Part 264 regulations require the permit writer to
specify a set of site-specific indicator parameters in each facility permit.
The greater latitude and scope afforded by the Part 264 regulations
allows the permit writer to design the detection program around the partic-
ulars of a specific facility. Rather than rely on broad, generic measures
such as TOC, the permit writer can compel sampling for specific constituents
known to be in the facility's waste. As a result, a Part 264 detection
system can be designed to be more sensitive than the Part 265 system speci-
fied in the interim status regulations.
3.1.3 Sampling Frequency
Both the Part 265 and Part 264 regulations require quarterly sampling
for one year to establish background, and at least semi-annual sampling
thereafter.
3.1.4 Appropriate Sampling Techniques
The choice of the sampling device and the appropriateness of the materials
used in the device are dictated by the needs of the most sensitive constituent
of interest. In general, the most sensitive constituents will be volatile
3-5
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organics because as a class, volatile organics are highly susceptible to
degassing and chemical interference with sampling-device materials (e.g.,
silicon tubing). For most monitoring applications, therefore, the sampling
device will be chosen to meet the needs of volatile organics.
Given that the Part 265 detection program necessarily includes a volatile
organic parameter, TOX, that can be measured reliably at the 5 ppb level (see
Method 9020 in "Test Methods for Evaluating Solid Waste, SW-846), sample
device selection for interim status monitoring will always be dictated by
the needs of volatile organics. Therefore, if a Part 264 detection program
includes sampling for any volatile organic, then the sampling devices and
materials appropriate for each program would be the same. Considering that
264 detection systems almost always contain at least one volatile organic
indicator, the sampling requirements of both 265 and 264 detection monitor-
ing will be essentially equivalent in most cases.
It is conceivable, however, that a sampling device appropriate for Part
264 sampling would NOT be appropriate for Part 265 detection if the permit
writer did not require sampling for any volatile organics (e.g., if the
facility were a monofill of hexavalent chromium and the permit writer elected
chromium as the only Part 264 detection parameter). Such a facility could
use a sampling device normally inappropriate for measuring volatile organics.
If, however, a chromium waste facility rvtr detected contamination, the
regulations require the owner/operator to sample Immediately for the conti-
ituents listed in Appendix VIII (including many volatile organics). The
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facility owner, therefore, would have Co change sampling devices Co ensure
that he acquired representative samples.
Recognizing this fact, it may be in the best interest of the owner/
operator Co consider his/her long-term monitoring needs when purchasing sampling
equipment. To the extent that facility owners purchase and use equipment for
detection monitoring that will still be suitable should leakage occur, the
sampling mechanisms appropriate for 265 and 264 detection monitoring once
again converge.
3.1.5 Statist*.-21 Comparisons
Both the Parts 265 and 264 detection monitoring regulations require the
owner/operator to determine whether there has been a statistically significant
increase over background for any indicator parameter specified in the
program (or decrease for pH).
The statistics used to make this determination, however, vary between the
programs in two important ways. First, the Part 264 detection program requires
the owner/operator to use a specific Student's t-test when defining significance
(the Cochran's Approximation to the Behrens Fisher Students t-test), unless he
can defend another statistical technique as substantially equivalent. The Part
265 program, on the other hand, makes no allowance for an alternate statistical
technique, but the regulations do not specify a particular variant of the Student's
t-test; any Student's t-test is acceptable.
Second, the Part 264 detection regulations require the test to be applied
to the .05 level of significance, while the 265 regulations specify a signifi-
3-7
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cance level of .01. The level of significance sets Che balance between
the chances of the test falsely detecting contamination ("false positive")
and the test failing to identify contamination that has occurred.6 By
raising the level of significance for the Part 264 standards, the Agency
achieved greater assurance that the test would not fail to detect actual
contamination. During the interim status period, the Agency was willing to
reduce the chances of "false positives" by accepting a slightly higher prob-
ability of failing to detect leakage. This balance was acceptable for interim
status because the Agency knew it would have another opportunity to investigate
possible leakage during the permit application process. For the permit
regulations, however, the Agency decided that a lower level of significance
would unduly compromise the ability of the test to detect contamination.
3.2 Part 264 Detection Monitoring vs. Part 264 Compliance Monitoring
3.2.1 Well Placement and Network Design
Well placements for compliance monitoring more closely resemble
detection monitoring networks than they do assessment networks. One should
not assume that network configurations for compliance monitoring will resemble
configurations suitable for Part 265 assessment monitoring simply because both
programs represent a second phase of monitoring after detection monitoring.
In fact, in some cases the network installed for detection monitoring will
6 Readers should note that this discussion pertains to the false positive
rate caused by the statistical test alone. Many other factors, such as insuffi-
cient number of background wells, can cause a facility to trigger under detection
monitoring when contamination has not actually occurred. In fact, many "falsg
positives" are not a function of statistics, but are a function of such thing!
well location, sampling, and chemical analysis.
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become che compliance monitoring network; all that will change la Che sampling
protocol and tire objective of the monitoring program.
Given that compliance monitoring is meant to evaluate contamination rather
than just detect it, there is a strong possibility that existing detection net-
works may have to be expanded to meet the broader objectives of compliance
monitoring. The more complicated statistical techniques used to evaluate
monitoring data during compliance monitoring, for example, may require a
greater number of background wells than the statistical approach used during
detection monitoring. Likewise, the permit writer may want to require
additional downgradient wells in the immediate vicinity of those wells where
contamination has been detected.
i
Additional wells are generally most appropriate when contamination has
been detected in only one or two monitoring wells, indicating a localized
leak. With localized leaks, only a limited amount of dispersion can occur
before the plume passes the point of compliance (see Figure 3.2). As a
result, more wells may be necessary to ensure that measurements of contami-
Figure 3.2
GROUND-WATER
PLOW
HQINO:
CXIfTINO MONITORING WILL
»«OPOMO MONTONINa WILL
CONTAMINANT PLUM!
UNED SUP.PACE
IMPOUNDMENT
FUTURE LOCATION OP
COMPLIANCE MONITORING
WELL
TRIGGERING WILL
3-9
-------
nation represent the high concentrations characteristic of the plume's centetf
rather than the Lower concentrations normally found in the plume's periphery.
In short, in some circumstances an existing detection system may have co
be expanded under compliance monitoii.ig, out the general well configurations
for detection monitoring and compliance monitoring are the same.
3.2.2 Establishing Background Concentrations
The regulations specify that background concentrations for Part 265 and
Part 264 detection Indicator parameters must be based on quarterly samples for
one year. Under compliance monitoring, however, the regulations grant Che
permit writer leeway on how to establish background. (Recall that background
values are very important in compliance monitoring because in many instances,
these background values will be incorporated into the ground-water protection
standard as "concentration limits.")
The permit writer has two options for establishing background
values for compliance monitoring constituents. The permit writer may
establish concentration limits based on the taeau uf pooled background data
available at the time of permitting. To ensure that sufficient data are
available for this purpose, the permit writer may require the applicant to
undertake an accelerated program of background sampling prior to permitting.
Alternately, if there is a high temporal correlation between up- and
dovngradient concentrations, the pemi: ^ic^r may specify that background
values be established b> -aupling upgradient wells each time ground water is
sampled at the point of compliance. With this approach, background concentra-
3-10
-------
Clone are not established by averaging values obtained over time; rather,
background values are established anew after each sampling event.
3.2.3 Sampling Frequency
Since hazardous constituents are already present in ground water when
compliance monitoring begins, the regulations require a more aggressive sampling
schedule for compliance monitoring than for detection monitoring. Under
detection monitoring, the regulations state that sampling for indicator
parameters should occur at least twice a year (once background is established)
[§265.92(d)(2)j. By contrast, the compliance monitoring regulations require
routine sampling of the hazardous constituents listed in the facility's
protection standard at least su*.rterly.
3.2.4 Statistical Comparisons
Whereas the regulations specify the use of a specific t-test protocol
when evaluating monitoring data obtained during detection monitoring, they
do not detail specific procedures for use during compliance monitoring. The
compliance monitoring regulations require that the statistical procedures
used be appropriate for the distribution of data encountered and provide a
reasonable balance between the probability of falsely identifying and failing
to identify violations of the ground-water protection standard.
Moreover, unlike detection monitoring, the compliance monitoring
tabulations do not establish a particular level of significance for use
when making comparisons. The high number of comparisons likely in most
compliance monitoring programs will Increase the probability of false
3-11
-------
positives; therefore, permit writers are granted the latitude to choose a
level of significance that will strike an appropriate balance between the
probability of false positives and false negatives.
3.3 Part 265 Assessment Monitoring vs. S270.14(c)(4) Plume Characterization
Both Part 265 assessment monitoring and §270.14(c)(4) require facility
owners to assess any plume of contamination that has entered ground water.
The programs differ, however, in two important ways.
First, the Part 265 assessment program applies only to facilities that
have detected the existence of a plume through Part 265 ground-water monitoring.
The §270.14(c)(4) requirements, on the other hand, apply to any facility
that has not demonstrated the absence of contamination through proper Part
265 monitoring.
Second, Part 265 assessment requires monitoring for hazardous wastes or
"hazardous waste constituents" [see §265.93(d)(4)], whereas §270.14(c)(4)
requires sampling for "hazardous constituents." "Hazardous constituents"
are those substances listed in Appendix VIII of Part 261. "Hazardous waste
constituents," as defined in §260.10, are the constituents that provided the
basis for listing each of the hazardous wastes identified in Part 261 Sub-
part D, or a constituent listed in Table 1 of §261.24 (constituents with
National Interim Drinking Water Standards under the Safe Drinking Water
Act).
Appendix VII identifies the specific constituent(s) responsible for
the listing of wastes from the non-specific sources in §261.31 as well as
3-12
-------
from Che specific sources contained in S261.32. In the case of any of the
discarded commercial chemical products, off-specification products, and
spill residues listed in §261.33, the chemical product itself is considered
the constituent responsible for the listing of the substance in Part 261.
Interim status assessment monitoring, therefore, requires the owner/
operator to sample for any Appendix VII constituent, any substance listed in
§261.33, or any substance listed in §261.24 that is in the facility's waste.
Section 270.14(c)(4), on the other hand, requires sampling for the full comple-
ment of Appendix VIII constituents.
This difference between the two programs is significant. Part 265's
reliance on "hazardous waste constituents" rather than on Appendix VIII
constituents could mean that certain constituents in a facility's waste
would not be included in a Part 265 assessment monitoring program.
A number of factors may be responsible for the exclusion of certain
constituents. First, the constituents identified in Appendix VII as the
basis for listing individual wastes in Part 261, are not necessarily a complete
list of all hazardous constituents contained in each waste. In developing
Appendix VII, EPA did not attempt to conduct an exhaustive analysis of all
constituents in the waste that could have provided a basis for the listing
(§261.11 provides the criteria the Administrator must use when listing a
waste). Rather, the Agency identified a few of the more commonly known consti-
tuents in each waste that could pose a substantial present or potential hazard
to human health or the environment.
3-13
-------
Second, Appendix VII only applies to listed wastes; it does not address
hazardous constituents that may be present in wastes deemed hazardous because
they exhibit one of the characteristics in Part 261. Table 1 of $261.24
addresses wastes exhibiting the characteristic of E.P. toxicity, but "hazardous
waste constituents" do not include non-listed wastes deemed hazardous because
of corrosivity, reactivity, or ignitability. Moreover, Appendix VII and
Table 1 of $261.24 were not developed to address the constituents that may be
formed when various wastes are mixed in a regulated unit, or when wastes react
with constituents in the soil. As a result, a Part 265 assessment program
could conceivably fall to include a consltituent of concern at a particular
facility. It must be recalled, however, that the interim status regulations
were designed to be self-implementing, not exhaustive. ?
? Chapter 4 explores the various enforcement authorities available to
compel sampling for Appendix VIII constituents at interim status land disposal
facilities if such sampling appears necessary. Depending on the circumstances,
a §3008(a) order enforcing §270.14 (c)(4), a $3013 order or a $3008(h) may be u
(See section 4.1.1 for further explanation).
3-14
-------
" • O• * I
:; /SI, \
CHAPTER 4
OVERVIEW OF ORDER AUTHORITIES
There are a variety of order authorities available to correct ground-
water problems at RCRA hazardous waste facilities. Section 3008(a) of RCRA
provides for the issuance of orders and for the commencement of civil suits
when any requirement of Subtitle C is violated. RCRA also establishes
enforcement authorities under Sections 3004(v), 3008(h), 3013, and 7003.
Any of these authorities may be used, in certain circumstances, to address
ground-water problems. In addition, the enforcement authority in §106 of
CERCLA may be available in many cases.&
While there will undoubtedly be instances where it is most appropriate
to file a civil suit under S3008U), §3008(h), or S7003, or to initiate
criminal proceedings under §S3008(d) and (e), there are three order author-
ities that should prove most useful in addressing inadequate ground-water
monitoring programs:
o §3008(a) orders seeking penalties and/or injunctive relief
for violations of Part 265 Subpart F and Part 270;
o §3008(h) orders seeking the investigation and implementation of
corrective action for releases of hazardous waste or hazardous
constituents; and
o §3013 orders seeking monitoring, investigations, analyses,
and reporting by facilities that the Administrator has deter-
mined may present a substantial hazard to human health ok the
environment*
8 For further information on the applicability and scope of CERCLA 106
orders, see the September 8, 1984 memo on the "Use and Issuance of Administra-
tive Orders under §106(a) of CERCLA" from Lee Thomas and Courtney Price.
4-1
-------
This chapter will compare these three order authorities .and will descri^
some of the factors that enforcement officials should consider when selecting
which authority(ies) to use to compel a specific remedy.
4.1 Comparison of S3008(a). §3008(h). and §3013 Orders
The table on the two following pages presents a comparison of §3008(a),
§3008(h), and §3013 orders with respect to the types of actions that the
orders may compel, the types of situations that may trigger the issuance of
an order, the burden of proof the Agency must satisfy, whether there are
formal administrative proceedings that must be followed, and any special
features of the authority (e.g., the ability to assess penalties). The
section of the chart dealing with §3008(a) orders is divided into the follow-
ing three segments:
o §3008(a) enforcing Part 265 detection monitoring
o §3008(a) enforcing Part 265 assessment monitoring
o §3008(a) enforcing Part 270 requirements.
4.1.1—Actions the Orders May Require
As shown in Table 4.1, a $3008(a) order enforcing Parts 265 and 270 can
be used to require the following general categories of ground-water-related
activities:
o a thorough hydrogeologic-characterization of the site;
o design and installation of a well network capable of
immediately detecting contamination from the facility;
o specification of well drilling and development methods
as well as casing materials;
4-2
-------
FIGURE 4.1 COMPARISON OF ORDER AUTHORITIES
ORDER IVfll
rOSSIILE TECHNICAL EiEMEMTS Of ORDER
*-
1
co
§3MI dl ENFORCINfi
PART Mi DETECTION
§JMI III ENFORCINO
PART IM ASSESSMENT
§MM M ENFORCIM
PART !!•
§MM IM
§UIJ
m
•
•
*
•
•
•
]
•
•
^
•
•
•
•
•
•
*
•
•
^
'
•
«
•
•
•
•
•
•
•
•
1
•
NOTES.
PARAMETER IIST INCLUDES »H. SPECIFIC CONDUCTANCE. TOC. TOM. CHLORIDE. IRON. MAN6ANESE. SODIUM.
PHENOLS. SULFAIES. AND SUUIANCES LISTED IN APPENDIX III OF PART Mi.
-------
FIGURE 4.1 COMPARISON OF ORDER AUTHORITIES (Continued)
OROf R TYPES
§1MI U) ENFORCI
PARTM
§JSM (i| EMFORCII
rARTM
§3IM U) EMFORCII
f ART 17
§1NI (hi
6 1
DETECTION 1
6
i ASSESSMENT
C
1
I
§3M3
•
•
•
•
•
•
•
_
•
•
•
•
-
• 1
'
•
*
• THE AGENCY HAS NOT VET ESTABLISHED THE PROCEEDINGS TO IE FOLLOWED WHEN USING
PMIIM ORDERS
NOTES:
• WHEREAS S 3MSU) IS THE ONLY AUTHORITY THAT PROVIDES FOR THE ASSESSMENT OF PENALTIES FOR REGULATORY
VIOLATIONS. §3SM(k) AND 3M3 |AS WELL AS §JMtdl|PROVIDE FOR THE ASSESSMENT OF PENALTIES IF THE TERMS
OF AN ORDER ARE VIOLATED. "
-------
o sampling for any parameter listed in Appendix VII or VIII of
Part 261 or Appendix III of Part 265, or specified in §265.92
(chloride, iron, manganese, phenols, sodium, sulphate, pH, specific
conductance, total organic carbon, and total organic halogen); and
o a design of the ground-water monitoring system that would be
operated after the permit is issued.
Section 3008(h) and S3013 orders can in many cases be used to obtain
the same baseline injunctlve relief available under §3008(a). More signifi-
cantly, orders issued under §3008(h) and $3013 may be used to address contam-
ination of media other than ground water and releases from solid waste manage-
ment units. Further, $3008(h) can be used to go beyond the investigation
and monitoring stage to require actual clean up of releases into the environ-
ment.
One caution with respect to $3013 and $3008(h) orders is that they may
compel only those actions that are needed to investigate or address a release
of hazardous waste or hazardous constituents [§3008(h)J or a substantial
hazard [$3013]. While there will be cases in which the issuance of orders
under those authorities is appropriate, it may in 3omt_ cases be necessary
to issue a simultaneous $3008(a) order to obtain compliance with Part 265/270
requirements. Further, penalties for violations of Parts 265 and 270 may be
assessed only through Issuance of a §3008(a) order.
4.1.2 Conditions for Order Issuance
S3008(a) Orders
A $3008(a) order may be issued only for violation of one or more Subtitle C
requirements. Therefore, when enforcement personnel and the permit writer
4-5
-------
determine a facility's ground-water monitoring program to be technically
inadequate, enforcement personnel should determine whether any of the technical
inadequacies constitute violations of Part 265 Subpart F or Part 270.9
In some cases the regulations are specific as to what findings of fact
would indicate violations. For example, if an owner/operator has installed
only two downgradient wells, the facility is clearly out of compliance with
S265.91(a)(2) of the regulations, the section that requires installation of
at least three downgradient wells. Likewise, if a facility does not have
some of the records specified in the regulations (e.g., an assessment outline),
or has not performed some of the required analyses, then the owner is clearly
in violation. The decision concerning the existence of a violation becomes
more involved when it is based upon evaluating the adequacy of a facility's
ground-water monitoring system beyond the minimum requirements.
In great part, the heightened level of analysis required to evaluate
the overall adequacy of a system evolves from the regulations' reliance on
broad performance standards. Given the great variability between sites in
terms of wastes handled, hydrogeology, and climate, it is impossible to
design a regulatory system that defines for all cases exactly what constitutes
an adequate ground-water monitoring program. As a result, the Agency relies
on performance standards to define "adequate."
9 As cited, herein, references to Part 265, Subpart F and Part 270
requirements of authorized State programs.
4-6
-------
The performance-oriented provisions of Subpart F sec high standards for
interim status ground-water monitoring systems, and enforcement personnel
should not underestimate the power and applicability of this language. For
example, even though the regulations establish a minimum of one background
monitoring well, a single well Is seldom sufficient because owner/operators
must design their systems to meet the background-well performance standard
listed in §26S.91(a)(l). Section 265.91(a)(l) requires owner/operators to
install a sufficient number of wells at appropriate locations and depths to
yield samples representative of background water quality not affected by the
facility. If a facility's well array does not meet this standard, the owner/
operator is out of compl'enco with the regulations. Figure 4.2 summarizes
the Part 265 and Part 270 performance standards relating to ground-water
monitoring.
Figure 4.3, on pages 4-9 through 4-14, illustrates in greater detail
the relationship between certain technical inadequacies of ground-water
monitoring programs and the regulatory performance standards of RCRA. The
left-hand side of the table lists a series of standards that must be met in
order to meet the the performance standards summarized in Figure 4.2 (e.g.,
background-well samples must be unaffected by the facility). The middle
column Includes examples of technical inadequacies that could prevent a
system from meeting the left-hand standards and therefore could represent a
violation of one or more of the performance standards (e.g., failure to
consider flow paths of dense immiscibles when locating background wells).
Finally, the right-hand column lists for each technical inadequacy the
performance standard(s) that may have been violated.
4-7
-------
FIGURE 4.2
GROUND-WATER PERFORMANCE STANDARDS
PARTS 265 and 270
CITATION
STATTEfcRD
$265.90(a)
the owner/operator of a land disposal facility must implement a
ground-water monitoring program "capable of determining the facility's
inpact on the quality of ground water in the uppernost aquifer
underlying the facility,..." (emphasis added)
S265.91(a)
a ground-water rtonitoring system "oust be capable of yielding
ground-water samples for analysis..."
S265.91(a)(l)
the number, locations, and depths of background monitoring wells
must be "sufficient to yield ground-water samples that are:
(i) r.eorjscntative of background ground-water quality in the
uppermost aquifer near the facility; and
(ii) (tot affected by the facility..."
S265.91(a)(2)
the number, locations, and depths of downgradient monitoring wells
nust ensure that they "immediately detect any statistically significant
amounts of hazardous waste or hazardous waste constituents that
migrate from the waste management area to the uppermost aquifer."
(emphasis added)
S265.93(d)(4)
S270.14(c)(2)
an assessment monitoring plan must be capable of determining:
"(i) vttether hazardous waste or hazardous waste constituents
have entered the ground water; —
(ii) The rate and extent of migration of hazardous waste or
hazardous waste constituents in the ground water..."
the Part B applicant must submit, among other things, an "identifica-
tion of the uppermost aquifer and aquifers hydraulically interconnected
beneath the facility property, including ground-water flow direction
and rate, and the basis for such identification (i.e., the informa-
tion obtained from hydrogeologic investigations of the facility
area)." (enphasis added)
S270.14(c)(4)
the Part B applicant must include in the submittal a "description of
any plume of contamination that has entered the ground water from a
£
regulated unit at the time that the application was submitted that:
(i) delineates the extent of the plume...,
(ii) identifies the concentration of each Appendix VIII...
constituent...throughout the plume..." (emphasis added)
4-8
-------
FIGURE 4.3
RELATIONSHIP OF TECHNICAL INADEQUACIES TO GROUND-WATER
PERFORMANCE STANDARDS
Examples of Basic
Elements Required
by Performance
Standards
Examples of Technical
Inadequacies that may
Constitute Violations
Regulatory
Citations
1. Uppermost Aquifer must
be correctly identified
2. Ground-water flow
directions and rates must
be properly determined
failure to consider aquifers
hydraulically interconnected to the
uppermost aquifer
incorrect identification of certain
formations as confining layers or
aquitards
failure to use test drilling and/or
soil borings to characterize sub-
surface hydrogeology
failure to use piezometers or wells
to determine ground-water flow
rates and directions (or failure to
use a sufficient number of them)
failure to consider temporal varia-
tions in water levels when
establishing flow directions (e.g.,
seasonal variations, short-term
fluctuations due to pumping)
failure to assess significance of
vertical gradients when evaluating
flow rates and directions.
failure to use standard/consistent
benchmarks when establishing
water level elevations
• failure of the O/O to consider the
effect of local withdrawal wells on
ground-water flow direction
• failure of the O/O to obtain suffi-
cient water level measurements
§265.90(a)
§265.91(3X1)
§270.14
-------
FIGURE 4.3 (continued)
Examples of Basic
Elements Required
by Performance
Standards
Examples of Technical
Inadequacies that may
Constitute Violations
3. Background wells must
be located so as to yield
samples that are not
affected by the facility
Regulatory
Citations
• failure of the O/O to consider the §265.90(a)
effect of local withdrawal wells on §265.
ground-water flow direction
• failure of the O/O to obtain suffi- §265.90(a)
cient water level measurements §265.
• failure of the O/O to consider flow §265.90(a)
path of dense immiscibles in §265.91(3X1)
establishing upgradient well
locations
• failure of the O/O to consider §265.90(a)
seasonal fluctuations in ground- §265.91 (aX1)
water flow direction
• failure to install wells hydraulically §265.90(a)
upgradient, except in cases where §265.91 (a)(1)
upgradient water quality is
affected hy the facility (e.g..
migration of dense immiscibles in
the upgradient direction, mound-
ing of water beneath the facility)
• failure of the O/O to adequately §265.90(a)
characterize subsurface §265.91 (aX1)
hydrogeology
• wells intersect only ground water §265.90(a)
that flows around facility §265.91(3X1)
4. Background wells must
be constructed so as to
yield samples that are
representative of in-situ
ground-water quality
wells constructed of materials that
may release or sorb constituents
of concern
wells improperly sealed—con-
tamination of sample is a concern
nested or mulitple screen wells
are used and it cannot be
demonstrated that there has been
no movement of ground water
between strata
improper drilling methods were
used, possibly contaminating the
formation
well intake packed with materials
that may contaminate sample
§265.90(a)
§265.91 (a)
§265.90(a)
§265.91(a)
§265.91 (c)
§265.90(3)
§265.91 (aX D
§265.91(aX2)
§265.90(3)
§265.91(3)
§265.90(3)
§265.91(3)
§265.91 (C)
4-liJ
-------
FIGURE 4.3 (continued)
mi,
Examples of Basic
Elements Required
by Performance
Standards
Examples of Technical
Inadequacies that may
Constitute Violations
Regulatory
Citations
Background wells must be
constructed so as to yield
samples that are represen-
tative of in-situ ground-water
quality, (continued)
well screens used are of an inap- §265.90(a)
propriate length §265.91 (aXl)
§265.91(3X2)
wells developed using water other §265.90(a)
than formation water §265.91 (a)
improper well development §265.90(a)
yielding samples with suspended §265.91 (a)
sediments that may bias chemical
analysis
use of drilling muds or nonforma- §265.90(a)
tion water during well construction §265.91 (a)
that can bias results of samples
collected from wells
5. Downgradient monitoring
wells must be located so as
to ensure the immediate
detection of any contamina-
tion migrating from the
facility
6. Oowngradient monitoring
wells must be constructed
so as to yield samples that
are representative of in-situ
ground-water quality
• wells not placed immediately adja- §265.90(a)
cent to waste management area §265.91 (a)(2)
• failure of O/O to consider poten- §265.90(a)
tial pathways for dense §265.91 (a)(2)
immiscibles
• inadequate vertical distribution of §265.90(a)
wells in thick or heavily stratified §265.91 (a)(2)
aquifer
• inadequate horizontal distribution §265.90(a)
of wells in aquifers of varying §265.91 (a)(2)
hydraulic conductivity
• likely pathways of contamination §265.90(a)
(e.g., buried stream channels, §265.91 (a)(2)
fractures, areas of high
permeability) are not intersected
by wells
• well network covers uppermost §265.90(a)
but not-ir. 3i connected aquifers §265.91 (a)(2)
See *4
4-11
-------
Examples of Basic
Elements Required
by Performance
Standards
Examples of Technical
Inadequacies that may
Constitute Violations
Regulatory
Citations
7. Samples from
background and down-
gradient wells must be
properly collected and
analyzed
• failure to evacuate stagnant water
from the well before sampling
failure to sample wells within a
reasonable amount of time after
well evacuation
• improper decisions regarding
filtering or non-filtering of samples
prior to analysis (e.g., use of filtra-
tion on samples to be analyzed
for volatile organics)
• use of an inappropriate sampling
device
use of improper sample preserva-
tion techniques
samples collected with a device
that is constructed of materials
that interfere with sample integrity
samples collected with a non-
dedicated sampling device that is
not cleaned between sampling
events
improper use of a sampling
device such that sample quality is
affected (e.g., degassing of sam-
ple cauwl by agitation of bailer)
§265.90(a)
§265.92(a)
§265.93(d)(4)
§270.14
-------
FIGURE 4.3 (continued)
731
Examples of Basic
Elements Required
by Performance
Standards
Examples of Technical
Inadequacies that may
Constitute Violations
Regulatory
Citations
Samples from background
and downgradient wells
must be properly collected
and analyzed (continued)
• improper handling of samples
(e.g., failure to eliminate
headrace i.om containers of
samples to be analyzed for
volatiles)
• failure of the sampling plan to
establish procedures for sampling
immiscibles (i.e., "floaters" and
"sinkers")
• failure to follow appropriate
QA/QC procedures
failure to ensure sample integrity
through the use of proper chain-
of-custody procedures
• failure to demonstrate suitability of
methods used for sample analysis
(other than those specified in
SW-846)
• failure to perform analysis in the
field on unstable parameters or
constituents (e.g., pH, Eh, specific
conductance, alkalinity, dissolved
oxygen)
• use of sample containers that
may interfere with sample quality
(e.g., synthetic containers used
with volatile samples)
• failure to make proper use of
sample blanks
§265.90(a)
§265.92(a)
§265.93(d)(4)
§270.14{cX4)
§265.90
-------
Examples of Basic
Elements Required
by Performance
Standards
Examples of Technical
Inadequacies that may
Constitute Violations
8. In Part 265 assessment
monitoring the O/O must
sample for the correct
substances
9. In defining tt.-e Appendix
VIII makeup of a plume the
O/O must sample for the
correct substances
10. In Part 265 assessment
monitoring and in defining
the Appendix VIII makeup of
a plume the O/O must use
appropriate sampling
methodologies
11. Part B applicants who
have either detected con-
tamination or failed to imple-
ment an adequate part 265
QWM program must deter-
mine with confidence
whether a plume exists and
must characterize any
plume
Regulatory
Citations
• failure of the O/O's list of sam- §265.93(dX4)
pling parameters to include cer-
tain wastes that are listed in
§261.24 or §261.33, unless ade-
quate justification is provided
• failure of the O/O's list of sam- §265.93(dX4)
pling parameters to include
Appendix VII constituents of all
wastes listed under §§261.31 and
261.32, unless adequate justifica-
tion is provided
• failure of the O/O's list of sam- §270.l4(c)(4)
pling parameters to include all
Appendix VIII constituents, unless
adequate justification is provided
• failure of sampling effort to iden- §265.93(dX4)
tify areas outside the plume §270.i4(cX4)
• number of wells was insufficient §265.93(dX4)
to determine vertical and horizon- §270.l4(cX4)
tal gradients in contaminant
concentrations
• total reliance on indirect methods §265.93(d)(4)
to characterize plume (e.g., elec- §270.14(c)(4)
trical resistivity, borehole
geophysics)
• failure of O/O to implement a §270.14(C)(4)
monitoring program that is
capable of detecting the existence
of any plume that might emanate
from the facility
• failure of O/O to sample both §270.U(c)(4)
upgradient and downgradient
wells for all Appendix VIII
constituents
See also items #1, #2
4-14
-------
The technical inadequacies in Figure 4.3 are not necessarily violations
in all cases. They are violations only when they result in a failure of the
facility to meet one or more of the performance standards. Further, the
list of technical inadequacies is not meant to be exhaustive. To a certain
degree, the decision as to whether a facility's monitoring program is adequate
must be made on a case-by-case basis.
S3013 Orders
Section 3013 orders may be issued to a facility only when the Admini-
strator determines that the presence or release of hazardous waste at the
facility may present a substantial hazard to human health or the environment.
The facility need not be violating RCRA regulations to qualify for action
under $3013.
Actual physical evidence of contamination is not necessary to support a
§3013 order. In the case of a facility that has not conducted any ground-water
monitoring activities, the potential for release of hazardous waste, the
nature of the site's underlying hydrogeology, and the proximity of an aquifer
or populated area will usually be sufficient, with expert opinion, to support
a §3013 order. In some cases, the Region may wish to use §3007 authority to
sample one or more wells at a facility in order to provide direct evidence
of a release. Given that direct evidence is often unnecessary to establish
the applicablity of §3013, the Region should probably avoid direct sampling
unless it is confident that existing wells will intersect the suspected
plume. Guidance Issued September 26, 1984 provides further discussion of
the grounds for issuance of §3013 orders. (See memo from Courtney Price and
4-15
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Lee Thomas entitled, "Issuance of Administrative Orders Under Section 3013
of the Resource Conservation and Recovery Act").
S3008(h) Orders
Section 3008(h) of RCRA provides that the Administrator may issue an
order or file a civil suit requiring corrective action or other appropriate
response measures whenever (s)he determines that there is or has been a.
release of hazardous waste into the environment. Section 3008(h) actions are
not limited to violations of RCRA.
As described in the September 1985 draft guidance on the scope and use
of S3008(h), the Agency is interpreting the term "release" to include any
spilling, leaking, pumping, pouring, emitting, erupting, discharging, inject-
ing escaping, leaching, dumping, or disposing into the environment. To show
that a release has occurred, the Administrator does not necessarily need
sampling data. Such evidence as a broken dike at a surface impoundment
should also support a determination that a release has occurred. In some
cases, information on the contents of a land disposal unit, along with infor-
mation on the site hydrogeology and the design and operating characteristics
of the facility may be enough for an expert to conclude that a release has
occurred*
Section 3008(h) orders.(and civil suits) may be used to address releases
not only to the ground water, but to other media as well. The draft §3008(h)
guidance states that the authority covers releases of hazardous wastes into
4-16
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m i,
surface water, air, the l*nd surface, and the sub-surface strata. The term
"hazardous waste" is not limited to those wastes listed or identified in
40 CFR Part 261. For §3008(h) purposes, the tens hazardous waste also
Includes the hazardous constituents identified in Appendix VIII of Part 261.
4.1.3 Formal Administrative Proceedings
Orders Issued and penalties assessed under §3008(a) are subject to
formal administrative proceedings. Section 3006(a) proceedings are governed
by 40 CFR Part 22. (See Appendix B for a diagram of the process). The
Agency has not yet established the proceedings to be followed when issuing
S3008(h) orders.
Part 22, which governs the Issuance of S3008(a) orders, sets out a
process that affords a respondent the opportunity to request a hearing on
the violation, the penalty, and the remedy proposed by the Agency. Following
any such hearing, the Administrative Law Judge will issue an Initial Decision
that includes a proposed Final Order and may include a proposed penalty. At
that point the respondent has 20 days in which to appeal the Initial Decision
to the Administrator. If an appeal is not made within this time period the
order becomes final and non-appealable 45 days after issuance of the Initial
Decision.
Section 3013 orders are not subject to any formal administrative
proceedings.
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4.2 Selection Among Order Authorities
There are a number of factors that should be considered when deciding
which order authority(ies) to invoice. The enforcement staff should consider
first which order authorities are applicable to the actions, inactions, or
conditions involved. Next, the Region should consider which of the applicable
authorities provide a legal basis for requiring the remedy that the Region is
seeking, including the assessment of penalties. Figure 4.1 may be consulted
for a general listing of the activities that can be sought under each authority.
In most cases, there will be several options that meet the tests of
applicability and coverage of the desired remedy. The enforcement options
can be further narrowed by considering: I) the strength of the evidence in
support of each type of order; 2) the elements that must be established and
whether they refer to regulations or must be established de novo; 3) the
amount of time that is likely to pass before compliance is achieved; and 4)
any complications that might arise from using certain combinations of
authorities.
When estimating the amount of time that may pass before compliance
with a S3008(a) order is achieved, the Regions should assess the probability
of the facility appealing the order. This is particularly important where
action needs to be taken quickly in order to halt or avoid a hazard or
endangerment. If the facility is likely to challenge a S3008(a) order
in the District Court, the Agency might elect to file a civil suit seeking
preliminary injunctlve relief or to issue a §3013 order (if the §3013 test
could be met). Alternatively, the Agency could take action itself to
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mitigate an immediate threaC to public health or the environment under
CERCLA 5104. -
When contemplating using two authorities to compel different aspects of
the desired remedy, enforcement officials should keep in mind the different
procedures that accompany each order. For instance, there may be cases in
which a Region would consider issuing simultaneous §3008(a) and §3013 orders:
a 53008(a) order to compel proper well placement and assess penalties and a
S3013 order to compel sampling for constituents not listed in Parts 260-270.
While simultaneous issuance of these orders is acceptable, the Region should
be aware that one order is subject to administrative hearings and the other
is not; therefore, appeal of the §3008(a) order may delay the full implemen-
tation of the remedy.
In general, a §3008(a) order enforcing Parts 265 and 270 and assessing
penalties will be the most practical enforcement option. Such an order can
be used to attain nearly any desired improvement to a ground-water monitoring
program. It can also be used, as noted in Section 1.2.1, to require a facility
to sample the ground water for constituents listed in Appendix VIII of Part 261.
Section 3013 and §3008(h) orders also have several common features that
make them particularly attractive in certain circumstances. Both order
authorities may be used to address contamination of media other than ground
water. For example, either order could be used to address facilities with
both ground-water and air problems. Moreover, unlike S3008(a) orders,
S3008(h) and S3013 orders are not bound by the ground-water monitoring regimen
specified in the regulations. Therefore, the Agency has more flexibility in
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specifying monitoring parameters and sampling frequencies when Issuing §3013
and §3008(h) orders.
Each order authority also has unique features that may make It particu-
larly appropriate for certain situations* Section 30L3, for example, grants
the Agency the authority to perform investigatory activities and recover
costs later if a respondent is incapable of or refuses to perform the-neces-
sary actions. Section 3008(h) does not provide for cost recovery, but can
be used to compel facilities to go beyond the investigation stage and take
corrective action if necessary. In addition, §3008(h) orders can be used
to address past releases from solid waste management units and contamination
extending beyond the facility boundary.
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CHAPTER 5 7 / "3 \ , \
FASHIONING A REMEDY AND DEVELOPING THE ENFORCEMENT STRATEGY
The first and perhaps most important step in developing an enforcement
action for a facility with ground-water monitoring problems is fashioning an
appropriate remedy. Only after outlining the desired remedy can the Region
design an enforcement strategy that will best achieve the desired results.
This chapter will describe several scenarios involving problem monitoring
programs and, using one common scenario as an example, will Illustrate some
of the principles that enforcement officials should consider when designing
technical remedies. Then, using the same violator as an example, the chapter
will design an enforcement strategy to compel the model remedy.
5.1 Types of Violators
Each ground-water case will, of course, have unique features. It is
possible, however, to group RCRA ground-water violators into several broad
categories that characterize the status of the facility at the time of enforce-
ment review. Figure 5.1 outlines one possible scheme that divides facilities
into groups based on a combined evaluation of their Part 265 system and the
adequacy of their permit application. This scenario will be used later in
Figure 5.3 to illustrate possible remedies and enforcement strategies for
facilities with different types of ground-water violations.
The assumption in this scheme is that all the facilities listed are in
violation of Part 270 because they did not generate the information necessary
for permitting. In some cases, this deficiency derives from inadequate
5-1
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compliance with Part 265 (facilities Chat have inadequate 265 detection
systems, for example, will not have generated the information necessary to
determine whether the facility should be permitted under detection monitoring,
compliance monitoring, or corrective action). In other cases, facilities
may have complied with 265, but not have completed all activities required by
the permit application regulations (e.g., the facility performed some assessment
activities based on Appendix VII, but did not sample for Appendix VIII as
required by §270.14(c)(4)).
FIGURE 5.1
Violator Classification Scheme
Scenario
Facility Status
Possible Sources of Inadequacy
1. ^statistically significant change
in Part 265 indicator parameters;
Physically adequate detection network;
Agency has reason to believe there
Ls contamination.
Part 265 indicator parameters are
adequate to detect type of leachatli
expected from facility; site hydro-
geology or facility's engineering
design puts facility at high risk
of leaking.
No statistically significant change
in Part 265 indicator parameters;
Inadequate Part 265 detection
system.
Well placements made based on insuf-
ficient hydrogeologic assessment;
Too few wells; Inappropriate sampling
device; Wells not properly developed,
etc.
Statistically significant change in
Part 265 indicator parameters;
Inadequate Part 265 detection system;
Inadequate Part 265 assessment.
Owner/operator used only indirect
techniques to assess plume.
Statistically significant change in
Part 265 indicator parameters;
Adequate Part 265 assessment;
Inadequate permit application.
Owner failed to identify all Appendix
VIII constituents in ground water;
Owner based concentration limits
on insufficient background samplit
Owner failed to submit a feaslbl
plan for corrective action, etc.
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5.2 Profile of a "Transition-Period" Violator
During the transition period between interim status and permitting, the
Agency envisions encountering a considerable number of facilities of the type
described in Scenario 2 (Figure 5.1). The Agency's experience to date has
indicated that in certain cases, owner/operators have installed monitoring
networks based on only a limited understanding of the hydrogeology underlying
their site. Monitoring wells have been located based on an evaluation of
local topography and, to the extent possible, evaluation of existing building
foundation borings- A considerable number of owner/operators have not performed
the type of detailed hydrogeologic site assessment the Agency considers
essential for the design of any ground-water monicoring system. Even fewer
have kept the type of well construction and design records the Agency needs
to evaluate the adequacy of the physical well network already in place.
As a result, EPA expects to encounter owner/operators who consider
themselves in compliance but who can not provide the background information
and documentation minimally necessary to substantiate the adequacy of
their Part 265 detection system. Without such information, the Agency vill
not be able to decide whether a facility's detection system is or is not
capable of detecting contamination and hence whether the facility should be
permitted under detection monitoring, compliance monitoring or corrective
action. Not having detected a change in indicator parameters, however,
the facility most likely will have applied for a detection monitoring permit,
considering itself exempt from the assessment requirements of §270.14(c)(4).
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A typical "transition" facility, therefore, could be characterized as
follows:
o the facility has failed to adequately characterize the hydro-
geology underlying its site;
o therefore, the facility's well placements are inaccurate;
o the facility has sampled for the Part 265 indicator parameters.
No statistically significanc increases have been detected In
existing downgradient wells;
o the facility's Part B is due. The facility has submitted a
summary of its interim status monitoring data and has proposed
an expanded list of indicator parameters for Part 264 monitoring.
The permit application Includes procedures for establishing back-
ground values for these parameters, but does not Include actual
background values based on pre-permit sampling.
This chapter will use the above scenario to illustrate some of the
principles enforcement officials should consider when designing remedies fp^
facilities during the interim status to permitting transition period. The
chapter uses Scenario 2 as its point of departure because a facility that
has not detected contamination under interim status presents the greatest
challenge to enforcement officials. Moreover, the remedies appropriate for
the other scenarios presented in Figure 5.1 are but a variation of the remedy
outlined in the following section for the facility described in Scenario 2.
Table 5.5 at the end of the chapter summarizes the variations on the
remedy appropriate for each of the other listed scenarios.
5.3 Outline of the Remedy
When faced with a facility that has a technically inadequate detection
monitoring system, enforcement and permitting officials oust consider first
5-4
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what makes sense -for a facility to do in light of the facility's past and
future monitoring obligations. By this point in the program, an interim
status facility should have installed a fully competent detection monitoring
system, determined with confidence whether there was a statistically signifi-
cant indication of ground-water contamination, and fully characterized any
plume for both Appendix VII and VIII constituents (if contamination were
detected). If a facility has not successfully completed even the first
step - the installation of a competent detection system - it cannot be
allowed to begin the entire sequence anew. Proceeding from the beginning
would mean upgrading the detection system and sampling for one year to
establish background before even the first determination of contamination
is made.
As the time line in Figure 5.2 points out, proceeding through this
entire sequence could take up to two and one-half years. This approach
would lead to unacceptable delays in the permitting process and would
penalize those facilities who had complied with the program all along.
In effect, "starting over" would merely allow facilities that had avoided
the costs of complying in the past, to delay the costs of full compliance
for an additional period of time.
Instead, such facilities should be required to make an accelerated
determination of whether or not contamination has occurred. This determina-
tion can then be used to decide what additional actions, if any, the applicant
must perform to meet his/her permit application requirements.
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Figure 5.2 GROUND-WATER MONITORING SEQUENCE AS ORIGINALLY ENVISIONED
PART 265 DETECTION MONITORING
i r
TRIGGER
PART 265 ASSESSMENT
—| r— PART 270 I
PART B CALL-IN
3rform hydrogeologic
ssessment
nstall detection well
3twork capable of
Immediately detecting"
ne migration of haz-
rdous waste into the
pperroost aquifer.
Collect data quarterly
on A Indicator para-
meters for 1 year (TOX,
TOC, pH, specific con-
ductance).
Average values obtained
across year to establish
"background" level for
each Indicator parameter.
To determine whether
leakage has occurred,
compare values obtained
for indicator parameters
to previously established
background levels using
t-test.
Perform comparison
twice each year.
Assess plume for "haz-
ardous waste consti-
tuents" (primarily
listed In Appendix
VII.)
Note: Appendix VII is
a subset of Appendix
VIII.
Expand plume charac-
terization to include
all constituents
listed in Appendix
VIII.
Develop concentratioi
limits for permit -
either background
values or ACLs.
Develop compliance
monitoring and/or
corrective action
program for incorp-
oration in permit.
3-6 MONTHS
I YEAR
INDETERMINATE PERIOD
'As soon as technic-
ally feasible"
6 MONTHS
iepends on complexity
if site hydrogeolgoy
generally > 6 months
generally at least
4-6 months
POINT A
POINT B
Certain facilit
have not adeem
t ..... I C I - „
he HER
-------
\
Before a determination of .eakage can be made, the facility must Install
a monitoring network capable of detecting contamination. In general, this will
require such facilities to perform additional site characterization and then,
based on the results, expand or replace their existing monitoring network.
Once a competent detection network is in place, the facility is in a position
to determine whether or not contamination has occurred.
The Agency suggests that the determination of whether contamination has
occurred be made based on a comparison of upgradient and downgradient values
obtained for an expanded list of indicator parameters. The indicator para-
meters should be selected based on the specifics of the site and should
include constituents that would be expected co be at the leading edge of any
plume of contamination (see Section 5.4.2). The comparison should be based
on the mean of pooled data obtained through accelerated sampling over a short
period of time. The plan for this determination should be designed to con-
clusively confirm or refute contamination in the shortest period of time
possible.
If contamination has occurred, the facility owner must proceed to charac-
terize the plume and, based on the results, apply for either an operating or
post-closure permit that includes compliance monitoring and/or corrective
action. If contamination has not occurred (i.e. the results of interim
status monitoring were correct even though the detection system was not fully
competent), then the facilty would apply tor a permit as a detection monitoring
facility.
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Thus the preferred technical response for a facility that has not triggered
under detection: monitoring bit has an inadequate Part 265 detection system is1
as follows:
I) Conduct a detailed assessment of the site's
hydrogeology (fill in gaps in the facility's
current understanding of the site's subsurface).
2) Install a monitoring network (or modify/expand
an existing system) to meet the objectives of Parts
265/264 detection monitoring.
3) Sample for an expanded list of indicator parameters.
4) Determine whether contamination has occurred based
on a comparison of upgradient and downgradient well
samples obtained over a short period of time
(accelerated sampling).
5) If contamination is confirmed, begin characterizing
the plume based on monitoring of Appendix VIII
constituents.
6) Sample to establish background for all Appendix VIII
constituents detected in ground water.
7) If downgradient Appendix VIII values are significantly
greater than background values, have facility develop
corrective action plan and apply for corrective action
permit.10
If downgradient Appendix VIII values are lower than back-
ground, have facility submit a corrective action feasibility
study11 and apply for a compliance monitoring permit.
1° Note that if the permit is not likely to be issued quickly, the Agency
may wish to initiate corrective action while the facility is still in interim
status. Several authorities are available to compel such corrective action,
including 53008(h), §7003 and Section 106 of CERCLA. Further, in some
instances, the Agency may choose to conduct a response action under the
authority of CERCLA §104.
11 Section 270.14(c)(7) requires ipplicaits to submit a corrective action
feasibility study when applying for a compliance monitoring permit. The study
must include sufficient information to predict what type of corrective action
(e.g., trench recovery, pumping and treatment) would be appropriate if reme-
dial work proved necessary at that site. It is not meant to be a fully
developed plan for corrective action; such a plan must be developed pursuant
to §264.99(i)(2) if the facility ever exceeds its ground-water protection
standard.
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The schedule of achieving the above remedy will of course depend on the
particulars of the site Involved, especially the complexity of the site's hydro-
geology. While it is impossible to predict how long it will take (or should
take) to accomplish each step, the sequence of monitoring events in this remedy
should be significantly shorter than the sequence laid out in the regulations.
As illustrated in Figure 5.3, the remedy recommended in this document
in effect eliminates the collection of a year's worth of background data and
condenses the monitoring required by Part 265 assessment [primarily Appendix
VII] and §270.l4(c)(4) [Appendix VIII] into one plume characterization phase.
Now confirmation (or denial) of leakage can be accomplished through accelerated
sampling over a period of weeks or months rather than taking over a year.
5.4 Discussion of the Remedy
The basic elements of the remedy are the design and installation of a
competent detection monitoring well network; determination of whether or not
leakage has occurred based on sampling for an expanded list of parameters;
and the fulfillment of all applicable Part 270 informational requirements.
"The following section will describe briefly certain factors enforcement
officials should keep in mind when developing each aspect of the remedy.
Later sections will explore the order and regulatory authorities available
to compel each of the outlined activities.
5.4.1 Design and Installation of a Competent Monitoring Network
The facility owner should be required to upgrade his/her existing network
to meet the detection standards of Part 265. The reader should note that if
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Figure 5.3 NEW GROUND-WATER COMPLIANCE STRATEGY BASED ON CONDENSED MONITORING SEQUENCE
FACILITIES THAT
HAVE NOT FORMALLY
TRIGGERED
Fill in gaps In hydrogeologic
assessment
Upgrade existing well network
to meet Part 265 standards
Develop list of expanded
indicator parameters that
includes constituents
expected to be derived
from waste found at the
facility
Determine whether contamination
has occurred based on a comparison
of data from up- and downgradlent
wells collected on an accelerated
schedule over a short period of
time.
NOTE: Determination is no longer
based on comparison of
current values to "back-
ground" values established
over 1 year.
en
I
If contamination is confirmed,
begin assessing plume based
on monitoring of Appendix VIII
constituents
Sample to establish background
for all Appendix VIII consti-
tuents detected in ground
water for possible inclusion
in ground-water protection
standard.
Develop compliance monitoring
and/or corrective action
program for incorporation
in permit
2 to 4 MONTHS'
2 MONTHS
4 to 6 MONTHS
FACILITIES THAT HAVE
MANAGED TO TRIGGER
DESPITE INADEQUATE
DETECTION SYSTEM
IMMEDIATELY begin installation
of assessment wells downgradie
from "hot" well(s).
SIMULTANEOUSLY fill in gaps
in hydrogeologic assessment
and upgrade detection network
Proceed as above
Time frames^^M vary deoencHne on site-spec! ftc factors
-------
an owner/operator'3 hydrogeologlc data submitted pursuant to $270.14(c)(2) is
inadequate, it Is likely that the facility's detection monitoring well network
Ls inadequate as veil. The reader should also note that since the the design
and construction standards for a Part 265 system are essentially the same as
those required by Part 264 (see Chapter 3), the network installed for the
determination of leakage proposed in the model remedy should serve equally
well as the facility's Part 264 detection monitoring system if no plume is
found.
5.4.2 Confirmation of Leakage Based on Expanded Sampling
Central to the determination of leakage proposed in the model remedy is
the development of a list of meaningful indicator parameters. When selecting
parameters, enforcement officials should not limit themselves to the four
indicators listed in S265.90.12 These parameters were selected as the best
indicators available to detect a broad spectrum of possible leachates.
Because the interim status regulations were meant to be self-implementing,
Part 265 detection monitoring could not rely on waste-specific Indicators
selected for each facility. As a result these parameters are limited in
their frM 11ry to indleate contamination soon after leakage.
The Part 265 indicator parameters are limited in three ways. First,
the Part 265 indicator parameters are subject to sources of natural variation
that can mask the presence of low levels of contamination. There are many
natural sources of variation in pH, for example, that could obscure changes
12 See Section 5.5.2 for an explanation of the authorities available
to compel sampling for a broader list of parameters.
5-11
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In this parameter caused by leachate. Changes In levels of a specific para-
meter such as'benzene, however, are not generally subject to such background
"noise." Second, with the exception of TOX (which can be detected at below
20 ppb), the lower detection limit of the other parameters is not sufficiently
sensitive to register some changes in water chemistry that may represent
leakage. Finally, because the Part 265 Indicator parameters are surrogate
measures, increases in a particular chemical constituent do not necessarily
cause an equivalent change in an Indicator parameter. A 5 mg/1 change in
lead, for example, would only initiate a very small change in specific con-
ductance (if any). The same increase in concentration would initiate a
significant change, however, if the facility were sampling for lead itself.
Therefore, enforcement officials should select indicator parameters that
are based on the chemical composition of the facility's waste. The enforcement
official should have the facility identify both the hazardous and non-hazardodV
constituents of the facility's waste, Including any constituents likely to
form as a result of chemical reactions occurring in the facility or in the
leachate as it migrates through the subsurface. Then the owner/operator
should identify those constituents that can be considered the most mobile and
persistent in the unsaturated and saturated zones beneath the facility. The
enforcement official should then select those parameters that individually
or as a group (e.g. TOX) can provide the most reliable indication of leakage.
Special attention should be given to whether the parameter Is easily detected
in water and to the variability of the parameter in background water. If
background concentrations of a potential indicator parameter are sufficiently
high or exhibit a high degree of variability, the arrival of low or moderate
concentrations of leachate may be masked.
5-12
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> \
The list of .parameters finally selected should be representative of
constituents at least as mobile as the most mobile hazardous constituent
reasonably expected to be derived from the facility's waste. Concentrating
on the most mobile constituents will ensure that the arrival of leachate is
detected at the earliest possible time.
In addition to indicator parameters, enforcement officials should consider
having the facility sample for additional parameters that characterize the
general quality of water at the site (e.g., Cl~, Fe, Mn, Ha*, S04, Ca*, Mg"1",
K*, NO , P04", silicate, ammonium, alkalinity or acidity). Baseline data on
the inorganic chemical composition of ground water can provide an important
basis for comparison and planning should the program enter the assessment
phase. Information on the major anions and cations that make up the bulk of
dissolved solids in water, for example, can be used to determine reactivity
and solubility of hazardous constituents and therefore predict their mobility
under actual site conditions.
5.4.3 Fulfillment of Applicable Part 270 Requirements
When designing the remedy, enforcement officials should include elements
that address the facility's information obligations pursuant to Part 270. If
contamination is confirmed, the facility must generate the remainder of the
information required by 5270.14(c)(4), namely the extent of migration of any
plume and the concentration of all Part 261 Appendix VIII constituents present
in the plume.
Enforcement officials should also ensure that the remedy Includes the
collection of background data on all Appendix VIII constituents detected in
5-13
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ground water. For many constituents, these data will be necessary to
establish concentration limits for incorporation into the facilty's ground-
water protection standard. As described in section 3.2.1, the permit writer
will have to set concentration limits based on the mean of pooled data avail-
able at the time of permitting (unless there is a high temporal correlation
•
between contaminant concentrations in upgradient and downgradient wells in
which case concentration limits may be established through sampling at the
compliance point). Therefore, it is in the best interests of both the
facility and the Agency to have sufficient data available at the time of
permitting to ac-.rr-tely characterize the quality of the background water
at the site.
To guarantee sufficient data, enforcement officials should consider
incorporating in the facility's prescribed remedy an accelerated program of
background sampling for Appendix VIII constituents. The frequency of sampling
should be dictated by the needs of the statistical test proposed by the facility
for use in compliance monitoring. The sampling schedule should also consider
the need for establishing seasonal and spatial variation in contaminant levels
if such variation is expected at the site. Sections 6.3 and 7.3.2 of the
Permit Writer's Guidance Manual provide further guidance on these points.
In addition, the order should require the submittal of the various
plans and feasibilty studies necessary to -establish a compliance monitoring
program or a program for corrective action pursuant to 5§270.14(c)(7) or (8)
(see Section 2.3.2). By placing these permit application requirements on an
enforceable compliance schedule, enforcement officials can help ensure that
the requirements will be fulfilled in a timely manner.
5-14
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5.5 Application'of Enforcement Authorities to the Remedy .
Once the enforcement staff and permit writer devise an appropriate remedy,
the enforcement staff must determine the order and regulatory authorities best
suited to compel the desired actions. As Section 4.2 on selecting order author-
ities points out, there are a variety of factors enforcement officials cust
consider when developing an enforcement strategy.
When deciding between order authorities, officials must first establish
the applicability of the order to the situation at hand (i.e., does the
situation meet the conditions necessary for the issuance of a particular
order). Next, the official must consider whether the order can compel all
aspects of the desired remedy. Where possible, it is advantageous to secure
the entire remedy through a single authority in order to save resources and
avoid the possibility of different appeal procedures. Finally, enforcement
officials must factor in other relevant concerns such as the facility's
compliance history and whether or not it is important in the instant case to
assess a penalty. In certain circumstances, featuiec such as the ability to
assess a penalty may become the deciding factor when choosing between order
authorities.
This section will apply the above principles to the model remedy
developed in this chapter. It will outline a preferred enforcement strategy
for the model remedy and will note where changes in the remedy could sucgsst.
needed changes in the proposed strategy. Table 5.5 at the end of the chapter,
summarizes various enforcement strategies for facilities with different
ground-water violations and different technical remedies.
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5.5.1 Selection of the Order Authority
Assume that the only information known about the Scenario 2 facility is
that presented in Figure 5.1; namely, the facility is in violation of the
Part 265 ground-water regulations for the following reasons:
1. the facility located Its wells based on a poor understanding of the
site's hydrogeology;
2. there are too few wells installed; and
3. the owner cannot demonstrate that existing wells were properly
constructed.
In addition, the facility is in violation of S270.14(c)(4) because the owner
made no attempt to look for and assess any plume beneath the facility before
the facility's Pact B due date passed.
Based on the above information alone, the most appropriate order author-
ity for compelling the model remedy of this chapter would be a §3008(a) order
enforcing Parts 265 and 270. A §3008(a) order is the authority of choice
for three reasons. First, the condition for issuing a S3008(a) order has
already been met - the facility is clearly in violation of the regulations.
To use either of the other authorities, the Agency may have to expend addi-
tional resources to collect evidence that there may be a substantial hazard
to public health or the environment [§3013] or a release of hazardous waste
or constituents into the environment (53008(h)].
Second, aa the following section will explain, the entire remedy can be
compelled using a S3008(a) order citing relevant sections of Parts 265 and
270. The remedy as presently conceived focuses exclusively on evaluating
5-J 6
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the impact of the facility on ground water; hence, an order that can address
other media, such as a 3013 or 3008(h) order, is not needed. Further, in
this particular case, there is no reason to suspect that the threat posed by
potential ground-water contamination is so compelling as to require corrective
action prior to permitting. Therefore, it is not essential to use an order
that can accommodate clean up of ground water during interim status. Of
course, if additional evidence collected during plume characterization
indicated that clean up should be pursued immediately, a §3008(h) order could
be issued subsequent to the initial §3008(a) action.
Finally, a §3008(a) order has the added advantage that it can be used to
assess penalties. Given chac che facility has been out of compliance for the
entire history of the program, the Agency should exercise its authority to
assess penalties for past and continuing violations including the recovery of
the facility's economic benefit of non-compliance.
Of course, if the starting scenario were different, the considerations
guiding the selection of an order authority could change significantly. For
example, if there were evidence of off-site contamination (e.g., a fish kill
in a nearby stream) and the facility were known to delay resolution of pro-
ceedings by exercising every opportunity for appeal, enforcement officials
may decide to postpone the assessment of penalties and immediately issue an
order under 53013, $7003 or CERCLA §106 to avoid the time delay afforded by
the administrative process. In another '•ape, if a facility were out of
compliance with the ground-water regulations and had significant soil contami-
nation, the Region could use a §3008(h) order to achieve both compliance with
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the regulations and clean-up of contaminated soil. The proper way to balancal
the advantages and disadvantages of each order authority can only be determined
in the context of a particular situation.
5.5.2 Securing the Model Remedy Through a S3008(a) Order
As outlined in Figure 5.4, the model remedy derives directly from the
regulations. Sections from Part 265 and 270 may be cited to compel
additional hydrogeologic investigation and the Installation of an adequate
well network. Section 270.14(c)(4) may be cited to force sampling for an
expanded list of parameters and to justify the comparison of upgradient and
downgradient wells based on accelerated sampling. Finally, relevant sections
of the Part 270 regulations may be cited to require the collection of back-
ground data on Appendix VIII constituents and the submission of other plans
and data necessary for permitting.
Figure 5.4
1.
MODEL REMEDY
Fill in gaps in the current understanding
of the site's hydrogeology
2. Install a monitoring network (or expand an existing
system) to meet the objectives of a Part 265/264
detection system
3. Sample for an expanded list of indicator parameters:
Part 265 indicator parameters (TOX, TOG, pH, specific
conductance)
REGULATORY CITES
§265.90(a)
$265.91
§270.14(c)(2)
§265.91
§265.92(b)(3)
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Figure 5.4 (continued)
y'/SU
Part 265 water quality parameters (Cl, Fe, Mn, Na,
Phenols, Sulfate)
Substances with National Interim Drinking Water
Standards (Appendix III, Part 265)
Appendix VIII of Part 261
4. Determine whether contamination has occurred
based on a comparison of data collected from
up- and downgradient wells over a short period
of time.
S265.92(b)(2)
§265.92(b)(l)
§270.14(c)(4)
S270.14(c)(4)
5. If contamination is confirmed, begin assessing the
plume based on monitoring of Appendix VIII constituents
6. Sample to establish background for all Appendix VIII
constituents detected in ground water
7. Submit data and plans required for either
compliance monitoring or corrective action
§270.14(C)(4)
$270.l4(c)(7)(iv)
§270.14(C)(7) or
(8)
The regulatory cites in this strategy are relatively straight forward;
however, the role of 5270.14(c)(4) deserves attention. As section 2.3.1
explains, the Agency may require a facility to look for and assess a plume
at any facility where the owner/operator's program of interim status monitor-
ing has detected a plume or has failed to establish definitively whether or
not a plume exists.
Under S270.14(c)(4), the facility is obligated to assess the extent of
any plume and sample for the full complement of Appendix VIII constituents.
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Therefore, It is within the Agency's authority to require the facility to
begin assessment and full Appendix VIII sampling immediately. The model
technical remedy, however, Halts the scope of sampling to a more manageable
list of Indicator parameters until the presence of a plume is confirmed or
refuted. In effect, the model technical remedy refrains from-immediately
exercising the full power of §270.14(c)(4) in order to avoid wasted effort if
indeed the facility has not leaked.
5.6 Variations on the Model Scenario
This chapter has used the facility described in scenario 2 to illustrate
some of the principles enforcement officials should consider when designing
technical remedies and developing enforcement strategies. As the scenario
changes, the remedy appropriate for the situation and the enforcement tools
available to secure that remedy change as well. Figure 5.5 (at the end of
the chapter) illustrates how the technical remedy and enforcement response
vary based on the status of the facility at the time of enforcement review.
It is important to note that all proposed remedies Include correcting any
deficiencies in the existing detection network even If the facility has already
detected contamination and begun to characterize the plume. As described in
the Chapter 2, a sound well network at the limit of the waste management area
is critical to every phase of ground-water monitoring, from interim status
monitoring to compliance and/or corrective action monitoring. Therefore, it
makes sense to correct any deficiencies in the interim status detection
system, because these wells will be used throughout the life of the facility.
Moreover, a system may have detected a plume in one area and still be incapable
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ITS I. I
of detecting a plume at some other point. In such cases, the system should
be upgraded so that it will be capable of detecting future plumes of contam-
ination.
It is further important to note that where a facility has managed to
detect a statistically significant change in indicator parameters even
though its detection system is inadequate (see Scenario 2 in Figure 5.5),
enforcement officials should require the facility to begin characterizing
the plume downgradient from the triggering well and at the same time perform
additional hydrogeologic evaluation and upgrade the detection network.
Finally, the technical remedies outlined in this chapter are appropriate
not only for operating units but also for most units that are closed or are
planning to close. Section 270.l(c) states that units closing after January
26, 1983 oust have permits during the post-closure period.13 por units
that accepted hazardous waste after July 26, 1982, the post-closure permit
would include the ground-water monitoring program set- out In Part 264 and
the permit application would include the ground-water monitoring data required
under $270.14(c). Thus, once a closing unit's Part B application is due,
enforcement officials can rely on the same range of enforcement options that
are available to address operating units.
13 In order to implement §3005(1) of the Solid Waste Disposal Act, as amended,
the Agency Intends to propose amending §270.l(c) to make all units closing
after July 26, 1982 subject to post-closure permits. Section 3005(1) of the
revised Act makes all units receiving W&S^BJ after 7/26/82 subject to Part
264 ground-water monitoring and corrective action requirements. Since a permit
is the means by which the Agency implements the Part 264 standards, the
Agency considers it necessary to revise §270.l(c) in order to make all units
subject to Part 264 ground-water monitoring and corrective action also subject
to post closure permitting.
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There are three categories of units that would not currently be subject
to the Part 265/270 program outlined in this chapter. First, units that
closed before January 26, 1983 are not required to obtain permits and thus
are not subject to Part 270 requirements [codification rule may roll this
date back to July 26, 1982]. Second, units that ceased receiving hazardous
waste by July 26, 1982 are not subject to the Part 264 ground-water monitoring
provisions and therefore, in applying for the permit, would not need to
include the ground-water data required under $270.14(c)(4). Third, no post-
closure requirements apply, and thus no permit or permit application is
currently required for a surface 'impoundment or waste pile that closes by
removing all hazardous waste and waste residues from the unit, the under-
lying and surrounding soil, and the ground water. The Agency is presently
evaluating whether §3005(1) may require the Agency to make units that clean
closed under Part 265 but received waste after 7/26/82 subject to post-closure
permitting in order to implement Part 264 ground-water monitoring and corrective
action.
In all of the above cases, however, the Part 265 ground-water monitoring
requirements do apply and should he enforced.1^ In the case of a surface
impoundment closing through removal, the Agency/State should ensure that the
14 The successful execution of closure responsibilities (e.g., installation of
a cap, run-off and run-on control) does not absolve a facility from its Part 265
ground-water monitoring responsibilities. Section 265.117 of the regulations
states that closed facilities must comply with the ground-water monitoring and
"reporting requirements of Subpart F for 30 years after the date of closure.
Therefore to meet its post-closure care requirements, a closed or closing
facility with an inadequate Part 265 monitoring network would have to upgrade
its system and assess any plume of contamination detected during the post-closvfl
care period.
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closure plan provides for monitoring that is adequate to demonstrate the
absence of hazardous waste in the ground water. Surface impoundments
generally cannot qualify for closure by removal if any hazardous waste is
present in the ground water; such impoundments must Instead close as land
disposal facilities.
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FIGURE 5.5 VARIATIONS ON MODEL REMEDY AND ENFORCEMENT RESPONSE
FACILITY STATUS
EXAMPLE SCENARIOS
PROPOSED REMEDY
ADMINISTRATIVE
ENFORCEMENT OPTIONS
1. No statistically significant
increase in indicator
parameters under Part 265
detection. Adequate
hydrogeologic assessment
and construction of wells.
Site conditions or additional
evidence suggest that
leakage may nave
occurred.
a) UnUned lagoon contains a large
volume of lead-containing wastes.
High variability In background
measure of specific conductance
may have masked escape of lead
Into ground water. Subsurface is
naturally acidic. Shallowness of
water table and lack of liner sug-
gest high probability of leakage.
b) Surface impoundment with syn-
thetic liner. Wells placed at 80 ft.
centers. Uniform glacial till with
permeability of 10 ». Nearby pond
downgradient from facility is con-
taminated with TCE. Waste In
surface impoundment is known to
contain TCE. Agency suspects
that there Is ribbon plume escap-
ing from leak in liner.
1. Develop list of met..iingful
Indicator parameter.
2. Sample upgradient and down-
gradient wells for Indicators.
3. H there Is a statistically significant
difference between up- and
downgradient wells, assess plume
to determine extent of migration
and concentration of aH Appendix
VIII constituents (new wells may
be required).
4. Establish background values for
aH Appendix VIII constituents
found In plume.
5. Develop compliance monitoring or
corrective action program as
appropriate
1. Install additional wells In area(s)
of highest probability of leakage
taking Into account hydrogeology
of site and facility design (e.g.,
near liner seams). Note: computer
modeling may help estimate
source of plume.
2. Proceed as in 1(a) above.
1. §3013 if substantial present or
potential threat to public health or
environment exists; or
2. §3008(h) If there is evidence of
release of hazardous waste or
constituents Into the environment.
1. §3013 if substantial present or
potential threat to public health or
environment exists; or
2. §3008(h) If there is evidence of
release of hazardous waste or
constituents into the environment.
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FIGURE 5.5 (continued)
FACILITY STATUS
EXAMPLE SCENARIOS
PROPOSED REMEDY
ADMINISTRATIVE
ENFORCEMENT OPTIONS
2. Statistically significant
increase in Part 265 in-
dicator parameters. Inade-
quate Part 265 detection
system. Inadequate Part
265 assessment.
3. Adequate detection
monitoring system in place.
Statistically significant
increase in Part 265
indicator parameters.
Inadequate Part 265
assessment monitoring pro-
gram; therefore inadequate
permit application.
a) Facility located wells based on
regional hydrogeologic information
only. Facility has only five wells in
place, one considered upgradient
and four considered downgradient
spaced at 400 ft. centers. Facility
has no drilling logs or construc-
tion specs on wells. Despite
inadequacy of system, statistically
significant increase in TOC
detected. ••
a) Owner/operator performed ade-
quate hydrogeologic assessment
and provided drilling logs and well
design specs to substantiate the
adequacy of his detection net-
work. However, the owner/
operator used only ground-pene-
trating radar to define boundaries
of plume and established rates of
migration using unrealistic
assumptions.
1. Fill In gaps in hydrogeologlcal
assessment.
2. Based on results, install new (or
expand and improve) existing
detection network.
3. Concurrently with above, have
facility submit plume characteriza-
tion plan to determine extent of
plume & concentration of Appen-
dix VIII constituents present.
4. Assess plume and establish
background values for all Appen-
dix VIII constituents detected;
5. Develop compliance monitoring
and/or corrective action program
as appropriate.
1. Have facility submit assessment
plan to determine extent of plume
and concentration of all Appendix
VIII constituents.
2. Assess plume and establish
background values for Appendix
VIII constituents detected.
3. Develop compliance monitoring
and/or corrective action program
as appropriate.
1. §3008(a) enforcing Parts 265 and
270;
2. §3013 If substantial present or .
potential threat to public health or
environment exists; or
3. §3008(h) if there is evidence of a
release of hazardous waste or
constituents into the environment.
1. §3008(a) enforcing Part 270.
2. §3013 if substantial present or
potential threat to public health or
environment exists; or
3. §3008(h) if there is evidence of a
release of hazardous waste or
constituents into (he environment
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'IGURE 5.5 (continued)
FACILITY STATUS
EXAMPLE SCENARIOS
PROPOSED REMEDY
ADMINISTRATIVE
ENFORCEMENT OPTIONS
Same as in #3, but Part
265 assessment program
properly carried out. Inade-
quate permit application.
a) Large amounts of K006 waste
disposed at site. Sampling for
relevant Appendix VII constituent,
hexavatent chromium, did not
confirm contamination. Owner/
operator applied for detection
monitoring permit claiming false
trigger. Facility did not sample for
other organic constituents known
to be in K006 waste and listed in
Appendix VIII as required by
§270.14
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FIGURE 5.5 (continued)
FACILITY STATUS
EXAMPLE SCENARIOS
PROPOSED REMEDY
ADMINISTRATIVE
ENFORCEMENT OPTIONS
5. Inadequate Part 265 detec-
tion system. No statistically
significant increase in
parameters. Owner/operator
notifies Agency that (s)he
intends to close. Closure
plan does not address
potential ground-water
problems.
a) Land disposal facility announces
Intent to dose alter submitting a
highly Inadequate Part B applica-
tion and receiving NOD that
details work to be done before
application can be considered
complete.
b) Facility submits closure plan in
lieu of Part B operating or post-
closure permit.
1. Have facility pursue model
remedy that Is outlined in Chapter
5. Closing land disposal facility
has same Part 270 and Part 264
ground-water monitoring obliga-
tions (pursuant to post-closure
permit) ei facility applying for
operating permit.
2. Pursue corrective action If
warranted.
1. Call in facility's post-closure per-
mit if not already due.
2. Where possible, enter into con-
sent agreement that outlines
steps owner/operator must take to
generate adequate post-closure
permit application.
3. Where agreement Is not possible,
Issue order enforcing Part 265
that compels hydrogeologic
Investigation and well Installation.
4. Once application due date has
passed, amend complaint and
have o/o proceed with aspects of
model remedy that rely on
authority of Part 270.
1. §300B(a) enforcing Parts 265 and
270.
2. §3008(h) If there Is evidence of a
release of hazardous waste or
constituents into the environment.
1. §3008(a) enforcing Parts 265 and
270.
2. §3008(h) If there is evidence of a
release of hazardous waste or
constituents Into the environment.
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• CHAPTER 6
DEVELOPING ORDERS
The purpose of this chapter is to help enforcement officials ensure that
the ground-water remedy sought by the Agency is in fact executed by the respon-
dent. The chapter will discuss the inportance of specificity in detailing
the desired remedy and various strategies that may be followed in developing
and issuing orders. The chapter will concentrate exclusively on how to
develop the technical content of compliance orders; it will not address
legal issues related to writing orders or issuing complaints. Guidance on
such issues is already available in the Compliance/Enforcement Guidance
Manual dated September, 1984 (See especially Chapter 7, "Administrative
Actions: Civil").
6.1 Importance of Specificity
The Agency's experience to date suggests that certain members of the
regulated community have failed to Implement a ground-water system capable
of meeting the requirements of Parts 265 and 270. This is particularly
true with respect to Part 265's broad performance standards and may Increase
with respect to Part 270 as Part B applications are filed. As.Section
4.1.2 points out, even though the regulations do not specify in detail how a
system should be designed and operated, the performance language demands a
rigorous program of hydrogeologlc investigation, network design, well
construction, and sampling and analysis.
6-1
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Despite the high standards set by the regulations, certain owner/
operators have ignored this performance language and have installed only
four wells (three downgradient and one upgradient), in settings whose complex
hydrogeology require a substantially greater number of wells.
In light of the failure of certain facilities to achieve the high standards
set by the regulations, it is essential that the Agency introduce specificity
into the administrative enforcement process. In the course of each administra-
tive proceeding there must develop between the Agency and the respondent an
express understanding as to what activities will constitute compliance with
the regulations. Administative orders that are explicit regarding the Agency's
expectations can help ensure that the actions taken by the owner/operator
will be sufficient to bring the facility into compliance. Specificity regard-
ing what will be considered appropriate or adequate, can help avoid the
wasted time and effort that results when a respondent performs actions later
deemed inadequate. It is clearly in the best Interest of both parties to
ensure that the facility's first effort to come into compliance meets the
Agency's requirements.
The Agency can secure this assurance either by reviewing the owner/
operator's plans for coming into compliance before the work is actually
performed or by specifying up front exactly what actions are required of the
respondent. An order, therefore, can be structured in one of two ways. If
issued prospectively, an order may be structured around the submlttal, and
subsequent Agency review, of individual plans outlining the respondent's
proposed actions for implementing each phase (hereafter referred to as a
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"phased order"). Alternately, the Agency can issue highly explicit orders
that define technically what the owner/operator oust do to come Into compli-
ance.
The next two sections of this document explain the above two types of
order in greater detail. Both orders place the burden of system design on
the respondent, yet provide the Agency with an opportunity to veto any design
before the system is actually implemented. When issuing either type of order,
enforcement officials must make clear that notwithstanding compliance with the
order, the respondent remains responsible for compliance and abatement of
any ground-water contamination. A specific provision should be included in
all orders noting that the respondent may be required to take further actions
as necessary to comply with RCRA or other applicable laws.
6.2 Phased Orders for Ground-Water Monitoring Violations
The concept of phased orders is relatively new to the RCRA program. As
its name implies, a phased order lays out a series of actions the respondent
must take over time in order to come into compliance. Each action or phase
is linked to an enforceable compliance schedule and generally includes some
mandatory Interaction between the respondent and the Agency. Most commonly,
each phase will include the development of a plan by the respondent to accom-
plish a specified goal; the submittal of the plan to the Agency for review,
modification, or approval; and the eventual execution of the plan by the
facility owner.
A phased order format is especially well suited for addressing ground-
water monitoring violations at hazardous waste facilities. In many ground-
6-3
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water cases, the nature of the violation Is such that neither the facility
aor the Agency knows at the outset exactly what actions will be necessary
and sufficient to bring a facility into compliance. Many ground-water viola-
tions, for example, derive directly from a facility's lack of understanding
of the hydrogeology beneath their site. As more information is collected
and interpreted, the steps appropriate for a respondent to take may change.
Developing a technical remedy under such circumstances.is, of necessity, a
dynamic process.
A phased order, however, can accomodate these changes. By proceeding
in stages, a phased order allows the Agency to structure and guide a facility's
actions without locking the facility or the Agency into a specific remedy
that may prove inadequate. Moreover, the order provides a mechanism for the
Agency to communicate more specifically EPA's expectations regarding various
aspects of the owner/operator's response. For example, the Agency can set
out in the order the information a hydrogeologlc assessment must yield in
order to provide the level of detailed understanding the Agency considers
necessary for the Installation of an adequate ground-water monitoring system.
Where the Agency has specific preferences on how certain types of information
should be obtained (e.g., a preference for specific tests or procedures),
enforcement officials can specify the use of the test in the order. Alter-
nately, an order may list objectives or considerations that an owner/operator
oust incorporate into his/her decision-making. The order might specify, for
example, that the owner/operator must demonstrate in the plan that a pro-
posed sampling device: 1) minimizes the potential for degassing; and
2) minimizes the potential for adsorption and desorption of constituents.
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Appendix A Includes a sample order chat illustrates some of the above
options. This order is structured around the needs of the "transition
facility" described in Chapter 5; recall that this facility has an inadequate
detection monitoring system and has not detected a significant change in the
Part 265 indicator parameters. The preferred technical and enforcement
response for such a facility Is summarized below.
Action on the Part of Facility Owner
Enforcement Authority
1) Conduct detailed assessment of site's hydrogeology
(fill in gaps in current understanding of site's
subsurface).
2) Install a monitoring network ( modify/expand an existing
system) to meet the objectives of 265/264 detection.
3) Sample for an expanded list of indicator parameters.
4) Determine whether contamination has occurred by
comparing upgradlent and downgradient well samples
collected on an accelerated schedule.
5) If contamination is confirmed, begin characterizing
the plume based on monitoring of Appendix VIII constituents.
§265.91(a)
§270.14(C)(2)
§265.91
3. S270.14(c)(4)
To implement this remedy, the sample order in Appendix A mandates the
execution of six tasks:
1) Submittal of a plan to conduct a hydrogeologlc assessment of the
site;
2) Submittal of a list of constituents or parameters to be monitored
for (Note: sampling protocol and well construction materials will
be dictated by chosen indicator parameters);
3) Submittal of proposed monitoring network, including well locations,
screening depths, construction methods, and design specifications
(e.g., filter pack material, slot size, well diameter);
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4) Submittal of a sampling and analysis plan;
5) Execution of the plans developed in steps 1, 3, and 4 (following
Agency approval);
6) If contamination Is confirmed, submittal of a plan outlining
proposed assessment activities.
The order combines these tasks into three phases and establishes compliance
deadlines for each phase. For example, the order requires the owner/operator
to develop and submit the hydrogeologic assessment plan and the list of
parameters by the same date (phase 1). Next, the order instructs the respon-
dent to complete the assessment and submit the results of the investigation
along with a monitoring network plan and a sampling and analysis plan by the
next compliance date (phase 2). After EPA approves or modifies these plans,
the order requires the respondent to make the first determination of contami-
nation and submit the results and an assessment plan (if contamination is
confirmed) by the final date (phase 3).
The sample order combines the required tasks in the above manner for the
purpose of illustration only. In every case, the logical sequence of events
will be dictated by the particulars of the site. Enforcement officials must
use professional judgement when deciding which tasks are appropria.e, how they
should be combined, and what level of Agency/facility interaction the order
should mandate.
6.3 Technically Specific Orders
Rather than structure the development of the technical remedy through the
order itself, enforcement officials may prefer to oversee the collection of
background data and the development of a proposed remedy through informal
interaction and negotiations with the facility. This approach is acceptable
6-6
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as loog as the work done in preparation of the remedy (e.g., hydrogeologic
assessment activities), and the final terras of the remedy Itself (e.g., well
locations, sampling schedules), are set out in a technically-specific order
(usually on consent). The order may be issued before the wells are installed
and the sampling conducted, or it may be issued afterwards. If negotiations
become protracted and work is not proceeding expeditiously, however, the
Region should issue the order and place the facility on an enforceable
compliance schedule.
Whether the work is conducted before the order is issued or after, detail
in the order regarding completed and proposed work will help avoid future
questions of compliance with the order. The greater the specificity in the
order, the easier it will be for the Agency or a court to determine whether
the terms of the agreement have been met.
Enforcement officials should not underestimate the level of detail that
can be incorporated into orders. Well design specifications, decontamination
procedures, and sampling frequencies are all suitable for specification. In
addition, enforcement officials should consider specifying certain behaviors
or actions on the part of the respondent. For example, officials may wish
to require that a qualified geologist be present to take field notes (e.g.
drilling logs and boring logs) during all well installations and soil boring
programs.
No requirement is Inappropriate if it is directly related to the acilicy
of the owner/operator to meet his regulatory obligations. Table 6.1 summarizes
some of the items enforcement officials may wish to consider when developing
orders.
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Table.6.1 Possible Elements of a Technically-Specific Order
HYDROGEOLOGIC ASSESSMENT
Boring Program
o Spacing of boreholes
o Depth and location of boreholes
o Vertical spacing of samples within each borehole
o Sampling equipment to be used for boring program
o Information to be logged for each borehole
o Requirement that hydrogeologlst or geotechnical engineer be present to
log boreholes
o Method for stabilizing selected boreholes until wells are installed
o Method of data presentation
o Requirement to use Unified Soil Classification System (USCS),
Atterberg limits
Water Level Monitoring Program
o Spacing/number of piezometers or wells
o Method for water level measurements
o Required precision of measurement (to the nearest 0.1 foot or to the
nearest centimeter)
o Requirement that measuring points be surveyed from established benchmarks
o Number of hydrogeologlc cross sections and appropriate scale
o Water level contour maps
o Identification of local sources of ground-water withdrawal and recharge
and approximate schedule of use
Hydraulic Conductivities
o Method of determining hydraulic conductivities, porosity
Additional Information Requirements
o Description of regional geologic and hydrogeologlc characteristics
o Analysis of geomorphic or topographic features that might influence
ground-water flow system
o Zones of higher or lower permeability that might direct or restrict
flow of contamlneutj
o Zones of significant fracturing or channeling in consolidated deposits
o Sand or gravel deposits in unconsolldated deposits
o Description of manmade hydraulic structures (pipelines, french drains,
ditches, etc.)
o Soil properties including cation exchange capacity, organic content
temperature profile, grain size distribution
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Additional Information (continued)
o Identification of zones of recharge and discharge
o Interpretation of hydraulic interconnections between saturated zones
NETWORK DESIGN
Placement of Wells
o Maximum horizontal spacings
o Requirement for well clusters
o Depth requirements (most in surficial aquifer, one or more In deeper
aquifer
o Exact well locations
o Minimum number of background wells
Well Design and Construction
o Casing material and •iianatsr; prohibition against joining section with glues
or sealants
o Screen slot size and maximum length
o Drilling techniques; prohibition on use of drilling muds
o Drill decontamination procedures
o Well development techniques; prohibition on use of water other than formation
water or "certified" pure water
o Filter pack material and method of filter-pack emplacement
o Method and material for sealing annular space
o Requirement for locked well caps
o Requirement that wells be designed to last at least 30 years
o Requirement that wells yielding turbid samples be redeveloped or replaced
o Information to be documented during construction of each well
SAMPLING AND ANALYSIS
Analytes of Interest
o List of parameters to be monitored for
o Requirement to collect data on major ions and anions, e.g., Cl~, Fe, Mn,
Na*, Ca*, Mg*, N0.j~, P04*, silicate, ammonium, alkalinity, acidity.
o Requirement for field monitoring of pH, conductivity, and temperature for
each sample
Sample Collection
o Evacuation procedures; handling procedures for evacuation water
o Method for sampling "floaters" and "sinkers"
6-9
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Sample Collection (continued)
o Acceptable materials for inclusion in sampling devices and/or specific
device to be used
o Performance standard for sample collection - "sampling device and
methodology oust be selected to yield representative samples in
light of the parameters that a-e being monitored"
o Requirement that sampling devices be dedicated to each well or procedures
for decontaminating equipment between wells
o Precautions on use of specific sampling devices (e.g., bladder pumps oust
be operated in a continuous manner so that they do not produce pulsating
samples that are aerated in the return tube upon discharge; check valves
must be designed and inspected to ensure that fouling problems do not
reduce delivery capabilities or result in aeration of sample, etc.)
o Specification of acceptable cords/cables to be used to lower bailers;
prohibitions on use of braided cables, polyethylene or nylon cords
o Maximum sampling rates, generally not to exceed 100 millillters/minute
SAMPLING PRESERVATION AND HANDLING
o Designation of appropriate sample containers - polyethylene containers
with polypropylene caps when metals are analytes of interest; glass
containers when orgaaics are analytes of interest
o Requirement to use preservation methods designated in SW-846
o Preferred handling procedures e.g., volatile orgaaics: no filtering
or headspace in containers allowed; metals: two aliquots from each
sample - one filtered and analyzed for dissolved metals, and one
not-filtered and analyzed for total recoverable metals
ANALYSIS
o Requirement for use of field blanks, standards, and spiked samples
for QA/QC
o Requirement to use analytical methods described in SW-846
o Requirement to perform field analysis of pH, conductivity, and
temperature
CHAIN OF CUSTODY
o Minimum requirements for chain-of-custody program (e.g., sample labels,
seals field log book, chain of custody record, sample analysis request
sheet, laboratory log book)
DATA REVIEW AND PRESENTATION
o Standard protocol for reporting of less than detection limit concentra
o Requirement that data values for each pollutant be reported using the s
number of significant digits, in general at least three
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DATA REVIEW AND PRESENTATION (continued) I f U- > i \
o Requirement that units of measure for a given chemical parameter be
consistent throughout report and accompany each chemical named
o Requirement that raw data be submitted in a table that lists for each
concentration value: the pollutant, the well code, and the unit of
measure
o Requirement that owner/operator compile the following ten statistics for
each of four summary tables organized by pollutant; by pollutant-well; by
pollutant-date; and by pollutant-well-date:
Number of lower than detection limit values
Total number of values
Mean
Median
Variance
Standard Variation
Coefficient of variation
Range
Minimum value
Maximum value
ADDITIONAL PLUME CHARACTERIZATION ACTIVITIES
o Requirement to use certain remote sensing (e.g., aerial photography)
and geophysical techniques (e.g., electrical resistivity, ground-pene-
trating radar, borehole geophysics)
o Requirement to determine the physical and chemical characteristics of the
facility's leachate including density, solubility, vapor pressure,
viscosity, and octanol-water partition coefficient
PERMIT APPLICATION REQUIREMENTS
o Requirement to collect background data on all Appendix VIII constituents
detected in ground water
o Requirement-to submit applicable data, studies, and plans detailed in
S270.14(c)(l) - (8)
OTHER PROVISIONS
o Schedule for implementation including stipulated penalties for missed milestones
o Penalties for past and present violations
o Procedures for plan submittal, modification, and/or approval
o Provision that incorporates all plans, reports, and schedules required by the
ORDER into the ORDER itself such that any non-compliance with a plan, report
or schedule consitutes non-compliance with the order
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OTHER PROVISIONS (continued)
o Clause that reserves government's right to take further action as necessary,
Including additional ground-water monitoring and/or cleanup, to bring respondent
into compliance with RCRA other applicable State or Federal law
o Requirement to develop and implement a community relations plan
o Requirement to develop and implement a health and safety plan for workers
involved with monitoring or corrective action
o Requirement to designate corporate contact person, supply corporate
organizational charts, and provide background information and qualifications
of any contractors used to meet the terms of the ORDER
o Clause guaranteeing site access for employees, agents or contractors
of complainant to inspect and evaluate compliance with ORDER pursuant to
authority in S3007 of RCRA 42 USC $6927
o Requirement to develop Quality Assurance Project Plan in accordance with
EPA guidance document QAMS - 005/80.
o EPA idemnification clause
o Clause guaranteeing EPA's right to take or split samples
o Clause establishing EPA's ability to halt work if necessary
o Effective date
o Signature
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6.4 S3008(a) Orders
The §3008(a) process can accomodate the issuance of either phased or
technically-specific orders. In fact, a single order may incorporate both
approaches.
The process of issuing a S3008(a) order is diagrammed in Appendix B.
Briefly, the process involves the issuance of a complaint and compliance order
followed by negotiations (if desired by both parties), a hearing (if requested
by the respondent) and the issuance of a consent order or a final unilateral
order. If a respondent does not answer the complaint, (s)he become subject
to a default order. Generally, a. respondent answers the complaint, requests
a hearing, and then either enters into a consent agreement with the Agency or
proceeds through the hearing and becomes subject to a final order issued
unilaterally.
If the Agency feels confident that a particular respondent will not
default, the compliance order issued with the complaint may include a
broadly-streed remedy such as "compliance with Part 265 Subpart F and Part
270." Since the respondent is required to undertake remedial activities
and/or pay any assessed penalty only after the consent order or final order
is issued, it is only in the consent or final order that specificity becomes
critical. Some Regions seem to prefer compliance orders with broadly-stated
remedies, although developing a phased compliance order, which world require
the respondent to develop detailed plans, should prove to be fairly simple
in most cases.
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The Regions should try to avoid the situation where a broadly-stated
compliance order is Issued with the complaint, the respondent fails to answer,
and a default order is issued. In this case the terras of the compliance
order may become the terms of the default order. Although respondents do
not usually fail to answer complaints, especially when sizeable penalties
are involved, the Region should consider the possibility of a respondent
failing to answer, before deciding on a format for the compliance order.
The following describes in more detail the options available under
S3008(a):
OPTION (1); The Region may issue a complaint with a phased compliance
order, enter negotiations w^th the respondent and then follow one of several
courses of action, depending on whether a settlement is reached with the
respondent. If both parties are willing to settle and can reach agreement
on the remedy, a consent order may be negotiated in either a phased or a
technically-specific format, depending on how detailed the discussions have
been in negotiating sessions. If in the course of negotiations the facility
has filled in any gaps in the hydrogeologic study and the Region and respon-
dent have agreed on such details as the list of indicator parameters and the
location of wells, a consent order could be negotiated that specifies the
location of wells, construction specifications, etc. The order might also
specify sampling and analytical procedures and schedules, or it might require
the respondent to develop and submit a plan for sampling and analysis. As
noted in section 5.2, the Region might choose to enter into a consent agreement
only after completion of the remedial activities by the respondent. In such
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? 73,,. /
cases, the consent order should document, in detail, the work that has
been completed by the respondent.
If the parties are unable to reach settlement and a hearing takes place,
the Region will have the opportunity to submit a proposed final order to the
Presiding Officer. The proposed final order may be phased or may be tech-
nically specific, depending on the ^rcouat of information available to the
Region. In any case, the proposed order should not simply include a broad
mandate, like "the owner/operator mist come into compliance with Part 265
Subpart F and Part 270." It should either specify a detailed remedy itself
or should require the owner/operator to develop a plan that specifies details.
Unless it is clear to both parties what the order requires, it will be diffi-
cult to determine whether the facility in fact achieves compliance. If
there is room for dispute as to what the order requires, it may be difficult
for the Agency'to enforce the terms of the order, should that later become
necessary.
OPTION (2): The Region may issue a complaint with a proposed compliance
order that simply requires "compliance with Part 265 Subpart F and Part 270"
rather than a phased compliance order. The steps following complaint issuance
would be the same as those described in Option 1. Although it Is acceptable
to put a broad remedy in the initial compliance order, the consent order or
proposed final order must contain specificity (or require the respondent to
propose the specifics). When the order goes into effect it must express
what "compliance" entails. As described earlier, the Region should not use a
vaguely-worded compliance order if there is a chance that the respondent will
not answer the complaint.
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6.5 S3013 Orders
Section 3013 orders can be issued in either a one- or two-step process.
Both processes are adaptable to the issuance of either phased or specific
orders. The one-step process involves one of the following:
o issuance of a phased order requiring the sequential development,
submittal, and execution of plans; or
o issuance of a technically-specific order, after the details are
worked out in negotiations with the respondent.
The two-step process involves the issuance of a preliminary order requiring
the development and submittal of plans for approval, followed by the issuance
of an order requiring the execution of the plans as modified by the Agency.
The second order could be phased or specific, depending on the amount of
information available. For example, if the remedy sought by the Agency
included a significant amount of hydrogeologic investigation as well as
construction and sampling of wells, the preliminary order might require the
development of a plan for the hydrogeologic study and a schedule for the
development and implementation of plans for later stages of the remedy.
The second order would then require the owner/operator to conduct the hydro-
geologic work and then sequentially develop, submit, and carry out plans for
well construction and sampling.
Alternatively, the preliminary order could require the development of
well construction and sampling plans, which would entail conducting a hydro-
geologic investigation. The second order then would be able to specify
detail as to the locations and specifications of the wells and plans for
sampling and analysis.
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6.6 S3008(h) Orders
Section 3008(h) orders can accomodate both phased and specific orders In
a manner similar to that described In section 6.4 for $3008(a) orders.
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APPENDIX A:
MODEL PHASED ORDER FOR GROUND-WATER MONITORING
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EXAMPLE PHASED ORDER
Pursuant to Sectlon(s) of the Resource Conservation and Recovery Act
(RCRA), 42 U.S.C. 69 it is ordered that shall comply with the
following requirements:
1. Within calendar days of the effective date of this ORDER, respondent
shall develop and submit for EPA approval a plan for conducting a hydro-
geologic investigation of the site. The plan should be designed to
provide the following information:
a. A description of the regional geologic and hydrogeologic characteristics
in the vicinity, including:
1) regional stratigraphy: description of strata including
strike and dip, identification of stratigraphic contacts,
petrographic analysis
2) structural geology: description of local and regional
structural features (e.g., folding, faulting, tilting,
jointing, etc)
3) depositional history
4) regional ground-water flow patterns
5) identification and characterization of areas of recharge
and discharge
b. An analysis of any topographic features that might influence the
ground-water flow system (Mote that stereoscopic analysis of aerial
photographs should aid in this analysis).
c. A classification and description of the hydrogeologic properties of
all the hydrogeologic units found at the site (i.e. , the aquifers and
any intervening saturated and unsaturated units), including:
1) hydraulic conductivity, effective porosity
2) lithology, grain size, sorting, degree of .cementation
3) an interpretation of hydraulic interconnections between
saturated zones
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d. Using a topographic map or aerial photograph as a base, submit maps
of (Structural geology and at least four hydrogeologic cross sections
showing the extent (depth, thickness, lateral extent) of all hydro-
geologic units vrithin the facility property, identifying:
1) sand and gravel deposits in unconsolidated deposits
2) zones of fracturing or channeling in consolidated
deposits
3) zones of higher permeability or lover permeability that might
direct or restrict the flow of contaminants
4) perched aquifers
S) the uppermost aquifer (includes all water-bearing zones
above the first confining layer that may serve as a pathway
for contaminant migration including perched zones of satur-
ation)
e. A description of water level or fluid pressure monitoring including:
1) water-level contour and/or potentiometric maps
2) hydrologic cross sections showing vertical -gradients
3) an interpretation of the flow system, Including the
vertical and horizontal components of flow
4) an interpretation of any change in hydraulic gradients
due, for instance, to tidal or seasonal influences
f. A desciption of manmade influences that may affect the hydrogcology, of__
the site, identifying:
1) local water-supply and production wells with an approximate
schedule of pumping
2) manmade hydraulic structures (pipelines, french drains, ditches)
The plan should include a description of the field methods and other infor-
mation sources proposed for the study and a summary of which data will be col-
lected by each method. The proposed methods should include, but are not
limited to:
a. A program of soil borings, as required to adequately describe
the subsurface geology of the site. The program should provide
for the presence of a qualified geologist or geotechnical
A-2
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engineer td log and describe the materials encountered during
the boring. The program should also describe the methods pro-
posed to stabilize selected holes until monitoring wells are
installed.
b. A sufficient number of piezometers to characterize ground-water
depth and gradient (both horizontal and vertical) over the
entire area of the site.
c. The use of slug and/or pump tests as appropriate to determine
hydraulic conductivities
NOTE: Geophysical techniques, both borehole and surficial, are effec-
tive supplementary investigative techniques that should be
considered
The plan shall contain a schedule for conducting the proposed hydrogeologic
assessment and shall be submitted to:
Deputy Director, Air and Waste Management Division
Environmental Protection Agency
444 RCRA Way
Anytown, USA 00001
Within calendar days of the effective date of this ORDER, respondent shall
develop and submit to EPA a list of proposed indicator parameters capable of
detecting leakage of hazardous waste or hazardous constituents into ground
water. The parameters should be representative of constituents at least as
mobile as the most mobile constituents that could reasonably be derived from
the facility's waste, and should be chosen after considering:
a. the types, quantities, and concentrations of constituents in wastes
managed at the facility;
b. the mobility, stability, and persistence of waste constituents or their
reaction products in the unsaturated zone beneath the waste management
area;
c. the detectability of the indicator parameters, waste constituents or
reaction products in ground water;
d. the concentration or value and the natural variation (known or suspected)
of the proposed monitoring paramec-?- .n background ground water.
The list should include the basis for selecting each proposed indicator
parameter, including any analyses or calculations performed. The basis
for selection must include chemical analysis of the facility's waste and/or
leachate as appropriate.
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The list should also include parameters to characterize the site-specif il
chemistry of ground vater at the site, including but not limited to the
major anions and cations that make up the bulk of dissolved solids in
water (i.e., Cl~, Fe, Mn, Na+, S04, Ca+, Mg*, K* N(T3 , P04", silicate,
ammonium) .
3. Within _ calendar days of written approval by EPA, the respondent shall
promptly implement the hydrogeologic investigation plan according to the
terms and schedules contained therein.
4. Within _ calendar days after completion of the hydrogeologic investigation,
the respondent will submit to EPA a full report that provides the information
described in paragraph 1.
5. .Also within _ days after the completion of the hydrogeologic investigation,
the respondent will submit to EPA a plan for the design and installation of
a monitoring well network that will meet the following requirements:
a. The upgradient wells must be capable of yielding samples that are
representative of background water quality in the uppermost aquifer
and are not affected by the facility. The number and location of the
wells must be sufficient to: 1) characterize the spatial variability
of background water; and 2) meet the needs of the statistical test
proposed pursuant to paragraph .
b. The downgradient wells must be capable of Immediately detecting any
statistically significant amounts of hazardous waste or hazardous
constituents that migrate from the facilty into the uppermost aquifer.
c. The monitoring system should be designed to operate for a period of no
less than thirty years.
The pj.an should include the following elements:
a. A description and map of proposed well locations, including a survey
of each well's surface reference point and the elevation of its top
of casing.
b. Size and depth of wells;
c. Desciptlon of well-intake design, including screen slot size and length;
filter pack materials and method of filter-pack emplacement.
Type of proposed well casing *nu screen materials. The choice of well
materials should be made in light of the parameters to be monitored for
and the nature of the leachate that could potentially migrate from the
facility. The well materials should: 1) minimize the potential of
adsorption and desorption of constituents from the samples; and
2) maintain their integrity for the expected life of the system
(at least thirty years).
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e. Methods used to seal the well from the surface and prevent downward
migration'of contaminants through the well annulus.
f. Description of the methods or procedures used to develop the wells.
6. Also within ___ days after the completion of the hydrogeologic assessment,
the Respondent shall sumbit a sampling and analysis plan capable of
yielding representative sample's for a comparison of up- and downgradient
wells. The plan should include the following elements:
a. Well evacuation procedures including volume to be evacuated prior to
sampling and handling procedures for purged well water
b. Sample withdrawal techniques. Sampling equipment and materials (tubing,
rope, pumps, etc.) shall be selected to yield representative samples in
light of parameters to be monitored for. The sampling protocol will
include fi^li measurement of pH, conductivity, and temperature for
each sample.
c. Sample handling and preservation techniques including provision for
field-filtration of samples as appropriate.
d. Procedures for decontaminating sampling equipment between sampling
events.
e. Procedures for measuring ground-water elevations at each sampling
event
f. Chain of custody procedures to be used for all phases of sample
management.
g. Laboratory analytical techniques, including EPA-approved analytical
methods and quality assurance, detection levels, quality control
procedures. .
h. Procedures for performing a comparison of upgradient and downgradient
ground water to determine whether contamination has occurred. The pro-
cedures should include:
1) A proposed method (statistical or otherwise) to compare up-
gradient and downdradient well water that provides a reasonable
balance between the probability of falsely identifying and
failing to identify contamination.
2) An accelerated sampling schedule to establish data for the
comparison. In no instance shall sampling exceed _ months.
3) A proposed method for data organization and presentation.
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7. By no later than days after EPA approval of the monitorlag well network
plan, Respondent shall complete the installation of the monitoring well
network.
8. By no later than days after the installation of the monitoring well
network, Respondent shall Implement the sample and analysis plan, perform
the comparison and submit the results to EPA for review.
9. If there is a. statistically significant difference between upgradient and
downgradient well water, the Respondent will develop a ground-water asses-
sment plan capable of determining rhA. following:
a. The extent of migration of hazardous constituents into ground water.
b. The concentration of each Appendix VIII constituent throughout the
plume or the maximum concentration of each Appendix VIII in the
plume.
c. Background concentrations for all Appendix VIII constituents detected
in ground water.
d. Waste/leachate characteristics including specific gravity, viscosity,
solubility in water, and octanol-water partition coefficient.
I
e. Soil properties including cation exchange capacity, organic content,
and temperature.
The plan should describe the methods proposed to accomplish the above
objectives including indirect and direct techniques. The sampling and
analysis plan developed pursuant to paragraph 6 should be revised to meet
the new objectives of this monitoring phase. The plan should include an
expeditious schedule for the Implementation of the above assessment, and
should be submitted to EPA no later than IS days after the confirmation of
leakage.
10. Within calendar days of EPA approval of the assessment plan, the Respondent
will begin to execute the plan according to the terms and schedules contained
therein. Within days of the completion of the assessment, the Respondent
will submit the results to the Agency, including all raw data collected, all
calculations performed, sd an interpretation of the findings.
11. Based on the results of the ground-water assessment, the Respondent will
fulfill his/her obligations pursuant to $270.14(c)(7) or (8) by developing
a compliance monitoring and/or corrective action program as appropriate.
Respondent will submit whatever plans and engineering studies are necessary
to describe the proposed program to EPA no later than __ months after thei
completion of the ground-water assessment described in paragraph nine.
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12. All plans, reports, and schedules required by Che terns of this ORDER are,
upon approval by EPA, Incorporated into this ORDER. Any noncompliance with
such approved studies, reports, or schedules shall be termed noncompliance
with this ORDER.
13. In the event of Agency disapproval (in whole or in part) of any plan required
by this ORDER, EPA shall specify any deficiencies in writing. The Respondent
shall modify the plan to correct the deficiencies within days from receipt
of disapproval by EPA. The modified plan shall be submitted to EPA in
writing for review.
Should the Respondent take exception to all or part of EPA's disapproval, the
Respondent shall submit to EPA a written statement of the grounds for the
exception. Representatives of EPA and the Respondent may confer in person
or by telephone in an attempt to resolve any disagreement. If agreement
is reached, the resolution shall be written and signed by representatives
of each party. In the event that resolution is not reached within 15 days,
the Respondent shall modify the plan as required by EPA.
14. In the event that the respondent fails to:
a. Comply with the milestones contained in paragraphs 3, 7, 8, or 10;
b. Provide the plans and information described in paragraphs 1, 2, 4, 5,
6, 8, 9, 10, or 11;
(s)he shall pay stipulated penalties from the date of the violation as
follows:
a. $5000.00 per day for failure to comply with a milestone listed above;
b. $1000.00 per day for failure to provide a plan or information listed
above.
15. Notwithstanding compliance with the terms of this ORDER, Respondent may
be required to take further actions as necessary, including additional
ground-water monitoring, assessment, and/or corrective action, to come into
compliance with RCRA, or other applicable state or Federal laws.
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ENFORCEABLE COMPLIANCE SCHEDULE FOR MODEL ORDER
Well network
AGENCY Older Hydrogeologic and sampling
KSPONSIBILITIES Issued plan approved plan approved
•15 days ^ * 6 weeks ^ ^—3 months • 15 days-
RESPONDENT Hydrogeologic Hydrogeologic Sampling If leakage is
ESPONSIBILITIES investigation results due results confirmed, sub-
plan due to due mit plan for
Agency Well network plume character-
plan due ization
I
Sampling and I
Analysis plan I
due I
I
I
I
I l
I
I
I
AGENCY Plume Characterization
RESPONSIBILITIES plan approval
2 Months 1 2 Months
Plume character- Suhmittal of compliance
RESPONDENT ization report monitoring and/or correc-
RESPONSIBILTIIES due to Agecny tive action program (as
appropriate) for incorpor-
ation in permit
NOTE!: Timefram^BuJst be adjusted to acconodate site-specific
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APPENDIX B:
DIAGRAM OF PART 22 ADMINISTRATIVE PROCEEDINGS
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PART 22 - FORMAL /.DMINISTKATIVE PROCEEDINGS
Respondent
Fails to
Answer
Complaint
and
Oonpliance
Order
Issued
Default
Order
Issued
Respondent
Answers
Hearing
Initial
Decision
Final
Order
Issued
Consent
Agreement or
Consent
Order
Vthln 20 days after tHe parses are
wih upporting t>riefs.
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