6EPA
United States
Environment*! Protection
Agency
Office of
Soitd Waste and
Emergency Response
DIRECTIVE NUMBER: 9431.01(84)
TITLE: Permit Policy Question and Answer Quarterly Report:
Definition of Uppermost Aquifer
APPROVAL DATE: 9-10-84
EFFECTIVE DATE: g-io-84
ORIGINATING OFFICE: QSW
Q FINAL
D DRAFT
LEVEL OF DRAFT
DA — Signed by AA or DAA
__
U B — Signed by Office Director
DC — Review & Comment
REFERENCE (other documents):
OS WE Ft OSWER OSWER
ME DIRECTIVE DIRECTIVE Dl
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PART 260 SUBPART A - GENERAL
DOC: 9431.01(84)
Key Words: Aquifer, Ground-Water Monitoring
Regulations: 40 CFR 260.10, 264 Subpart F, 270.14(c)
Subject:
Addressee:
Originato.r:
X
Source Doc:
Date:
Summary:
Permit Policy Question and Answer Quarterly
Report: Definition of Uppermost Aquifer
Regional Hazardous Waste Management Directors, Regions I-X.
Bruce Weddle, Director, Permits and State Program Branch
See Miscellaneous [9560.09(84) Ground-Water Protection
Standards, Question #1]
9-10-84
The top, most saturated clay layer, which produces a significant yield of
ground water from a single well or from a combination of wells, may meet the.
definition of an "uppermost aquifer." If that layer is also the formation
nearest to the natural ground surface or is hydraulically interconnected to
such a surface, it meets the definition of uppermost aquifer (§260.10).
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SEP |0 1984
MEMORANDUM
Subject: Permit Policy Question and Answer Quarterly Report
From: Bruce Weddle, Director
Permits and State Programs Division
To: Regional Hazardous Haste Management Directors
Region I-X
Attached is the first in a series of quarterly reports
summarizing permit policy questions answered by my staff over
the past few months. The purpose of this summary is to
ensure national consistency in dealing with these frequently
asked questions. Each question has been given careful
consideration by the Permits Branch, the Waste Management and
Economics Division (WMED) and OGC. The answers provide the
best interpretation or application of the RCRA regulations
to a given situation.
Many of these questions were raised during telephone
conversations between Regional personnel and the Permits
Branch Regional Liaisons. Other issues were raised during
Permit Assistance Team reviews of individual applications.
In either case, where such questions and answers have policy
implications for RCRA permitting and are likely to arise in
other Regions, they have been summarized here.
In addition to the questions and answers summarized on
t lie following pages, we have provided written guidance on a
vr.ripty of specific issues in the past few months. Each
^eriion received copies of these guidance memoranda. To assist
you in locating these memos, a list identifying the subjects,
r.iit; signatory, and the point of contact, is attached.
iJe are now preparing a number of memoranda tor issuance
in tho near future which cover other significant concerns
to permitting. A list of these, including subject and contact,
i.r- also attached.
WH-563:RChrismon:djg:S243D:24691:7/30/84:Disk Randy Chrismon M$MO
Correct ion:JSkinner:sed:9/10/84
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confronted with pcrnit issuer?, your staff should
contact the appropriate Regional Liaison In the Permits
['•ranch, or the PAT coordinator for the technology involved.
A list of these individuals is attached. The Regional Liaisons
and the PAT coordinators will ensure that answers to their
questions represent headquarters' current policy and include
input fron technical and legal staff, aB necopsary. Centrali/.iro
referral of permit questions to .the Vr»rnits Hranch will enable
OSV< to provide complete and consistent responses to sirilar
questions, and summarize these answers in subsequent permit
policy reports for all Regions.
Attachments
cc; Hazardous Waste Hranch Chiefs
Permit Contacts
Ken Shuster
Mack Greenwood
Pernit branch Staff
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Permits Branch
Regional Liaisons
Region
I
II
III
IV
V
VI
VII
VIII
IX
X
Name
Art Glazer
Davo Pagan
Doug Ruby
Rich steitrile
Chaz Miller
Nancy Ponerleau
Susan Mann
Chaz Miller
Fandy Chrisnon
Jeff Detlefsen
Number
382-4692
382-4497
382-4499
382-4754
328-4535
382-4500
332-4498
382-4535
382-4691
382-4422
Permit Assistance Team
Coordinators
Terry Grogan
Rnntfy Chrisraon
Davo Fagan
Any Mills
Chris Khyne
Rich steir.le
Chairwan
Incineration
Storage
Land Disposal
Land Disposal
Land Disposal
3«2-2224
382-4691
382-4497
•JR 2-4755
3K2-4503
382-4754
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RECENTLY ISRIJFD PFRWIT C-UIDANCK
7.
1. Subject:
Contact:
Front
Tot
I^ate:
2. .Subject:
Contactt
K roii! :
To:
Da to:
3. Subject:
Contact i
Fronj
To:
Dato:
4. Subject:
Contact:
From:
To:
Dato:
5. Subject:
Contact:
F rcrr t
To:
Da t":
*i. Subject:
Bxtent of Pernit Conditions
Terry Grcxjan
Rruce Wertrtle
Hazardous viaste Mana.r;er«»nt nivision nirnctors
v7anuaryf
on Thirn Party
Closure Cost Fstiwaton
Dave Facjan
John Skinner
Jin Scarbrough, Rp««irtuals f'anagpnent Branch
April
Transfer of Federal RCRA P«rnits to
and <" rushing f»perations
and
*-ith
Contact :
Subject :
Contact:
F ron i
To:
lie) tot
OF» ^ J :>4 . ] i) (P )
T r u e 1 1
Roqional Hazarrtovis v/aste branch Chiefs
June 1984
National (p.CRA) Pemitft strategy
Elizabeth Cotsworth
C.S. F.PA - Oftico of Solid Ua«t:e
(Soneral \'nbi icat ion - rPA/530-sw-y 4-007
August 1S».'<4
National (RCRA P«:rr»its strategy
Chnz r->illor
John f">V. in TUT
.RO(jion,?.l fivision i •! reef or «?
July J.t;Mn
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UNDER DEVELOPMPNT
PPKMIT GUIDANCE
1. Subject:
Contact!
2. Subject:
Contact:
3. Subject:
Contact:
4. Subject:
Contact:
5. Subject:
Contact:
Schedules of Compliance
Randy Chrisnon
Post Closure Permits
Chaz Miller
Policy on CKRCLA Ccr-piiance with other
Environmental Laws
Handy Chrianon, Terry Groqan
Guidance on Processing Part Pa with Insufficient
Groun<3water Monitoring Data
Amy Mills
Departraent of Defense Signatories for
Pernit Applications
Jeff Detlefsen
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PERMIT POLICY QUESTION f, ANSWER
QUARTERLY REPORT
Groundwater Protection Standards
1. Question: Do the definitions of "uppermost aquifer" and
"aquifer" include the top nost saturated clay layer «=>ven though
that stratum is not used as a groundwater resource? 40 CFR 260.10.
Answer: The 26 July 19%2 pr#»anbl« suggests that "significant
yield" of groundwater is deternined on a case by case basis,
depending on site specific factors. Significant yield in thp
Southwest is likely to he a much lower quantity than significant
yield in the Past. In addition, the flow fror-i a nunbor of well
systems can be totaled in order to reach the level of significance
Thus, if the saturated clay layer can produce n significant yeilc'
of groundwater front a single welJ or fror. a combination of
wells, then that layer riay neet the definition of an aquifer.
If that layer is also the formation nearest to the natural ground
surface or is hydraulical.lv interconnected to such a surface,
it meets the definition of uppermost aquifer.
2. Ouestion: Can FPA declare a I-'art H application conplete
even though the applicant has not submitted ground-water noni-
toring (GWM) data? 40 CFR 264 Subpart F and 40 CPP 270.14(c)
Answer: No., The Agency cannot declare a permit application
complete without ground w^ter monitoring data. The Agency can
use enforcement to secure facilities' conpliance with Part 265
ground water nonitoring require^onts, S3013 orders if a substan-
tial hazard is suspected, and the authority of 40 CFP 270.14(c)
to obtain the necesnary ground water nonitori nq inforrnation.
More detailed guidance on this issue will be issued shortly.
DESIGN AND OPERATING STANDAPDS
1. Question: Can & facility comply with the liner requirenents
by placing waste belov the saturated rone so that ground water
fio\/?> into the cell, tl'-ur- preventino I'-^st.e »"i'jraticn out of the
c^l. .1 . 40 CF>-< 2G4.3'.'! (e ).
/>::= -w.- r: No. The regulatory intent is that cofpjtance with
''•!••',:...;n reliance en hydrogeologic forces.
','. '-uer-tion: Can an applicant receive a variance fron a
?;;-"cit.ic design or operating regui rcrent when the regulations
(if- not contain a variance provision for tha't standard?
;>r:Awer: ''<">. 'i ho regulation? haV«=- no general provision for
'.•.•<••> iving specific sections on a case by cfir-*1 basis. There are,
instances where the regulations provide alternative
tor corr.piyincj with, or waiving, a nnocific section.
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3. .Question* Can a land disposal facility achieve compliance
with the double liner requirement by installing a synthetic
membrane over a clay liner or roust both liners be synthetic?
40 CPR 264.301, 264.302.
Answert Both liners must be synthetic. The land disposal
regulations provide an exemption from Subpart F requirements
for landfills if they meet certain requirements, one of which
is that the landfill must be underlain by 2 liners, both of
which meet the liner design and operating standards. Liners tor
landfills must be constructed of materials that prevent wastes
fron passing into the liners. .Clay liners do not meet this
standard.
4. Question! At the tine an ISS facility has its Part « applica-
tion called, storage surface impoundments are being rebuilt with
clay liners. Does this constitute an increase in design capacity
or a change in process under 270.72(b) and (c)? If so, can the
HA refuse to allow the change under ISS and require the surface
impoundments to meet the Part 264 standards? 40 CFF 270.72.
Answer: No. If the capacity of the surface impoundments is not
enlarged and no new units are being added, improvements to the
surface impoundments are a permissible change under ISS as lonq
as the reconstruction provision of 270.72(e) is not violated.
This is not a change in process. Re-built surface impoundments
will be treated as existing units for purposes of compliance with
Part 264 standards. At the tine these existing units are
permitted, however, only the existing portions, i.e., the land
surface area upon which wastes are placed prior to permit issuance,
will bo exempt from Part 264 requirements to install liners and
leachate collection systems.
The owner/operator should be informed of all appropriate
Part 264 technical standards and should be encouraged to
voluntarily adopt those standards as part of reconstruction.
5. Question! (1.) Can a facility handling RCRA waste build
and operate a new process which is not coveren under the Part
2f>4 technical standards and is, therefore, an unpernitted activity?
(2.) Can a facility in this case build and operate a new process
ir a state with final authorization issues it a permit under
Stato law, even though there are no comparable EPA standards?
<•-.• CPK 264.l(f), HCRA S§3005(a) and (c).
Ansvrri (1.) No. Assuming the facility cannot fit within
'cur.- t«rnr> of a defined process in the regulations, a facility
cam-.ot treat, store, or dispose of hazardous wastes without
a "CfcA permit based on RCKA technical standards. Where EPA
h;«s not issued technical standards, no permit can be issued.
I his is true because KPA has not made a judgment as to whether
tho new process protects public health and the environment.
K;i:A, however, is developing Subpart X of Part 264, which should
impose general environmental performance standards for processes
tor which KCPA technical standards do not ox 1st. Once Suhp.^rt X
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is. effective, EPA can issue permits for these technologies.
Th«. RA can, however, issue a 90 day emergency permit for activities
not covered by Part 264 technical standards, such as open burning,
if he finds that an imminent and substantial endangerment to
human health and the environment exists.
(2.) No. The permit issued by the State for the new process
is not a KCRA permit. The State's authority under final author-
ization only extends to the portion of its program which RPA ha»
found to be equivalent and has, therefore, authorized to operate
in lieu of the federal program. The State's program in regard
to the new process cannot be considered a KCRA program until (A)
EPA has issued standards in that area, and (Pi) the State's progran
has been explicitly authorized in that area. The facility must
wait to begin construction of its new process until EPA promulgates
standards and a RCRA permit (or pemit modification) is issued.
5. Question: Can nn applicant submit information along wit-h
his Part B, for potential expansions to his facility and obtain
a permit tor those expansions when he has no definite expansion
date. 40 CFR 270.10(f).
Answer! Yes. The applicant, however, nust submit information
at the sane level of detail as if construction were to begin
immediately upon receipt of a RCRA permit or at a later date,
connistent with a schedule of compliance specified in the permit.
The Part B application nust be in such detail that the permit
writer can draft an enforceable permit and so that there can be
meaningful public participation and review of the proposed facility
and permit conditions. In other words, he nust fully satisfy
all the information requi retnents of a Part B application and
the Part 264 standards for a new facility. This is. difficult to
do in the absence of specific plans. In addition, when the
applicant does finally decide to undertake the expansion, he
must conform exactly to the plans and specifications contained
in the permit. Applicants without firm expansion plans should
be encouraged to restrict their permit application to the existing
facility and to request a major modification when the expansion
plans and schedule are definite. The applicant, however, should
be warned that n i^ajor notification of this nature could, in
effect, constitute a new application. The applicant should also
he advised of any relevant regulations regarding the procedures
tor oxpandinq the capacity of a permitted facility.
If-'-il Rums
1. 0".iestion» Has the Agency issued any VCRA permits for incinera
'. ion on the hasis of data submitter* in lieu of a trial burn? 40
CFR <:7u.l9(c) and (('•).
Answer:
;,. emits
The Agency has not yot issued any FCRA incineration
on the basis of data obtained fron other incinerators in
lieu of a trial burn. In order tor data submitted in lieu of a
trial burn to he acceptable, the incinerators and the wastes must
be sufficiently similar so that the permit writer can confidently
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es-tablish incinerator operating conditions for the second incinerator
without the benefit of a trial burn.
General Standards
1, Question: For a new facility, can infornation for the continonncy
plan, such as arrangements with local authorities, be submitted
at a date later than submission of. the rest of the Vart »? 40 CFR
Subpart (•, S^7u.l4(b)(7).
Answer: Ho. If the applicant has done enouch planning to support
obtaining a HCKA pernit, he should have sufficient infcrnation to
attempt to make arran^enents with local authorities and draft an
adequate contingency plan. Only those arranyenonts agreed to by
local authorities need to be described in the contingency plan.
If the applicant's et'torts wore unsuccessful, these nust bf«
cocunented separately, according to 5162.37(b), and, in this case,
the contingency plan does not need to address arrancjenents with
local authorities. Also, under «264.51(d), infornation recjardtnc;
the specific energency coordinators nay be submitted after the
time of application.
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