6EPA
United States
Environment*! Protection
Agency
Office of
Soitd Waste and
Emergency Response
DIRECTIVE NUMBER: 9432.04(85)
TITLE: Clarification of "Existing Units" Under HSWA
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APPROVAL DATE: 8-30-85
EFFECTIVE DATE: 8-30-85
ORIGINATING OFFICE: osw
0 FINAL
D DRAFT
LEVEL OF DRAFT
DA — Signed by AA or DAA
D B — Signed by Office Director
O C — Review & Comment
REFERENCE (other documents):
OS WE Ft OSWER OSWER
VE DIRECTIVE DIRECTIVE Dl
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.260 SUBPART B - DEFINITION
DOC: 9432.04(85)
Key Words: Existing Units, HSWA, New Unit
Regulations:
Subject: Clarification of "Existing Units' Under HSWA
Addressee: John Queries, Morgan, Lewis & Bockius, 1800 M Street, N.W.,
Washington, D.C. 20036
Originator: John H. Skinner, Director, Office of Solid Was.te
Source Doc: #9432.04(85)
Date:
Summary:
8-30-85
This letter clarifies EPA's interpretation of HSWA §3015 requiring new
units, lateral expansions of existing units and replacements of existing units
to comply with the minimum technological requirements of §3004(o). An above-
ground portion of a landfill in which waste is placed only within the lateral
boundaries of the unit may be classified under certain circumstances as a new
unit, and under other circumstances as part of an existing unit. In the latter
case, the above-ground area may be exempt from the §3004(o) requirements.
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9432.04 (85)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
AUS 3 0 ISS5
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
Mr. John Quarles
Morgan, Lewis & Bockius
1800 M Street, N.W.
Washington, D.C. 20036
Dear John:
This is in response to your letter of June 25, 1985, requesting
clarification as to whether above-ground portions of landfills. -
in which waste is placed only within the lateral boundaries of the
unit are considered to be "existing units" under the Hazardous
and Solid Waste Amendments (HSWA) of 1984.
Section 3015 of HSWA requires new units, lateral expansions
of existing units, and replacements of existing units, to comply
with the minimum technological requirements set out in Section
3004(o). The Environmental Protection Agency (EPA), has
interpreted Section 3015 to provide that for a unit to qualify
as an existing unit, it must have received waste by November 8,
1984, and must also have been fully "operational" by that date..
In order to be considered operational, the unit must have been
constructed to comply with all federal, State, and local require-
ments, including licenses and permits, in effect prior to
November 8, 1984, so that as of that date there was no legal
impediment to the operation of the unit. See 50 Fed. Reg. 28707
(July 15, 1985).
Your June 25, 1985, letter suggests that while under some
circumstances an above-ground area must be classified as a new
unit, such an area may be exempt from the new requirements if
it is part of an existing unit. We agree that the statute provides
for such a distinction.
The boundaries of an existing unit are limited by the
specifications in operating or closure plans, permits, etc.,
that were applicable on November 8, 1984, that describe a final
elevation or maximum capacity of the unit. The elevation or
capacity limitation will,Restrict the maximum allowable height
of the existing unit. I'f a State permit, for example, placed an
interim restriction on the height of the unit, only the height
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allowed in the permit on November 8, 1984, is included in the
existing unit. Additional placement of waste would constitute a
new unit.
An above-ground area must also be, considered a new unit if
a new or modified State or local permit would be required prior
to receipt of waste in that area after November 8, 1984. We
believe that such areas do not qualify as existing units nor as
portions of existing units. This is because such vertical
expansions do not meet the existing unit criterion of being
"operational" on November 8, 1984, since there was a legal
impediment to the operation of the unit on that date.
On the other hand, an above-ground portion will be considered
part of an existing landfill unit if (1) the owner or operator,
prior to November 8, 1984, had been granted the legal authority-
to expand vertically, i.e., all required permits and licenses -
for the vertical expansion had been obtained by that date, and
(2) no further State or local approval is needed for such vertical
expansion after November 8, 1984. Placement of waste vertically
in such existing landfill units, including vertical expansions
that involve additional construction of berms, liners, leachate
collection systems, or other physical structures or appurtenances,
constitute portions of existing units provided that the additional
waste is placed only above waste placed within the lateral boundaries
of the existing landfill unit; i.e., there must be no lateral
placement of waste. If required construction features added
after-November 8, 1984, would result in expanded lateral placement
of waste (i.e., would result in a lateral expansion), Section
3015 would require that this expanded area be in compliance with
the new minimum technological requirements.
We will very shortly clarify to our Regional Offices that
the minimum technological requirements are applicable to above-
ground landfill areas if such areas constitute new units, as
described above.
We have not yet completed a detailed review of the information
we have received regarding your client's facility in Deer Park,
Texas. In fact, we have not yet received from you all of the
information I requested in my letter of August 9, 1985. Specifi-
cally, as requested in my previous letter, we need drawings
that clearly identify which portions of the unit were constructed
and where the liner and leachate collection system were located
on November 8, 1984. In addition, it is possible that we will
need even more informatipri regarding this unit before a final
determination can be made. Hence, we express no opinion here
about whether your client's unit would qualify as an existing
unit under the definition and guidance set out above.
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I hope that the information contained herein is helpful
to you, and look forward to receiving the information we are
requesting regarding your client's facility.
Sincerely yours,
(I
fohn H. Skinner
^Director
Office of Solid Waste
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