5EPA
United States
Environmental Protection
Agency
Off tee of
SOIKJ Waste and
Emergency Response
DIRECTIVE NUMBER: 9484.0o-5
HTLI: Surface impoundment Retrofitting and Time
Allowed for Closure
APPROVAL DATE: 10/15/37
EFFECTIVE DATE: 10/15/37
ORIGINATING OFFICE: osw
S FINAL
D DRAFT
STATUS: | j £ ££j ^s^^
C- For review &/or connnent
I 1 D- In development or circulating
REFERENCE (Other documents): headquarters
OSWER Policy Directive # 9484.00-1
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE Dl
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United States Environmental Protection Agency
Washington, DC 20460
OSWER Directive Initiation Request
1. Directive Number
9484.00-5
2. Originator Information
Mame of Contact Person
Sharon Frev
Mail Code
WH-563
Office
OSW/PSPD/PB
Telephone Code
(202) 475-6725
3. Title
Surface Impoundment Retrofitting and Time Allowed for Closure
4. Summary of Directive (include brief statement of purpose)
Clarification of the requirements for surface impoundment retrofitting and surface
impoundment closures in anticipation of the HSWA statutory deadline, November 8,
1988.
5. Keywords
Closure; Surface Impoundment; Retrofit
6a. Does This Directive Supersede Previous Directive(s)?
b. Does It Supplement Previous Directive(s)?
No
No
Yes What directive (number, title)
Yes What directive (number, title)
OSWER # Q484.QO-1 "Interim Status Surface Impoundments Retrofitting Variances"
7. Draft Level
A - Signed by AA/DAA
B -- Signed by Office Director
C -- For Review & Comment
D - In Development
8. Document to be distributed to States by Headquarters?
Yes
X
No
This Request Meets OSWER Directives System Format Standards.
9. Signature of Lead Office Directives Coordinator
vUwufiy K ^tfjJluj^ j 0203
10. Name and Title of Approving Official
Marcia Williams, Director, Office of Solid Waste
Date
October 16, 1987
Date
October 15, 1987
EPA Form 1315-17 (Rev. 5-87) Previous edition.5 are obsolete.
OSWER OSWER OSWER O
VE DIRECTIVE DIRECTIVE DIRECTIVE
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foncy Directive No. 9484.00-5
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
OCT I 5 -;:P.T
MEMORANDUM
SUBJECT: Surface Impoundment Retrofitting and Time Allowed
for Closure
. • '"^JL^
FROM: Marcia E. Williams, Director Y\\fJ^^ ^
Office of Solid Waste (WH-563) V
TO: Waste Management Division Directors, Regions I - X
Introduction
This memorandum is distributed in anticipation of the
November 8, 1988 deadline prescribed by Section 3005(j) of the
Hazardous and Solid Waste Amendments of 1984. The memorandum
clarifies the relationship between retrofitting and closure
requirements for surface impoundments. It supplements the
guidance document dated July 8, 1986, entitled Interim Status
Surface Impoundments Retrofitting Variances (OSWER Policy
Directive No. 9894.00-1B).
November 8, 1988 Requirement
Under §3005(j), surface impoundments that were in existence
on November 8, 1984 and eligible for the authorization to operate
under interim status must meet the minimum technological require-
ments (MTRs) of §3004(0)(1)(A) by November 8, 1988. These MTRs
for double liners and leachate collection systems must be met
unless an exemption was requested under §3005(j)* and has been
An exemption'may also be granted under §3004(o)(2) (§264.221(c)).
There are no specific deadlines applicable to EPA review and
approval of §3004(o)(2) exemption requests. However, if a
§3004(o)(2) exemption request is not approved by November 8,
1988, then the unit in question must be retrofitted or cease
receipt of hazardous waste by November 8, 1988.
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OSWER Policy Directive No. 9484.00-5
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approved by EPA.** For the exemptions in Sections 3005(j)(2),
(j)(3) and (j)(4), the statute establishes an application deadline
of November 8, 1986 and a deadline of November 8, 1987 for EPA
approval. Section (j)(13) does not specifically outline
application deadlines or procedural requirements. However, EPA
believes it is appropriate to require deadlines and procedures
for (j)(13) equivalent to the other §3005(j) exemptions.
If the owner/operator of a surface impoundment without an
approved exemption does not retrofit as required under §3005(j) by
November 8, 1988, the unit must cease accepting hazardous waste.
Surface impoundments required to cease receipt of hazardous wastes
on November 8, 1988 will not be required to certify closure of the
unit by that date. However, the closure process must proceed
expeditiously after November 8, 1988 and must be consistent with
applicable closure regulations in Part 264 or Part 265. These
rules are discussed in greater detail in later sections of this
memorandum.
Information on permit requirements at interim status surface
impoundments was provided in the RCRA Reauthorization Statutory "
Interpretation (RSI) #1, issued on November 9, 1984, "Immediate
Permit Requirements". This document directed that all RCRA
permits issued after the enactment of HSWA must include the
condition that surface impoundments in existence on November 8,
1984 are to be retrofitted by November 8, 1988, unless an exemption
was requested and approved by the permitting agency by the
§3005(j)(5) deadlines. This requirement should be addressed in
the HSWA portion of the permit, when the permit is issued by EPA
where a state program is not authorized under HSWA.
RCRA permits that fail to require compliance with §3005(j)
however, may not be used as shields against the implementation
of this provision, unless the permit was issued before November 8
1984. That is, the owner/operator of a surface impoundment
permitted after November 8, 1984 cannot claim that the §3005(j)
requirements do not apply to that surface impoundment; the HSWA
requirements will take precedence over any permit conditions.
The proposed Codification Rule, published March 28, 1986 (51 FR
10706), will clarify the fact that a permit cannot be used as a
shield from requirements that go into effect by statute. This
proposal is expected to be published imminently as a final
rule.
** The retrofit deadline may vary per §3005(j)(6) which
pertains to surface impoundments that become subject to
§3005(j)(l) after November 8, 1984 due to the listing of
additional hazardous wastes .
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OSWER Policy Directive No. 9484.00-5
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The surface impoundment retrofit requirements are not affected
by the recent decision of the B.C. Circuit Court of Appeals in
United Technologies Corporation v. EPA, which remanded EPA's cod-
ification rule for MTRs under §3004(o). Section 3004(o) requires
permits to impose MTRs on new, replacement, and expansion surface
impoundments and landfills. The court held that this requirement
applies only to new, replacement, and expansion units at facilities
that submitted permit applications prior to the enactment of the
1984 amendments. Section 3005(j), however, addresses existing
surface impoundments, which are generally a different set of
units. Moreover, §3005(j) establishes its own separate set of
applicability requirements based on the physical existence of
the surface impoundments rather than the submittal of a permit
application. Consequently, EPA does not believe that the
applicability requirements in §3004(o) apply to §3005(j).
However, the statutory language of §3005(j) imposes retro-
fitting requirements on all surface impoundments qualifying for
interim status on November 9, 1984. Surface impoundments
permitted prior to November 9, 1984 did not qualify for interim
status on that date, and therefore are not subject to §3005(j).
Closure Requirements
As stated earlier, surface impoundments that have not been
retrofitted or have not received a waiver must cease to receive
hazardous waste by November 8, 1988, and they must begin closure,
because §§264/265.113 trigger closure after final receipt of
hazardous waste. However, §§264/265.113, are currently the
subject of litigation. Existing requirements regarding timing
of closure will be affected by any settlement agreement associated
with this litigation. Further, regardless of the success of on-
going settlement negotiations, EPA believes that adjustments to
§§264/265.113 requirements are desirable. We are currently
drafting a proposed regulatory amendment that would allow the
continued receipt of non-hazardous waste at units that no longer
receive hazardous wastes in certain circumstances that assure
the continued protection of human health and the environment.
A notice of proposed rulemaking is anticipated for January 1988.
Until specific regulation changes are finalized, however, current
requirements remain in full force.*** We will provide additional
guidance, early in 1988, on how these proposed changes will
affect the closure requirements, timeframes, and priorities for
closure activities prompted by the November 1988 deadline.
*** Some states still may not have changed their program require-
ments to conform to the May 2, 1986 rulemaking. As a result,
there may still be existing, less stringent requirements on
a temporary basis. However, these requirements will not
affect the retrofitting deadline. In no case can applicable
state law authorize the continued receipt of hazardous waste
at surface impoundments subject to the statutory deadline.
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OSWER Policy Directive No. 9484.00-5
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Notice
Under current regulations, a facility owner/operator without
an approved closure plan who intends to close an interim status
surface impoundment must submit a closure plan to the Regional
Administrator by no later than June 13, 1988 (180 days before
the "expected date" of closure - which is December 8, 1988 - as
required by §265.112(d)(1) and (2)).
An owner/operator with an approved closure plan who intends
to close a permitted or an interim status surface impoundment must
notify the Regional Administrator 60 days prior to the time closure
is expected to begin, as required by §§264/265.112(d)(1) and (2)).
Since closure must begin no later than November 10, 1988, notification
must occur by October 10, 1988.
Closure Activities
For facilities with approved closure plans, the activities
presented in the approved closure plan must begin within 30 days
after the final volume of hazardous waste is received
(§§264/265.112(d)(2)). The one-year extension period that may
be allowable for owner/operators (§§264/265.112(d)(2)) does not
apply to surface impoundments which must close. These impound-
ments are barred by statute from further receipt of hazardous
wastes. Additionally, under §§264/265.113 (a) within 90 days
after receipt of the final volume of hazardous waste, the owner/
operator must treat, remove from the surface impoundment, or
dispose of on-site all hazardous wastes in accordance with the
approved closure plan. For interim status facilities without an
approved closure plan, these actions must occur within 90 days
after the last receipt of hazardous waste or approval of the
closure plan, whichever is later (§265.113(a)).
Under §§264/265.113(b), facilities with approved closure plans
must complete closure activities within 180 days after receipt of
the final volume of hazardous wastes. For interim status facili-
ties without approved closure plans, the deadline is 180 days from
the last receipt of hazardous waste or the approval of the closure
plan, whichever is later.
Sections 264/265.112(e) allow for the removal of hazardous
wastes prior to"'n$bification of partial or final closure. In
the case of interim status facilities, the removal of hazardous
wastes, or any -'other closure activities, may be conducted prior
to the approval of the closure plan if the activities are con-
sistent with the closure requirements (51 FR 16430, May 2, 1986).
The activities would be included and reviewed in the closure
plan. The activities conducted prior to approval would only
be considered unacceptable if they are inconsistent with the
closure regulations.
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FO-Licy Directive No. 9484.00-5
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While the unit or facility is undergoing closure, it may
continue to receive non-hazardous wastes, provided that such
receipt does not delay or impair the effectiveness of the
closure activities.
Extension of Closure Period
Under §§264/265.113 (a) and (b), the Regional Administrator may
approve a closure period longer than the 90/180 days prescribed
in the regulations if the owner/operator can demonstrate that
certain specified circumstances are met. Specifically, in the
case of interim status surface impoundments undergoing closure
as a consequence of the §3005(j) requirements, the Regional
Administrator could approve a longer closure period if the
owner/operator demonstrates that the closure activities will of
necessity take longer than 180 days to complete. This might be
the case, for example, if owner/operators treat hazardous wastes
during closure or clean close, and if such activities would
require more than 180 days.
Closure Priorities 7
As stated earlier, interim status surface impoundments which
have not retrofitted or received an approved exemption from the
§3005(j) requirement, or received a waiver under §264.221(c),
shall cease the acceptance of hazardous wastes no later than
November 8, 1988. Closure of these units should proceed expedi-
tiously thereafter. Regional priorities for the approval of
closure plans for these facilities should be established within
the context of the facility management planning process. In
setting priorities, you should take into consideration that
impoundments which fail to meet the §3005(j) requirements are
likely to allow for the escape of hazardous constituents into
the environment.
Please contact Shraron Frey at FTS 475-6725, if you have any
questions.
cc: J. Winston Porter
Jack McGraw
RCRA Branch Chiefs, Regions I-X
Regional Counsel, Regions I-X
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