United States Solid Waste and EPA/530-R-97-004J
Environmental Protection Emergency Response December 1996
Agency (OS-343)
RCRA Permit Policy
Compendium
Volume 10
9500.1980-9522.1996
Permitting Policies
• Priorities
• Corrective Action
• Special Permitting
• Compliance & Enforcement
• Public Participation
Permitting Procedures (Parts 124 & 270)
• General
ATKl/3590/llkg
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9522 - GENERAL
INFORMATION
Part 270 Subpart A
ATKl/l 104/56 >v
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9501.1982(01)
JUL 3 -382
Guidance for Permitting of Hazardous Waste Incinerators
John Skinner, Director
State Prograns and Resource Recovery Division
Regional Hazardous Waste Division Directors
As you are aware, the amendment for hazardous waste inciner-
ators was published: in the Federal Register on June 24, and was
accompanied by a notice antiouncing that the suspension on calling
Part B's for incinerators has been lifted. The •information burden"
clearance frore OMB was also received recently (clearance $2050-0002)
The Agency is thus in a position to begin the permitting process for
these facilities. This memorandum is intended to provide guidance
as to the priorities which should b« followed in formulating
regional plans for permitting incinerators.
In Rita Laveila's merorandun of June 18 to the Regional Admin-
istrators various targets were set for the numbers of incinerator
petraits to be issued in FY 33 and the numbers to be called in FT 83
for issuance in FY 84. These targets were set for each region on
the basis of the permitting resources projected to be available.
Assuming roughly a year's time from the tiae a permit is called to
when it is issued, adherence to the targets will necessitate calling
a substantial number of incinerator Part. B's daring the remainder
of this fiscal year, and daring the first quarter of FY 83. Inciner-
ators mast be considered to be the first priority of the RCRA
permitting program in the coming months.
In establishing priorities for permitting of hazardous waste
incinerators we expect to use the same general approach we have
been using for storage facilities. That is* new facilities will
be assigned the highest priority for permit issuance, and existing
facilities should be prioritized according to their potential for
causing environmental harm. The following are factors which
should be considered in ranking existing incinerators for calling
Part B application**
o Age of the facility
o Six^ '
o Proximity to population center*
o Complexity of the waste mixtures incineratsd
o Toxicity of the wastes incinerated
o Prior history of poor operation or air pollution
violations
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It should be expected that nost incinerator facilities win
also have some typ« of storage capability at the site. In such
cases the Part B should be called for both the incinerator and the
storage facilities. These storage facilities can be counted against
the permitting targets in Attachment 1 of Rita Lavelie's Juris 13
nenbrandun, according to the specified substitution ratios.
: If there are any questions regarding the incinerator peraittinq
program, please contact Randy Chrianon of my staff at 382-4535.
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9501.1932(02)
29 DEC 82
MEMORANDUM
SUBJECT: RCRA Land Disposal Permit Strategy
FROM: John H. Skinner, Acting Director
Office of Solid Waste
TO: Regional Hazardous Waste Division Directors
On January 26, 1983, the new Part 264 hazardous waste land
disposal regulations will become effective, and EPA will begin
the process of requesting Part B applications for selected land
disposal facilities. This memorandum is intended to provide
guidance on selecting facilities for priority attention in this
initial phase of the land disposal permit program.
The decisions as to which land disposal facilities will be
permitted first, and why, must be made carefully. Each of these
permit actions will require a considerable investment of the
Agency's permitting resources, and they must therefore be targeted
to achieve maximum environmental benefits. In addition, this
permit program will be highly visible and subject to intense
scrutiny by the public and the regulated community. To assist in
making the initial call-in decisions, we strongly urge that the
states be consulted and actively involved in the selection process.
Some states may already have developed their own land disposal
permit strategies, and these should be accommodated by the
regions to the extent that they do not conflict with EPA's
objectives.
The primary objective of the RCRA land disposal permit
program must be to maximize the benefits to public health and
the environment. This is consistent with our previous policies
for permitting hazardous waste storage facilities and incinerators,
The following priorities should be assigned by the regions in
assessing Part B call-ins for land disposal facilities:
—Facilities which are known to be sources of groundwater or
surface water contamination. Highest priority should be
given to cases where sole source aquifers and other drinking
water supplies are being endangered. Information regarding
groundwater contamination should be solicited from the
states, and may also be available from interim status
quarterly reports and other sources.
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—Facilities which may be causing environmental damage. This
could include facilities which have histories of poor
operating practices, prior enforcement actions, inadequate
liner systems (where applicable), or inspection reports
indicating improper facility designs or unsafe management
practices. Facilities which have yet to report groundwater
monitoring data, or for which data is questionable should
be examined closely for permit action. Again, primary
emphasis should be on protection of valuable aquifers and
other water supplies.
—Facilities which pose potentially significant environmental
risks. Assessment of environmental risks could include
the proximity of the facility to population centers, aquifers
and surface waters, facility size, nature of the wastes
being disposed of, and other environmental factors.
In addition to these primary environmental considerations,
several other factors should be taken into account:
New Submissions. Permit applications, for new facilities
should continue to receive high priority on the region's permit-
ting resources.
Multi-Process Facilities. It has been the Agency's policy
that facilities which contain more than one type of process
should be covered by one compreprehensive permit. As a result,
some high priority incineration facilities have not yet been
called since they are located with land disposal operations.
The regions may wish to target these facilities for the first
round of call-ins.
Monofills and Neutralization Surface Impoundments. As
explained in the preamble to the new Part 264 land disposal
regulations, EPA currently plans to propose adjustments to its
regulatory approach for monofills and neutralization surface
impoundments. Part B's for these two types of facilities should
therefore be given lower priority for call-in unless there is
evidence that such a facility is causing environmental damage.
Effects on Competition. It is possible that permitting of
a facility or facilities could have some effect on business
competition. This is roost likely in a case where a commercial
land disposal facility is required to obtain a RCRA permit while
a nearby competitor is allowed to remain under interim status.
Regions should consider effects on competition in formulating
their overall call-in strategies (for example, calling all
commercial landfills in an area at the same time).
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Although the Agency has not yet received OMB approval to call
Part B's for existing land disposal facilities, we expect to
receive approval by January 26.
The importance of this permitting effort demands that EPA
begin its implementation as soon as it is legal and practical to
do so. I therefore request that the initial round of call-in
letters be prepared in advance by each region so that they can
be mailed immediately after the regulations become effective.
Subsequent call-ins to fulfill regional target commitments
should be timed so as to balance workload demands.
If there are any questions or comments concerning strategies
for calling land disposal facilities, please contact Steve Levy
at 382-4740.
cc: Regional Hazardous Waste Branch Chiefs
S. Napolitano
B. Weddle
S. Levy
J. Lehman
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9501.1984(01)
NOV - 9 I96J
SUQJECTi RCP.A Reauthorliation Statutory Interpretation tli
Immediate Permit Requirements "
PROMi Loe M. Thonas
Assistant Administrator
TOt Addressees
On November £, President Reagan signed The Hazardous and
Solid Haste Amendments of 1984. These amendments to the
Resource Conservation and Recovery Act (RCRA) will have a
profound effect on Almost every aspect of the management of
hazardous waste in thi« country. Provisions are effective
in both authorized and unauthorized States. EPA is responsible
for implementation until a State is authorized for the new
provisions.
This memorandum alerts EPA Regions and States to those new
provisions of the Act immediately applicable to RCRA permits
issued as of the date of enactment (DOE), November 9, 1984.
Permits in process, Including draft permits, must address the
newly effective requirements before issuance. It is important
to note that in authorized States, EPA is responsible for
incorporating the new provisions into the permit. Therefore,
issuance of a valid RCRA permit in authorized States must be
accomplished through joint permit processing with EPA until
States are authorized for the new provisions.
To assist in identifying the extent to which draft pernits
and permits under development* as veil as penait applications,
must now be revised, the attached table briefly describes, by
facility type, the new requirements which are to bo immediately
reflected in final permit conditions. The attachment does not
include provisions that affect the perait program at later dates,
nor does it cover early enactment provisions beyond permitting.
Subsequent memoranda will describe the full range of new RCRA
provisions that afreet hazardous waste management programs at
the Federal and State levol, including joint penait processing,
and will include a schedule of implementation guidance.
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While new requirements for permit applications already
in process nay delay tbe issuance of sons permits, other perrait
processing activities will not bo substantially affected.
Activities that should continue include:
• Requesting land disposal permit applications. However, "'
under the new legislation, within one year of enactment
all existing interim status land disposal facilities
raust submit thoir Part B permit application, as well as a
certification of compliance with applicable ground-water
and financial responsibility requirements, in order to
retain interim status. Because of the new statutory
requirement, the timeframa provided in the National Permits
Strategy for requesting remaining land disposal pernit
applications, including the on* year extension into FY 1986,
is eliminated. Current schedules for calling in land
disposal facilities should be reevaluated and new schedules
should be, developed which will conclude all Part B requests
for existing interim status land disposal facilities within
the first six months of enactment;
. • Requesting remaining incinerator applications, as
scheduled;
0 Processing interin status closures. However, owners •
and operators of land disposal facilities that received
waste after July 26, 1982, and closed between that date
and January 26, 1983, should be advised in writing that
the new RCRA amendments extend the Part 264 ground-wat«r
monitoring and response requirements to them.
' Joint inspection and perait writer visits within ninety
days of the permit application request should continue.
These visits should be used to assist facilities in under-
standing new requirements, as well as to offer them
advica on application requirements that have not changed;
• Continuing technical evaluations of those parts of the
permit applications that are not affected By the RCRA
amendments;
• Preparing public participation plans for the environmentally
significant facilities whose permit applictions are in
process or^ill be requested in FY 1985.
For your information, we are currently in the reidst of a
process to identify and analyze the issues that reauthorization
poses for near-term implementation of the RCRA program. Our a in
is to prepare the policies and guidance that the Regions and.
States need on specific reauthorization issues according to their
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slgnificance and Immediacy. Additional "RCRA Reauthoritation
Statutory Interpretations' will b« issued periodically to alert
Regions, States and other affected or interested organisations
to the interpretations of various provisions such as those
described in the attachment, aa well as to key changes in program
directions and policies.necessitated by the latest RCRA amendments,
Until guidance is provided on the new permit requirements
highlighted in the attachment, I encourage you to call • - •'
Peter Guerrero, Chief, Permits Branch (PTS-382-4740) to discuss
their scope, policy interpretations and'implementation procedures.
Attachment
Addre«seeai
Regional Administrators, Regions I-X
Regional waste Management Division Directors, Regions I-X
Hazardous Haste'Branch Chiefs, Regions I-X . *
Regional Counsels, Regions I-X ' '
State Hazardous Haste Prograa Directors -. ••
Assistant Adainistrator for Enforcement and Compliance Monitoring
Associate General Counsel for Solid Wast* and Emergency Response
OSKER Office Directors
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9501.1985(01)
OCT ! '985
iL'DJECTi Application of November 19C3 Deadline to
£:'.G.VI J. Winston Porter
Assistant Administrator
TO: Harry "erayJarian, Director
Toxics and 'Vaate iianaceir-ent Li vision
In year merrorandura of August 30, you requested cur
interpretation regarding application of the liovenber 1968 dead-
line to vasts pile* and post-closure permits. We agree with
your conclusion that all vasts piles are subject to $213(c) of
liSWA requiring issuance or denial of all land disposal permit
applications by November 1988. This interpretation is consistent
with J201(k) of HSWA which includes waste piles in the definition
of land disposal.
With regard to the priority of post-closure permits, we
recognize the difficulty in making final determinations on all
x land disposal applications by November 1988. We must* however,
£ continue to strive to meet that goal* Therefore, in order to
^ achieve the greatest environmental benefits from available re-
t" sources , high priority should be placed on the processing of
^L operating land dispose,! unit applications and Part 265 closures.
2 For those land disposal units where releases are likely or have
^ already been identified, either }3008(h) orders or 5 3004 (u)
authority through post-closure permits should be used. The
£ oelection of the appopriate mechanise for addressing these
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9501.1986(01)
II 666
Mr. Kenneth L. Vaesche
Director
Waste Management Division
Colorado Department of Health
4210 East llth Avenue
Denver, Colorado 80220
Dear Mr. Waeache:
Than* you for your letter of July 25, 1986, In which you
identified potential issues associated vieh the permit application
for destruction of nerve agents at the Pueblo Army Depot. Because
Congress mandated, under P.L.99-145, that the Army destroy the
U.S. stockpile of nerve agents by September 30. 1994, EPA considers
thy permitting of incinerators to destroy the nerve agent stocks
a high priority. We set January, 1988, as the target date for
final issuance of the KCRA permits because we anticipate It will
take at least several years to construct these incinerators once
the RCRA permits are Issued. The high permitting priority tor
the nerve agent projects is reflected In FPA's FY-1987 RCRA
Implementation Plan.
We recognize that Colorado has other high priority work
involving land disposal facilities. However, Colorado and EPA
Region VIII oust factor the Pueblo permit application Into the
State grant workplan negotiation process to ensure that it receives
priority attention in FY-1987. If you believe Che State does not
have adequate resources to process this application, you should
consider allowing EPA to assume the lead for processing it,
though Colorado would be responsible tor issuing the permit.
EPA has stressed to the Any that they are subject to State
requirements, loth technical and administrative, which may be
more stringent and also more extensive (i.e., siting approvals)
than the Federal requirements, and that the Army needs to work
with the State* where their facilities will be located to ensure
that ail State requirements are met In a timely manner. EPA (HQ)
la heavily Involved in this project to provide technical guidance
and assure coordination between the Army. EPA Regional Offices,
and the States. This involvement was supported by the States,
Regions, and the Army, at the May 15-16, 1986, EPA-State-Army
meeting. Chip Stewart of the Colorado Department of Health
represented Colorado at that meeting.
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The permitting tineframe that we have established tor the
Aray co neet the Congressionally Mandated deadline of 1994 is,
admittedly, anbitioua. There are many aspects of this prelect,
such as Part B application deficiencies and siting difficulties,
that nay affect the ability co meet the mandated deadline. The
Any is well aware of the problems and is working with the States
and Regions to resolve these issues early in the process. The
EPA-State-Amy workgroups which have bean active this summer is
one atteapt to ensure chat the A nay* s applications are complete
and thereby minimi xe the need for multiple and time-consuming
Notices of Deficiency (MODs). (Chip Stewart has been a workgroup
participant and we appreciate his input.)
With regard to the siting issues, the Amy has launched an
expanded public information program in an atteapt to make the
public more receptive to the new facilities. The Amy has held
two public meetings on their Environmental Impact Statement (EIS)
for this project in Pueblo, Colorado, on April 28, and August 21,
1986. Similar public meetings were held for the other proposed
sites, which are located throughout the U.S. The purpose of the
meetings on Che EIS is Co in torn the public about the strategy
and the riaks posed by the nerve agent disposal program, and to
aolicic coements regarding the EIS. The deadline for public
coonaent on the EIS is September 23, 19S6. It is my understanding
coat the Army plans to have an expanded public information program
during FY 1987 for all tneir permit applications.
I appreciate your concern regarding Che difficulties which
may be encountered in processing the permit application for the
Pueblo Army Depot and your raising chea to me at this time. I
urge you co raise the permitting priority issue and other resource
concerns during Che annual grant negociatlon process with the EPA
Region VIII Office, which I believe Is underway now.
Please feel tree Co contact me It you have additional questions
or concerns.
Sincerely,
Arthur Gla»er
Chief, PAT Incinerator Section
cc: Bruce Ueddle Larry Wapensky
Lie Cotsvorth Denlse Hawkins
Ken Shuater Bob Duprey
Robin Anderson Jon Yaagley
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9501.1987(01)
cr- S T
MEMORA-SCL'N
SUBJECTi Land Disposal Facilities Not on a Permitting or
Closure Schedule
FROKi Marcia E. Williams, Director
Office of Solid haste
TOi Hazardous Wast* Division Directors, Regions 1-10
In November 1986, OS* began tracking progress toward the
November 1988 permitting deadline in the RCRA Permit Activities
Monthly Report. This report includes a number of facilities
that are not on a multi-year strategy for permitting or
closure. These facilities lack a multi-year strategy for a
number of reasons. In some cases, the facility no longer
functions as a RCRA site (e.g., the facility i* bankrupt or
under 6uperfund's jurisdiction), or is not considered to be
a land disposal facility but has not been reeoved fror. the
land disposal universe. However, in moat cases the facility's
RCRA regulatory status is unresolved.
All facilities that are RCRA-regulated facilities are
subject to the permitting deadline. Delays in determining
their regulatory status could lead to missing the permitting
deadline at these facilities. As a. result, we should resolve
the regulatory status of these facilities as soon as possible.
Attached to this memorandum is a list of these facilities
in your He9ion (this list is found in OSW's RASrt&KU in the
Multi-Year Strategy section under the title. "List of Facilities
Liot on the Disposal Multi-Year Strategy with C305-D in HWDM2",
All Keyions have access to the RASMENU.). Please resolve the
regulatory status of these facilities by Kovenber 1, 1967, in
the following fashiont
1). Send a permitting or closure nulti-year strategy
for the land disposal facilities on this list that
are subject to RCRA regulation to George Garland,
Chief of the State Programs Branch. O&W's
Information Management Staff (IMS) will then assign
the appropriate multi-year strategy designation to
these facilities.
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2). Replace the C305-D c^signation in HWDMS with the
correct C305 designation for any facilities that
are no longer subject to kCRA regulation (e.g., if
a facility is actually only a RCRA storage facility,
it should becone C30S-S, if it is not a RCRA-
regulated facility, C305 should be blank).
3). Keep the C305-D designation for all bankrupt
facilities or facilities now subject to Superfund.
OSHEfi is currently creating a new designator in
HWDMS that will identify these facilities.
In a number of cases* Regions have discovered operating
land disposal facilities that do not have either interim
status or a peraiO-oyeiaLiiKj as land disposal .facilities-.
When these facilities are discovered, they are entered into
HWDMS as C305-D facilities. They automatically appear in
the "not on a pernit or closure track' category. IKS moves
these facilities into the closure track after consulting
with the Region involved. We will continue this practice
for all newly discovered illegal facilities.
If you have any questions, please contact Chat Miller of
the Information Management Staff on (FTS) J&2-2220.
Attachment
cci Jack McGraw (without attachment)
KCRA Permit Section Chiefs, Regions 1-10
HWDMS RPO's, Regions 1-10
Kate Bouve (without attachment)
Pruce Waddle (without attachment)
Ken Schuster (without attachment)
WH-563:CM:cmi382-2220*9/11/87tCM's disk7doc99
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UNITED STATES ENVIRONMENTAL R*OTECTION>*ENCY 9501.1987(02)
DEC I 4 I9SI
MEMORANDUM
SUBJECT: RCRA Program Directions for FY 1989
FROM: J. Winston Porter
Assistant Administrator
TO: Regional Administrators
Region I-X
During the development of the FY 1988 RCRA Implementation
Plan, several Regions expressed a desire to take a more
integrated approach to addressing environmentally-significant
facilities and activities. I agree that as we move beyond
the November 1988 land disposal permitting deadline, we need to
focus even more of our resources on corrective action and closure
at the entire universe of environmentally-significant facilities.
To direct our resources toward these goals, we will need
effective ways to identify the most significant facilities.
with the development over the last few years of facility
management plans and multi-year strategies, we began a process
to establish priorities based on the environmental significance
of facilities.
In an effort to refine and apply this process more broadly,
some Regions have established systems to rank all facilities and
activities based on potential threats to human health and environ-
mental significance. As we incorporate an even greater emphasis
on health and environmental benefits in our decision making and
priority setting, it becomes increasingly important for RCRA
program managers to continue to refine and apply their screening
and ranking systems to Identify those facilities posing the
greatest health and environmental risks.
In FY 1989, efforts to establish priorities should be
expanded to encompass the entire universe of facilities, including
all treatment, storage, and disposal facilities, whether operating
or closing. We do not envision this to be a highly resource-
intensive effort but rather anticipate that existing data sources
and Regional and State knowledge of site conditions can, to a
large extent, be used to establish priorities. In addition,
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pRe^ecrtoN AGENCY
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aince a number of these priority facilities nay ultimately be
eligible for management under Superfund, Superfund resources
also will be available to assist in the initial screening and
ranking through the PA/SI process. This preliminary establish-
ment of priorities is an integral part of the Environmental
Priorities initiative (EPI).
Once environmentally significant facilities have been
identified, high priority should be placed in PY 1989 and beyond
on addressing corrective action and permitting or closure/post-
closure at the most significant facilities, regardless of RCRA
and CERCLA authorities to address these facilities. Although
the 1989 incinerator deadline will continue to be an important
goal, some reallocation of resources from incinerator permitting
to other environmentally-significant facilities and activities
may by justified on a case-specific basis. As part of this effort
to increase our focus on the most environmentally-significant
facilities, the Office of Solid Waste is examining revision of
the SPMS system to better reflect the level of effort and
environmental benefits associated with the various targetted
activities.
This memorandum is intended to help focus your initial
planning activities for FY 1989. Additional guidance will be
provided in the FY 1989 RCRA Implementation Plan, the FY 1989
Agency Operating Year Guidance, and through the EPI Task Force.
Also, to help support these planning efforts, OSWER will be
issuing guidance on the use of Section 3008 (h) orders, RCRA
National Priorities List listing policy, and post-closure
permits as tools for instituting corrective action. Finally,
as part of the EPI, Superfund resources will be used to conduct
approximately 1,000 new preliminary assessments (PAs) on the
highest priority sites and you will have available for priority
setting purposes information on RCRA sites that are now in CERCLIS
and that have received PAs and Sis. Guidance on this effort
also will be provided.
As we plan for the challenges of FY 1989, I look forward to
working with you to ensure the greatest level of environmental
benefits are achieved.
cct Deputy Administrator
Regional Division Directors
Regional RCRA Branch Chiefs
Regional Enforcement Branch Chiefs
Regional Superfund Branch Chiefs
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9501.1987(03)
CTION AGENCY
WASHINGTON, O.C. 20460
\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
2irC 28 ' --- " SOUD WASTE AND EMERGENCY
MEMORANDUM
SUBJECT: Impact of Proposed Rules on Permit Deadlines
FROM: Marcia E. Williams, Director M^r,/ U?^ — • —
Office of Solid Waste (WH-563)1 ^"^
TO: Allyn M. Davis, Director
Hazardous Waste Management Division (6H)
Region VI
Your memo of November 30 indicated concern that the timing
of the proposed location standards and incinerator rules may
jeopardize your ability to meet the 1988 and 1989 permit deadlines.
The draft location and incinerator standards were developed
partly in response to public concerns about shortcomings in fie
current regulations. I do not believe that delay of these important
regulations until after the 1988 and 1989 statutory permitting
deadlines would be an environmentally sound decision in light of
their importance.
: We do recognize, however, that proposing new regulations in
the midst of the permitting process has the potential to delay
certain permit activities where the public is concerned about
CPA and/or the State issuing a permit that does not incorporate
the new requirements. In order to minimize any disruption of
the permit process, we will continue to share drafts of these
.rules with the Regions prior to proposal. Where you conclude
that the draft rule contains a requirement applicable to a ,
permit you are drafting and that such a requirement is needed
to protect human health or the environment, you can use the
omnibus provision to add that requirement to- the draft permit.
When we propose the new incinerator requirements in the Spring,
the preamble will explain that we have provided guidance documents
to the permit writers to help them implement the proposed controls
immediately under the omnibus authority codified at S270. 32(b) •.'.').
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While we currently do not plan to include a similar discussion
in the proposed location standards rule, you may also use the
omnibus provision to apply a proposed location requirement to a
particular facility. The Permit Assistance Teams are available
to assist you in resolving any permit specific issues that arise.
In conclusion, I believe that if we work together we can
minimize any permit delays these new regulations may cause.
Should the regulations legitimately cause you to miss a SPMS
commitment, we will be able to renegotiate these on a case-by-
case basis. I would expect, however, that we can jointly keep
delays to a minimum through regular communication on the
direction of the rules and on their impact on particular permits.
cc: Regional Hazardous Waste Division Directors
Thad Juszczak
Bruce Weddle
Joe Carra
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9501.1990(01)
RCRA/SUPERFUND HOTLINE SUMMARY
JULY 1990
2. Toxicity Characteristic Waste Part B Permit Application Deadlines
An existing, previously unregulated facility may become subject to RCRA
regulations (and begin to operate under interim status, 40 CFR Part 265
regulations) because it is handling a waste newly regulated due to the
Toxicity Characteristic (TC). According to the March 25, 1990 Federal
Register (55 FR 11798), the facility must submit a Part A Permit application
six months from the date of publication in the Federal Register (55 FR
11846) by September 25, 1990. When must the facility submit the Part B
portion of the permit application?
The date on which the facility must submit its Part B permit
application depends on the type of unit. If the permit is for a facility
other than a "land disposal facility," then the TSDF must submit its
Part B application when EPA requests it, with a date established that
provides the facility at least six months notice. (40 CFR 270.1 (b)) If the
facility meets the definition of a land disposal facility, then the Part B
must be submitted no later than 12 months after the date on which
the facility first becomes subject to the permit requirement (40 CFR
270.73(d)(D), in this situation, by September 25, 1991. The definition
of land disposal facility is not codified in 40 CFR, but a statutory
interpretation can be found in the September 25, 1985 Federal
Register. (50 FR 38946) The Agency interprets the term to encompass
the following facilities: "landfills; land treatment units; surface
impoundments for disposal, treatment, or storage; waste piles; and
Class I hazardous waste underground injection wells". (50 FR 38947)
Source: Wayne Roepe, OSW (202) 475-7245
Research: Cynthia Hess
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9502 - CORRECTIVE
ACTION
ATKl/l 104/53 kp
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The final codification rule does not set standards for
implementation of §3004(v) and states that in the interim
decisions to issue orders for this section shall be done on
a case-by-case basis. This section of HSWA provides that:
As promptly as practicable after the date of
enactment...the Administrator shall amend the
standards...regarding corrective action required
at facilities for the treatment, storage, or
disposal, of hazardous waste...to require that
corrective action be taken beyond the facility
boundary where necessary to protect human health
and the environment....
If you are interested in pursuing such an order for this
facility, you should contact Ginny Steiner of the Office of
Waste Programs Enforcement at FTS 475-9320.
We are as yet unsure what mechanism to use in applying
§3008(h) to Federal facilities due to our dispute resolution
policy for such facilities. Normally, however, if a facility
is operating under interim status, the authorities in
§3008(h) can be used to deal directly with on-going environ-
mental problems. The trigger for issuing such orders and
initiating civil referrals is the existence of a release-
However, because of the nature of the $3008(h) provision,
it ia subject to limitations. Your question is not entirely
clear, however, in terms of what units are leaking and
their permitting status. You state that the pond is a RCRA
unit and then state that it has no ground-water monitoring
system. If the pond is operating pursuant to the interim
status requirements, it must have a ground-water monitoring
system. If you have specific questions on this process or
how it should be implemented, please call Ginny Steiner at
the number listed above*
In addition, you have asked whether it is significant in
determining the applicability of RCRA corrective action that
one or more contaminants being released through the NPDES
point are not specified in the permit. This factor is not
significant in determining RCRA's applicability to the
release. Tfcsf key queation is whether the release from an out-
fall addressed in the NPDES permits is within the exemption
for NPDES discharges found in §1004(27) of RCRA. We are
currently developing guidance covering RCRA jurisdiction and
NPDES discharges.
You have also asked whether a release which occurred prior
to the date of the NPDES permit could be addressed by correc-
tive action measures pursuant to §3004(u). Corrective measures
could apply to a release which occurred prior to the issuance
of a NPDES permit. As a matter of policy EPA has decided to
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY.
WASHINGTON, O.C. 20410
APR 18
Of
SOLID WA4TC AND CMCMGCMCV M(S»O
MEMORANDUM OSWER POLICY DIRECTIVE #9502.00-2
SUBJECT: RCRA,Correctiye Action at Federal Facilities
/, w-> .'V't.
'FROM: J. CTinscon Porter
Assistant Administrator
TO: Peqional Administrators, Regions I - X
On March 5, 1986, we oublished two notices in the Federal
Register (copies attached) about corrective action at Federal
facilities. I am writing to clarify some possible misconcep-
tions over the two March 5 notices.
The first notice states: (1) $3004(u) applies to Federal
facilities; (2) Federal agencies are subject to the same
"orooerty-wide" definition of facility as other owner/opera-
tors; and (3) the term "owner" aoplies to individual Federal
deoartments, agencies, and instrumentalities rather than the
M.S. government. The second notice announces EPA's intent
to promulgate rules to further clarify Federal ownershio and
to establish a scheme of priorities for corrective action at
Federal facilities.
Our office has heard conflicting statements on the effect
of EPA's intent to promulgate a rule on national priorities.
Some Federal agencies may incorrectly believe that corrective
action has -been "put on hold" until EPA issues a final
regulation. Thl« is not true. Until EPA issues a final rule
on priorities Cor corrective action at Federal facilities, the
Regions »u»t continue to process arid issue permits, including
negotiating corrective action schedules of compliance under
$3004(u). Current permitting negotiations on corrective action
between EPA and Federal.agencies must not be affected by the
two Federal Register notices. EPA shall continue to require
corrective action at Federal facilities and EPA shall
continue to require schedules of compliance in the permits of
Federal facilities. Where appropriate, administrative orders
under $3008{h) should also be issued to direct Federal agencies
to conduct corrective action activities prior to issuance of
the permit.
-------
In negotiating schedules of compliance, the Federal
agencies may legitimately raise the issue of the relative
priority of the facility in question. Where EPA, the State
and the Federal agency aaree that the facility is of lesser
importance, the timeframes for conducting corrective action
activities in the schedule of compliance should reflect this
Where the three parties are unable to agree on the schedule
for conducting corrective action activities, these disputes
should be referred to Bruce Weddle, Director, Permits and.
State Programs Division, OSW, or Lloyd Guerci, Director, *
RCRA Enforcement Division, OWPE, to resolve permitting or
enforcement issues, respectively. We are prepared to work
with the Federal agency Headquarters to obtain resolution of
these problems.
I have already written to the major Federal agencies
(Departments of Energy, Defense and the Interior) to explain
our intent to continue the permit process and to negotiate
schedules of compliance for corrective action. I urged each
of them to begin considering their own priorities to facili-
tate the negotiation process, and I will meet with each
agency to discuss its plans.
While negotiation of corrective action schedules of
compliance may be handled on a case-by-case basis until the
final rule is promulgated, there is one area discussed in
the Federal Pegister notice which we cannot address without
a regulation. The notice states that in some situations
where a private party has oartial property interests such
as leases or mineral extraction rinhts, it may be aporopriate
to define the facility boundary in terms of the private
party's property interest rather than the Federal agency's
property interest. In these limited situations the private
party would be responsible for taking corrective action
rather than the Federal government. In all such cases
prior to issuance of the final rule, the Federal agency
will be considered the owner of such property and will be
held responsible for releases from such operations and for
releases on its contiguous Federal lands.
I hope this will help to clarify corrective action at
Federal facilities. Questions on this subject may be
addressed to Paul Connor, Federal Facility Coordinator in
OSW (PTS 475-7066) for permitting issues or to Tony Baney,
Federal Facility Coordinator in OWPE~^(FTS 382-4460) for
enforcement issues.
Attachments
cc: Director, Hazardous Waste Divt«ian,
Peg ions I-X
Chief, Hazardous waste Branch,
Regions I-X
Allan Hirsch, OFA
Regional Federal Facility Coordinators,
Regions I-X
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9502.00-3
August 4, 1986
MEMORANDUM
SUBJECT: Implementation of UIC Corrective Action Requirements
FROM: Michael B. Cook, Director
Office of Drinking Water
Marcia Williams, Director
Office of Solid Waste
TO: Charles H. Sutfin, Director
Water Division, Region V
Basil G. Constantelos, Director
Waste Management Division, Region V
Several issues have recently been raised by Region V
regarding how RCRA corrective action requirements under §3004(u)
should be addressed when issuing permits to hazardous waste
injection wells under the Safe Drinking Water Act. This
memorandum is intended to clarify several points of guidance
contained in Underground Injection Control Guidance #45, issued
on April 9, 1986.
As outlined in the above guidance, a UIC permit may be
issued to a hazardous waste injection well at a RCRA interim
status facility, without addressing the requirements of RCRA
§3004(u). In such case, the well retains RCRA interim status
until such time as the entire facility is addressed for the
purposes of corrective action. When the §3004(u) requirements
have been addressed for the entire facility, the well obtains a
RCRA permit by rule. The §3004(u) requirement cannot be
implemented selectively at the well only.
For a UIC permit which is issued at an interim status
facility for which the §3004(u) requirement is not addressed, a
corrective action program for the injection well (as outlined in
Section VIII of Guidance #45) should be followed. Such
This has been retyped from the original document.
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-2-
corrective action programs will be implemented under SDWA
authorities, and need not invoke RCRA §3004(u).
To the extent that existing SPMS accounting measures specify
that UIC permits for hazardous waste injection wells must also be
RCRA permits by rule, we will work to adjust those measures to
reflect the guidance in this memorandum.
We appreciate the complexity of these issues, and the
difficulties inherent in effectively coordinating and
implementing these new requirements. If you have any questions
or further problems, please contact Ellen Berick in the Office of
Drinking Water (382-5547), or Dave Pagan in the Office of Solid
Waste (382-4740).
cc: Hazardous Waste Division Directors, Regions I-X
RCRA Branch Chiefs, Regions I-X
Water Division Directors, Regions I-X
Drinking Water Branch Chiefs, Regions I-X
B. Weddle
P. Baltay
This has been retyped from the original document.
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UNITED STATES ENVIRONMENTAL PROTECTION AGEfl8Kt?» POLO DIRECTIVE NO.
WASHINGTON. D.C. 20460
950 2. 00-'T
AUG2I 1966
OFFICE OF
SOLID WASTE AND EMERGENCY RESPON:
MEMORANDUM
SUBJECT: ImplementatioAaf_ RCRA Facility Assessments
,
FROM: J. Vornston Porter, Assistant Administrator
Office of Solid Waste and Emergency Response
TO: Hazardous Waste Division Directors, Regions I-X
The purpose of this memorandum is to clarify existing
policy and to provide further guidance on implementation of
RCRA Facility Assessments (RFAs) in the RCRA permit and the
RCRA enforcement programs in the Regions.
As outlined in previous guidances, as well as in- the
FY 86 and FY 87 RIPs, the RCRA Facility Assessment (formerly
referred to as PA/SI) is designed to be the first step in
the process of implementing the RCRA corrective action process.
The general function of the RFA is to provide the basis for
the Agency to make preliminary determinations as to whether
or not there are, or are likely to be, releases of concern
at a facility. The RFA also assists in determining whether
or not, and what types of, further investigations or interim
measures should be required of the owner/operator.
It is in the Agency'* interest, and the public's interest,
to have made an overall assessment of actual and potential
environmental problems from all sources at a facility, and to
have determined, before issuing a permit, %*iat investigations
must be initiated at the facility to characterize the nature
and extent of the contamination. Each of the Regions has
begun to initiate tome number of RFAs. It is cur understanding,
however* that the RFAs being conducted by the Regions and
States vary significantly in terms of their technical approach
and completeness. In particular, sampling and analysis,
which will often be necessary in making determinations in an
RFA, is in some cases not being done before the permit is
issued. In other cases, RFAs have not been conducted at all
prior to issuing permits.
An RFA should be completed before issuance of a RCRA
permit. A "complete" RFA will typically include a site visit
as well as any sampling and analysis required to make the
necessary determinations in the RFA. It should be understood
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OSAEft ruuu uiKumt
.2- 9502.00-4
that, for the purposes of SPMS tracking, only complete RFAs
will be counted as accomplishments.
If properly planned and executed, an RFA can be completed
within a relatively short time frame (three months or less).
Since RFAs can be conducted concurrently with other permit review
activities, we believe that doing RFAs prior to permitting should
have little impact on permit issuance schedules. There may be
some facilities, however, which are scheduled to receive draft
permits in the next several months (i.e., this calendar year),
but for which an RFA has not been initiated, if completing an
RFA for such facilities is likely to substantially delay issuance
of the final permit, Regions may consider having the necessary
sampling and analysis portion of the RFA done after permit
issuance, under a schedule of compliance. In such cases, however,
the Preliminary Review and Visual Site Inspection portions of the
RFA should be completed before the permit is issued.
It may also be appropriate to conduct an RFA before taking
action under RCRA Section 3008(h), the Interim Status Corrective
Action Authority. Information from the RFA can provide evidence
necessary to meet §3008(h) criteria where it is not otherwise
available, and can provide information necessary to properly
scope an order. We recognize, however, that it may not be
possible to conduct an RFA prior to issuing an order in cases
where there is a need to initiate such an action quickly or
when a facility is not a current RFA priority. RFA priorities
for FY 1987 are all operating land disposal facilities scheduled
for permit issuance by November 1988, and 30 percent of the
closing land disposal facilities.
Previous guidance has expressed a preference for requiring
owner /opera tors to perform sampling and analysis which may be
required to complete an RFA. It should be understood that while
owner/operator support, if it can be secured on a timely basis,
is encouraged, owner/operator support should not be sought if it
cannot be expected to be timely or reliable. Regions have been
provided substantial extramural funds to perform RFAs. These
funds should be used as necessary to assure timely completion
of comprehensive RFAs.
We recognize that completing RFAs prior to issuance of
permits may have some implications in terms of timing and
resources tor certain facilities. We ask that Regions communicate
any concern* regarding this policy to Dave Fagan (OSW) at FTS
382-4692.
cct Regional Hazardous Waste Branch Chiefs
Regional RCRA Permit Section Chiefs
Regional RCRA Enforcement Section Chiefs
M. Williams
G. Lucero
B. Weddle
L. Guerci
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9502.OC-6
UNITED STATES ENVIRONMENTAL
WASHINGTON. O.C. 20460
SCL'D AASTi AND £VER-£\C -
SUBJECT: Definition of Solid Waste Management Unit for the
Purpose of Corrective Action Under Section 3004(u
FRQ^.: Marcia E. r/:illia-s, Director
Office of Solid Waste
TO: Hazardous '-'aste Division Directors, Regions I-X
The purpose of this memorandum is to provide clarification
regarding one aspect of the definition of solid waste management
unit as related to RCRA corrective action under Section 3004(u).
The concept of a solid waste management unit has been explained
in various guidances since the passage of the 1984 Hazardous
and Solid '%/aste Am.endents (HSwA).
As explained in the July 15, 1935 H3/JA Codification Rule,
a solid waste management unit is "... any unit at a facility
from which hazardous constituents might migrate, irrespective of
whether the units were intended for the management of solid and/
or hazardous wastes." This definition was intended to include
those types of units which have traditionally been subject to
regulatory control under RCRA: container storage araas, tanks,
surface impoundments, waste piles, land treatment units, landfills,
incinerators, underground injection wells and other physical,
chemical and biological treatment units.
A memorandum from John Skinner to the Hazardous Wasta
Division Directors (June 14, 1985) further interpreted the terrr.
solid waste management unit to include areas at facilities whicn
have become contaminated by routine, systematic and deliberate
releases of hazardous waste or hazardous constituents. An
example of this type of "solid waste management unit" is a wood
preservative "kickback" area, where drippage of preservative
fluids onto soils from pressure-treated wood is allowed to occur
over time. This interpretation was reiterated in the final
RCRA Facility Assessment Guidance and the National RCRA
Corrective Action Strategy of October 14, 1986.
-------
Recently, however, several Regions have inquires whether the
term "deliberate" meant that the owner/operator had actually
intended to create the release of hazardous wastes or hazardous
constituents. We wish to clarify that the term "deliberate" in
this context was not meant to require a showing that the owner/
operator knowingly caused a release of hazardous wastes or hazard-
ous constituents. Rather, the term "deliberate" was included to
indicate the Agency's intention not to exercise its Section 3004(u)
authority to proceed against one-time, accidental spills which
cannot be linked to a discernible solid waste management unit.
An example of this type of release would be antaccidental spill
from a truck at a RCRA facility. Routine and systematic releases
constitute, in effect, management of wastes; the area at which
this activity has taken place can thus reasonably be considare-
a solid waste management unit. Therefore, in implement ing correc-
tive action under Section 3004(u), Regions and States should
consider areas which have become contaminated through routine
and systematic releases of hazardous wastes or hazardous constit-
uents to be soli 3 waste management units. It is not necessary
to establish that such releases were deliberate in nature.
This concept, and other issues relating to the definition of
solid waste managerent unit, will be addressed in the proposed
ruleirakina being developed for corrective action under Section
3004(u).
If you have any questions regarding this interpretation of
of solid waste management unit, please contact David Fagan at
FTS 382-4497.
cc: Regional RCRA Branch Chiefs
Regional RCRA Permit Section Chiefs
Gene Lucero
Bruce Weddle
Joe Carra
Mark Greenwood
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OSWER Direccj.vi= ^o. 9502.00-7
UNITED STATES ENVIRONMENTAL PRO 950200-7
WASHINGTON. O.C. 204AO
V-'AR 8
OF
SOLID WASTE 4NO EM6HGENCV
MEMORANDUM
SUBJECT: Use of $3008(h) Orders or Post-Closure Permits At
/qlosing J" acidities/'
i / i r / ( Y /
\\ \jts //// -/_A^t*
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-2-
A. section 3QQ8(h)
Section~3008(h) authorizes EPA to issue corrective action
administrative orders and to initiate civil actions for
facilities currently under interim status, facilities that once
had interim status, or facilities that should have had interim
status. A S3008(h) order may be issued whether the facility is
operating (prior to receiving a permit), is closing, or is
closed.
Section 3008(h) orders may address releases or potential
releases to all media. EPA may use these orders to require
study or cleanup actions where the Agency has made the
determination that there is or has been a release of hazardous
waste or hazardous constituents into the environment from a
facility. (Guidance on the interpretation of §3008(h) is
provided in a December 16, 1985 memorandum from J. Winston
Porter.)
B. Section 3004(u)
Section 3004(u) requires every treatment, storage or
disposal facility that is seeking a RCRA permit after November
8, 1984 to undertake corrective action for releases of
hazardous waste or hazardous constituents from solid waste
management units (SWMUs), regardless of when the waste was
placed in the unit involved. Section 3004(u) allows the use of
schedules of compliance in the permit to accomplish corrective
action.
C. Post-Closure Permits
Post-closure permits are required for any landfill, waste
pile, surface impoundment, or land treatment unit which
received waste after July 26, 1982, or which ceased the receipt
of wastes prior to July 26, 1982 but did not certify closure
until after January 26, 1983. However, a post-closure permit
is not required if the unit closes by removal under standards
equivalent to §264 standards.* Post-closure permits are also
not required for treatment and storage units, although under
the new tank regulations (51 FR 25422), post-closure permits
may be required. For treatment and storage units, we
"Interim status units that closed by removal after January 26,
1983 under Part 265 standards are subject to post-closure
responsibilities unless such units demonstrate that the
facility meets the closure by removal standards of Part 264.
(See December 1, 1987, 52 FR 45788 amending 40 C.F.R.
§270.l(c)).
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-3-
reconunend that a RCRA Facility Assessment (RFA) be completed
and a_S3008fn) order be issued, if necessary, before the
operating permit is denied.
Under current regulations post-closure permits are
required even where a facility has closed under interim status
and a §3008(h) order has been issued to address corrective
action. The terms of any §3008(h) order may, of course, be
made part of the post-closure permit, as appropriate.
II. Considerations in Selecting S3008(h) Orders or
Post-Closure Permits
As discussed above, there are situations in which only one
authority is applicable. For example, for units not subject
to post-closure care (e.g. , interim status treatment and
storage facilities or facilities with surface impoundments that
have clean closed according to Part 264 standards), S3008(h)
orders are the appropriate corrective action authority, in
many cases, however, either authority may be used; e.g.,
interim status land disposal facilities subject to the
post-closure care requirements.
Since §3008(h) and §3004(u) provide overlapping authority
in terms of the scope and type of cleanup actions which may be
required of interim status facility owner/operators, when a
choice is available we leave the decision to the Regions to
determine whether to use a-3008 (h) order or §3004(u) conditions
in an operating or post-closure permit. The following
considerations are offered to assist you in deciding, on a
case-by-case basis, how to proceed.
o A post-closure permit may be an easier approach than a
§3008(h) order in the case of a willing owner/operator. A
53008(h) order/judicial action may be the preferable first step
where the owner/operator is uncooperative, or where there is
disagreement with the Agency or uncertainty over the scope of
activities to be conducted. (Some regions have found that the
owner/operator may prefer a post-closure permit instead of a
S3008(h) order because of the perceived stigma attached to an
enforcement order.)
o In situations which will require long-term oversight,
it may b« more appropriate to^ determine at the outset to use a
post-closure permit instead o'f issuing a S3008(h) order.
Permits are designed to address long-term activities.
Enforcement authorities, which may involve judicial action and
approvals, are less well-suited for activities requiring
long-term oversight. (Of course, as noted above the
cooperativeness of the owner/operator will influence this
decision).
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-4-
o A S3008(h) order may be more appropriate where a prompt
action is necessary and where a post-closure permit is not soon
scheduled %p be issued.* This is because $3008(h) orders allow
more flexibility in both timing and scope than permits. For
example, a 53008(h) order could focus only on the specific
cleanup requiring immediate attention without having to address
post-closure care or corrective action elsewhere on the
facility. Conversely, a post-closure permit must address, to
the extent necessary, releases from all SWMUs as well as
post-closure care activities.
o A §3008(h)" order may be more appropriate than a
post-closure permit where there is concern that releases are
coming from sources other than SWMUs. The language of section
3008(h) refers to releases from facilities. This may be
broader language than that in section 3004(u) which refers to
releases from SWMUs.
CONCLUSION
These considerations should be evaluated and weighed in
any decision on which corrective action authority should be
used. The Agency's objective for closing facilities is to
minimize the post-closure release of hazardous wastes and
hazardous constituents into the environment and to address
corrective action for existing or potential releases at the
time of closure. The post-closure permit provides a
coordinated one-step mechanism for addressing corrective action
at the entire facility together with post-closure care for
regulated units. In the long-run,"therefore, we anticipate
that post-closure permits should serve as the routine mechanism
for the majority of corrective actions at closing land disposal
facilties. Under current regulations, use of §3008(h) will not
obviate the need to issue a post-closure permit, unless closure
by removal taJces place and satisfies Part 264 standards as
required under the new rules promulgated at 52 FR 45788.
Hence, complementary use of both a $3008(h) order and a
post-closure permit (with or without additional $3004(u)
conditions added) remains an important option.
*If an imminent and substantial endangerment to health or
the environment exists, a §7003 order may be appropriate.
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9502.1984(01)
December 7, 1984
MEMORANDUM
SUBJECT: Region VIII Policy
Oily Wastewater Treatment Ponds
FROM: John H. Skinner, Director
Office of Solid Waste (WH-562)
TO: Robert L. Duprey, Director
Region 8
Air and Waste Management Division (8AW-WM)
We have reviewed the proposed Region VIII position discussed
in your memos dated May 1 and October 12, 1984 that define
permitting coverage of refinery wastewater treatment ponds. As
your staff may have informed you, there have been several
meetings between my staff and yours to discuss this problem. We
have also met with Chevron, Phillips, Tosco and API and,
separately, with Region IX to discuss the issue. We share your
concern about the threat posed to ground and surface waters by
some of the unlined wastewater ponds that treat or store oily
wastewaters. However, we believe that the similarity of
downstream unit sludges (in terms of lead and chromium levels) to
those found in the API Separator are not a sufficient basis for
defining the material in the downstream units as API Separator
Sludge. In fact, the similarity of these sludges was a
significant factor in our decision to move forward on an expanded
listing to regulate these pond sludges.
Specifically, we are planning in a forthcoming listing to
regulate oil/water/solids separation sludges generated in the
wastewater treatment system prior to biological treatment. This
listing was originally proposed in November of 1980. We expect
to issue a notice identifying all of the available data in
support of the listing and to provide some clarifications in
response to previous comments. Current plans are to promulgate
that listing by late summer.
While the listing revision should cover most sludges
generated in these ponds, we realize that does not address your
This has been retyped from the original document.
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-2-
short term problem. We do have some suggestions in this regard.
Section 206 of the Hazardous and Solid Waste Amendments of 1984
provides that persons obtaining RCRA permits must undertake
corrective action for all releases of hazardous constituents from
any solid waste management unit as a condition of obtaining the
RCRA permit. Thus, if a refinery pond is releasing hazardous
constituents and the refinery seeks a RCRA permit for any unit at
the facility, the refinery would have to undertake corrective
action for the releases from the pond. (This could be done
either through the permit, or pursuant to an interim status
compliance order.) This principle applies even if the pond is
not considered to hold a hazardous waste, since Section 206
applies to releases of hazardous constituents from solid waste
management units.
A second option for addressing these pond sludges is to
regulate the wastes as hazardous based on their exhibiting one or
more of the characteristics of hazardous waste (see 40 CFR
§261.21-24). You mentioned this option in your recent letter
with respect to EP Toxicity. However, your staff seems to have
overlooked corrosivity (high pH has been found in some COD ponds)
and reactivity (§261.23(a)(5)). It is likely that some refinery
pond sludges will contain excessive levels of reactive sulfides.
The final option that could be used to deal with downstream
impoundments and basins is applicability of the mixture rule. It
is imperative, however, that your staff understand the proper
framework for the application of the mixture rule. To maintain
that a pond is regulated because an API Separator is an
inherently inefficient unit and allows sludge to be carried
through to a pond, is inaccurate. Likewise, downstream oxidation
ponds are not regulated simply because they sometimes receive
flow that has bypassed the API Separator. In both cases, the
listed API Separator Sludge has not yet been generated. Rather,
API Separator Sludge is generated when it is deposited in the
bottom of an API Separator. The mixture rule is relevant only in
those cases where previously deposited sludge is scoured,
resuspended, and then carried out of the unit with the
wastewater. If the Region can make a case for scouring from a
separator, the mixture rule is applicable and the wastewater
becomes a hazardous waste until delisted or discharged to a
stream subject to regulation under the Clean Water Act.
The burden of proof in the demonstration of scouring is upon
the Agency. Such an argument, although technically complex, can
be made based on well established hydrodynamic principles.
Realizing that there are limited resources and capability for
developing such an argument by the Regions, we have (at the
This has been retyped from the original document.
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-3-
request of your staff) taken an active role in the development of
guidance for the application of this argument. Attached to this
memo is a preliminary list of factors that may be required to
establish the occurrence of scouring from a given separator.
These points are being provided at this time to facilitate the
initiation of information gathering in the more serious cases.
We have also requested that the Office of Waste Programs
Enforcement (OWPE) develop more thorough guidance. That effort
is being conducted by their contractor (Metcalf & Eddy). We
anticipate that your staff will be contacted by them in the near
future. The contractor should be able to provide some direct
assistance to your staff in some specific cases, thereby serving
the dual purpose of training and resolution of specific factors
of concern. Mike Barclay (FTS: 475-8727) of OWPE is the
Headquarters lead on that project and should be contacted for any
further information. Ben Smith of my staff (FTS: 475-8551) is
our technical expert in this matter and the lead on our study of
petroleum refineries and their wastes. Do not hesitate to
contact him if additional questions arise pertaining to this or
other matters.
cc: RA's Region I-X
Mike Barclay (OWPE)
Steve Siverman (OGC)
Susan Manganello (ORC, Region VIII)
Attachment
This has been retyped from the original document.
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Factors To Be Evaluated In Dnt«rwining The'potential for
Separator SlurtQ* Scouring . ;'•' '••&~'-;.::~£
Sludge Accumulation Practices - Continuous sludge removal^-l
from tho separator rules out the occurrence of scouring. '"
At the other end of the spectrum are facilities that allow-1
sludge to accumulate to considerable depth. Accumulation '
to a depth greater than 50>% of the flow depth makes scouring
probable. Intermediate ranges of accumulation will prob- .*
ably depend more heavily on other factors. .••;• v '•..-i;
Plow variability - Unless overloaded, units with-maximum-f.-'
• to-minimum, flow ratios at tho separator effluent of less ^
than 2 and Inlet flow ratios of less than 4 are probably -*\
not experiencing'much rosuspension of sludge. . . <
•r ."'.'* — '
Poor Separator Design or Operation - Factors contributing '-
to scour conditions includei excessive, inlet or outlet /_;
zone turbulence; nominal horizontal velocities greater ••'•:?•
'than 30 feet per minute; nominal overflow rates (flow/ "'.
surface area) greater.than 10,000 gallons per day/square V~
foot of basin; basins less than 30 feet in length; opera-
tion under pressure (e.g., with a backwater at the inlat
of a separator with a-frozen surface), settling zone -
turbulence (sometimes seen as bubbling with solids
entralnment) . ^.:"?v-\" • ^.""*u -"*/'"-*-*.^"^"i*js~ ; > .. .
Separator Effluent Characteristics -. Excessive weir loadlngi
(e.g., operation with a-suppressed weir, flow depth greater
than a foot) facilitate carryover of resuspended particles.'
visible, large (diameter greater than 1/4 inch) sludge -.- .'.
particles in the separator effluent are strong evidence .'<
of scouring associated with microbial degradation of ^i .'*%
depos 1 ted jtludge."^:•/«.;"'••', •• V •;: "* '" Jr'*?'.';:'&'•'*•• ••'":?:••:,• '• ' • •"V :'•'• ."•?'-
Sludge Characteristics - Particle sixe'distribution as \\.->
measured by wot sieve and hydrometer analyses is necessary
information to define scour conditions. -The presence of -x.'
coke fines in the wastewater Influent is also important .-.:
because that size of particle «.lmm) is non-cohesive '.'_'•;•"•
and highly susceptible to rosuspension^ ;. :,
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9502.1985(01)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
F£B 6 :.:3i
SOLiO WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: RCRA Reauthorization Statutory Interpretation 13:
Immediate Implementation of New Corrective Action
Requirements
,X f!i! '••*<<.
FROM: Jack' W./McGraw
Acting Assistant Administrator
TO: Addressees
BACKGROUND
One of the most important early-enactment provisions of the
RCRA reauthorization is the new authority for corrective action
for continuing releases [Section 3004(u)l. As you know, this pro-
vision is applicable to all permits issued after November 8, 1984.
This memorandum provides preliminary guidance on the new information
to be submitted with Part B applications to satisfy the new require-
ments. The guidance applies to those facilities whose Part B
applications have been requested, and for which final determinations
were not made prior to November 8, 1984.
The new continuing release provision in effect requires that
each facility seeking a RCRA permit must (a) identify all solid
waste management units at the facility; (b) identify releases
of hazardous wastes or constituents that have occurred from those
units; and (c) perform corrective action for those releases. Vir-
tually all regulated facilities will be affected by this provision,
since it applies to inactive and closed units at such facilities,
as well as to the operating units subject to permitting.
Much of the implementation of the continuing release provision
is subject to interpretations which have not yet been made by the
Agency. An effort is currently underway to clarify the full impact
of this provision on the RCRA permit program.
Policy guidance on implementation of the new S3004(u) authority,
including the requirement for financial assurance for corrective
action, is expected to be issued in draft within a month. Separate
guidance is being developed on how to determine whether or not a
facility has a release that may pose a threat to human health and the
environment. Additional guidance on the technical aspects of
different types of corrective action programs, and on the use of
interim status corrective action orders, will also be issued.
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ACTION
Several actions can be taken to implement this new cor-
rective action requirement prior to issuance of the above mentioned
guidance packages. Specifically, we recommend that a notice be
sent to each facility whose Part B has been requested and for
which a final determination was not made prior to November 8, 1984.
This notice should provide a general explanation of the new cor-
rective action provision, and the fact that additional information
must be submitted to satisfy the new requirement. In general,
EPA will need to obtain the following information in order to
determine whether a facility is in compliance with section 3004(u):
(a) Identification of each unit at the facility that might
fall within the definition of solid waste management unit,
that has not already been described in the Part B appli-
cation. Although no final decision has yet been made on
the definition, a solid waste management unit may include
any landfill, surface impoundment, waste pile, land treatment
unit, injection well, incinerator, tank (including waste-
water treatment units, elementary neutralization units,
and tanks used in reuse/recovery operations), container
storage area, transfer station, or waste recycling oper-
ation at the facility. The applicant should also under-
stand that EPA views the "facility" as not limited to the
area where wastes are managed, hut includes the entire
contiguous property under the control of the owner or
operator. For each unit, the following information should
be supplied:
- Type of unit
- Location of each unit at the facility on a
topographic map
- General dimensions
- Whether the unit is currently operating, and if
not, when the unit closed or ceased operating
- Description of the wastes that were placed in
the unit (where available)
(b) All information available to the owner/operator on
whether or not releases have occurred from any of the
solid waste management units (including the hazardous
waste units) at the facility. Releases to ground water,
as well as to other media (e.g., soils, surface water,
air) should be described. Such information would
include available ground or surface water monitoring
data, results of soil sampling, spill reports, inspection
records, etc.
We recommend that in most cases, applicants who have already
submitted their Part B application should be given no more than
30-45 days in which to submit this information.
-2-
-------
It should be understood that there is currently no provision
in 40 CFR Part 270 which requires submission of the above infor-
mation in Part 'B applications. In a sense, therefore, submittal of
the information by permit applicants is "voluntary." However,
section 3005(c) of the Act provides that permits can be issued
to facilities only upon a determination that the facility is in
compliance with the requirements of Section 3004 of the Act.
Therefore, failure to submit information to demonstrate a facility's
compliance with the $3004(u) requirement would be grounds for denial
of the permit.
The above information, when submitted by the permit applicants,
will allow the permit writer to make an assessment as to which
facilities are likely to require corrective action programs, and
how permitting and enforcement priorities might subsequently be
realigned.
Some States may have existing regulatory requirements analogous
to the new RCRA continuing release provision. Such States may
already have gathered substantial information on solid waste man-
agement units and releases at their facilities. In preparing the
notices to be sent to permit applicants, Regional Offices should
coordinate with their States to avoid requesting such information
that has already been collected by a State agency.
Some facilities may contain only units with a relatively
low likelihood of having caused a release (e.g., indoor container
storage areas, above-ground tanks, etc.). In such cases, the
Region/State may consider going forward with issuing the permit,
providing that:
- The owner/operator has indicated that there is no
information indicating a release from any of the units;
and
- An assessment of the facility, based on a site in-
spection and other available information, confirms that
a release that poses a threat to human health and the
environment is unlikely to have occurred.
For many facilities, the absence of a release will not be
so easily established. Further, some facilities will already have
determined that such a release(s) has occurred. For these facil-
ities further information will have to be developed to identify
and/or characterize releases. As noted earlier, guidance on these
issues will be forthcoming.
Any questions or comments on procedural aspects of imple-
menting this corrective action authority should be directed to
Dave Fagan (382-4497). For information on the guidance packages
being developed, please contact Art Day (382-4658), or George
Dixon (382-4494).
-3-
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Addressees:
Regional Administrators, Regions I-X
Regional Waste Management Division Directors, Regions I-X
Hazardous Waste Branch Chiefs, Regions I-X
Regional Counsels, Regions I-X
State Hazardous Waste Program Directors
Assistant Administrator for Enforcement and Compliance Monitoring
Associate General Counsel for Solid Waste and Emergency Response
OSWER Office Directors
-4-
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9502.1985(02)
June 17, 1985
Regulation of Wood Treatment Plant Drip Areas as Solid Waste
Management Units
John Skinner, Director
Office of Solid Waste
James C. Scarbrough, Chief
Residuals Management Branch, Region IV
In your April 23, 1985, memo, you asked whether the ground
areas at a wood treatment plant that receive drippage from the
treated wood are solid waste management units and, therefore,
subject to the continuing release provisions of HSWA. We agree
with you that these areas are solid waste management units,
subject to the continuing release and interim status corrective
action order requirements of the 1984 RCRA amendments.
As we understand the process, when the pressure treated wood
is removed from the treating cylinder, excess preservative is
forced out of the wood by the internal pressure still remaining
in the wood. This is commonly referred to as kick-back drippage.
The length of time over which drippage occurs varies from about
four to twenty-four hours, depending on the type of wood treated,
the series of pressure or vacuum treating cycles employed, and
the preservative solutions used. Often, a final vacuum is drawn
on the preserved wood which then delays the onset of this
drippage by an hour or so after it is taken out of the pressure
treating cylinder.
Although some of these residuals have been found to contain
significant concentrations of carcinogenic substances (such as
chrysene and benzo(a)pyrene), they are not currently classified
as hazardous wastes under RCRA, either as discarded commercial
chemical products under Section 261.33 or otherwise as listed or
characteristic wastes. The Agency is now obtaining data to
determine whether these residuals should be listed along with
other wastes from the wood preserving industry.
These residuals, however, are definitely solid wastes.
Therefore, any specific ground area that routinely receives this
This has been retyped from the original document.
-------
-2-
kick-back drippage would be considered a "solid waste management
unit" since it is a discrete area of the facility where wastes
have been or are deliberately, routinely, and systematically
placed or allowed to leak onto the land. The unit is thus
subject to the corrective action requirements of 3004(u),
providing that the facility is seeking a RCRA permit.
If the facility has interim status but is not seeking a
permit, enforcement authorities under Section 3008(h) and others
can be used to require necessary corrective measures.
I trust that this response is helpful to you in preparing
your case in the compliance order proceeding regarding a wood
treater's Part B permit application.
This has been retyped from the original document.
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9502.1985(02)
Attachment
June 14, 1985
MEMORANDUM
SUBJECT: Regulatory status of wood preservative "Kickback"
emissions
FROM: John H. Skinner, Ph.D.
Director
Office of Solid Waste (WH 565)
TO: Elizabeth Maxwell
Assistant Regional Counsel
Region V
In a March 29, 1985 memo, you requested clarification of the
regulatory status of the ground area around tracks or other areas
outside of the immediate treating cylinder area where drippage
collects from newly treated wood.I/ This area (referred to as
the "kick-back drippage area") is a solid waste management unit,
subject to the corrective action requirements of the 1984 RCRA
amendments.
As we understand the process, when the pressure treated wood
charge is removed from the treating cylinder, excess preservative
is forced out of the wood by the internal pressure still
remaining in the wood. This is commonly referred to as kick-back
drippage. Typically, a charge of newly treated wood is allowed
to rest in a specific area while still loaded on the railroad
platform car for some time during this pressure equalization
process. In some cases, this drippage may be partially collected
in troughs or sumps beneath the tracks. The length of time over
which drippage occurs varies from about four to twenty-four
hours, depending on the type of wood treated, the series of
pressure or vacuum treating cycles employed, and the preservative
!/ While the Agency has determined the status of this area, we
are currently evaluating other parts of wood preserving plants
to determine if these areas also should be classified as land-
based units.
This has been retyped from the original document.
-------
-2-
solutions used. Often, a final vacuum is drawn on the preserved
wood which then delays the onset of this drippage by an hour or
so after it is taken out of the pressure treating cylinder.
At Southern Wood Piedmont's Waverly, Ohio facility, some of
this residual is collected in troughs beside the railroad track
and periodically dredged out manually. Substantial amounts,
however, also drip onto the ground. The facility has supplied
analytical data demonstrating significant concentrations of
carcinogenic substances in these deposits (e.g.. chrysene at 2500
ppm and benzo(a)pyrene at 730 ppm).
Although these residuals are not currently classified as
hazardous wastes under RCRA, either as discarded commercial
chemical products under Section 261.33 or otherwise as listed or
characteristic wastes, the Agency is now obtaining data to
determine whether these residuals should be listed along with
other wastes from the wood preserving industry.
These residuals, however, are solid wastes. The specific
ground area which routinely receives this kick-back drippage
would be considered a "solid waste management unit," since it is
a discrete area of the facility where wastes have been or are
deliberately, routinely, and systematically placed or are allowed
to leak onto the land. The unit is thus subject to the
corrective action requirements of 3004(u), providing that the
facility is seeking a RCRA permit. If the facility has interim
status but is not seeking a permit, enforcement authorities under
Section 3008(h) and others can be used to require necessary
corrective resources.
cc: Regional Administrators
Regional Branch Chiefs
This has been retyped from the original document.
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9502.1985(04)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
JUNE 85
Corrective Action
1. A treatment facility is applying for a Resource Conservation and Rtcovery tct
(BOA) S3003 operating permit. This facility currently nonages ecrap neta!
destined for reclamation. On January 4, 1985, (SO FK 614), the Agency o*clar«
that ocnp Mtal, **o racyclad, is a Subtitla C wa«t«. Concurrently, tha
Agency anncunaed that it would not tvgulate acrap Metal deetimd for racycling
at this tioa. BecauM this facility is aaeking a S3005 oparating permit,
tha facility mmt addrea* ralaasas of hasaroous wast* or constituents from
any solid wart* naaaganent unit pursuant to $3004(u) (correctiv* action).
Must this facility addraas tha unregulated scrap aetal aanagement area coo-
oaming palissaa?
theuph acrap svtal destined for recycling is not regulated, it is
idscwd a solid vasts* Thus, a release of a hazardous waste or constituent
at the '•crap a»tal Management area (solid waste nanagecent unit) tust be
I-pursuant to fWM(u) of KXK.
Cave ragan (202) 382-4497
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9502.1985(05)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
AUGUST 85
Corrective Action for Cor.tir.uing Release* (S3004(-j))
2. Ar or.tr/operacor of a treaener.t, storage or disposal facility (TSOF) is preparing
a IOA Part B application. TJ» facility design includes sumps holding *«st*v*ter.
The *«ste**ter is considered a listed hazardous vast* because it contains spent
chlorinated solvents listed ir. $261.31 and the mixture rule of 5261. 3(a) (2)( iv)
applies. fcbstewater is held in the suap for les» than 90 days. Is the owner/
operator required to address these suzps in the Part B application?
Assuming the sumps are made of non-earthen material and have sufficient
structural integrity, they would be regulated as earJcs (see Regulation
Interpretative Letter tllO regarding tanks versus surface impoundments
and 5264.191). Section 262.34 states that hazardous «aste may De stored
L-. unks or containers for 90 days or less without a RCBA permit provided
conpliance with $262.34 (a) through (c). On this basis alone, the sjrtps
need not be addressed in the Part B application ($264. Kg) (3) ard
However, the Hazardous and Solid Vfeste Amendments of 1984 (HSWA) recuir* that
ir.forracion be submitted regarding solid waste ma.nagomer.t units, including sumps,
for HCRA permits issued after Novonoer 8, 1984. the new corrective action
provisions for continuing releases ($3004(u) of the Solid tteste Disposal Act, as
amended) requires identification of all solid *«ste management units at the
facility and releases of hazardous Bastes and hazardous constituents fron these urio.
Qaidance on -".e S3004(u) corrective action provision is found in 3OA Reauthorizatiori
Statutory I.-.terpreUtlon 13 (RSI »3) dated February 5, 1985, and the July 15, 1985,
codification rule (50 PR 28711). HCRA pecnits issuexl after Hovenfcer 8, 1984, must
contain coi^liance schedule* for corrective action and assurances of financial respon-
sibility for collating such corrective action per $264.101 (50 FR 28711).
Source: :*ve Pagan (202) 382-4497
-------
w
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 95°2. 19851 06)
WASHINGTON. O.C. 20460
OCT 2 9 .335
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Application of HSWA Sections to DOE's Oak Ridge Facility
FROM: Marcia Williams
Director
Office of Solid Waste
TO: James H. Scarbrough
Chief, Residuals Management Branch
Waste Management Division, Region IV
Your July 25, 1985, letter asked several questions
regarding the applicability of HSWA requirements to the DOE Y-12
facility at Oak Ridge. The first provision you asked about is
§3004(u), which is invoked only when a facility is seeking a
RCRA permit. HWDMS indicates that the Y-12 facility is seeking
a permit, which triggers the corrective action authority to
address releases from solid waste management units (SWMUs).
However, Oak Ridge is a Federal facility. The applicability of
§3004(u) has been called into question for Federal facilities,
and EPA is involved in on-going negotiations with other Federal
agencies on this issue. Specifically/ the final codification
rule states that:
The extent to which the above interpretation
applies to Federal facilities raises legal and
policy issues that the agency has not yet
resolved....Permit applications for Federal
facilities will continue to be processed,
but recognizing that final Federal facility
permit* may not be issued where these unresolved
issues exist, EPA will make its best efforts
to r««olvst these issues in the next 60 days.
50 FAR**. 28712 (July 15, 1965).
If th*-flBcility is seeking a RCRA permit and it has no SWMUs
or if it has SWMUs that it agrees to address, the permitting
process can move forward and corrective action pursuant to
§3004(u) can progress accordingly. However, if the facility is
not willing to address SWMUs, the permitting process for this
facility becomes more complex. For further information on
§3004(u), pleas* contact Dave Fagan of the Permits Branch at
FTS 382-4751.
-------
rely on the NPDES program to address releases, otherwise within
the scope of §3004(u), that are addressed by that program.
See 50 Fed. Reg. 28714 (July 15, 1985). In keeping with that
policy it may become necessary to distinguish between releases
which occurred prior to the issuance of a NPDES permit and any
subsequent releases. As a practical matter this may be diffi-
cult if not impossible to do; therefore, EPA policy is that
where such a distinction cannot be made and the existence of a
prepermitted release is clear, the entire contaminated area is
subject to clean up.
Please feel free to contact Chaz Miller, our Federal
Facilities Coordinator, at FTS 382-2210 if you have any further
questions on these issues; we are developing the policies for
these new statutory authorities as quickly as possible.
cc: Thomas W. Devine, Director, Waste Management Division,
Region IV
RCRA Branch Chiefs, Regions I-X
State Programs Branch, OSW
Permits Branch, OSW
-------
J.UMTED STATES ENVIRONMENTAL PROTECTION AGENCY
f WASHINGTON. 0 C. 20460
P I C IOQC 9502.1985(09)
DEC' I 6 1985
MEMORANDUM
SUBJECT: Interpretation of Section 3O08(h) of the Solid
waste,Disposal Act
FROM: J.^Vinston Sorter, Assistant Administrator
Office of Solid Wte and. Emergency Response
re, Assistant Adrainis-trator
Office of Enforcement and Compliance Monitoring
TO: Regional Administrators
Regional Counsels
Regional Waste Management Division Directors
Director, National Enforcement Investigation Center
As part of our effort to support case development activities
undertaken by United States Environmental Protection Agency
oersonnel, we are transmitting to you guidance on the use of
Section 3008(h), one of the corrective action authorities added
to the Solid Waste Disposal Act by the Hazardous and* Solid waste
Amendments of 1984. As you are aware, Section 3008(h) allows the
Agency to take enforcement action to require corrective action or
any other response necessary to protect human health or the
environment when a release is identified at an interim status
hazardous waste treatment, storage or disposal facility. Because
the authority is broad, both with respect to the kinds of environ-
mental problems that can be addressed and the actions that the
Agency .may compel, we have produced the attached document to
provide initial guidance on the interpretation of the terms of
the provision and to describe administrative requirements. The
document will be revised as case law and Agency policy developi
In addition, the Office of Solid Waste and Emergency Response
intends to develop technical guidance on various types of response
measures and the circumstances in which they might be appropriate.
In view of the need to issue RCRA permits and to ensure that
the substantial number of interim status facilities expected to
cease operation in the near future are closed in an environmental
sound manner, we encourage you to use the interim status correct!'
action authority as appropriate to supplement the closure and
permitting processes. Questions or conaents on this document or
the use of Section 3008(h) authority in general can be addressed
Gene A. Lucero, Director of the Office of Waste Programs Enforcem*
{FTS 382-4814, WH-527) or Fred Stiehl, Associate Enforcement
Counsel for Waste (F^S 382-3050, LE-134S).
Attachment
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RCRA SECTION 3008(h)
TOE INTERIM STATUS'CORRECTIVE ACTION AUTHORITY
DECEMBER 16, 1985
-------
I. INTRODUCTION
The Hazardous and Solid Waste Amendments of 1984 have substantially
expanded the scope of the RCRA hazardous waste management program. Che of
the most significant provisions is the interim status corrective action
authority/ which allows EPA to take "enforcement action to "compel response
measures when the Agency determines that there is or has been a release of
hazardous waste at a RCRA interim status facility. Prior to the 1984
Amendments, EPA could require remedial action at interim status facilities
by, inter alia, (1) using RCRA $7003 or CERCLA 5106 authorities if an immnent
and substantial endangennent may have been presented, or (2) when significant
\
ground-water contamination was detected, calling in Part B of the RCRA permit
application and requiring corrective action as a condition of the permit. The
Anendments added Section 3008(h) to deal directly with environmental problems
by requiring clean-up at facilities that have operated or are operating subject:
to RCRA interim status requirements.
The purpose of this document is to provide preliminary guidelines on the
scope of Section 3008 (h) and to summarize appropriate procedures. The document
will be revised as case law and Agency policy develop. Other relevant RCRA
guidances that may be consulted include:
• Final Revised Guidance on the Use and Issuance of Administrative Orders
under Section 7003 of RCRA, Office of Enforcement and Compliance Monitoring
and Off ice of Solid Waste and Emergency Response - September, 1984.
*
0 Issuance of Mrainistrative Orders under Section 3013 of RCRA, Office of
Enforcement and Compliance Monitoring and Office of Solid Waste and
Emergency Response - September, 1984.
0 Draft Guidance on Corrective Action for Continuing Releases, Office
of Solid Waste and Emergency Response - February, 1985.
0 Final RCRA Ground-Water Monitoring Compliance Order Guidance, Office
of Solid Waste and Emergency Response - August, 1985.
-------
-2-
0 Draft RCRA Ground-Water Monitoring Technical Enforcement Guidance
Document, Office of Solid Waste and Emergency Response - August,. 1985.
-e Draft RCRA Preliminary Assessment/Site Investigation Guidance,. Office
of Solid Waste and Emergency Response - August, 1985.
II. DELEGATIONS OF AUTHORITY
On April 16, 1985, the Administrator signed delegations enabling the Regional
Administrators, the Assistant Administrator for Solid Waste and Emergency Response
and the Assistant Administrator for Enforcement and Compliance Monitoring to
exercise Section 3008(h) authority. There,are three new delegations, 8-31, 3^
and 33. The first enables the Regional Administrator or the Assistant Administrator
for Solid Waste and Bnergency Response to determine that there is or has been a
release of hazardous waste at or from a RCRA interim status, facility. The second
' '
and third delegate the authority to issue orders and sign consent agreements.
The authority to refer civil judicial actions is found in Delegation 8-10.
Because Section 3008(h) is quite broad, both with respect to the types of
environmental problems that may be addressed and'the actions that EPA may compel,
delegation of Section 3008(h) authority is subject to limitations. To issue an
administrative order or sign a consent agreement, the Regions must obtain advance
concurrence from the Director, .Office of Waste Programs Enforcement, Office of
Solid Waste and Emergency Response and must notify the Associate Enforcement
Counsel for Waste, Office of Enforcement and Compliance Monitoring, until the
Agency cs a whole gains experience in using the new authority/ this requirement
is necessary to ensure that sound precedent is established and national program
priorities are addressed. The Office of Waste Programs Enforcement intends to
waive advance concurrence, however, for those Regions that demonstrate sufficient
experience in using Section 3008(h) as indicated by the number and quality of
53008(h) orders submitted for review in the next six months. Civil judicial
actions will be handled in accordance with existing procedures for referrals.
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-3-
To expedite S3008(h) actions, the Regions should establish procedures for
drafting and reviewing orders and referrals and clearly delineate the" roles
and-responsibilities of Regional RCRA enforcement and program, personnel (including:
. OZRCLA personnel as necessary) and the Office of Regional Counsel in those
processes,. Draft orders should be sent to the Chief, Compliance and Implementation
Branch, RCRA Enforcement Division, Office of Waste Programs Enforcement.
Headquarters is committed to conducting timely review of S3008(h) orders.
•5
To avoid the delays associated with discussion and review of rough drafts, we
ask that orders be in "near final" form when they are submitted. Generally,
•
the orders will be examined to determine whether (1) the elements of proof are
adequately defined and documented, (2) the response to be compelled is practicable
and environmentally sound, and (3) the action supports national RCRA program opals.
Written cements or concurrence will be provided to the Regions within ten wor
days of receipt.
III. SCOEE OF SECTION 3008(h)
Section 3008(h) provides:
• (1) Whenever on the basis of any. information the Administrator
determines that there is or has been a release of hazardous
waste into the environment from a facility authorized to
operate under Section 3005(e) of this subtitle, the Administrator
may issue an order requiring corrective action or such other
response measure as he deems necessary to protect human health
or the environment, or the Administrator may coiroence a civil
action in the United States district court in the district in
which the facility is located for appropriate relief, including
a. temporary or permanent injunction.
(2) Any order issued under this subsection may include a suspension
or revocation of authorization to operate under Section 3005(e)
of this subtitle, shall state with reasonable specificity the
nature of the required corrective action or other response
measure, and shall specify a time for compliance. If any- •
person named in an order fails to comply with the order, the
Administrator may assess, and such a person -shall be liable to
the united States for, a civil penalty in an amount not to exceed
$25,000 for each day of noncompliance with the order."
king
-------
To exercise the interim status corrective action authority, the Agency
must first have information that there is or has been a release of hazardous
waste "to the environment at or from an interim status facility. Sacond, the
corrective action or other response measure, in the judgment of the Agency.,
must be necessary to protect human health or the environtent. Key terms are
discussed below in greater detail.
•Whenever on the basis of any information the Administrator determines ..."
The opening clause of Section 3008 (h) authorizes the Agency to make the
o
determination that there is or has been a release of hazardous waste into the
environment on the basis of 'any information*. Appropriate information can be
*
obtained frcra a variety of sources, including data from laboratory analyses of
soil, air, surface water or ground water samples, observations recorded during,
inspections, photographs, and facts obtained from facility records.
The reference to a determination by the Administrator should be considered
in the context of the term 'any information'. To satisfy any requirement
imposed by the statute, an order should contain a specific determination. A
civil referral should also be based on a written determination that there is
or has been a release.
" ...that there is or has been a release...into the environment..."
The trigger for issuing $3008(h) orders and initiating civil referrals
is the existence of information that there is or has been a release, which is
a lower threshold than the showing of 'substantial hazard' under PCRA Section
3013 or ' imminent and substantial endangerment1 under RCRA Section 7003 or CEROA
Section 106. While the statute does not define the terra 'release1, the Agency
believes that, given the broad remedial purpose of Section 3008(h), the term
w
should encompass at least as much as the definition of release under CERCLA.
See 42 U.S.C. $9601(22). Therefore a release is any spilling, leaking, pumping,
-------
-5-
pouring/ emitting, emptying, discharging, injecting, escaping, leaching/ dumping
or .disposing into the environment. The exemptions described in the CEROA definition
are considered inapplicable or inappropriate for RCRA purposes, however, and are not
included in .the RCRA definition.
The term 'environment1 is also broad. The legislative history for
Section 3008 (h), which discusses use of the authority to respond to releases
to various environmental media, makes it clear that Section 3008(h) is not
limited to a particular medium. H. Rep. No. 1133, 98th Gong., 2d Sess. 111-112
a
(1984). The Agency will use Section 3008(h) to address releases to surface
waters, groundwater, land surface or subsurface strata and air.
It is not necessary to have actual sampling data to show a release. An
inspector may find other evidence that a release has occurred, such as a broken.
dike at a surface impoundment. Less obvious indications of release might alsoj
. .' • ' i
be adequate to make the determination. For example, the Agency could have
sufficient information on the contents of a land disposal unit, the design and
operating characteristics of the unit, and the hydrogeology of the area in
which the unit is located to conclude that there has been a release to groundwater.
In addition to on-site information gathering undertaken specifically to
support a S3008(h) action, other sources that may provide information on
rele£ses include:
• Inspection Reports.
• RCRA Part A and Part B permit applications.
• Responses to RCRA 53007 information requests.
• Information obtained through RCRA $3013 orders.
• Notifications required by CERCLA 5103.
• Information-gathering activities conducted under CERCLA $104.. .
• Informants' tips or citizens' conplaints corroborated by supporting
information.
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-6-
A determination that there is or has been a release does not require that
specific amounts of hazardous waste or hazardous constituents be found in
the environment. Quantities or concentrations of hazardous wastes or hazardous
constituents should be considered when ordering interim or complete corrective
actions, however, because response actions compelled by the Agency must be
necessary to protect human health or the environment.
"...of hazardous waste..."
• In contrast to many Subtitle C provisions, the language of Section 3008(h)
refers to "hazardous waste" rather than "hazardous waste identified or listed
under Subtitle .C". The. Agency believes that the omission of a reference to
wastes listed or identified at 40 CFR Part 261 was deliberate, and Congress
did not intend to limit Section 3008(h) only.to materials meeting the regulatory
definition of hazardous waste. The Conference Report specifically endorses the
use of corrective action orders to respond to releases of hazardous constituents.
H. Rep. No. 1133, 98th Cong., 2d Sess. Ill (1984). The legislative history also
indicates that the new authority should be at least as broad as the corrective
action authority in .the federal RCRA permit program. Id. at 111-112. Those
regulations address both hazardous waste and hazardous constituents. Moreover,
Section 3004(u), the 'Continuing Releases' provision requiring clean-up of
releases from any solid waste management unit at a treatment, storage or
^
disposal facility seeking a RCRA permit, applies to releases of hazardous
constituents as well as releases of listed and characteristic wastes. H. Rep.
No. 198, 98th Cong., 1st Sess. 60 (1983). Therefore, Section 3008(h) nay also
be used to compel response measures for releases of hazardous constituents
from hazardous or solid waste.v
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"Hazardous constituents" are the substances listed in Appendix VIII to
40 CFR Part 261. H. Rep. No. 198, 98th Cong., 1st Sess. 60-61 (1983).
According to the legislative history for Section 3004(u), which is read in con-
junction with"Section 3008th), the term also includes^Appendix VIII hazardous
constituents released fron solid waste and hazardous constituents that are reaction
by-products. S. Rep. No. 284,/98th Oong., 1st Sess. 32 (1983). It should be
noted that the legislative history for the new underground storage tank previsions
states that Section 3008 is not applicable to underground storage tanks regulated
under Subtitle I. Such releases may be addressed by Section 7002 and.Section
7003 authorities, however. H. Rep. No. 1133, 98th Oong., 2d Sess. 127 (1984).
Section 3008(h) remains applicable to releases from underground tanks containing
hazardous or solid waste subject to Subtitle C provisions.
"...fron a facility...*
For interim status corrective action purposes, EPA intends to employ the
definition of 'facility' adopted by the Agency in the corrective action
program for releases from permitted facilities. The preamble to the permitting
requirements for land disposal facilities indicates that the terra 'facility1
refers to ..."the broadest extent of EPA's area jurisdiction under Section
3004 of RCRA...[meaning] the entire site that is under the control of "the
owner or operator engaged in tm^^y*"* waste management.* 47 FR 32288-89
(July 26, 1982). See also the Final Codification Rule. 50 FR 28712 (July 15,
1985). Therefore, the definition of facility encompasses all contiguous property
under the owner or operator's control.
The permit program, as amended by Section 3004(u), requires corrective action
for releases of hazardous waste and hazardous constituents from solid waste
w
management units at a facility. EPA interprets 'solid waste management unit1
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-3-
to include any disoernable unit used for waste management. See 50 FR 28712
(July 15, 1985). Since the legislative history describes the interim status
corrective action authority as a "supplement" to permitting authority and
indicates that the interim status authority should be"at least as broad as'
the permit authority, Section 3008(h) clearly authorizes EPA to require corrective
action for any release of hazardous waste from disoernable waste management
units. The Agency's authority to use Section 3008(h) to address releases from
solid waste management units as well as hazardous waste management units is
discussed in the Final Codification Rule. 50 FR 28716 (July 15, 1985).
- The language of Section 3008(h), however, suggests that Congress did not
intend to limit EPA's authority to releases from discernable units. Unlike
Section 3004(u), Section 3008(h) broadly authorizes corrective action for
any release from a "facility". It does not require the Agency to find that
a release originated in a discernable waste management "unit".
The legislative history supports this interpretation. Prior to enactment
of Section 3008(h), the RCRA regulations required corrective action for releases
to groundwater from permitted 'regulated units' (surface ijipoundments, waste
piles, landfills and land treatment areas that received Subtitle C hazardous
waste after a specified date). 40 CFR 264.100 and 40 CFR 264.90. Congress
criticized this approach as too slew and too limited, however, and created
the interim status corrective action authority to "deal directly with an
ongoing environmental problem at interim status facilities." H. Rep. No. 1133,
98th Cong., 2d Sess. 110-112 (1984). Moreover, Congress clearly did not intend
the authority to be limited to the scope of the existing permit program. For
instance, the legislative history lists several examples of releases outside
v . • - •
the regulatory program for which a $3008(h) action is appropriate, including
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releases from waste management units not required to undertake corrective
action or otherwise exempt from RCRA regulations and releases, such as air
missions, to environmental media other than groundwater. Id. at 112..
The text of the statute, the broad remedial purpose, and the clear intent
to-authorize action beyond the scope of the permit regulations support the
position that Section 3008(h) authorizes EPA to address all types of releases
of hazardous waste within a facility. As discussed previously, the terra
•hazardous waste* encompasses 'hazardous constituents' from both hazardous and
solid waste. °
Section 3008(h) will also be used to address releases that have migrated
from the facility. New Section 3004(v), which provides that EPA may issue
orders requiring corrective action for releases that have crossed the facility
boundary if the permission of the owner of the affected property can be obtained,
supports the Agency's interpretation that such releases are subject to action
under Section 3008(h). See also the Final Codification Rule. 50 FR 28716
(July 15, 1985).
In a §3008(h) order or judicial referral, Agency personnel should describe
hazardous and solid waste management units within the boundary of the facility
and hazardous and solid wastes (and associated hazardous constituents) managed by
the facility in addition to information indicating that a release has occurred.
Since Section 3008(h) unequivocally authorizes EPA to address releases fron
units, the order or complaint should establish some link between the hazardous
constituents in a release and the hazardous or solid wastes in waste management
units where possible. For example, the findings of fact might state that the
facility treats, stores or disposes of certain listed Subtitle C wastes, that
those wastes were listed because.they contain the hazardous constituents cited
in Appendix VII to 40 CFR Part 261 and that some or all of those constituents
have been found in the environment, thereby indicating a release.
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...authorized to operate under Section 3005(e)..."
This clause encompasses several classes of hazardous waste treatment/
storage and disposal facilities. First, facilities that have met each
requirement for obtaining interim status in a timely manner are subject to
Section 3008 (h). With respect to those facilities brought into the hazardous
waste management system when the Phase I RCRA rules went into effect, to establish
interim status EPA must demonstrate that: (1) the facility was in existence on
November 19, 1980, and; (2) the owner or operator complied with the requirements
of Section 3010(a), regarding notification of hazardous waste activity, and;
(3) the owner or operator submitted a Part A application in accordance with 40 .
CFR 270.10. As to those facilities in existence on the data of regulatory or
statutory changes that render the facility subject to the requirement to obtain!
a permit under Section 3005, to establish interim status the Agency must demonsjuratp
(1) that the facility was in existence on the appropriate date and (2) submitted
a Part A permit application in accordance with the requirements of 40 CFR 270.10.
If a statutory or regulatory change requires notification under Section 3010,
EPA roust also establish that the facility submitted the notification.
Second, Section 3008(h) applies to facilities that treat, store, or dispose
of hazardous waste, but have not actually obtained interim status because the
owner or operator did not fully comply with the requirements to submit a Section
v'
3010 notification and/or a Part A. Such facilities have been allowed to operate
in accordance with a formal enforcement action or an Interim Status Compliance
Letter requiring compliance with Part 265 standards. Furthermore, the owners
or operators are not relieved of the duty to apply for and obtain a final RCRA
permit. See e.g., the notice of implementation and enforcement policy for loss
*• - •
of interim status under Section 3005(e), 50 FR 38947-48 (September 25, 1985).
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-11-
The Agency believes that Congress intended the interim status corrective action
authority to apply to such facilities. The legislative history for Section
3008 (h) supports this position by making it clear that the authority can be
used to address releases from units that-do not have-interim status, such as
wastewater treatment tanks. H. Rep. No. 1133, 98th Gang., 2d Sess. 112 (19S4)
Third, EPA considers Section 3008(h) to be applicable not only to owners
or operators of facilities in the above two categories but also to units or
facilities at which active operations nave ceased and interim status has been
terminated pursuant to 40 CFR Part 124 or Sections 3005(c) and 3005(e)(2) of
RCRA. Section 3008(h) specifically provides that the interim status corrective
action orders may include a suspension or revocation of the authority to operate
under interim status, as well as any .other response necessary to protect human
health or the environment. Consequently, a corrective measures program can
be imposed under Section 3008(h), even if a facility's interim status has been
taken away as a result of an interim status corrective action order. The
Agency also believes that Section 3008(h) can be used to compel responses to
releases at facilities that'lost interim status prior to a $3008(h) action.
This approach is consistent with Congressional intent to assure that
significant environmental problems are addressed at facilities that treat,'
store or dispose of hazardous waste but do not have a final RCRA operating or
pest-closure permit. H. Pep. No. 1133, 98th Cong., 2d Sess. 1X0-112 (1984).
• Whera a State is authorized to administer the RCRA program, the require-
nents for obtaining the State's equivalent to interim status may differ from
those of the federal program. In authorized States that do not duplicate the
federal procedures, hazardous waste treatment, storage and disposal facilities
that have not been granted or denied a final RCRA permit are generally considered
interim status facilities. Land disposal facilities that were issued State pemits
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-12-
after November 8, 1984 but have not yet received the federal portion of the
permit applicable to continuing releases under Section 3004(u) are treated for
purposes of this guidance in the same manner as interim status facilities.
Similarly, hazardous waste underground injection wells that did not receive a
UIC permit prior to that date will also be treated in the sane manner as interim
status facilities. See the notice of implementation and enforcement policy for
loss of interim status under Section 3005(e). 50 FR 38947 (September 25, 1985).
•...Corrective action or.such other response measure as he deems necessary
to protect human health or the environment ..."
' Prior to the Hazardous and Solid Waste Amendments of 1984, the term
•corrective actionV in the RCRA regulatory context, referred to removal or
treatment in place of Appendix VIZI hazardous constituents in groundwater.
40 CFR 264.100. Section 3008(h) is not restricted to remedial action for
ground-water contamination, however. The statutory language and the legislative
history indicate that a wide range of responses to releases to all media from
waste management activities may be compelled. Financial assurance for any
response measure may also be required.
The authority can be used to require implementation of one or more stages
of a clean-up program, such as:
* Containment, stabilization or removal of the source of contamination,
• Studies to characterize the nature and extent of contamination and to
assess exposure and health and environmental effects,
0 Identification and evaluation of remedies,
• Design and construction of the chosen remedy,
• Implementation of the remedy, and
• Monitoring to determine the effectiveness of the remedy.
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' -13-
For example, a $3008 (h) order might require that the owner or operator
conduct a study to characterize the nature and extent of contamination, then
select a remedy and submit a corrective action plan to EPA. The fqeno/ and the
owner or operator would then confer on the plan and "amend the order to reflect any
modifications. H. Rep. No. 1133, 98th Cong., 2d Sess.., Ill (1984). Because a
' • \ •
study on the nature and extent of contamination and the selection and design of
a remedy may require a significant amount of time, Section 3008(h) should be
enployed to require interim measures as necessary to protect human health and
the environment prior to completion of the study and selection of a remedy.
Examples of interim remedies that could be cancelled include removal of the
waste or containment of the source of the contamination by lining a unit or
erecting dikes. In sane instances, preliminary pumping and treating of affected.
groundwater may be appropriate.
While the information needed to make a determination that there is or has
been a release is minimal, more information may be needed to justify a specific
interim or full remedy. The Administrator can require "corrective action or -
such other response measures as he deems necessary to protect human health or
the environment." To show that a response may be necessary to protect human
health or the environment, the present or potential threat posed by the release
should be described. The Agency may consider a variety of factors, including
the quantity of hazardous waste; the nature and concentration of, hazardous
constituents or other hazardous properties exhibited by the waste; the facility's
waste management practices; potential exposure pathways; transport and environmental
fate of hazardous constituents; humans or environmental receptors that might be
exposed; the effects of exposure, and; any other appropriate factors. To compel
corrective action investigations'*or studies, only a general threat to human
health or the environment needs to be identified.
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IV. ADMINISTRATIVE ACTIONS
Under Section 3008(h), the Agency can issue administrative orders or
ccranence a civil judicial action. The decision to pdrsue an administrative
or judicial remedy nust be made on a case-by-case basis since each approach
has advantages and disadvantages. An administrative order, for instance, can
usually be issued quickly, while preparation for a judicial action may be more
tine-consuming and most be referred to the Departanent of Justice. On the
other hand, a judicial order or'consent decree can be enforced readily since
the court already has jurisdiction of the matter.
EPA may issue a S3008(h) administrative order to require corrective
action or any response necessary to protect human health or the environment.
The order may include a suspension or revocation of authorization to operate.
If any person named in the order fails to conply with the order, the Agency
may inpose a civil penalty not to exceed $25,000 for each day of noncorpliance.
Notice to States
Section 3008(h) does not require that States be given notice of an impending
action. To ensure that the Agency is fully informed of relevant facts and, in
view of the Federal/State relationship, consultation with the State should
usually precede an EPA action. To avoid misunderstandings, reasonable notice
should be given to the State when an action is taken. The notice should include
the location and a description of the facility, the names and addresses of the
owners and operators, the conditions requiring a response and a description of
the action that EPA will require.
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-15-
Elements of Orders
Because it is the focal point in all proceedings subsequent.to its issuance,
the initial order raust be as complete as possible. Failure to develop an
adequate document may have adverse consequences if the Agency seeks judicial
enforcement. All S3008(h) orders should contain the following general elements:
• A statement of the statutory basis for the order.
0 Factual allegations shewing that there is or has been (1) a release (2)
of hazardous waste or hazardous constituents (3) into the environment
(4) at or from an interim status facility. Facts indicating that the
response is necessary to protect human health or the environment should
' also be presented.
\
• A determination, based on the factual allegations, that there is or
has been a release of hazardous waste or hazardous constituents to
the environment from an interim status facility.
0 An order that clearly identifies the tasks to be performed, and a schedule
of compliance accompanied by appropriate reporting and approval requirements.
• A statement informing the respondent that he has a right to request.
a hearing within 30 days of issuance concerning any material fact in
the order or the terms of the order.
* A notice of opportunity for an informal settlement conference. It
is the Agency's policy to encourage settlement of $3008(h) actions
through informal discussions. The respondent should be cautioned, however,
that a request for a conference does not affect.the 30 day period for
requesting a hearing.
0 A. statement that EPA may assess penalties not to exceed $25,000 per
day of non-compliance with the order.
It may be appropriate to include a provision for stipulated penalties in
orders 'on consent. Such a provision, however, should be drafted to make it
\
clear that the stipulated penalty is not EPA's sole remedy and that Agency has
not waived its statutory authority to assess penalties under Section 3008(h)(2)
It is recommended that the Regions pursue judicial referrals to impose penalties
for noncompliance with a S3008(h) administrative order rather than issuing
a subsequent order for penalties.
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Releases fror, liability and covenants not to sue may be sought by parties
negotiating S3008(h) orders. These provisions terminate or seriously impair
the Federal Government's right of action against a party. In general, the
interim CEFCLA Settlement Policy (December 5, 1984) may be followed. Releases
generally will not be appropriate, however, where the extent of contamination,
the reliability of the remedy or long-term operation and maintenance requirements
are uncertain. If provided, they should be narrowly drawn. In addition, EPA
personnel should exercise particular care in drafting such provisions to ensure
that they do not restrict the operation 'and enforcement of the on-going RCRA
regulatory, program. Moreover, the order should also contain a provision reserving
the Agency's right to take additional action .under RCRA and other laws. For
example, EPA should reserve the right to expend and recover funds under CERCLAjf
to bring imminent and substantial endangerment actions under RCRA $7003 and
CERCLA 5106; to assess penalties for violations of and require compliance with
RCRA requirements under 53008(a); to address releases other than those identified
in the order; to require further action as necessary to respond to the releases
addressed in the order, and; to take action against nonpar-ties if appropriate.
Hearing Requirement
To issue a unilateral S3008(h) order, EPA must comply with the requirements
of Section 3008(b) with respect to an opportunity for a hearing. 130 Gong. Rec.
S9175 (daily ed. July 25, 1984). Although procedures for S3008(a) administrative
actions have been established by regulation (See 40 CFR Part 22), those regulations
are not legally applicable to S3008(h) actions. Hearing procedures for $3008(h)
actions are under development. Until formal guidance is available, a Region
that intends to issue a unilateral order should contact the Office of .Waste
V
Programs Enforcement, Office of Solid Waste and Emergency. Response.
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Developnent and Preservation of the Administrative Record
_$3008(h) orders might be-reviewed in administrative or judicial proceedings.
Therefore* it is essential that information required by the statute and all
other relevant information or documents obtained by the Agency be conpiled in
an administrative record, preserved and readily retrievable. The "EPA official
initiating the action should maintain a file that contains the following:
• EPA investigative records, such as inspection reports, sampling and
analytical data, copies of business records/ photographs, etc.;
• Reports arid internal Agency documents used in generating or supporting
the enforoanent action, including expert witness statements;
0 Copies of all documents filed with the Regional Hearing Clerk or the
Presiding Officer;
• Copies of all relevant correspondence between EPA and the respondent;
• Written records of conferences and telephone conversations between
EPA and the respondents, and;
• Copies of all correspondence between EPA and State or other federal
agencies pertaining to the enforcement action.
V. CIVIL JUDICIAL ACTIONS
Under Section 3008(h), EPA may initiate civil judicial action to compel
appropriate relief, including a temporary or permanent injunction, or to
enforce a §3008(h) administrative order. As noted previously, the decision
to pursue administrative or judicial remedies will be made on a case-by-
case basis. Generally, however, a civil judicial action may be preferable
to -issuance of an administrative order in the following types t>f situations:
• A person is not likely to comply with an order or has failed to
comply with a S3008(h) order.
• A person's conduct must be stopped immediately to prevent irreparable
injury, loss or damage to human health or the environment.
• Long-term, complex and costly response measures will be required.
(Because compliance problems are more likely to arise during •
implementation of these actions than while carrying out a simple,
short-term action, it may be better to have the matter already
before the court for ease of enforcement.)
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-18-
Other factors that could be considered include the value of a favorable decision
as precedent and the need to deter nonccnpliance by other potential targets for
EPA enforcement action under Section 3008(h).
A request to file a civil judicial action must be referred by the Assistant
Administrator for Enforcement and Compliance Monitoring to the Department of
of Justice. The procedures that Agency personnel should follow to develop a
referral and support litigation are described in the RCRA/CERCLA Case Management
Handbook (August, 1984) and the RCRA Caroliance/Enforcement Guidance Manual
(September, 1984).
i • .
VI. USE OF SECTICN 3008(h) IN RELATION TO PERMITTING, CLOSURE AND OTHER AUTHORITIES
RCRA Permits
The pre-HSWA regulations applicable to corrective action at permitted facilities
deal only with a remedial program for treatment in place or removal of groundwdter
contaninated by a release from a 'regulated unit1. (Prior to HSWA, the term
•regulated unit1, meant a surface impoundment, landfill, land treatment unit or
waste pile that operated after January 26, 1983. Enactment of new Section 3005(i)
which provides that the Part 264 groundwater monitoring, unsaturated zone monitoring
,and corrective action requirements are applicable at the time of permitting to
landfills, surface impoundments, waste piles and land treatment units that received
Subtitle C hazardous wastes after July 26, 1982, necessitated a corresponding change
*
in the definition of regulated unit). Enactment of Section 3004(u) enlarged the
universe of units subject to corrective action at RCRA facilities by requiring
that a facility seeking a RCRA permit address all releases of hazardous waste
and hazardous constituents at any hazardous or solid waste management unit.
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-19-
In addition to increasing the number and kinds of units subject to corrective
action, EPA will use the Section 3004(u) authority to address releases to air,
land and surface waters as well as to groundwater. Furthermore, Section 3004(v)
allows EPA to require corrective action beyond the facility boundary where
necessary to protect human health and the environment unless the facility
owner or operator is unable to obtain permission from the owner of the affected
property.
Permitting can be a lengthy process. Therefore, the interim status
corrective action authority should be used to address significant environ-
mental problems prior to issuance of the permit. With respect to 'regulated
units', which cannot be permitted until the facility is in compliance with .
Part 270 requirements to assess ground-water contamination and develop a
corrective action plan if necessary, Section 3008(h) may be particularly useful
for compelling activities not addressed by the Part 265 and Part 270 regulations.
For instance, interim corrective action measures could be reouired prior to
permit issuance. For releases from solid waste management units and hazardous
waste management units other than 'regulated units', Section 3008(h) may be
used to compel interim measures, studies to characterize the nature and extent
of contamination and the threat posed by the release, selection of remedy and
design, construction and implementation of the remedy.
If an interim status facility is seeking an operating permit or will be
required to obtain a post-closure permit, any S3008(h) action at that facility
should be designed to meet the needs of the permitting process to the extent
possible. If all necessary steps in a corrective measures program will not be
completed prior to issuance of'a permit, compliance schedules in the order
V
should be developed so that they can be readily incorporated in the permit.
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RCRA Closures
EPA believes that the interim status corrective action authority will
be useful in assuring environmentally sound closures of RCRA hazardous waste
management units. Section 3008(h) may be used to supplement the interim status
closure regulations. Approval of a closure plan does not limit the Agency's
ability to use Section 3008(h), as well as other applicable corrective action
authorities, to deal .with releases of hazardous waste or hazardous constituents.
In view of the number of interim status closures anticipated as a result of
new statutory and regulatory requirements, the Regions are encouraged to
employ the interim status corrective action authority to assure that RCRA
hazardous waste management units are closed in a manner that properly protects
human health and the environment.
Other Enforcanent Authorities
Because of the broad scope of Section 3008(h) and the variety of activities
that can be compelled, the interim status corrective action authority may be
employed in conjunction with other enforcement authorities, although it may be
appropriate to issue separate,concurrent orders due to differing hearing
requirements. For example, where a violation is associated with a release of
hazardous waste or hazardous constituents, a Section 3008(a) action should be
used to require compliance with the regulation and assess penalties while a
Section 3008(h) action could be employed to compel response actions that go
beyond regulatory requirements. Section 3013, which allows the Agency tc
carpel owners or operators of treatment, storage or disposal facilities to
conduct certain types of studies, may be used when the presence of hazardous
waste may present a substantial, threat but EPA does not have sufficient
information to make a determination that there is or has been a release.
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With regard to imminent and substantial endangerment actions, the legis-
lative history makes it clear that enactment of Section 3008 (h) does not
alter the Agency's interpretation of Section 7003. _ H. Rep. No. 1133, 98th Cong.,
•2d Sess. ill (1984). RCRA $7003 or CERCLA $106 actions are appropriate if
conditions at an interim status facility nay present, an raninent and substantial
endangerment and the Agency needs to move o^ickly to address the problem. The
'imminent hazard* provisions of RCRA and QERCLA may be especially helpful if
the Agency wishes to take action against responsible parties other than or in
addition to the current owner or operator.
VII.
The policies and procedures set forth herein and the internal office
procedures adopted pursuant hereto are intended solely for the guidance
of United States Environmental Protection Agency personnel. These policies and
procedures are not intended to, do not, and may not be relied upon to create a
right or benefit, sxibstantive or procedural, enforceable at law by a party to
litigation with the United States. The Agency reserves the right to take any
action alleged to be at variance with these policies and procedures or that is
not in ccnpliance with internal office procedures that nvay be adopted pursuant
to these materials.
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UNITED STATES EN VIRONMENTAL PROTE
WASH.NGTON. D.C. 20460 9502.1986(01)
JAN 8 1986
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: RCRA Corrective Action at Federal Facilities
FROM: 3# WTrfseon P6rter
Assistant Administrator
TO: Regional Administrators, Regions I - X
On November 19, 1985, I sent you a memorandum describing a
Federal Register notice we intended to publish addressing
RCRA corrective action activities at Federal facilities. In
that memorandum, I requested that you contact each of the
environmental commissioners in your Region to inform them of
the notice and explain to them the issues involved.
Shortly after that I sent another memorandum requesting
that contact with the State environmental commissioners be
delayed while we considered some issues surrounding the notice.
Those issues have now been resolved and I am, once again,
requesting that you personally contact your environmental
commissioners to explain the notice. Lee Thomas and I are
meeting with the fifteen State environmental commissioners on
the State/EPA Committee on January 16. Since I intend to bring
this issue up at the meeting, I would appreciate your making
these contacts before the meeting.
I am attaching a copy of my November 19 memorandum, the
Federal Register notice and talking points which may be
useful wheri you telephone the environmental commissioners.
As before, subsequent to your contacts with the environmental
commissioners, I recommend that your RCRA Division Directors
and Branch Chiefs also contact their State counterparts in
order to inform them.
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- 2 -
The_development of regulations addressing corrective action
at Federal facilities will take some time. However, I want to
stress that we should proceed, in close cooperation with the States,
to process Federal facility permit applications, including correc-
tive action where required.
Attachments
cc: Hazardous Waste Division Directors,
Regions I - X
Hazardous Waste Branch Chiefs,
Regions I - X
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UNITED STATES ENVIRONMENTAL PRO 9502.1986(01)
WASHINGTON, D.c. 204 Attachment
19 1985
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: RCRA Corrective Action at Federal Facilities
6^V-«C\
FROM: J. Winston Porter
Assistant Administrator
TO: Regional Administrators, Regions I - X
On July IS, 1985, EPA codified the requirements of the
Hazardous and Solid Waste Amendments of 1984 (HSWA) in the Federal
Register. The preamble to the Codification Rule (50 FR 28712)
explained that Federal agencies had several concerns a"Eout the
corrective action provision in S3004(u) of HSWA. The preamble
stated that EPA would attempt to resolve the legal and policy
issues raised by the other agencies subsequent to promulgation
of the Codification Rule.
Following extensive negotiation, EPA and the Federal agencies
have agreed that Federal facilities are subject to corrective action
requirements to the same extent as any other facility. This decision
will be announced in the Federal Register (see attached draft notice,
an advance copy of which was E-mailed to you on Friday, November 15).
The announcement will also explain that the Federal agencies have
identified several issues which EPA believes merit further considera-
tion through future rulemaking.
By this memorandum, I will explain those issues and how EPA
intends to address them. I am also requesting that you personally
contact each of the State environmental commissioners in your
Region to inform them of the soon-to-be published Federal Register
notice and explain to them the issues involved.
Below is a full discussion of each of the issues raised by
the Federal agencies and how EPA intends to address them. I
have also attached talking points which may be useful when you
telephone the environmental commissioners. I ask that you make
all of the telephone calls by November 27. Subsequent to your
contacts with the environmental commissioners, I recommend
that your RCRA Division Directors and Branch Chiefs also contact
their State counterparts in order to inform them.
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- 3 -
As stated earlier, EPA intends to fully involve the States
in the development of the rules described here. We also intend
to involve Federal agencies and environmental groups, in order
to obtain the broadest possible perspective in developing the
regulations. Please solicit, from your States, their views on
how we might best obtain State input; i.e., the appropriate
State organizations or individuals in State government who should
be involved in our negotiations.
We have informed the Regional RCRA Division Directors and
Branch Chiefs of a conference call on this issue. The call will
be conducted on November 21 from 2:00 to 3:00 pm, Eastern Standard
Time, and will be sponsored by staff of the Office of General
Counsel and the Office of Solid Waste. To participate in the
call, Regional personnel should dial FTS-475-8347.
Attachments
cc: Hazardous Waste Division Directors,
Regions I - X
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January 23, 1986 9502.1986(Ola)
MEMORANDUM
SUBJECT: Information on Solid Waste Management Units
FROM: Marcia Williams, Director
Office of Solid Waste
TO: Regional Hazardous Waste Division Directors
As you know, §3004(u) requires corrective action for all
releases of hazardous waste or constituents from previously
unregulated solid waste management units (SWMUs). The
implementation of this provision has broad resource implications
for the RCRA program. In order to properly plan for and request
the needed level of resources, we are undertaking a project to
characterize the SWMU universe nationally.
This exercise will take place in conjunction with the Regional
Implementation Reviews and will be performed by Headquarters review
team members. Based on the responses received from the SWMU
letters sent by your offices in January 1985, and any other SWMU
information summaries you may have already completed in-house,
information will be compiled on: (1) the number of unregulated
SWMUs by facility type (i.e., storage/treatment, incinerator,
disposal), and (2) information on the type of SWMUs if such
information is available. Although your existing SWMU information
should be available at the time of the facility review portion of
your scheduled Implementation Review, this exercise will not
require you to further analyze or summarize that information. A
review team member will contact your staff prior to the facility
review.
If you have any further questions concerning this project,
please contact Peter Guerrero, Chief Permits Branch, at 382-4740.
This has been retyped from the original document.
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(J N • '." • • ^ I .. ' -
9502.1986(02)
Mr. Richard C. Fortuna
Hazardous Waste Treatment Council
1919 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
Dear Mr. Fortuna:
I am pleased to respond to your letter of December 30, 1985,
in which you posed several questions regarding the Environmental
Protection Agency's current policy approach to implementing the
new RCRA corrective action authorities provided by the Hazardous
and Solid Waste Amendments of 1984 (HSWA). The following are
our responses to the specific questions which you raised in your
letter.
Q: Can a facility terminate interim status simply by
withdrawing its Part A application?
A: A facility cannot simply withdraw its Part A application
with the intention of terminating interim status and
thereby absolve itself of any future RCRA responsibil-
ities. As provided by 40 CFR 270.73, interim status
is terminated when (a) final administrative disposition
of a permit application is made; or (b) interim
status is terminated as provided in §270.10(e)(5).
Termination of interim status must take place according
to the procedures specified in 40 CFR Part 124.
Thus, a facility such as the one mentioned, in your
letter cannot terminate its interim status by simply
withdrawing its Part A application. Interim status
will additionally be terminated if a facility failed
to certify under the Loss of Interim Status provisions
of HSWA, and may be terminated pursuant to an enforcement
order. In any case, however, the termination of interim
status does not terminate the facility's obligation to
comply with interim status requirements, including
groundwater monitoring and closure, permitting
requirements or corrective action requirements.
Q: Are all land disposal units that received hazardous
wastes after July 26, 1982, subject to the $3004 cor-
rective action requirements, even if such a unit is
closing? What if such units did not take hazardous
wastes, but are releasing hazardous constituents?
A: Yes, all land disposal units that accepted hazardous
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-2-
waste after July 26, 1982, are potentially subject to
RCRA corrective action authorities. First, EPA would
consider all such units to fall within the scope of
its authority to issue corrective action orders to
interim status facilities under Section 3008(h). EPA
believes that Section 3008(h) applies not only to
facilities operating under interim status, but also to
all facilities that terminate interim status and
facilities that accepted hazardous waste after November
1980, but never formally qualified for interim status.
In addition, 40 CFR §270.l(c) currently requires units
that receive hazardous waste after January 26, 1983,
to obtain either operating permits or post-closure
permits. These permits will require corrective action
under 40 CFR 264.100 and Section 3004(u). Also, new
Section 3005U) requires all units receiving hazardous
waste after July 26, 1982, to meet the requirements
of Subpart F to 40 CFR Part 264. This includes
requirements for corrective action for releases to
groundwater under 40 CFR §264.100. To implement
this requirement, EPA is in the process of amending
§270.l(c) to extend permit applicability to units
that received hazardous waste after July 26, 1982.
These permits will also require corrective action under
40 CFR 264.100 and Section 3004(u). A land-based unit
that does not receive hazardous waste, but releases
hazardous constituents may fall under these corrective
action requirements. We will assume for the purposes
of answering your question that the unit accepted solid
waste and is a solid waste management unit. All releases
of hazardous constituents from solid waste units located
within the boundaries of a facility that contains any
hazardous waste unit subject to the Section 3008(h)
interim status order authority or subject to permit
requirements will fall within the scope of the new
corrective action requirements. Section 3008(h) allows
EPA to order cleanup of releases from solid waste units
at facilities within the scop* of the interim status
corrective action authority; Section 3004(u) requires
cleanup at facilities that obtain permits.
Q: When is a facility or unit that undertakes closure
subject to corrective action for continuing releases,
and under which authorities: §3005(c) post-closure
permits, $3004(u), §3008(h), or §3005(i)? Under what
circumstances would different or dual authorities be
used at the same facility? Which units would be subject
to post-closure permits, and which units subject to
other corrective action mechanisms?
At As explained above, if a closing unit has caused a
release requiring corrective action, that corrective
action can be required through either a post-closure
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permit (using the authority of §264.100 or §264.101,
depending on the type of unit and the type of corrective
action required), or through an enforcement order. (We
are assuming that, by referring to closure, you are
describing a facility that has at least one unit that
accepted hazardous waste.) Section 3005(i) of RCRA
does not of itself provide a separate mechanism for
corrective action; rather, it simply establishes the
applicability of Part 264 standards to regulated units.
The exact mechanism(s) which will be used to
require corrective action will depend on the specifics
of the situation at the facility. The scope of the
corrective action authorities under §3008(h) and §3004(u)
are similar. Regions and States are in the process of
preparing plans for environmentally significant
facilities to determine which authority, or combination
of permitting and enforcement authorities, may be
appropriate and yield most effective environmental
results. An example of a situation where a mix of
authorities might be used to implement corrective
action could be a facility where a serious release
situation is known to exist, but where a permit for the
operating units at the facility will not be issued for
a substantial period of time. A §3008(h) enforcement
order could be issued to compel the owner/operator to
begin the necessary investigations and/or implement
required corrective actions, while the permit is being
prepared. When the permit is issued, the remaining
corrective action activities would be conducted under
the permit.
As explained in the previous response, the facilities
currently subject to post-closure permits include all
of those facilities that had an operational land disposal
unit as of January 26, 1983. If a facility is subject to
a post-closure permit, all solid waste management units
at that facility are covered by that permit.
Q: What monitoring requirements are or will be imposed
at such facilities to determine the nature and scope
of the required corrective action?
At Regulated units which close under interim status
are subject to the applicable ground water monitoring
requirements of Subpart F of Part 265. The adequacy
of existing ground water monitoring systems will be
evaluated as part of the closure process, and if
necessary, will be required to be upgraded. If ground-
water contamination is detected, the owner/operator
is required under §265.93 to make an assessment of the
-nature and extent of contamination. In addition, the
units are subject to other authorities, including post-
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-4-
closure permits and orders under Sections 3013 and 3008.
Upon issuance of a post-closure permit, the applicable
requirements for ground water monitoring, including
compliance monitoring and corrective action, must be
complied with. As indicated by the preamble of the
final codification rule, the Agency will generally
look to the protection standards of Subpart F for
clean up levels for releases to ground water at solid
waste management units. EPA is developing technical
guidances for investigations at solid waste management
units.
Q: Would units that stored or managed fuels deemed to be
hazardous under State law also be considered solid waste
management units? Under what circumstances, if any,
would such units not be solid waste management units?
A: The question of whether or not a unit which stores
or manages a fuel would be classified as a solid
waste management unit depends, in part, on whether or
not that fuel is considered to be a solid waste under
Part 261 RCRA regulations. If the fuel is a solid
waste, the unit would be a solid waste management
unit.
Q: How does EPA Headquarters plan to interact with the
States and EPA Regional Offices to ensure that closures
of interim status facilities address the corrective
action requirement?
A: The Office of Solid Waste and Emergency Response
currently is examining a number of issues relating to
closing RCRA facilities and integration of corrective
action at those facilities. We expect to be issuing
guidance to the Regions and States addressing the
specific issues which you have raised, and others,
in the future.
Please let me know if you have any questions.
Sincerely, ^
J. Winston Porter
Assistant Administrator
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9502.1986(03)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
JANUARY 86
5. Corrective Action
The Hazardous and Solid Waste Amendments of 1984 (HSWU set forth requirements
for corrective action for continuing releases under $3004(u). This provision
is applicable to any facility that is seeking a HCRA permit.
A facility currently has a HCRA permit and is seeking a major modification
to that permit under $270.41. would this facility be subject to the corrective
action requirements of $3004(u) when going through a major permit modification?
Section 3004(u) states that corrective action for a facility shall be
required aa a condition of each permit issued after November 8, 1984.
BecauM a permit modification is not equivalent under $270.41 to the
issuance of a permit, a facility that is seeking a major modification
to a HCRA permit issued prior to November 8, 1984, is not required to
address the corrective action requirements of $3004(u). A facility
permit being reviewed for reissuance, however, is subject to the $3004(u)
corrective action provisions.
Source: Carrie wehling (202) 475-8067
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9502.1986(04)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I. O.C. 20460
OP
SOLID WASTE AND EMERGENCY
MEMORANDUM
SUBJECT: S.CRA Corrective Action at Federal Facilities
FROM: "~~Bruce"tR. Meddle, '"Birector
Permits and State Programs Division
TO: Allyn M. Davis, Director
Hazardous Waste Management Division (6H)
Region VI
This responds to your memorandum of January 15, 1986, in
which you pose several Questions about corrective action at
Federal facilities. I hope this clarifies the relation between
the national priorities and corrective action.
You asked how national priorities for Federal facilities
will be coordinated. We do not expect tc have a final rule
published in the Federal Register before eighteen months from
now. In the interim, the Regions and States must continue to
process and issue permits to Federal facilities. Priorities
will be reflected in the compliance schedules of the permits
for individual Federal facilities. Compliance schedules should
be negotiated on a case-by-case basis with each facility, with •
one of the factors considered being the parent agency's nation-
wide corrective action responsibilities.
There are many ways we could address national priorities in
the proposed rule. One method would be to establish a national
ranking for each Federal facility. Another method would be to
develop a process for negotiating compliance schedules for
corrective action at Federal facilities. At the moment we are
considering the latter approach. Under this method, corrective
action would continue to be addressed as described above.
You also expressed concern about lack of funding for Federal
facilities. EPA can influence the parent agency's funding deci-
sions through the A-106 budgeting process. You should aggres-
sively use the A-106 process to ensure that funding is available
to undertake the activities in permit or enforcement compliance
schedules in the timeframes provided.
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You also asked if S3008(h) orders could be issued to
Federal facilities. You should continue to issue $3008(h)
orders when appropriate. Although we cannot assess penal-
ties to other Federal agencies, we can use the authority
of $3008(h) to compel investigation and cleanup activity.
Finally, your memo stated that in accordance with
Winston Porter's November 21, 1985, memo, you would not
contact State Environmental Directors about corrective
action at Federal facilities. That memo explained that
the States should not be contacted until issues raised by
the Department of Energy were resolved. These issues
have now been resolved. This was explained in a January 8,
1986, memo from Winston Porter requesting the Regions to
contact the States. Please begin contacting State
Environmental Directors if you have not already done so.
If you have further questions about corrective action at
Federal facilities, contact Paul Connor of my staff at
(FTS) 382-2210.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9502.1986(05)
MAR 2 4 1986
.^r. Philip X. Maaclantonio
United States Steel Corporation
one Tech Center Drive
.".onroeville, PA 15146
L-ear Mr. Masciantonlos
I am pleased to respond to your letter of February 19, 1986,
regarding the applicability or" KCRA corrective action requirements
to facilities for which Psrt A applications were filed, but at
which hazardous wastes were never actually stored, treated or
Disposed.
ltf as you stated in your letter, your facility never did
treat, store or dispose of haiardous waste (as defined in 40 CFR
Part 261), EPA does not consider that facility to have attained
interim statue, even though a Part A application was submitted
(i.e., a "protective filing"). This interpretation is outlined
in a Federal Register notice published on September 25, 1985
(50 FR 38946).
Facilities which have never engaged in treatment, storage or
disposal of hazardous waste are not subject to the corrective
action provisions of RCRA §3004(u) or S3008(h). It should be
noted, however, that authorities under CERCLA or other statutes
may be available to the Agency to address environmental concerns
at such facilities/ regardless of their status under RCRA.
I hope this has adequately addressed your concerns. Please
let me know if I can be of further assistance.
Sincerely,
J. Winston Porter
Assistant Administrator
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9 50 2.1986( 06)
WASHINGTON. O.C. 104*0
APR I5BB6
Of HCt Of
•OLIO WATT! AND IMPNQBNCV
Honorable Mary L. Walker
Assistant Secretary for
Environment, Safety and Health
Department of Energy
1000 Independence Avenue, S.W.
Washington, O.C. 20585
Dear Nary:
Section 3004(u) of the Resource Conservation and Recovery
Act (RCRA) requires hazardous waste facility owner/operators
seeking permits to undertake corrective action for environmental
releases at solid waste management units within their facilities.
On March 5, 1986, EPA published in the Federal Register a notice
(copy enclosed) announcing EPA's intent to promulgate rules
implementing these corrective action provisions at federal
facilities.
Among other things, the March 5 notice indicated that
•EPA intends to develop rules that would allow Federal agencies,
subject to EPA approval after consultation with the States, to
set priorities for correcting releases from solid waste manage-
ment units at facilities that they own or operate.*
The notice also indicates that, in the interim before
these rules are finalized, EPA and the States will review and
issue RCRA permits, with EPA Implementing corrective action
requirements at federal facilities until the State is authorized.
EPA will address issues not yet resolved by rulemaking on a
case-by-case basis.
I want to encourage you to begin developing plans to
establish corrective action priorities within your agency.
Having such internal priorities will facilitate the ongoing
negotiation process for permitting during this interim period.
I would like to s»et with you within the next two to three
months to discuss your preliminary prioritisation planning.
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Please contact jin Cruickshank of my safr, St
Thanks very much for your cooperation and assistance
Sincerely,
J. Winston Porter
Enclosure
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9502.1986(07}
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
APRIL 86
7. Corrective Action for UIC Wells
The owner of a hazardous waste underground injection well is
applying to his State for a UIC permit after November 8, 1985.
Section 3004(u), as amended by the Hazardous and Solid Waste
Amendments of 1984, stipulates that a RCRA permit issued after
November 8, 1984 must require corrective action for all releases
of hazardous waste or constituents from any solid waste management
unit at a treatment, storage, or disposal facility. Must corrective
action be addressed in the UIC permit?
Section 270.60(b), regarding permit-by-rule regulations for
UIC wells was amended in the final codification rule (50 PR
28752) to require compliance with corrective action regulations
under §264.101. The proposed codification rule of March 28,
1986 restates that a UIC permit issued after November 8, 1984
is not a RCRA permit-by-rule until corrective action reouirements
have been met for all solid waste management units at the
facility (51 FR 10714). A memorandum dated April 9, 1986,
from Michael Cook (Office of Drinking Water) to the Regions
further clarifies this point by stating that a UIC permit is a
RCRA permit-by-rule when corrective action has been addressed
for.the entire facility.
Corrective action for the well only will be addressed in the
UIC permit. If there are other RCRA units at the facility,
corrective action for those units will be addressed in a RCRA
permit, when it is issued. If there are no other RCRA units
requiring a RCRA permit, then corrective action for any other
solid waste management units will be addressed in the UIC
permit.
Source: Dave Pagan (202) 382-4740
Research: Kim Gotwals
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9502.1986(07a)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
APRIL 86
1. Corrective Action Orders Under S3008(h)
The owner/operator of a surface impoundment has managed hazardous wastes
in the impoundment without interim status or a RCRA permit. A release
of hazardous wastes from the impoundment has contaminated surrounding
soil and groundwater. Upon discovery'of this improper management and
resultant contamination, the EPA intends to issue a corrective action
order under Section 3008(h) of RCRA. Given that the owner/ooerator
never an interim status, can the corrective action order be issued?
Section 3008(h) authorizes the EPA Administrator to issue
corrective action orders to address releases of hazardous
wastes into the environment from facilities authorized to
operate under Section 3005(e). This authority extends to
include those facilities that should have had interim status,
but failed to notify EPA under Section 3010 of RCRA or failed
to submit a Part A application. Accordingly, the corrective
action order can and should be issued to ensure pronpt and
thorough clean-up of the site. (Please see the December 16,
1985 memorandum fran J. Winston Porter, Assistant Administrator,
Office of Solid Waste and Emergency Response, entitled
"Interpretation of Section 3008(h) of the Solid Waste Disposal
Act").
Source: Virginia Steiner (202) 475-9329
Research: Jim Ginley
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY acn, ,QOC,nQ
, "3 (J2 •198 o ( U5
*
MEMORANDUM
SUBJECTS Permit Xasues Related to U.S. Amy -
Aberdeen Proving Grounds
FROM t Bruce Weddle, Director
Permit* and State Prograna Division
TOi Robert Allen, Chief
Waste Management Branch
In your Beoorandun of January 24, you requested our response
to several issues surrounding the issuance of the corrective
action portion of the pernlt for Aberdeen Proving Grounds. Our
response to each issue is discussed separately below. This
information has also been discussed with Jack PotosnaJc of your
staff.
1. Definition of "facility" as it applies to Federal facilities.
Notice was published March 5 (51 Federal Register 7722)
which resolves three issues outlined in the Final Codification
Rule, regarding the definition of facility for purposes of
corrective action at Federal facilities!
1. Mill establish that f3004(u) is applicable to Federal
facilities!
2. Reconfirms the definition of "facility* as the
entire oite under control of the owner/operatori
3. *atab 11 ones that the owner of Federal lands is the
Individual Federal departs»nt or agency* rather
than too JB ft>vern»ent.
A second notice was also published which announces cur intent
to develop regulations to address additions! issues raised by
Federal agencieo including national priorities for corrective
action.
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- 2 -
2. Unexploded Ordinances
You inquired as to whether range/impact areas containing
unexploded ordinances at Aberdeen qualify as solid waste management
units. We believe such areas do not qualify because there is a
strong argument that unexploded ordinances fired during target
practice are not discarded Materials within the regulatory definition
of "solid waste". Ordinances that do not explode would be expected
to land on the ground. Hence, the "ordinary use" of ordinances
includes placement on land. Moreover, it is possible that the
permittee has not abandoned or discarded the ordinance, but rather
intends to reuso or recycle then At sons point in the future.
Also, the U.S. District Court for the District of Puerto Rico
held that the military target practice activities do not generate
"solid waste" because the statutory definition does not include
materials resulting from military operations. Barcelo v. Brown,
47« F. Supp. 646, 668-669 (D. Puerto Rico 1979) (copy of relevant
portions attached). The Court qualified this position, however,
by suggesting that when the military engages in activities that
resemble industrial, commercial or mining operations, or community
activties, materials resulting from such operations are wastes
and are subject to regulation under RCRA. Hence, we think the
Court's opinion suggests that materials resulting from uniquely
military activities engaged in by no other parties fall outside
the definition of solid waste.
3. White Phosphorus Burial Zone
As relayed in your memorandum, white phosphorus munitions
were dumped in a shallow water area and covered with fill. The
area is part of the Chesapeake Bay, but it is within the boundary
of Aberdeen Proving Ground. You asked whether the the fact of
being underwater restricts applicability of RCRA/ HSWA authorities,
and whether • mult 1 -year monitoring program can be prescribed at
the location.
As described in the January 30, 1985, draft guidance on
corrective action for continuing releases under |3004(u), the
tent "solid vaate management unit* applies to active and Inactive
unita containing hazardous wastes or solid waatea at the facility.
Further, the tatm facility ia defined aa including all contiguous
property und*r the control of the owner or operator at which the
unita subject to permitting are located. In tha case of the
white phoaphorua burial sone, ainca white phosphorus ia a hasardous
waate and tha unit ia located within tha facility boundary, the
fact of being underwater would have no affect on its dasignation
as a solid waste management unit. Further, ainca tha unit would
be subject to S3004(u), a water quality monitoring program would
appear to be an appropriate response to determine evidence of
any ralaaaas from tha unit.
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- 3 -
4. Radioactiva Material
You Inquired as to whether aeveral it ana 11 a tad in your
memorandum fall undar tha "aourca apacial nuclear, by-product
material" exemption undar 261. (a) (4). Tha items would not ba
axampt to tha extent thay ara mixad with or contain haiardoua
waato. However, no RCRA ragulationa hava baan davalopad to covar
•uch mixed radioactiva waataa.
5. Dru» Claanup
Your laat iaaua cantarad on tha appropriatanaa of a permit
condition requiring a facility-wide aftort to locata and racovar
abandoned 55 gallon drums found on tha aita. Drums with contents
would ba taatad and removed to tha containar atoraga araa if
found to ba hazardous.
Wa do not baliava axiating authoritiaa would allow recovery
of thaaa druma unlaaa there waa evidence of a release. Under the
authority of Section 30U4(u), if EPA'a preliminary aaaeaaoant
ahowed that there waa a reaaonabla likelihood of releaaea of
hacardoua conatituenta from any of theae drums, EPA or the facility
could teat the material in the drums to determine if the remaining
waste is hazardoua and to determine if any raleasea have occurred.
If relaaaea had occurred, the appropriate corrective action measures
could be required.
If you have any further questions, please contact George Palaon
at 382-4422.
Attachment
cct RCRA Branch Chiefa (w/o Attachment)
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9502.1986(10)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
MAY 86
4. Corrective Action
The Hazardous and Solid Waste Amendments of 1984 contain several
corrective action provisions. Section 3004(u) requires that permits
contain provisions for corrective action and financial responsibility
for implementing such corrective action. Amended Section 3004(a)
of the Solid Waste Disposal Act (SWDA) authorizes regulations on
financial assurance for corrective action. Does this financial
responsibility requirement extend to amended Section 3004(v),
corrective action beyond the facility boundary?
Yes, the proposed codification rule dated March 28, 1986 (51 FR
10714) explains that the financial responsibility requirement
extends to corrective action beyond the facility boundary.
Proposed Section 264.101(c) codifies this requirement. The
final closure rule, issued on May 2, 1986 (51 FR 16422),
contains sane financial responsibility provisions, but does
not contain specific provisions for corrective action. The
Agency will address the specific requirements for financial
responsibility for corrective action in a separate proposal
due out in September 1986.
Source: Debbie Wblpe (202) 382-7729
Research: Kim B. Gotwals
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9502.1986(11)
JW I 61986
"r. Harrv C. Conner
President an<1 CEO
'.Jaste-Tech Services, Inc.
13400 West 10th Avenue
Golden, Colorado 30401
Dear Mr. Conger:
Thank you for your May 21, 1986, letter concerning the
requirements needed to meet the land disposal ban of the Hazardous
and Solid Waste Anendnents of 1984 (HSWA). You expressed concern
that the permitting process and the corrective action program pose
an impediment in meeting the July 1987 land disposal ban deadline
for haloqenated oroanics and similar deadlines. We appreciate
your thoughtful comments and suqaested guidance to the Regions
and States.
while the Conaress and the Environmental Protection Agency
(EPA) believe it is important to implement the land disposal ban,
Congress did not indicate a willingness to forego other important
activities, such as corrective action and permitting, to accomplish
this. EPA is trying to implement corrective action and permitting
in a manner that has the least disruptive impact on implementation
of the land disposal ban.
As to vour suggestion for a waiver of the nre-construction
ban, Section 3005(a) of the Resource Conservation and Recovery
Act (RCRA) precludes construction of new facilities until a permit-
is issued. EPA does not have discretion to waive this; it would
require a statutory change.
You also mad* son* specific suggestions about corrective
action. He have issued guidance which addresses many of your
concerns a copy of which is enclosed. The guidance states that
an incinerator/treatment unit can be permitted separately. That
permit must address all releases to media other than ground
water from regulated units—i.e.* land disposal units that received
waste after July 24, 1982—and all releases from non-regulated
units. A permit issued separatelv to regulated units would
address any needed ground water corrective action in accordance
with Subpart P of 40 CPR Part 264. Corrective action for media
other than ground water normally takes place after issuance of
the permit through permit schedules of compliance. Por ground
efore issuance of t
SYMBOL
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Finally, nround water rel^as^s fron rertulatf?H units can h
addressed in separately issued permits. This is usually the
"'ost tinie and resource intensive r>art of corrective action, so
it should greatly reduce permit development and nrocessinq
for incinerator/treatment units.
Aqain, thank you for your thouohtful letter. The Aqencv
identifies new treatment capacity as a hinh oerniittinn Priority
and will continue to do everythinn that it can to inclement the
"iost efficient reoulatorv nronra^ within the new provisions of
the law.
Sincerely,
/*/ Taqk W. I'cGiw
J. Winston Porter
Assistant Administrator
WH-562/D.ZEITLIN/sld/6-9-86/Control No.:AX600861/Oue Date:6-10-86
38 2 — 4651
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9502.1986(13)
August 22, 1986
MEMORANDUM
SUBJECT: Applicability of Regulations on Financial Assurance for
Corrective Action
FROM: Deborah L. Wolpe
TO: Gary Gosbee, Region I
You have asked for an interpretation of the applicability of
the financial assurance for corrective action requirement to both
regulated units and other solid waste management units. The July
15, 1985, final codification rule contained two references to the
financial assurance for corrective action. Section 264.101
entitled "Corrective Action for solid waste management units"
states that permits shall contain "...assurance of financial
responsibility for completing such corrective action." Section
264.90(a)(2) entitled "Applicability", states that "...The
financial responsibility requirements of §264.101 apply to
regulated units." Your question appears to be whether
§264.90(a)(2) supersedes §264.l01(b), so that financial assurance
only applies to regulated units.
As you know, regulated units are a subset of solid waste
management units (see 50 Fed. Reg. 28702, 28714, July 15, 1985).
Our interpretation is that the statement on financial assurance
in §264.90(a)(2) is not necessary, but is there as a reminder
that regulated units are subject to the requirement in §264.101.
Ordinarily, an owner or operator of a facility with only
regulated units complies with the requirements of §264.100, not
264.101, and therefore might miss the financial assurance
requirement, which is only in §264.101. Financial assurance
applies to all solid waste management units, including regulated
units.
This has been retyped from the original document.
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UNITED SFATtS SNVIRONA4ENTAL PROTECTION AGENCY
9502.1986(14)
AUG 2 2 1986
Mr. Carl Schafer, Jr.
Deputy Assistant Secretary
of Defence, (Bnvironaent)
Department of Defence
The Pentagon, Room 3D833
Washington, D.C. 20301
Dear Mr. Schafer:
I would like co bring eo your attention an Issue that oay
frustrate our mutual efforts co clean up hazardous waste contamina-
tion. On November 8, 1985. Che Cannon Air Force Base submitted a
Part B permit application co Region VI. The application addressed
one surface impoundment, one container storage area, one landfill,
and one open-burning treatment area. The Pare B application
contained no information on the 41 sices addressed by the CAFB
Installation Restoration Program. On April 30. 1986, Region VI
requested information on che solid waste management units that
were not identified In che Pare B application. CAFB responded to
EPA's request with che following language:
We have omitted these sices and units with che
underscanding that che Environmental Protection
Agency agreed ac che Uashlngcon level chat che
IRP will continue Co function as a DOD program
chac is noc regulated under RCRA and che 1984
Amendments. We underscood chis agreeaenc was
based on recognicion ehac clean up of DOD sices
should be baaed on nacional prloricles racher
Chan regional or local ones. If Che IRP is
subjecc Co regulaclon by che EPA regions,
nacional priorities vill be lose. V* have not
b««n nociflad by Air Force authorleiea of any
change in this underscanding. Theretore, we did
net include In our Part B application any site or
unit addressed in che IIP.
CAFB scates that RCRA and the 1984 Amendments do not apply
co DOD's IIP. Mm are concerned chac CAPl's poalcion represencs
the official position of Che Air Force, for example. Offutt AFB
baa Intoned another EPA Rational Of flea chat tha Base is not
required co sign a schedule of compliance under Section 3004(u)
of RCRA until EPA issues a final rule on nacional priorities for
correccive acclon.
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Ic appears chat the Air Force hat misinterpreted our
rulemaklng efforco on corrective action ac Federal facilities.
Ic ia EPATa petition chat Section 3004(u) appllea co Federal
facilitiea. Furthermore, we ahall continue to call for permit
applications and eo laaue RCRA permit* to Federal facilitiea.
Our permitting program la not delayed or postponed pending our
rulemaking OB prloritiea for corrective action at Federal faci-
lities. We reiterated our position on thla Issue In a March 5,
1986, Notice published In Che Federal leglater, which clearly
atatad that, "In the Interim [while marking co reaolve national
priority and principal owner lasuesj, KPA and the atatea will
proceed Co review and issue 1OLA permits, and EPA will Implement
3004(u) requirements at federal facilitiea."
Because our permitting program cannot wait for a final role
on national priorities, we encourage you Co begin aettlng priorities
for corrective action under Section 3004(u) of RCRA. Your priorities
can be uaed as a factor during permit negotiations, and schedules of
compliance under Section 3004(u) can reflect the relative priority
of your facilitiea.
If the Air Force has misinterpreted our position on Section
3004(u), I would appreciate your clarifying to them their obli-
gationa under RCRA. I am confident that our offices can avoid
misunderatandinga during future permit negotiations if we maintain
a common understanding of RCRA. Please let me know the outcome
of any discussions on this matter you may have with the Air Force.
Sincerely youra,
/a/ jaj* &.
Winston Porter
Aaalatent Admlnlatrator
cc: Warren Hull
Michael Heeb
Jin Crulckahaak
bcc: HazardoQ* ttaate Division Directors & Branch Chiefs,
Regions -I-X
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9502.1986(15)
: regulatory Status of *ood Treatment Cylinder
Creosote Sumps
FROM: 'iarci.-x Williams, Director
Office of Solid
7C: Patrick :•.. Tobin, Director
Waste Management Division, Fegion IV
Your memorandum of July 9 requests a determination of
the PCPA regulatory status of underground sunns which collect
waste creosote from production pipelines and treatment cylin-
ders at wood treatment facilities. Based on our understanding
of the case presented, and after discussions vith >our staff,
we offer the following guidance.
As we understand thd sump described in /our reno, ic is
routinely used to collect drippage, leakage, or other spillage
of creosote from wood treatoent cylinders and associated
piping, and the rmterial is not collected for recycling. The
creosote appears to qualify as a solid waste as uefined in sec-
tion 261.2(a)(2) as, anong other things, any nuterial which
is Discarded oy being abandoned. Section 261.2(u)(J) defines
abandoned raterial as that b«ing accumulated, stored, cr
treated (but net recycled) bafore or in lieu of beinc,- disused
of, burned or incinerated. Since the creosote is not
a hazardous v««t<*, the sump would not ce a unit raquiriiig
interim status or a nerrdt.
From the description provided in your memorandum, it
appears that the sump in question is a discernible unit
(presumably a tank) in which solid wastes have been ranaged.
Aa such, the sunp would be considered a solid veste management
unit (SV:?IU) for purposes of implementing corrective action
under P.CRA 530^4(u)"or $30C8(h). (See tha discussion of SW.'.Us
at 50 FR 29712, July 15, 1985.)
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Please be aware, if you are not already, that the Agency is
currently developing a proposed regulation (expected to be
published in the Pederal Register in the spring of 1987) which
may list as hasardous wastes certain wood preservation and
treatment wastes. Such a listing may affect the regulatory
status of the sump in question. (Por additional information
contact Dr. Gate Jenkins at PTS 382-4786.) In addition, you may
also wish to review a draft memorandum entitled "RCXA Regulatory
Interpretation Assistance Request - Cleanup of Residues of
Commercial Chemical Products Within a Warehouse Storage Area,"
which was circulated to the Regions for review on June 3, and
which deals with issues related to those posed in your memorandum.
The recent decision by Judge Tost in In re Brown Wood
Preservinc Co., Inc. <*CJu\-84-lC-R) does not require IPA to
publish this memorandum. That decision takes the position
that th<» Administrative Procedure Act requires the Agency to
publish policy memoranda and interpretive statements that set
out new rules or substantially modify existing rules. This
memorandum merely offers an opinion as to whether the facts you
have outlined for this facility fit the existing definitions of
•solid waste," "hasardous waste," and "solid waste management
units." It does not establish a general policy of treating all
process sumps at wood preserving facilities as "solid waste
management units." Hor does it create or change any other
rule or policy.
I appreciate that we need to be careful to go through
notice and comment on decisions that might be interpreted as
expanding regulatory controls beyond what is evident from
existing rules or statutory language. Por example, if we list
certain wood preservation wastes we may want to discuss in the
federal Register tDie regulatory status of areas in which en-
vironatental releases from treated wood are routine and expected.
However, publishing statements of general policy would
not solve the entire problem presented in the Brown case. The
Regions also need to ensure that the facts of each case show a
violation of the statute or regulations. Complicated scientific
or technical issues may require you to use experts to present or
explain the evidence.
Applying these ideas to the facility described in your memo-
randum, to regulate the sump as a SWMO you would have to collect
facts demonstrating, for example, that the creosote in the sumps
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was in fact "discarded," and that the suirp is a "discrete" unit,
This nenorandum cannot substitute for fim factual evidence
concerning the specific facility at issue.
If you have additional questions, please contact
V.ichele Anders at FT3 362-4534.
cc: Gene Lucero, CWPE
Attach;-nent
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I 9502.1986(16)
Stir
MEMORANDUM
SUBJECT: Open Burning/Open Detonation at DOD Facilities
FROM: Bruce R. Weddle, Director
Permits and State Programs Branch (WH-563)
Office of Solid Waste
TO: Gary B. Gosbee, Chief
MA Waste Regulation Section
EPA Region I
This memo responds to your September 8, 1986 memo about
EPA's definition of SWMU's at DOD facilities. Your memo outlined
EPA's regulation of open burning/open detonation (ob/od) areas,
and you explained how this applies to the Fort Devens facility.
I agree with your interpretation of the ob/od issue, and
it appears from your description of the units at Fort Devens
that your interpretation of SWMU's is consistent with our under-
standing of the ob/od issue. RCRA applies to discreet areas
where DOD performs ob/od for disposal purposes. RCRA does not
apply to "training areas" or "impact ranges" as long as these
areas are not used for disposal purposes. If however, DOD used
a. training area or Impact range for disposal purposes, then
these areas might be subject to RCRA.
In the near future EPA will propose new regulations under
Subpart X of 40 CFR Part 264. The proposed regulations in
Subpart X address the ob/od issue. Because you have practical
experience in this area I encourage you to comnent on the new
regulation* when they are proposed in the Federal Register.
•w.s. on
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Paul Connor (FTS 475-7066) is the contact on this issue in my
Division and Ossi Meyn (FTS 382-4654) is the point of contact
on the new Subpart X regulations. Thank you for keeping me
informed on this issue.
cc: Dave Pagan
Ossi Meyn
George Garland
Jim Michael
Andrea O'brien
Gwen Ruta
Craig Johnston
Tina Kaneen
Lee Herwig
Warren Hull
Matt Hale
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9502.1986(17)
September 29, 1986
Captain Michael Carricato
Deputy Assistant Secretary
of Defense (Environment)
Room 3D833
The Pentagon
Washington, D.C. 20301-8000
Subject: Summary of the September 17, 1986 Meeting
Dear Captain Carricato:
Thank you for coming here to discuss the applicability of
RCRA to DOD's installations. I was encouraged by our meeting,
and I was pleased with our progress in identifying RCRA issues
that arise at your facilities. This letter summarizes my
understanding of the issues we discussed at the September 17
meeting. Please contact me if your understanding of our meeting
differs from the following.
We discussed three issues that often arise when EPA is
preparing a RCRA permit for a DOD facility. These issues arose
recently in two letters from DOD to EPA Region III. The letters
addressed RCRA permits at DGSC in Richmond, and Aberdeen Proving
Ground. We are anxious to resolve these issues and I hope that
our recent discussions more accurately reflect DOD policy than do
the two letters. The three issues are:
1. Will EPA's RCRA permits incorporate the IRP cleanup
schedule for "IRP units"?
2. Does EPA's RCRA program have oversight over the IRP?
3. Does RCRA apply to "non-IRP units"?
We agreed that EPA's schedule of compliance under §3004(u)
could incorporate, to the extent practicable, the IRP cleanup
schedule. We further agreed that EPA's RCRA program included
oversight over the IRP cleanup when included in the permit.
Finally, we agreed to further discuss the applicability of RCRA
to "non-IRP units."
This has been retyped from the original document.
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We discussed EPA's definition of "facility." I reiterated
EPA's position that is discussed in the March 5, 1986 FR Notice.
We agreed that if DOD wishes to pursue this issue, you will
discuss this with me, and I will schedule a meeting with Marcia
Williams, if necessary.
We agreed on the need for policy development between our
offices and for dispute resolution procedures. I suggested two
possible mechanisms:
• a headquarters-level task force that would meet
regularly to discuss issues and resolve policy questions for DOD
facilities;
• a process for resolving disputes between DOD and
authorized States or EPA Regional offices. We agreed to address
these proposals in more detail during subsequent meetings between
our two offices.
I mentioned a meeting between our two Offices of General
Counsel on the issue of DLA ownership. You agreed to look into
ways of expediting the transfer of information to us about DLA's
property management authority. This information will assist our
General Counsel's office in resolving this issue.
We will contact you shortly to set up another meeting.
Please let me know if you have anything to add to this summary.
Sincerely yours,
Bruce R. Weddle, Director
Permits and State Programs Division
Office of Solid Waste
cc: Paul Connor
Mike Heeb
Warren Hull
Marcia Williams
This has been retyped from the original document.
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9502.1986(18)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
SEPTEMBER 86
5. RCRA Enforcement
When can the $3008(h) authority be used? How can a $3013 orter
support the S3008(h) action?
The Hazardous and Solid Waste Amendments of 1984 (HSWA) added S3008(h),
one of the corrective action authorities, to the Solid Waste Disposal
Act. Section 3008(h) allows the Agency to require corrective action or
any other response necessary to protect human health or the environment
when a release of hazardous waste is identified at an interim status
hazardous waste treatment, storage or disposal facility.
Section 3008(h) provides: "Whenever on the basis of any information
the Administrator determines that there is or has been a release of
hazardous waste into the environment...". Appropriate information can
be obtained from a variety of sources, including data froti laboratory
analyses of soil, air, surface water or ground water samples, observa-
tions recorded during inspections, photographs, and facts obtained fron
facility records.
Actual sampling data is not necessary to show a release. Other evidence
that a release has occurred might be a broken dike at a surface impound-
ment discovered by an inspector. Less obvious indications of a release
might also be adequate to make the determination. For example, the
Agency could have sufficient information on the contents of a land
disposal unit, the design and operating characteristics of the unit,and
the hydrogeology of the area in which the unit is located to conclude
that there has probably been a release to groundwater. The Agency
could then order the owner or operator to perform an investigation to
confirm the presence of contamination, and, after confirmation, to
undertake corrective action.
However, to exercise the interim status corrective action authority,
the Agency must first have information that there is or has been a
release at the facility. Additional sources that may provide infor-
mation on releases include: Inspection re ports, RCRA Part A and Part B
permit applications, .responses to RCRA $3007 information requests,
information obtained through RCRA $3013 orders, notifications required
by CERCLA $103, information gathering activities conducted under CERCLA
$104, and informants1 tips or citizens' complaints corroborated by
supporting information.
A $3013 order may be used in sane instances in which EPA does not have
adequate information that there is or has been a release. Section 3013
provides that the Agency may compel monitoring, testing and analysis if
the presence of hazardous waste at a facility or site at which hazardous
waste has been treated, stored or disposed of may present a substantial
hazard to human health or the environment.
Source: Ginny Steiner (202) 475-9329
Research: Caroline Danek
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9502.1986(19)
*CTO RANDOM
SUBJECT: Headguarters Support for Corrective Action
Technology
PHDK: Bruce 8. weddle. Director
Permits and State Programs Division
TO; RCRA Branch Chiefs, Regions I-X
The corrective action authorities of RCXA provide one of
the Agency's most effective tools for assuring the clean-up of
releases at haiardous waste management facilities. Because of
this, we are committed to providing you with continuing technical
assistance on corrective action. This suaver the Land Disposal
Perait Assistance Teas (PAT) had a PhD candidate In goology
working full tine investigating case studies of corrective action
technologies. He focua«d on the clean-up of ground water, soil,
and surface water. The results of his efforts verei (1) the
creation of a corrective action computer database; (2) biweekly
technical sessions for OSWER staff; (3) a serinar for non-technical
management and staff; and (4) a list of suggested publications
for a base library on corrective action.
Sam* of the results of these efforts are available for your
use right now, while other projects are in the planning staae.
The computer database is now available to help your stsff analyse
corrective action proposals which are submitted by owner/operators.
It contains over 200 entries, which are suasiaries of journal
articles and fcPA publications on corrective action technologies
which have been demonstrated in the field or in bench scale
projects. The system is designed around a list of key words,
which Is attached (aloog with an example of a data output). We
dlr«ct th« computer to search for and locate entries that contain
key words im which you are interested. Por example, you may
be interested in cleanup experience with specific chemicals
(e.g.* PCBs, TCI), or using specific technologies (e.g., air
stripping* in situ biological treatment). When the computer
finds entries which contain those key words* it will print out a
citation and abstract of the appropriate article(s). If the
abstract seems relevant, the entire article can then be examined
in your library.
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Her* detail!) will be given to your staff when they call in
with » raqu««t. At tha presant the data base ia accessed by
calling Janette nansen (FTS 382-4734) or Dave Cberly (FTS 312-4691)
with your revueste. After we gat a computer with a modem, you
will be abla to diractly acceaa th« databaaa with a Regional PC
through a modem. Ma will aand out datailcd instruction on how
to do thia whan the ayatem la aat up. Tha databaaa will ba
updated on a regular baaia.
Thia Bummer's aapinar on corrective action technologies waa
wall received. I have attached a copy of the handout from the
seminar, which I believe will ba useful to you, even without
having attended the aeminar.
Aa waa mentioned above/ a liat of auggaated raferencea on
corrective action waa compiled during the creation of the databaae.
I have attached that liat in hopea that your office will ba abla
to provide your ataff with copies of each publication. Tha aourcaa
of the publicationa are also attached.
In the future, we plan to aat up a corrective action computer
bulletin board for ataff to communicate between Regions. For
example, if a ataff member in one Region would like to know if
anyone elaa has encountered a situation similar to ona which
they have met, they can put up a 'note* on tha bulletin board.
Staff froai other Regions can view tha bulletin board and contact
tha person who had tha guaation. This can help to improve
communication between the Regions on issues of common intareat.
we will alao consider the need for other information sharing
mechanisms (e.g., conference calls, workshops) as we all develop
experience in this area.
Finally, we hope that you will help us to share intereatino
corrective action proposals throughout the Regiona and States.
when you receive a proposal which could be of some interest to
others, please contact Dave Bberly or Janette Ransen (numbers
listed above). They will work with you to decide the beat way
to diaseminata the information. If you think of other waya
in which we can help, please contact Tarry Crogan of the Land
Disposal PAT (FTS 382-4740).
Attachments
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ce: Hlnstoe Porter
«arcl« Hill law
Gene Luevro
Henry Loag«ct
Jack L«tm«n
Permit Section Chiaft, R«clon« I-X
RFA Contacts, Regions I-X
Sue Moreland, AST8WMO
Ren Shuster
Matt Hale
Terry Grocan
Dave Pagan
Art Day
Don Sannlncj, ORD
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9502.1986(20)
DEC 8 1986
MEMORANDUM
SUBJECT: The Department of D«fcnat Installation
Restoration Program
FPOM: Marcla E. Wllllaaa, Director
Office of Solid Waste
TO: Waste Management Division Directors
Regions 1 - X
This aeaorsndun discusses RCRA permits at facilities owned
or operated by the Department of Defense (DOD). DOD has developed
the Installation Restoration Propran (IRP) Co identify and clean
up hatardous waste sites. Under the IRP. DOD prepares studies
and generates data chat can aaaist EPA in drafting iCRA permits.
The IRP is carried out in stages that are cooparable to the
stages of a cleanup required by RCRA. Phase I of Che IRP is
intended to identify waate sites and is comparable Co a RCRA
Facility Assessffl«nt. A Phase I report should identify most, if
not all, of the dolid waste management units at a DOD facility.
Phase II of the IRP characterizes Che nature and extent of con-
tamination at a nice or unit. Phase II usually provides site
characterisation infornaiton and Monitoring data and Is comparable
to a RCRA Facility Investigation. Phase III of the IRP la an R&D
phase that la used where a site cannoc be concrolled with proven
technology or where a site is auitable for evaluaclng new each-
nologiea. Although che permitting process has no R&D stage,
J-haae III of che IRP can be helpful in idencifying new or unique
correeclve measures. Phase IV of the IRP develops and implements
a reaedial action plan. Phase IV la comparable co identifying
and implementing corrective measures under RCRA*
EPA has placed a high priority on RCRA compliance at Federal
facllicies. The work performed under che IRP will provide you
with much of Che Information you need Co prepare a permit, and
I urge you Co incoporate the IR? proeeaa into che permit develop-
ment process. This meana that you need Co work with che DOD
installation in reviewing Che reaulcs of each phase of che IRP
proeeaa and when necessary. expand che scope of the IRP to include
all solid waste management unlta ac the facllltv.
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Please keep in Bind that we are developing a rule that vlll
recognize priorities for corrective action at Federal facilities.
After we promulgate the rule ve will Incorporate a facility's
priority into the schedule of compliance under I3004(u) of RCRA.
Until we prepare a final rule, peralts should recognise that DOO
can not address releases fron every solid vasta •anageotent unit
at every facility siaultaneously.
In aura, I ur«e you to use the IRP process when you Implenent
the RCkA corrective action authorities under I3004(u). Thank you
for your attention to this vattar.
cc: RCRA Branch Chiefs
Regions I - X
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9502.1987(01)
ICRA/SUPERFUND HOTLINE MONTHLY SUMMARY
JANUARY 87
3. Corrective Action - Sinoa,N
facility subject to i
^
The authority to enforce corrective action measures at an
interim status facility is not necessarily SS^Tct«S
^c^e^^cL^96"*0' ^ dt ^ faCility in
uruts ray rernain in ^terim statu
rernain in ^terim status.
facility haa ^^ained interim status it ia
to " enforcenent action
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^ _
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
9502.1987(02)
OFFICE OF
3t ,-_., SOLID WASTE AND EMERGENCY RESPONSE
,,.., I 1987
MEMORANDUM
SUBJECT: Region III Issues on Section 3004(u) Authority
FROM: Marcia E. Williams, Director
Office of Solid Waste
TO: Robert L. Allen, Chief
Waste Management Branch, Region III
This memorandum is intended to respond to your memorandum of
February 5, 1987, in which you raised several issues relating to
the extent and nature of the corrective action authority under
RCRA section 3004(u).
The first issue that you raised dealt with whether or not
property that is owned and used by an owner/operator for waste
disposal, but which is not contiguous to the facility at which the
regulated hazardous waste management units are located, can be
considered to be part of that facility, for purposes of implementing
corrective action under §3004(u). As explained in the July 15,
1985 codification rule, the term "facility" is meant to extend to
all contiguous property under the control of the owner/operator.
Since the property which you describe is separated from the facility
property by land that is not under the control of the owner or
operator, it cannot be considered "contiguous," and therefore cannot
be addressed as part of the facility under §3004(u). Since this
property is being used for waste disposal, however, enforcement
authorities under RCRA(e.g. §7003) or other statutes may be used as
appropriate to address environmental problems that may be occurring
from that waste management operation.
The second issue which you raised involves process collection
sewers, and whether they can be considered- to be solid waste
management units (SWMUs). Process collection sewers are typically
designed and operated as a system of piping into which wastes and
waste waters from production processes and other process-related
activities are introduced, and which usually flow to a wastewater
treatment system. We believe that there may be sound policy and
legal reasons for considering process collection sewers to be
SWMUs. However, we also recognize that such sewers do not per-
fectly fit the RCRA program's traditional concept of a waste
management unit.. Considering the substantial potential impacts
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of defining process collection sewers to be a type of SWMU, it is
our intention to resolve this issue through the regulatory process.
The comprehensive §3004(u) rulemaking, which is scheduled for pro-
posal later this calendar year, will specifically address the
question of how to treat process collection sewers under the cor-
rective action program. We will therefore be able to base the
Agency's final decision on a more thorough consideration of the
technical, legal and other implications of the issue.
The third issue in your memorandum deals with the question of
the extent to which the §3004(u) authority can be used to address
potential or future releases at a facility. It has been the Agency's
interpretation that the §3004(u) authority does extend to addressing
releases which occur in the future? i.e., after a permit has been
issued. To the extent that releases occur or become known after a
permit is issued, corrective action for such releases can be
compelled, as necessary, under §3004(u). Further, in some situations,
it may be appropriate to use §3004(u) to require an owner/operator
to install certain monitoring devices at a unit, even though no
releases have yet occurred from the unit. Such a requirement should
be imposed, however, only where there is reasonably strong evidence
indicating that such releases are likely during the term of the
permit. The example that you cited in your memorandum involving
buried drums that are deteriorating and thus are likely to release
would seem to be a good example of the type of situation where a
type of "detection monitoring" system could be appropriate.
We do not envision, however, using the §3004(u) authority to
require owner/operators to install devices or take measures to
protect against accidental releases (such as your example of
installing steel posts around a container storage area). We do not
believe that Congress intended this provision to be used to protect
against all contingencies where releases could occur.
Your fourth question had to do with the applicability of
§3004(u) to new facilities that are to be built on property where
solid waste management units are located, and more specifically,
where only a portion of the facility is to be leased to a new
operator. As explained in the July 15, 1985 codification rule, the
facility is the entire property under the control of the owner or
operator. Therefore, in issuing a permit for the new facility,
corrective action for any SWMU at the facility—including the
unleased portion—must be addressed. The requirement to conduct
any necessary corrective action at the facility, be it on the
leased or unleased land, will be implemented through a permit
jointly issued to the owner and operator.
If you have any further questions on these issues, please
contact Dave Pagan at FTS 382-4740.
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9502.1987(03)
March 6, 1987
Gary D. Vest, Deputy
for Environment, Safety, and Occupational Health
Deputy Assistant Secretary of the Air Force
(Installations, Environment, and Safety)
Department of the Air Force
Washington, D.C. 20330-1000
Dear Mr. Vest:
Thank you for your letter of December 24, 1986 concerning
the inventory of Federal facilities compiled pursuant to Section
3016 of the Resource Conservation and Recovery Act (RCRA). We
appreciate your efforts in submitting a timely inventory to EPA
and we look forward to working with you when we prepare for the
next inventory that is due January 31, 1988.
In your letter you raised several concerns about the
inventory. One concern is the need for more time to complete the
next inventory. We agree that Federal agencies need more time to
compile their inventories, and we intend to distribute the
questionnaires for the 1988 inventory well in advance of the
January 31 deadline. Our target date for distributing the 1988
inventory questionnaires is June 1987. This date will give you
six months to complete your next inventory.
Another concern in your letter is the need for more accurate
instructions. Please be aware that we are revising both the
questionnaire and the instructions. When we have prepared drafts
of these documents we will distribute them to the Federal
agencies for comment. The drafts will be distributed through
EPA's Federal Roundtable which meets monthly and is sponsored by
EPA's Office of Federal Activities. Your representative on the
Federal Roundtable will receive the draft questionnaire and
instructions for comment.
Your letter also asked about the applicability of RCRA to
releases that are being investigated under CERCLA. Before Congress
amended RCRA in 1984, RCRA's corrective action authorities applied
only to landfills, surface impoundments, waste piles, and land
treatment areas that received hazardous waste after January 26, 1983,
However, the 1984 amendments greatly expanded EPA's authority under
RCRA to include past hazardous waste management practices at RCRA
This has been retyped from the original document.
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-2-
facilities. Section 3004(u) of RCRA states that every RCRA permit
issued after November 8, 1984 shall require "... corrective action
for all releases of hazardous waste or constituents from any solid
waste management unit . . . regardless of the time at which waste
was placed in such unit" (emphasis added). Therefore, RCRA permits
must address corrective action for releases from any inactive, closed
inactive, closed or abandoned units at the facility. For those Air
Force installations that must obtain a RCRA permit it is likely that
the IRP sites at the installation qualify as solid waste management
units and must, therefore, be addressed in a RCRA permit. Under
RCRA's corrective action authorities.
Many of your IRP sites that are subject to RCRA's corrective
action authorities are also subject to CERCLA, as amended by the
Superfund Amendments and Reauthorization Act of 1986 (SARA). Section
120 of SARA requires EPA to ensure that a preliminary assessment (PA)
is performed before April 1988 for every site identified in the
"Federal Agency Hazardous Waste Compliance Docket." Where the PA
indicates that the site should be evaluated under EPA's Hazard
Ranking System (HRS), EPA has until April 1989 to finish listing the
site on the National Priorities List (NPL). Within six months after
a site is placed on the NPL the Federal owner/operator must begin a
remedial investigation/feasibility study (RI/FS). The statute
further provides that EPA and the appropriate State shall publish a
timetable for the "expeditious completion" of the RI/FS. Within 180
days of the completion of the RI/FS, EPA and the Federal owner/
operator must enter into an interagency agreement (IAG) for the
"expeditious completion" of all necessary remedial actions.
For those IRP sites that are subject to both RCRA and CERCLA,
the requirements of both programs must be satisfied in full.
However, it is possible that the work performed under one program
would satisfy the requirements of the other program. Although EPA
has not fully developed guidelines for implementing both programs at
a single facility, EPA will employ the authority or combination of
authorities that best resolve the waste management issues at your
installations.
The decision as to which program or programs will be used at
your installations should have little or no impact on the ability of
the IR program to clean up your hazardous waste sites. The cleanup
standards for RCRA and CERCLA are, except for minor exceptions, the
same. The procedures for cleaning up waste sites under RCRA are
comparable to the procedures under CERCLA. Furthermore, given the
expanded role for States under SARA, the degree of State involvement
in both programs is similar. As EPA progresses in developing rules
and guidances for the RCRA Corrective Action Program, we are striving
to assure consistency between RCRA and CERCLA.
This has been retyped from the original document.
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This letter provides only a briaf summary of how RCRA and CERCLA
may be implemented at your installations. However, we are preparing
a guidance document that describes these issues in greater detail,
and we will distribute this document when completed.
The final question in your letter concerns our list of potential
RCRA violators. We compiled this list of facilities from information
submitted to us as part of the inventory. We placed a facility on
the list if the inventory indicated that it operated a RCRA unit, but
had not submitted a Part A application, a Part B Application, or a
closure plan.
As you requested, we examined your inventory responses for the
12 Air Force sites on our list of potential RCRA violators. The
following explanation accounts for each site:
The two sites at Wright-Patterson AFB, Zone 4 and
Zone 5, are on the list because the inventory
indicated that the installation has an operating
waste pile, but had not submitted a Part A
application.
We placed the Municipal Airport for the Arkansas
National Guard on the list because the inventory
indicated that the airport operates storage and
treatment tanks but had not submitted a Part A
application.
The underground tank at Vance AFB is on the list
because the inventory indicated that the tank is
an operating storage tank but had not submitted a
Part A application.
We placed three sites at Dover AFB on the list
because the inventory indicated that each site
has an operating RCRA unit, but had not submitted
a Part A application.
Finally, there are four sites which we have
determined should not be on the list of potential
RCRA violators. The four sites are "Building 219
[ ]" and "Landfill 1" at Griffiss AFB, the
"Site D-4 Landfill" at Kelly AFB, and the DRMO
Storage facility at Plattsburgh AFB. The
questionnaires for these sites were filled out
correctly. However, when we entered the
information from the questionnaires into our
database, we mistakenly indicated that these
This has been retyped from the original document.
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-4-
sites had operating RCRA units which had not
submitted the required information. We will
forward this information to the appropriate EPA
Regional Office.
Again, thank you for your letter concerning the Federal
Facilities Inventory. We urge the Air Force to participate in the
process of revising the inventory questionnaire and instructions. We
hope that through our mutual efforts and cooperation we are able to
produce a thorough and accurate inventory of Federal facilities. For
more information about the inventory, please contact Paul Connor, at
475-7066.
Sincerely yours,
Marcia E. Williams
Director
Office of Solid Waste
Gene A. Lucero
Director
Office of Waste Programs Enforcement
cc: Lee Berwig, OPA
This has been retyped from the original document.
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UHll cu 11 A i ci cfi'iKUHMtNTAL PROTECTION AGENCY
. 1987(04)
MIR 13(987
r :':._! .-XT : Irtcri:. rir.al i'C.^A "r r r*ect i vc. Ac tier. L-iu.-> (Cr-.T)
.'Fo.'-: '.-ircij :." . hiliiar.s. ri rector , •£/
C trice of ".^iid ..'astt
TO: Jaaes K. Scari/rcuch, chief
Pesicuals V^nanenent branch, Pegion IV
In your January 20, 1987, aeno to me, you expressed various
concerns about the contents and use of the CAP, including the
application of protection standards.
I agree that we need coaprehensive guidance to implement the
RCRA corrective action program. The Office of Solid Waste recently
completed the options selection process for $3004(u) corrective
acticn, which resolved several outstanding issues necessary for
development of regulations. In the next several months, we will
be issuing guidance to implement these decisions. Such guidance
will address the four key issues identified in your memorandum,
with special emphasis on setting clean-up target levels for all
media. The CAP and the RFI Guidance will be revised accordingly
to reflect the resolution of these issue* and field experience
in using these documents. The next draft of the RFI Guidance,
which will be distributed for Agency comment in April 1987, will
address these issues in a new section on RCRA Health and
Environmental Assessments.
Your memorandum also addresses whether the RCRA guidance
should reference the Super fund Public Health Evaluation Manual
(SPHZM). We have examined this document and believe that it
contains a goo* deal of useful information for evaluating impacts
to public health. We are using the SPHEM in developing the RFI
Guidance section on performing RCRA Health and Environmental
Assessments. The SPH1M will serve as a useful technical reference
for the RCRA corrective action program. For instance, the SPHEM
provides detailed guidance on hew to assess health impacts at
known points of exposure. However, the elements of the SPHEM that
deal with determining the location of potential exposure points
address an Issue that has not yet been fully resolved for RCRA
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- 2 -
corrective action. As you know, corrective action decisions may
be based on the presumption that potential exposure can occur
anywhere up to the waste management unit. In addition, the SPHEh
directs the use of maximum contaminant levels (MCLa) when determi-
ning human health impacts. The use of MCLs versus other
health-based standards (e.g., reference doses) has not yet been
resolved in the RCRA corrective action rule development process.
You also expressed concern over the technical framework of the
CAP, including corrective measure alternative selection and labora-
tory and bench scale studies. I believe that the CAP provides the
flexibility to alleviate these concerns. The existing technical
framework of the CAP affords a flexible approach to determining the
number of corrective measure alternatives after the need for correc-
tive measures has been established. That is, the number (i.e., one
or more) of alternatives to be submitted by a RCRA facility can be
determined by the Regional Office on a facility-specific basis (see
CAP, page 4). This approach on alternative selection was clarified
on February 3, 1987, at a meeting between OSW staff and several of
your staff in Atlanta.
The CAP also affords flexibility in the application of
laboratory and bench scale studies. As stated on page 2 of the
CAP, the scopes of work in the CAP are examples and could be
modified, enhanced, or sections deleted based on site-specific
situations. Therefore, at your discretion, laboratory and bench
scale studies may not be required for a specific facility or such
studies may be shifted to the Corrective Measures Study part of
the corrective action process. Overall, the CAP should serve as
a reference for Regional Offices to prepare permit and enforcement
order conditions, not as a prescription to be followed in every
case.
If you or your staff wish to discuss the above matters further,
please contact Art Day (382-4658) or George Dixon (382-4494) of the
Land Disposal Branch or Matt Hale, Chief of the Permits Branch
(382-4740).
cc: Gene Lucero
Joe Carra
Bob Tonetti
Matt Hale
Art Day
Dave Pagan
George Dixon
George Faison
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9502.1987(05)
April 2, 1987
MEMORANDUM
SUBJECT: Interpretations of RCRA Applicability to Releases of
Hazardous Waste
FROM: Marcia E. Williams, Director
Office of Solid Waste (WH-562)
Gene A. Lucero, Director
Office of Waste Programs Enforcement (WH-527)
TO: Kenneth D. Feigner, Chief
Waste Management Branch, Region X
This memorandum responds to your memoranda of December 25, 1986
and January 20, 1987, in which you raised several issues regarding
applicability of RCRA corrective action authorities, and the
implications of termination of interim status by authorized States in
regard to implementing §3004(u) corrective action.
The first general concern which you raised relates to the
applicability of RCRA to releases from less-than-90-day accumulation
units. The Hotline report that you cited and which stated that such
releases "are not generally covered by RCRA regulations," requires
clarification. It is clearly possible to address releases from less-
than-90-day accumulation units by using the imminent and substantial
endangerment authorities of RCRA §7003 or CERCLA §106. The
alternative theory which you suggest presents a number of policy and
legal issues which we believe merit further consideration.
The other concern which you raised in your 12/29/86 memorandum
dealt with the applicability of §3004(u) to facilities which are
closing but which are not subject to post-closure permits. You
assert that §3004(u) could be applicable to closing interim status
facilities which are not subject to post-closure permits. This
interpretation is based on the fact that certification of closure
does not terminate interim status in the absence of a final
administrative disposition. You suggest that until a permit is
denied, or interim status is otherwise terminated, the facility
remains "subject" to a permit and is, therefore, subject to §3004(u)
This has been retyped from the original document.
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There are several legal limitations to this approach, and the Agency
has no plans at this time to develop requirements such as those you
have suggested.
If closure for the entire facility has been certified and is, in
fact, in compliance with 40 CFR Part 265 and no post-closure permit
is required, there should be no wastes or units at the facility which
would be subject to a RCRA permit. If the same facility later wishes
to resume operation, the Region may request a Part B, thereby
bringing the facility into the universe subject to §3004(u)
requirements. Absent such actions, however, §3004(u) does not apply.
Agency interpretation of the applicability of §3004(u) has
consistently been limited to facilities seeking a permit.
While §3004(u) could be construed to mean that corrective action
can be required either by promulgation of standards or by issuing
permits, Agency interpretation, as supported by the legislative
history, has consistently been that any standards promulgated under
this Section will be standards for facilities in the process of being
permitted. Although the corrective action standards will not be
applicable as self-implementing interim status (Part 265) standards,
we anticipate that they will generally be applied in §3008(h)
actions. As discussed at the Branch Chiefs' meeting in January, we
intend to include language to this effect in the preamble to the
regulation to be proposed in the Fall of 1987.
As summarized in your 1/20/87 memorandum, there was some
discussion during the RCRA Branch Chiefs' meeting of whether EPA
could act to "preserve" interim status at a facility which is denied
a permit by an authorized state. The discussion suggested that such
an action might be desirable for the purpose of implementing §3004(u)
corrective action, if necessary, at such facilities.
An authorized state's denial of a base program permit is a final
administrative disposition of the permit application. A facility's
authorization to operate pursuant to interim status terminates upon
such denial (see §3005(e)(1)(C)). Interim status is granted by
statute and cannot be "preserved" by EPA. It will not, therefore, be
possible to extend interim status after a permit has been denied for
the purpose of imposing corrective action requirements. The Agency
has taken the position, however, that §3008(h) will still apply since
the facility previously had interim status.
We understand that the Regions were reluctant to exercise
§3008(h) authorities in the absence of administrative hearing
procedures. Since guidance on the hearing procedures has been signed
by the Assistant Administrator for Enforcement and Compliance
Monitoring and the Assistant Administrator for Solid Waste and
This has jbeen retyped from the original document.
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-3-
Emergency Response and has been distributed, we assume that this is
no longer an issue.
If you have questions concerning these interpretations, you may
contact Michele Anders (for corrective action and permitting issues)
at 382-4534, or Susan O'Keefe (for enforcement questions) at
475-9313.
cc: RCRA Branch Chiefs, Regions I through IX
This has been retyped from the original document.
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9502.1987(06)
June 30, 1987
MEMORANDUM
SUBJECT: RCRA Permits with HSWA Conditions
FROM: Bruce Weddle, Director
Permits & State Programs Division (WH-563)
TO: Sam Becker, Chief
Hazardous Waste Compliance Branch
Region VI
During my recent visit you raised two questions related to the
issuance of RCRA permits with HSWA provisions. The first issue
concerned the implications of a Region issuing the HSWA provisions of
a permit before the State permit. The other question pertained to
the status of the HSWA portion of a jointly issued permit if the
State portion is appealed.
The Agency's policy on the timing of the State and Federal
portions of the permit has been described in detail in a OSWER
memorandum to the Regions by Jack McGraw (July 1, 1985; copy
attached). EPA's policy is that joint RCRA permits should be issued
simultaneously by EPA and the States. The memorandum describes
several exceptions to joint permitting that may occur if the State
has already issued the draft or final permit. However, no
consideration was given to the Region issuing the HSWA conditions
prior to issuance of the State permit.
Beyond the policy memo noted above, I believe it is
inappropriate to issue the HSWA portion independent of the rest of
the permit. First and foremost, a permit is not a complete RCRA
permit unless both the State and Federal portions have been issued.
Therefore, issuing only the Federal portion of the permit would have
no practical impact. Without a complete RCRA permit, new facilities
cannot begin construction, nor can existing facilities expand beyond
the limits allowed under interim status. Furthermore, without the
State permit, it is likely that the HSWA corrective action
requirements could not be effectively enforced because §3004(u)
authorities are linked to issuance of the RCRA permit.
This has been retyped from the original document.
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For many facilities, there may also be valid technical reasons
to issue the Federal and State portions simultaneously. Certain HSWA
requirements may utilize data submitted for the baseline program
permit, e.g., HSWA corrective action conditions may require a variety
of data submitted by the facility for the State permit. For example,
any corrective action for contaminated ground water required for
regulated units under Subpart F could directly impact ground-water
investigations required for SWMUs under HSWA.
I also foresee a potential problem arising in public perception
if the Federal portion is issued before the State permit. This may
lead the public to expect that corrective action investigations and
clean-up activities will be initiated, even though such conditions
could not be properly enforced as noted above. More generally, the
public may be confused by the separation of corrective action
activities and the operating permit. Therefore, public participation
efforts would be more effective if the State and Federal portions are
issued together.
Your other question pertained to the impact on the HSWA
conditions of a complete RCRA permit if the State portion alone is
appealed. If a request for review of a RCRA permit is granted all
contested permit conditions will be stayed, including any uncontested
conditions which are not severable from the conditions in dispute.
Therefore, whether or not the HSWA conditions would be stayed depends
on whether they could be properly implemented without the contested
conditions in the State permit. In many cases, HSWA conditions will
be severable from contested portions of the State permit. Corrective
action requirements to investigate releases from SWMUs, for example,
could presumably begin while unrelated portions of the State permit
are stayed.
I hope I have answered your questions. If I can be of any
further assistance, please let me know.
Attachment
cc: Bill Honker, Region VI
Suzanne Rudzinski
Matt Hale
Bob Kaysor
Dave Fagan
Frank McAlister
Carrie Wehling
This has been retyped from the original document,
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9502.1987(07)
July 24, 1987
MEMORANDUM
SUBJECT: Definition of Solid Waste Management Unit for the
Purpose of Corrective Action Under Section
3004(u)
FROM: Marcia E. Williams, Director
Office of Solid Waste
TO: Hazardous Waste Division Directors, Regions I-X
The purpose of this memorandum is to provide clarification
regarding one aspect of the definition of solid waste management unit
as related to RCRA corrective action under Section 3004(u). The
concept of a solid waste management unit has been explained in
various guidances since the passage of the 1984 Hazardous and Solid
Waste Amendments (HSWA).
As explained in the July 15, 1985 HSWA Codification Rule, a
solid waste management unit is "...any unit at a facility from which
hazardous constituents might migrate, irrespective of whether the
units were intended for the management of solid and/or hazardous
wastes." This definition was intended to include those types of
units which have traditionally been subject to regulatory control
under RCRA: container storage areas, tanks, surface impoundments,
waste piles, land treatment units, landfills, incinerators,
underground injection wells and other physical, chemical and
biological treatment units.
A memorandum from John Skinner to the Hazardous Waste Division
Directors (June 14, 1986) further interpreted the term solid waste
management unit to include areas at facilities which have become
contaminated by routine, systematic and deliberate releases of
hazardous waste or hazardous constituents. An example of this type
of "solid waste management unit" is a wood preservative "kickback"
area, where drippage of preservative fluids onto soils from pressure-
treated wood is allowed to occur over time. This interpretation was
reiterated in the final RCRA Facility Assessment Guidance and the
National HSWA Corrective Action Strategy of October 14, 1986.
This has been retyped from the original document.
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Recently, however, several Regions have inquired whether the
term "deliberate" meant that the owner/operator had actually intended
to create the release of hazardous wastes or hazardous constituents.
We wish to clarify that the term "deliberate" in this context was not
meant to require a showing that the owner/operator knowingly caused a
release of hazardous wastes or hazardous constituents. Rather, the
term "deliberate" was included to indicate the Agency's intention not
to exercise its Section 3004(u) authority to proceed against one-
time, accidental spills which cannot be linked to a discernible solid
waste management unit. An example of this type of release would be
an accidental spill from a truck at a RCRA facility. Routine and
systematic releases constitute, in effect, management of wastes; the
area at which this activity has taken place can thus reasonably be
considered a solid waste management unit. Therefore, in implementing
corrective action under Section 3004(u), Regions and States should
consider areas which have become contaminated through routine and
systematic releases of hazardous wastes or hazardous constituents to
be solid waste management units. It is not necessary to establish
that such releases were deliberate in nature.
This concept, and other issues relating to the definition of
solid waste management unit, will be addressed in the proposed
rulemaking being developed for corrective action under Section
3004(u).
If you have any questions regarding this interpretation of solid
waste management unit, please contact David Fagan at FTS 382-4497.
cc: Regional RCRA Branch Chiefs
Regional RCRA Permit Section Chiefs
Gene Lucero
Bruce Weddle
Joe Carra
Mark Greenwood
This has been retyped from the original document.
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9502.1987(09)
SEP 87
f(£I
fiiMORANDUM
: Fiber Optics for In-Situ Monitoring
FROil* narcia Williams, Director
Office of Solid Waste (WK-562)
TOi Erich Eretthauer, Director
environmental Monitoring Systems Laboratory/Las Vegas
Thank you for the report you provided recently, describing
and providing the status of fiber optics applications for in-situ
monitoring. While we nave recently had to make some difficult
short-term priority choices, this subject remains of substantive
interest to us in OSW as a Beans of field eonitoring at waste
management facilities.
There are several potential applications for developing and
improving advanced field monitoring techniques. Cur future
efforts in OSW are directed toward a continuum of control, based
upon waste-specific/site-specific interactions. Ash monofills (a
single, consistent wast* at a site) are a cogent example, one for
which a near-term solution is needed* In this particular
application, the contaminating constituents are, generally, lead
and cadmium. Simplified detection of releases of constituents
such as these would perhaps enable us to define corrective action
before significant contamination problems occur.
Another application of interest to us is in biotechnology,
where the sensor might be deployed to detect degradation products
of the bio process, or to detect "toxic" conditions prior to
undertaking in situ treatment. Other potential applications
include the use of fiber optic sensors for detecting air emissions
(e.g., from land treatment areas) or serving as a monitor in
geologic repositories (e.g., an air sniffer in a salt dome).
With our ever-increasing need for field monitoring at
hazardous waste sites, fiber optics technology does show promise.
We would like to see one (or more) of our applications become
part of your fiber optics research program.
cct TOD Ocvine
Herbert Dee
Meg Kelly
John Skinner
Darwin Wright
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9502.1987(11)
DEC 21 193'
MEMORANDUM
SUBJECT: Options for Voluntary corrective Action
PROM: Karcia Williams
Director
Office of Solid Waste
TO- Directors
waste K«n«ge«ent Divisions, Reoione z-X
Kany unperiiitted hasardous waste generators and other
industrial property owners are likely to have solid waste
eanagesnent units on their property that require some degree
of corrective action. In a number of cases, the facility
owners nay wish to proceed with corrective action, either
to reduce their liability or to forestall subsequent EPA
or State action. Onder current RCRA regulations, however,
certain actlvitiefl conducted during voluntary correction
action will require a perait if the wastes are hazardous
waste (i.e., they are known to include listed hazardous
wastes or they are determined to be hazardous under 40 CPR
261 subpart C) . This could include relatively straight
forward activities, such as dewatering wastes or treatinq
orcundwater, at wall as wore complicated treatment
technologies such as incineration.
we are concerned that the tine needed to obtain a
permit say in some cases substantially delay desirable
cleanup and provide a significant disincentive to
generators and other facility owners considering voluntary
corrective action. I an Interested in Identifying approaches
that would allow certain relatively low concern treatment
activities to b« conducted during corrective action without
a full RCRA permit*. we have identified several possible
s op roaches that »ight b« used to allow voluntary corrective
action at unpcrvitted sites. These approaches are outlined
in the attachment.
Options 1-3 ar* possible now, without any regulatory or
statutory changes. With regard to these options, Z aw
specifically interested in the potential benefits and
obstacles you see to each of the approaches. Are generators
or others likely to avail themselves of these? wave you usr
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-2-
Ortion 4 would require a rule chanoe. m our creJi-^in-r
eiscusaions with the Office of General'Counsel? thej have
indicated that they see potential legal problers to this
approach. Nevertheless, I believe that it aay'be worth
further investigating this option to see if a leoallv
defensible approach can be developed, fcith reqard to
this option, !•• soecifically interested in yoGr thouqhts
on the types of treatment activities that «aj be appropriate
for conditional exemptions froa permitting. t-^wpnace
I »ee this issue of voluntary corrective action ae
beinc> very important to our program, i appreciate vou
taking the time to consider thii issue and I look forward
to your reactions. iwrwaca
Attachment
-------
uwmo STATIS INVHONMEMTAL PtoncrioM ACINCY
9502.1988(01)
AUG 23 08
MEMORANDUM
SUBJECT: OECM Comments on Corrective Action Rule
FROM: Slva K. Lowrance, Director i
TO:
Sylvia K. Lowrance, Director
Office of Solid Waste
^ fl
JV
Edward Reich
Deputy Associate Enforcement Counsel
SYMBOL
Last week when we met to discuss your Office's non-
concurrence issues on the RCRA corrective action rule we reached
tentative agreement as to how those issues would b« resolved.
This memorandum summarizes my understanding of the agreements we
reached.
Issue 1. CAMU. The idea of including discernible units
within a CAMU will not be explicitly proposed in the rule, but
will be discussed in the preamble. The preamble will also
discuss optional approaches, as per the suggested preamble
language in your August 9 memorandum.
Issue 2. Temporary Units. Temporary units will be limited
to managing wasted that originate within the boundary of the
facility, similar to the concept contained in the "Christmas
Tree" rule (see attached excerpt from that rule). We will also
develop additional preamble language explaining the legal
rationale behind temporary units, emphasizing how notice and
comment on such units is provided through the permit/order
procedures. Additional clarifying language describing how the
land disposal restrictions apply to land-based temporary units
will also be developed.
Issue 3. Point of Departure. We will add rule language on
10~6 as the point of departure in setting cleanup levels. The
language^ i* essentially the same as the language in the NCP (see
attached rule language).
Issue 4. Target Levels. The preamble discussion which
explains the circumstances in which it will not b« necessary to
specify preliminary target levels will b« expanded to include
additional clarifying examples.
s our understanding
•is-tant- with• -howf the
*•»»«•«- ^f a
eon as possible
-------
media aggregate risk would be a factor in establishing cleanup
levels -and triggering corrective measure studies. This
discussion will essentially reiterate the NCP language; i.e.,
that cross media analyses will be done when there are indications
that site-specific exposure conditions warrant such analyses.
Issue 6. Protectiveness. As we discussed, the approach
articulated in the rule for setting cleanup standards within the
risk range, which allows flexibility to consider several factors
in selecting the appropriate level, is a fundamental concept in
both the RCRA and CERCLA programs. You indicated that this would
not be a non-concurrence issue for OECM.
If you have any questions concerning the above, please let
me know. I will be in touch with you later this week, to confirm
that this summary of our meeting is accurate, and to discuss how
th move the rule forward to OMB.
cc: B. Weddle (OSW)
M. Hale (OSW)
D. Pagan (OSW)
B. Grimm (OSWER)
S. Leifer (OECM)
J. Cannon (OECM)
-------
9502.1988(02)
:op.
Mr. Kenneth M. Kastner
Assistant General Counsel
Chemical Manufacturers Association
2501 M Street, N.w.
Washington, D.C. 20037
Dear Mr. Kastner:
I am writing in response to your letter of January 7,
1988, in which you outlined the concerns on the Chemical
Manufacturers Assocation (CMA) regarding constraints on
voluntary corrective action, and offered several ideas as to
how the RCRA program could be adapted to facilitate voluntary
cleanups.
We share your concern that the current RCRA regulatory
structure provides a disincentive to voluntary cleanup, and we
appreciate your recommendations on this question. We are
currently exploring possible solutions to the issue through a
number of avenues, including EPA-sponsored corrective action
roundtables, in which your organization has been participating,
and the Keystone RCRA Project, which has identified voluntary
corrective action as a specific area of concern. I trust that
out of these efforts we and other interested groups can agree
on a series of regulatory and, if necessary, statutory changes
that will remove impediments to voluntary cleanups, and at the
same time ensure adequate protection of human health and the
environment.
In your letter, you suggested two specific areas for
possible regulatory change — permitting and the definition of
hazardous waste. In the case of the first, you suggested a
RCRA permit waiver for voluntary cleanups, contingent upon
compliance with certain reporting, handling, design, and
operation standards similar to the standards currently found in
40 CFR Part 264. As you may Jcnow, EPA discussed a similar
approach in its June 3, 1987 proposal on mobile treatment units
(52 FR 20914). We believe that this approach deserves
particular consideration for voluntary corrective action, and
we expect to explore it in more detail through the Keystone
RCRA project.
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You also suggested that EPA not define as "hazardous" any
wastes subject to voluntary corrective action. We agree that
treating cleanup wastes as hazardous wastes may not always be
the most effective way of managing some of these wastes
--particularly soils and groundwater with low levels of
contamination. Consequently, we are examining the current
regulatory status of contaminated soils and groundwater to
ascertain whether other approaches to these wastes can assure
protection of human health and the environment. As a result of
this review we expect to reach a decision on whether regulatory
changes are necessary.
We recognize that the issues you raise require prompt
resolution, and the Agency is committed to addressing them
expeditiously. As you realize, however, your specific
recommendations and more generally the issue of voluntary
corrective action raise substantial technical, policy, and
legal issues. We hope over the next several months to work
with you and other interested groups to resolve these, issues
and develop an overall strategy for encouraging voluntary
cleanups. We look forward to your continued participation in
this process.
Sincerely,
Jeffrey D. Denit
Acting Director
Office of Solid Waste
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9502.1989(01)
UNfTIO STATIS IHVWOKMINTAI PROTECTION ACIHCY
MA5
Angus Macbeth, Esq.
Sidley and Austin
1722 Eye Street, N.w.
Washington, D.C. 20006
Re: Financial Assurance for Corrective Action Beyond the
Facility Boundary
Dear Mr. Macbeth:
mis is in response to your January 5, 1989 letter
concerning current regulations requiring financial assurance for
corrective action beyond facility boundaries. Sections
3004(a)(6) and 3004(v) of RCRA, as amended by the Hazardous and
Solid Waste Amendments of 1984 (HSWA), codified at 40 C.F.R.
254.lOO(e) and 264.101(c), require that corrective action be
i.-'jtituted beyond the facility boundary where necessary and that
r..s.-;uranees of financial responsibility for such corrective
c1..-ions be provided.
As discussed in the December 1, 1987 second HSWA
.-~'J.. rication rule (52 F.R. 45788), Congress intended that owners
..:.:! operators of hazardous waste management facilities provide
rir.ancial assurances for corrective action beyond the facility
property boundary. The Agency does not believe that this
requirement duplicates other financial assurance requirements
such as the third-party liability coverage requirements. (40
CFR 264/265.147). Under 40 CFK 264/265.147 an owner or operator
must maintain specific types and levels of coverage for -bodily
injury and property damage to third-parties. Sections
264.141(g) and 265.141(g) provide that the terms "property
damage" or "bodily injury" nave the meaning given such terms
under applicable state lav. Additionally, these terms do not
include those liabilities which, consistent with standard
industry practices, are excluded from coverage in liability
policieo for bodily injury and property damage. (40 CFR
264/265.141(g)).
In general we believe that it is both appropriate and
likely that onsite or off-site corrective action activities win
exceed the common definition and construction of "bodily injury"
or "property damage" as found in an insurance policy issued to
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-2-
satisfy RCRA third-party liability coverage requirements. The
Agency is also concerned that to allow the use of established
liability coverage financial instruments to satisfy known
corrective action costs could deplete those instruments, thereby
rendering funds unavailable to satisfy the claims of injured
third-parties.
However, insurance policies can be used to satisfy financial
responsibility for off-site corrective action under the current
regulations in certain circumstances. Specifically, if an
insurance carrier determines that off-site corrective action
costs are covered under the terms of its policy, and the carrier
provides unequivocal documentation of a specified payment to
cover all or a part of off-site corrective action activities,
then that policy would satisfy all or part of the required
financial assurance for corrective action.
The above discussion concerning the use of insurance to
satisfy off-site corrective action financial assurance
requirements can be extended, under limited circumstances, to
the use of other financial assurance instruments for liability
coverage provided by a third-party, i.e. . letter of credit,
surety bond, guarantee and trust fund. Those circumstances
could arise only when the off-site corrective action costs are
part of a third-party claim against the owner, operator, or
holder of the financial instrument and that claim has triggered
payment of the instrument pursuant to 40 CFR 264.l51(h), (k).
(1) and (m). The owner or operator of a facility subject to the
financial assurance requirements cannot itself be considered a
third-party within the meaning of applicable regulations and
instruments.
Similarly, when an owner or operator uses the financial test
or corporate guarantee to comply with third-party liability
financial responsibility regulations, and a certified settlement
or court judgement resulting from a third-party claim for
property damage is coincident with all or part of the cost
estimate prepared for off-site corrective action, a second
mechanism would not have to be used to cover that portion of the
corrective action cost. If, in the situation described above,
the owner/operator wishes to use the financial test or guarantee
to demonstrate compliance with both third-party liability
requirements and off-site corrective action financial assurance,
the cost estimate to be used in the alternative formula provided
in 40 CFR 264.151(g) would be equal to the sum of the
third-party liability requirements and any off-site corrective
action costs not coincident with the valid third-party claim.
The Agency intends to carefully re-examine the procedures and
financial instruments requirements for corrective action (51
F.R. 37854), to ensure that owners and operators of facilities
are afforded ample flexibility to meet the requirements and that
sufficient funds are available to cover all necessary
liabilities.
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Finally, your letter requests that the issue
coverage also be examined in the context *f "e
rule, me Agency is considering these issues in o ™
the subtitle D proposal (August 30? mJfS? R 3^10""^ °f
Mi
(382-7703) in th« 0«ice o? GenerL
Sincerely,
J. Winston Porter
Assistant Administrator
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9502.1989(02)
May 25, 1989
MEMORANDUM
SUBJECT: Comments on the Proposed OERR and OWPE Lead
Cleanup Policy Memo
FROM: Sylvia K. Lowrance, Director
Office of Solid Waste (OS-300)
TO: Robert Duprey
Acting Deputy Assistant Administrator
In response to your question concerning the OERR and OWPE
policies on soil cleanups for lead, I'd like to briefly describe
OSW1s approach to setting lead cleanup standards. The current OSW
interim policy is stated in the Clean Closure guidance (52 FR 8706
3/19/87), the Subpart S Corrective Action draft proposal, and the
RCRA Facilities Investigation guidance (Draft as of 1/25/89) is to
use background soil levels for lead and any other constituents for
which an Agency recommended health based exposure limit (RfD, Cancer
Potency Factor) is not available. We have reiterated this policy to
the Regions and have provided some guidance on how to determine
background levels.
We recognize that background levels of lead in soil will vary
from location to location. In some cases, they may be as high as the
Superfund proposed levels of 500-1000 ppm, while in other cases they
are likely to be somewhat lower. Currently, an Agency Workgroup
chaired by ORD is developing a health-based guidance document for
lead. The Science Advisory Board is reviewing their efforts. Once
this guidance has been developed, we anticipate that the Superfund
and RCRA programs will adopt it and will thereby become consistent in
their cleanup policies for lead.
This has been retyped from the original document.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
9502.1989(03)
JUN I 5 1969
3CUD WiSTE VJG £M£aGENCv "ES'CNSE
Ms. Elizabeth M. Powell
Moore & Van Allen
One Hannover Square
Suite 1700
Post Office Box 26507
Raleigh, North Carolina
Dear Ms. Powell:
I am writing in answer to your letter of May 4, 1989, in
which you raised several questions concerning the applicability
of RCRA to certain situations involving remediation of
contamination at a facility. The following response addresses
the questions which you have posed:
I. "Is 40 CFR S265.l(c)(11)(iii) applicable to remediation
at the facility to require compliance with Part 265 and Parts
122-124. where no t'reatment. storage, or disposal activities are
'continued or initiated* in such remediation?"
Section 265.1 defines the applicability of "interim status"
regulations to facilities which treat, store or dispose of
hazardous wastes. Section 265.1(c)(11)(i)) provides an
exemption from this requirement for "...a person engaged in
treatment or containment activities during immediate
response...to (A) A discharge of hazardous waste; (B) An
imminent-and substantial threat of a discharge of a hazardous
waste; or (C) A discharge of a material which, when discharged,
becomes a'hazardous waste."
This exemption from certain interim status requirements is
intended to allow owner/operators to respond to a hazardous
waste spill or discharge in a timely manner, without having to
comply with procedural and/or technical requirements that could
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inhibit such response measures, and which may otherwise be
inappropriate^, for such immediate or emergency-type situations.
An essentially identical provision is found in the Part 264
regulations (Section 264.1(g)(2)).
An exception to this exemption is found in Section
265.l(c)(11) (iii) . This is intended to limit the scope of the
exception only to those hazardous waste management activities
directly associated with an immediate response to a discharge.
(See 53 FR 34085, September 2, 1988). Thus, for example, an
owner/operator responding to a discharge might excavate soil
contaminated with the spilled hazardous waste and store it
temporarily in containers prior to the removal of the material
off-site. The container storage area would not be subject to
technical interim status standards.
However, if treatment or containment activity were to be ,
continued or initiated after the immediate response is complete,
the person performing these activities can no longer take
advantage of the Section 265.1(c ) (11)(i) exemption and must
comply with Part 265 requirements governing treatment, storage,
or disposal activities.
It should be understood that Section 265.1(c)(ll) applies
only to situations involving an immediate response to discharges
for hazardous wastes. To the extent that such an immediate
response action has not occurred and is not occurring at the
facility in question, none of the provisions of this subsection
would apply.
II. "Is the presence of soil and groundwater contamination
at a facility, standing alone, a sufficient basis upon which a
state agency can make a finding that disposal of hazardous waste
took place at that facility, thereby resulting in a
characterization of that facility as a 'disposal facility'
subject to RCRA operational and permitting requirements relevant
for TSD facilities?"
II. Past releases of hazardous waste which have occurred
anytime ..after November 19, 1980 may constitute "disposal" as
defined by RCRA Section 1004. Thus, such releases could
constitute a- violation of RCRA (disposal of hazardous waste
without a permit under RCRA 3005 or 3006) which could be
actionable under RCRA Section 3008(a). Since the situation you
described might involve the disposal of hazardous wastes, and
since RCRA Section 3005 requires that a person obtain a Subtitle
C permit for the treatment, storage, or disposal of hazardous
waste, in some cases it may be appropriate to require the
owner/operator to obtain a permit for the facility in order to
impose Part 264 standards for the disposal unit (i.e., a
landfill). Since the facility you describe is no longer an
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- J-
operating facility, f.he State might decide than a post-closure
permit would J.ikely be the appropriate permit mechanism when a
permit is required.
III. "Does EPA Office of Solid Waste policy require an
entity to prepare, submit and receive approval for a Part B
permit and/or post closure permit, where the facility is no
longer operational, shows no intention to be operational, and
where the present property owner has made clear its intention to
voluntarily remediate the soil and groundwater contamination at
the property to the specifications of the state agency?"
III. As explained above, the requirement to obtain a RCRA
permit for a facility, based on the facts you have presented, is
within the authority of EPA or a State, if the State has been
authorized for RCRA. The decision as to whether and when this
authority may be exercised, is at the discretion of the
implementing agency; in the case of an authorized State, such
decisions would be made according to State program policy.
Finally, it is important to keep in mind that the discussion
found in this response contains EPA's interpretations of Federal
regulations; authorized States may rely upon State
interpretations of State regulatory provisions which may differ
from those of the EPA.
I hope that this response had adequately addressed your
inquiry. Should you require any further assistance, please
contact David Fagan at (202) 382-4497.
Sincerely,
i jC-i^bow ranee,, Director
Office^of Solid Waste
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9502.1989(04)
>"-CE : =
/ 0 /pee
MEMORAKDUM ^\
, , RO"'
SUBJECT: Coordination of Corrective Action Through Permits
and Orders w' v
FROM: Susan E. Bronun, Director
RCRA Enforcement Division
Joseph Carra, Director ,l
Permits and State Prog/r4'ms Division
TO: Waste Management Branch Chiefs, Region I-X
.. r- .
An increasing number of RCRA facilities are becoming subject
to both §3008 (h) orders and §3004 (u) permit requirements at
facilities where the orders were issued prior to permit issuance.
This memorandum is intended to provide guidance on how to
coordinate permit and order requirements for corrective action in
these situations.
The issuance of a permit requiring corrective action to a
facility does not absolve an owner/ operator of any responsibility
to comply with an order for corrective action previously issued
to the facility. The facility owner/ operator must comply with
both the permit and an existing order. Hence, coordination
between the two is essential.
Although §§3008 (h) and 3004 (u) both authorize the Agency to
require clean-up of releases at operating facilities, the
distinctions between the two authorities should be considered
when issuing or modifying a permit, or amending an order. The
§3008(h) order authority authorizes tbe Agency to require
corrective action at. RCRA interim status facilities or those that
should have had interim status, prior to the issuance or denial
of permits. Prior to issuing a permit to a facility subject to a
§3008 (h) order, the Region must make a decision whether to
incorporate the terms of the order into the permit by reference,
incorporate the terms directly into the permit and terminate the
order, or require the respondent to comply with the separate
terms of the order and the permit. If not terminated, the order
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- 2 -
continues in effect, according to its terms, past the point of
permit issuance for the facility. If a change in the corrective
action requirements becomes necessary at a facility subject to a
separate permit and an order, the Region should determine whether
an amendment to an order or a permit modification will effectuate
a change in the corrective action cleanup more efficiently.
Because it is impossible to anticipate every scenario where both
a permit and an order are in effect at a facility, it is
important to be cognizant of the distinctions between the
authorities, and make the determination about which vehicle is
more appropriate in light of the facts surrounding each case, of
course, a §3008(h) order cannot be issued to a facility after
final disposition of the permit application. Also, after
§3004(u) has been triggered, modifications to an order may be
limited only to those additional requirements needed to
effectively implement cleanup of releases already covered by the
order. To the extent that modifications to an existing order are
made, the Region must ensure that no conflict with permit
conditions will be created.
Section 3004(u) authorizes corrective action only with
respect to a release from a solid waste management unit.
However, please note that if a release cannot be attributed to a
unit, the omnibus authority in §3005(c)(3) can be used as
authority for permit conditions that address corrective action
for that release, provided that the Region can demonstrate that
the conditions are necessary to protect human health and the
environment. In order to establish the basis for issuing a
§3008(h) order, the Agency need only establish that there has
been a release of "hazardous waste" as defined under §1004 from
the facility. Therefore, once it has been established that a
release attributable to the facility has occurred, it is not
necessary to determine that a "unit" is the source of the release
prior to issuing an order for corrective action.
The regulations require EPA to provide the public with an
opportunity to comment on proposed permit conditions, including
corrective action provisions. The processes prescribing the
requirements for public participation are set forth at 40 CFR
124.10 -.19. An OSWER directive, "Guidance for Public
Involvement in RCRA Section 3008(h) Actions," sets forth the
requirements for public involvement in the order issuance process
and reiterates EPA's commitment to providing meaningful
opportunity to the public to be informed of and participate in
decisions that affect them and their communities.
As previously stated, the Agency is not required to
integrate the requirements of the order into the permit to ensure
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the respondents continued compliance with the corrective action
requirements. Regions should require facility owners/operators
to comply with both the permit and the order requirements if the
requirements of the order are not subsumed in the permit.
Therefore, increased coordination between the permitting and
enforcement programs will be critical to ensure that cleanups at
these facilities are not hindered by poor coordination of these
requirements.
Headquarters is developing an additional policy to address
the relationship between post-closure permits and §3008(h) orders
at closing facilities based on issues raised at the last branch
chiefs meeting in Chicago. Please plan to discuss any comments
you have on how the Agency can most effectively regulate the
activity at these closing facilities at the next Branch Chiefs
meeting. Headquarters is also considering the use of stipulated
penalties in the compliance schedules in the permits to compel
corrective action.
If you have questions or comments about the relationship
between the permit and the order^at a facility, please contact
Susan Hodges in OWPE at (FTS) 475.-9315 or Dave Fagan in OSW at
(FTS) 382-4497. Also, see the attached March 8, 1988, memorandum
on Use of the §3008(h) Orders or Post-Closure Permits at Closing
Facilities for additional discussion.on how the two authorities
can be used.
Attachments
cc: Steve Botts, OECM
Fred Chanania, OGC
RCRA Permits Section Chiefs, Region I-X
RCRA Enforcement Section Chiefs, Region I-X
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9502.1990(01)
UNITED. STATIES ENVIRONMENTAL PROTECTION AGcN'CY
WASHINGTON. O.C. 20460
MAY 7
MEMORANDUM
SUBJECT: Interim Guidance c>?.; Establishing Soil Lead Cleanup
Levels at RCYm facilities
FROM: Sylvia K. Lowrance, Directe K \
Office of Solid Waste -'-^\
TO: David A. Ullrich, Acting Director
Waste Management Division, Region V (5HR - 13)
This is in response to your memorandum of February 15, 1990
requesting interpretation as to whether a recent OSWER Superfund
directive (#9355.4-02), which sets forth interim soil cleanup
levels for lead at Superfund sites, also applies to RCRA closures
and corrective actions. In addition, this memorandum will
supplant the memorandum from Sylvia Lowrance to William Muno
dated May 27, 1988, interpreting the use of soil background
levels for lead as clean closure standards.
As you know, establishing a health-based "cleanup" level for
lead in soil has been a major issue for the Agency for some time.
Presently, there is an interoffice project underway to develop
site-specific soil lead cleanup levels based on a biokinetic
uptake model, as referenced in the above guidance memorandum. We
anticipate that this model will be finalized within the next
several months; however, we recognize the importance of
addressing this issue at this time and so are offering this
interim guidance.
We understand that during this interim period, Region 5 and
other Regions and States will need to make decisions as to the
appropriate levels for lead in soil in the context of RCRA
closures and corrective actions. It is our understanding, based
on tone preliminary runs of the new model, that the soil lead
cleanup levels could be as low as 100 - 150 ppm at some
facilities. These levels would reflect a set of default' values
based on conservative assumptions regarding exposure and other
factors. Thus, there may be a number of situations where it
would be appropriate to use other assumptions in setting cleanup
levels for specific facilities. For more information on the
model being developed, and how site-specific factors may be used
to calculate levels appropriate to a specific site, you may wish
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to contact Susan Griffin of the Health Assessment Section (FTS-
382-6392).
Until the model is finalized)'we believe that it may be
appropriate under some exposure conditions, to establish soil
lead cleanup levels based on the CDC-derived numbers, presented
in OSWER directive 9355.4-02, rather than the 100 - 150 ppm range
provided above. Alternatively, background levels may also be an
appropriate choice for cleanup levels. Background levels could
be used, for example, in urban settings or industrial areas,
where they sometimes exceed levels derived from health-based
models.
If you have any further questions, please contact Dave Fagan
(FTS-382-4497) or Lisa Askari (FTS-382-4535).
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i UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9502.1990(02)
jlil_ i i i99Q OPF.CEO*
" SOLi O '.VAST E AND EMERGE NO
MEMORANDUM
SUBJECT: Requirements for Cleanup of Fipal NPL Sites Under RCRA
FROM: Don R. Clay i^r • A!
Assistant Administrator
TO: Stephen R. Wassersug, Director
Hazardous Waste Management Division
Marcia Mulkey, Regional Counsel
Office of Regional Counsel
In your memorandum of May 16, 1990, you requested guidance
on the applicability of the Natipnal Oil and Hazardous Substances
Pollution Contingency Plan (NCP)' to the final National Priorities
List (NPL) sites being addressed pursuant to RCRA corrective
action authorities. Specifically-, you question whether the NCP
mandates, for sites being addressed under RCRA, specific cleanup
procedures and deletion criteria for site cleanup and ultimate
removal from the NPL which are not requirements of RCRA 3008(h).
You are concerned that a site that is considered by RCRA to be
remediated, may not be able to be removed from the NPL due to a
failure to address an administrative or procedural NCP
requirement.
Your memo refers to language in the proposed NCP which
states that "it is appropriate to apply different and more
stringent criteria in actions to delete based on deferral to
other authorities.11 It also mentions examples of NCP
requirements (e.g., the ROD must detail how the selected remedy
attains ARARs and utilizes permanent solutions; a five-year
review of remedial actions is required if hazardous substances
remain at the site above certain levels; and State involvement
requirements roust be met) which are not required by RCRA Section
3008(h) actions.
In response to your inquiry, it should first be noted that
the final NCP states that EPA "has the discretion to use its
authorities under CERCLA, RCRA or both to accomplish appropriate
cleanup at a site, even where the site is listed on the NPL."
55 FR 8698 (March 8, 1990). See also 54 FR 41009 (Oct. 4, 1989).
Thus the Agency has clearly stated that RCRA authorities may be
used at NPL sites..
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-2-
Second, the "different" and "more stringent" criteria you
referred to from the proposed NCP related to deletion of final
NPL sites "based on deferral" to another authority. 53 FR 51421
(Dec. 21, 1988). That draft policy has not been adopted by the
Agency, and therefore, the preamble language is irrelevant.
The criterion that must be met before a site on the final
NPL is deleted is that "no further response [at that site] is
appropriate." 40 CFR 300.425(e) (55 FR 8845, March 8, 1990).
Where a remedial action has been carried out under RCRA and there
is no significant threat to public health or the environment,
a CERCLA response should not be necessary. (See 40 CFR
300.425(e)(1)(iii)). In effect, where the RCRA program takes
action at an NPL site, the CERCLA program simply delays the
start-up of its Remedial Investigation/Feasibility Study (RI/FS)
site assessment process, in order not to interfere with or
duplicate the ongoing RCRA work. When the RCRA remedy is
complete, the Agency will do an abbreviated RI (incorporating by
reference in most cases, information from the RCRA cleanup) and
make a determination of whether any CERCLA action is required.
The Agency expects that sites cleaned up under RCRA corrective
action would be considered "no action" sites under CERCLA.
The finding of no action should be set out in a close-out
report in preparation for deletion from the NPL. The site close-
out report should include appropriate documentation on the RCRA
action (and any other action at the site under RCRA or CERCLA),
and a finding that no further action under CERCLA is warranted
for any of the units and-areas of contamination. Site deletion
can proceed when all necessary response actions have been
completed. For more information, refer to the April 1989 OSWER
Directive 9320.2-3A entitled "Procedures for Deletion and
Completion of NPL Sites."
You also asked whether actions taken under RCRA section
3008(h) at an NPL site must meet NCP requirements for remedy
selection. Because no CERCLA remedy is being selected in a RCRA
corrective actio* situation, the remedy selection requirements in
CERCLA Section 121 and NCP Section 300.430 do not have to be met
in order to delete the site from the NPL. Therefore, the
requirements of a ROD — for example, that it detail how the
remedy will attain ARARs and utilize permanent solutions — do
not apply to RCRA activities at NPL sites.
In addition, the formal State involvement discussed in
Subpart F of the NCP does not apply to RCRA activities at NPL
sites although the 3008(h) order should allow States to be kept
informed of the progress of the RCRA corrective action
activities, and include some type of State review of workplan
submittals.
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-3-
It should also be noted that State concurrence and public
participation are required prior to the deletion of all NPL
sites, even if much of the site was addressed under RCRA
corrective action authorities. NCP Section 300.425(e)(2)(4) (55
FR 8845).
With regard to the five year reviews under CERCLA, these
reviews are required only at sites where a CERCLA remedy has been
selected and thus would not apply to sites where no action is
taken under CERCIA (e.g., RCRA corrective action sites).
However, as a matter of policy, the Agency may decide to include
in the CERCLA five-year review program no-action NPL sites where
RCRA corrective action has occurred and hazardous substances
remain on site above levels that allow for unrestricted use and
unlimited exposure. The Agency is presently considering whether
five-year review would be appropriate at NPL sites where
monitoring is already being conducted under a RCRA post-closure
permit.
If you have any questions regarding these issues, please
call Nancy Parkinson, OWPE, at 475-8729 or Larry Starfield, OGC,
at 245-3598.
cc: Hazardous Waste Division Directors, Regions I, II, IV-X
Regional Counsels, Regions I, II, IV-X
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
9502.1991(01)
MAR 2 7 1991
OFFICE OF
GENERAL COUNSEL
MEMORANDUM
SUBJECT: Use of Proposed Subpart S Corrective Action Rule as
Guidance Pending Promulgation of the Final Rule
FROM: Lisa K.
Associate GeneraTtounsel
Solid Waste and Emergency
Response Division (LE-132S).
TO: Regional Counsel RCRA Branch Chiefs, Regions 1-10
This memorandum is in response to your request for
assistance in determining which portions of the proposed Subpart
S rule, implementing corrective action requirements for permitted
facilities under Section 3004(u) of RCRA, can be implemented
immediately on a case-by-case basis' without further rulemaking.
Background
Section 3004(u) generally requires that each permit for a
RCRA hazardous waste treatment, storage or disposal facility
issued after November 7, 1984 contain provisions requiring
corrective action for releases from any solid waste management
unit (SWMU) at the facility. EPA has implemented this
requirement through codification of the requirement (40 C.F.R.
264.101), interpretative rules (July 15, 1985 (50 Fed. Reg.
28702) and December 1, 1987 (52 Fed. Reg. 45788)), and guidance
documents (including the RCRA Facility Assessment Guidance
(October, 1986), Interim Final RCRA Facility Investigation
Guidance (May, 198"9) . Corrective Action Plan (May^ 1988) , and
RCRA Corrective Action Interim Measures Guidance (June, 1988)).
On July 27, 1990, EPA published a proposed rule which would
codify in detail the procedures and standards for implementing
Section 3004(u). 55 Fed. Reg. 30798 (July 27, 1990). Much of
the proposal would be a codification of the current site-by-site
process by which EPA is currently implementing Section 3004(u).
In addition, certain portions of the preamble represent
interpretations of the existing statutory or regulatory
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requirements that apply to these corrective actions. At the same
time, however, some of the proposal involves changes in the
existing regulatory requirements in order to facilitate
corrective action.
The preamble does not state how the proposed rule relates to
ongoing corrective actions or those which will be begun prior to
promulgation of the rule in final form. We understand that the
Headquarters program office primarily responsible for the rule
(the Office of Solid Waste) is generally instructing the Regions
to apply the proposal in the interim as "guidance". However,
because some aspects of the proposal represent proposed changes
in existing regulatory requirements, which will not be effective
until the rule is promulgated in final form, some parts of
Subpart S cannot be relied upon in establishing or defending
corrective action requirements imposed at a facility in the
interim.
Based on the questions we have been receiving about this
issue, as well as our discussions with you, there seems to be a
certain amount of confusion over which aspects of proposed
Subpart S can legally be relied on in implementing corrective
action prior to promulgation of the rule. At your request,
following is our advice concerning rwhich portions of the rule can
be used as "guidance" in the interim and which cannot. Note,
however, that those portions of the.rule which can be used as
"guidance" before promulgation of the final rule must be applied
and defended on a case-by-case basis in individual permit
proceedings.
Analysis
As a general matter, portions of the preamble or rule that
are interpretative and which are not based on changes to
currently applicable regulatory requirements can be used as
guidance during the interim, but must be established and defended
on a case-by-case basis. Most of the preamble and proposed rule
are interpretative and are not inconsistent with any current
regulatory requirements and thus can be used as guidance in the
interim. In contrast, portions of the rule or preamble that are
based on changes to currently applicable rules cannot be used as
guidance during the interim. In the paragraphs below, we have
outlined the major portions of the rule and identified which
portions should not be used guidance until the final rule is
promulgated and effective.
1. Applicability (preamble pages 30805-07).
This section represents EPA's interpretation of the
facilities at which Section 3004(u) is applicable based on the
statute and legislative history. Because this discussion
represents the Agency's current interpretation of the statutory
-------
requirement, it can (and should) be applied to facilities
undergoing corrective action prior to promulgation of the final
rule.
2. Definitions (preamble pages 30808-10).
Like the applicability section, this section represents
EPA's current interpretation of key terms in Section 3004 (u).
These interpretations are applicable to corrective actions prior
to promulgation of the final rule.1
3. Investigation and selection of corrective measures
(preamble pages 30810-40).
The proposed process for investigating SWMUs and selecting
appropriate corrective measures represents a proposed
codification of existing practices which are currently found, if
at all, in guidance documents, not in existing regulatory
provisions. As a result, the proposed process, including the
provisions governing interim measures and conditional remedies,
can be used as guidance until promulgation of the final rule.
However, because the specific requirements for these
corrective actions are not currently regulatory requirements,
they must generally be imposed in the permit, and justified on a
case-by-case basis, in order to make them mandatory for the
permittee. For example, the Agency-will not be able to rely on
the proposal for the authority to require the permittee to submit
corrective action reports. In order to impose corrective action
reporting requirements, the permit must contain the reporting
requirement, and it must be based on Section 3004(u) or Section
3005(c)(3) or other relevant statutory or regulatory
authorities, as well as the factual circumstances at the
particular facility.
Similarly, the current regulations do not explicitly provide
EPA with unilateral authority to modify the permit to add
requirements or to address disputes that arise during
implementation, as proposed under Section 270.34(c) (preamble
pages 30837 and 30850). This proposed modification procedure,
which would be an.Alternative to the current procedure for
Agency-initiated codifications under 40 C.F.R. 270.41, was
intended to minimize procedural delays for imposing changes to
corrective action schedules of compliance, while ensuring due
1 As many of you know, several of the key definitions, as
well as EPA's interpretation of the applicability of the Section
3004(u) requirements, have been upheld by the D.C. Circuit Court
of. Appeals. See American Iron & Steel Institute v. EPA, 886 F.2d
390 (D.C. Cir. 1989), cert, denied, 110 S. Ct. 3237 (1990);
United Technologies Corp. v. EPA, 821 F.2d 714 (D.C. Cir. 1987).
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process.
We understand that the corrective action model permit
includes a modification procedure similar to proposed 270.34(c),
and that many permits already issued include this provision.
With respect to existing permits containing such provisions,
permittees and members of the public have had an opportunity to
object to such provisions during the comment period on the draft
permit, and to the extent they did not, have arguably waived
their rights to do so. To the extent that there are objections
raised in regard to including this procedure in pending or future
permits, we recommend that you rely instead on the existing
modification procedures in the regulations.
4. Management of wastes (preamble pages 30840-45).
Several of the proposed regulations governing the management
of wastes generated during a corrective action require changes
in the existing regulations and thus may not legally be used as
guidance until those changes have been made final and effective.
Such proposed changes include the provisions allowing for waiver
of applicable closure requirements, reduced requirements for
"temporary units", and any use of the CAMU concept other than to
allow designation of an area of broad contamination as a single
unit for purposes of determining what RCRA management standards
apply.
The Agency can, however, continue to use existing waivers or
variances to achieve many of the same objectives as the proposed
rule changes. The CAMU, for example,"can currently be used to
define the boundaries of a- land disposal unit to the same extent
as the Agency described the Superfund AOC in the preamble to the
revised NCP (55 Fed. Reg. 8758-60 (March 8, 1990)) because this
interpretation relies on the broad definition of "landfill" under
the current regulations. However, if hazardous wastes are
managed in the CAMU, the unit must comply with currently
applicable hazardous waste requirements, including groundwater
monitoring under 40 C.F.R. 264, Subpart F, and closure under 40
C.F.R. Part 264, Subpart G. The authority to alter applicable
. closure/post-closiJre requirements for CAMUs, proposed in the
rule, does not currently exist.
In addition, if the area to be included in a CAMU includes
an already-regulated hazardous waste land disposal unit, such as
a "regulated unit", the facility may need to obtain a
redesignation of the unit boundaries as they appear on the Part
A. The reconfiguration of unit boundaries, which must be
approved by the permitting authority, can occur prior to
permitting, pursuant to 40 C.F.R. 270.72, or after permit
issuance, pursuant to 40 C.F.R. 270.41 or 270.42. As noted
above, the owners/operators of such redesignated units would need
to comply with applicable hazardous waste disposal requirements.
-------
including groundwater monitoring and closure.
5. Required notices (preamble pages 30845-46).
The required notices are additions to, not changes of,
current regulatory requirements. As a result, such requirements
can be currently applied if imposed in the permit and justified
on a case-by-case basis under the authority of Section 3004(u).
6. Permit requirements (preamble pages 30846-51).
Most of the proposed permit requirements are changes to
currently existing requirements and thus cannot be imposed until
the changes are final and effective. The provisions which cannot
be used as guidance pending the final rule include the
requirement to maintain or obtain a permit to implement
corrective action and the special modification procedures for
schedules of compliance. The proposed requirement concerning
reporting of new SWMUs and the requirement to maintain an
information repository can currently be required if imposed in a
permit based on Section 3004(u) and 3005(c)(3) authorities.
7. Closure requirements (preamble pages 30851-52).
As discussed above, proposed.requirements to alter
applicable closure regulations cannot be.used as guidance until
the changes are final and effective. Similarly, the proposed
addition to the interim status closure plan requirements cannot
be required until the rule is final. However, the clarifications
of the closure regulations discussed in this section of the
preamble are interpretations of existing regulations and thus may
be currently implemented.
If you or your staff have questions about the use of the
Subpart S proposal as guidance, please feel free to call Carrie
Wehling of my -staff at 382-7720.
cc: Kathie Stein
Bruce Diamond
LowrafPce
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DKEUD STOES ENVHOWHfEAL FRJIECZICN
FSGXCN V
DAB: FEB i 5 iStf
A
CSHER Directive #9355.4-02 (Soil leal cleanup levels)
and its Effect onJjCR* Closures.
FROM: „ David A. Ullrich, Acting ^keeCo): (5HR-13)
Management Divisit
TO: Sylvia K. Icwrance, Director (06-300)
Office of Solid Waste
The purpose of this •anorandm is to request your interpretation as to
Aether a recent QSHBR Si^ierfund directive has any effect on BCRA closures.
One directive (19355.4-02) sets forth interim soil clean^) levels for lead at
sites. RBoently, the State of Ohio has infomed us that an Ohio
consulting fixn, Ef9f-Midwest, is attespting to '»*=» **»^« ff^**^r^ to
clean closure levels for lead at RCRA far.niHfB. The Ohio EA has asked for.
the U.S. EP&'s assistance in responding to Em-Midwest on this issue.
The Ohio EPA beramp authorized to approve closure plans in June 1989. Prior
to that tine, Region V approved closure plans for Ohio ft»HH»<««- it has
been Region V's position that, in general, Super-fund guidance is not
applicable to RCRA closures horaagy of differences in the Superfund and RC3*A
statutes (such as for cost-effectiveness reqjuirenarts) . However, to assist
the State of Ohio, an interpretation from Headquarters would be helpful on
the p*THr»iiaT- directive referred to in
We are aware that the Office of General Counsel is preparing a response to
this issue, hasprl on procedural grounds only, for the T^^T *r!*"^r|r> against
the Agency involving Burnham Corporation in Zanesville, Ohio. However, we
believe a policy interpretation is necessary at *•*•»*« *•<**» on this issue,
removed from the specifics of the Burnham case. He are mnrmmftt that this
Ifyare will continue to arise at RCR\ ftjr?iii«-igi« that Bay eoploy Em-Midwest
as a consultant.
ffe VQUJjQ flppUCifl'tO A IPffflTXTTlff^ ftfi ff^Tfl ^ff rn^^g^pi^tfi- 9S f^io ifl 2J1 CUB pF
of dealing v^tti at least two farrii^«-^o« on these issues. If you need any
arir! \ t- i m] J^Bb^BStiofi to complete your report, p1****» contact
Frandne Hoctt^ of ay staff, at FES 886-6198.
cc: Ed Kitchen, CEPA
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UNITED J?rit%S ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
f)ft,ci Of
SOl'O WflS'E a^O tM-«G£*.Cv a:S3C';S:
U.S. t?
OSWER Directive #9355.4-02
MEMORANDUM
SUBJECT:
FROM:
Interim Guidance on Establishing Soil Lead Cleanup
Levels at Superfund Sites.
Henry L. Longest II, Director
Office of Emergency and Remedial Response
TO;
Bruce Diamond, Director-
Office of Waste Programs Enforcement
Directors, Waste Management Division, Regions I, II,
IV, V, VII and VIII
Director, Emergency and Remedial Response Division,
Region II
Directors, Hazardous Waste Management Division,
Regions III and VI
Director, Toxic Waste Management Division,
Region IX
Director, Hazardous Waste Division, Region X
PURPOSE
The purpose of this directive is to set forth an interim soil
cleanup level for total lead, at 500 to 1000 ppm, which the Office
of Emergency and Remedial Response and the Office of Waste Programs
Enforcement coejsider protective for direct contact at residential
setting*. Thjls>range is to be used at both Fund-lead and
Enforcement-laid CERCLA sites. Further guidance will be developed
after the Agency has developed a verified Cancer Potency Factor
and/or a Refcranes Doss for lead.
BACKGROUND
/Lead is commonly found at hazardous vasts sitss and is a
contaminant of concern at approximately one-third of the sitss on
the National Priorities List (NPL). Applicable or rslsvant and
appropriate requirements (ARARs) ars available to provide cleanup
levels for lead in air and water but not in soil. The current
-------
National Aabient Air Quality Scondard for lead is 1.5 ug/m3.
While the «xi«ting tiaximum Contaminant Level (MCL) for lead is
50 ppb, thef'Agancy has proposed lowering the MCL for lead to 10 ppb
at the tap Jtnd to 5 ppb at the treatment plant*1). A Maximum
Contaminant Level Goal (MCLG) for lead of zero was proposed in
1988(2). At the present time, there are no Agency-verified
toxicological values (Reference Dose and Cancer Potency Factor,
ie., slope factor), that can be used to perform a risk assessment
and to develop protective soil cleanup levels for lead.
Efforts are underway by the Agency to develop a Cancer
Potency Factor (CPF) and Reference Dose (RfD), (or similar
approach), for lead. Recently, the Science Advisory Board
strongly suggested that the Human Health Assessment Group (HHAG)
of the Office of Research and Development (ORD) develop a CPF for
lead, which was designated by the Agency as a B2 carcinogen in
1988. The HHAG is in the process of selecting studies to derive
such a level. The level and documentation package will then be
sent to the Agency's Carcinogen Risk Assessment Verification
Exercise (CRAVE) workgroup for verification. It is expected that
the documentation package will be sent to CRAVE by the end of
1989. The Office of Emergency and Remedial Response, the Office
of Waste Programs Enforcement and other Agency programs are
working with ORD in conjunction with the Office of Air Quality
Planning and Standards (OAQPS) to develop an RfD, (or similar
approach), for lead. The Office of Research and Development and
OAQPS will develop a level to protect the most sensitive
populations, namely young children and pregnant women, and submit.
a documentation package to the Reference Dose workgroup for
verification. It is anticipated that the documentation package
will be available for review by the fall of 1989.
IMPLEMENTATION
The following guidance is to be implemented for remedial
actions until further guidance can be developed based on an Agency
verified Cancer Potency Factor and/or Reference Dose for lead.
Guidance
This guidance adopts the recommendation contained in the 1985
Centers for Piseasu Control (CDC) statement on childhood lead
poisoning(3* and in to be followed when the current or predicted
land use im residential. The CDC recommendation states that
"...lead in soil and dust appears to be responsible for blood
levels in children increasing above background levels when the
concentration in the soil or dust exceeds 500 to 1000 ppm*.
Site-specific conditions nay warrant the use of soil cleanup
levels below the 500 ppm level or somewhat above the 1000 ppm
level. The administrative record should include background
documents on the toxicology of lead and information related to
site-specific conditions.
-------
The range of !500 to 1000 ppm rcf ^o level? for «-otal lead,
as measured by protocols developed by the Superfund Contract
Laboratory Program. Issues have been raised concerning the role
that the bioavailability of lead in various chemical forms and
particle sizes should play in assessing the health risks posed by
exposure to lead in soil. At this time, the Agency has not
developed a position regarding the bioavailability issue and
believes that additional information is needed to develop a
position. This guidance may be revised as additional information
becomes available regarding the bioavailability of lead in soil.
Blood-lead testing should not be used as the sole criterion
for evaluating the need for long-term remedial action at sites that
do not already have an extensive, long-term blood-lead data
base*1).
EFFECTIVE DATE OF THIS GUIDANCE
This interim guidance shall take effect immediately. The
guidance does not require that cleanup levels already entered into
Records of Decisions, prior to this date, be revised to conform
with this guidance.
1 In one case, a biokinetic uptake model developed by the Office
of Air Quality Planning and Standards was used for a site-
specific risk assessment. This approach was reviewed and
approved by Headquarters for use at the site, based on the
adequacy of data (due to continuing CDC studies conducted over
many years). These data included all children's blood-lead
levels collected over a period of several years, as veil as
family socio-economic status, dietary conditions, conditions of
homes and extensive environmental lead data, also collected over
several years. This amount of data allowed the Agency to use the
model without a need for extensive default values. Use of the
model thua allowed a more precise calculation of the level of
cleanup need«d to reduce risk to children based on the amount of
contamination, from all other sources, and the effect of
contamination levels on blood-lead levels of children.
REFERENCES
1. 53 FR 31516, August 18, 1988.
2. 53 FR 31521, August 18, 1988.
3. Preventing Lead Poisoning in Young Children, January 1985,
U.S. Department of Health and Human Services, Centers for
Disease Control, 99-2230.
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9502.1992(01)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
MEMORANDUM ~CR
OFFICE OF
SUBJECT: Classification of Infiltration Galleries WATER
under the UIC and RCRA Programs
FROM: James R. Elder, Directo^-^^^"""
Office of Ground Water and Drinking Water
Sylvia K. Lowrance, Directors. ^ K.-
Office of Solid Waste J^ 1
TO: Water Management Division Directors
Regions I - X
Hazardous Waste Management Division Directors
Regions I - X
PURPOSE
Underground Injection Control (UIC) and Hazardous Waste
Management program offices in a number of Regions have requested
clarification on whether or not infiltration galleries are, in
fact, Class V injection wells and subject to UIC program
authorities. These questions arise from alternative, but
conflicting, readings of the Office of Solid Waste's (OSW) final
rule of April 2, 1991 (56 FR 13406) on the Tuxicity
Characteristic Leaching Procedure (TCLP) rule's compliance dates
for different types of disposal facilities.
This rule makes a distinction between injection wells and
infiltration galleries for RCRA treatment and compliance
schedules, but does not provide a detailed definition of an
infiltration gallery as opposed to an injection well. The rule
granted an extension to the effective date of the TCLP for
reinjretion of ground water pursuant to hydrocarbon recovery
oper-i-tions undertaken at petroleum refineries and transportation
facilities. The notice explicitly declined to extend the TCLP
rule compliance date for infiltration galleries, implicitly
concluding that no infiltration gallery can be called an
injection well. The purpose of this guidance is to provide
clarification as to which type of infiltration galleries may be
classified as injection wells and qualify for the rule's
compliance date extension, assuming other conditions, such as
location at a refinery, are met.
Printtd on Ricycled Paptr
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BACKGROUND
The Agency believes that a wide array of re-injection
mechanisms are and have been termed infiltration galleries,
including such operations as impoundments, pits, ponds and
lagoons. A literature search conducted for the development of
this guidance has not revealed a single, commonly-accepted
engineering definition for this practice. Neither UIC nor RCRA
Program regulations define the term infiltration gallery.
The November 1990 (55 FR 46829) proposed TCLP compliance
date extension for injection wells at hydrocarbon recovery
operations noted that there was insufficient information on the
design and operation of infiltration galleries to determine
whether they should be treated differently from injection wells.
The proposal also requested information on the design and
operation of infiltration galleries to determine if they should
be treated differently from injection wells for the purposes of
the TC rule.
The most commonly depicted arrangement for infiltration
galleries are devices employed to return treated ground water at
aquifer remediation sites. Another use for these devices is in
water surply system arrangements where they are designed to
collect., rather than discharge, ground water. UIC program
research indicates that most infiltration galleries are trenches,
backfilled with a permeable material, through which fluids are
discharged to the sub-surface. Fluids are distributed through
one or more (vertical) pipes leading to a (horizontal) pipe laid
in the trench. The intent of these operations offers striking
parallels to commonly-accepted concepts of injection well
operations.
DISCUSSION
EPA's review of regional submissions of typical infiltration
galleries recognizes that certain types of these galleries, are,
in fact, injection wells and do fall within UIC authorities. In
the absence of a commonly-accepted definition for these
operations, this guidance is intended to clarify which types of
infiltration galleries are injection wells. This determination
is based on the regulatory definition of an injection well (see
40 CFR § 144.3).
The basic definition of an injection well is that it is
comprised of a bored, drilled, or driven shaft, or a dug hole,
whose depth is greater than the largest surface dimension, and is
used for the subsurface emplacement of fluids. Infiltration
galleries commonly use trenches whose surface dimension is
greater than its depth. However, these trenches typically
contain multiple vertical pipes for the discharge of treated
ground water to either the gravel filled trench directly or to a
horizontal, perforated pipe in the fill.
-------
For purposes of this guidance, each of these vertical pipes,
individually or in series, should be considered an injection well
subject to UIC authorities. Conversely, other configurations
(which may also be commonly referred to as infiltration
galleries) such as pits or lagoons are not considered to be
injection wells.
Attachment A depicts an infiltration gallery which fits
within the definition of "injection well" outlined above. The
use of such a gallery system also occurs at Class III solution
mining operations.
These operations (which we recommend calling "injection
galleries" to distinguish them from other types of infiltration
galleries) are a UlC-regulated activity. Facilities discharging
fluids which are RCRA hazardous waste, as part of an approved
RCRA or CERCLA clean-up operation at a site not addressed by the
TC exemption, may be authorized as Class IV wells in accordance
with 40 CFR § 144.13(c). Injection operations at sites
specifically authorized by the TC exemption are not considered
hazardous waste injection and would, therefore, be Class V wells.
Any other ground water discharge that follows the prescribed
pattern would be a Class V well.
The UIC program's highest priority has been and remains
addressing discharges from injection wells which may endanger
underground sources of drinking water (USDWs) when they are used
to dispose of wastes. Injection galleries operating pursuant to
State or federally-approved remediation actions are not primarily
discharging a waste product, but rather are recycling the
resource to improve, its quality. These activities are already a
part of an enforcement action, rather than an abuse or
endangerment of ground water, and would not require the
additional environmental controls which can be imposed by the UIC
program. Such operations should be examined solely to ensure
that adequate safeguards are incorporated into the enforcement
order to protect USDWs.
Further, a number of additional authorities are available to
address the operation of injection galleries. Generally, State
ground water protection statutes authorize the regulation of all
discharges to the "waters of the State" in parallel to Clean
Water Act (NPDES) authorities. Injection galleries, much like
surface impoundments (pits, ponds and lagoons), may therefore be
regulated under these authorities. In addition, Section 1431 of
v~<5 Safe Drinking Water Act (SDWA) and Section 7003 of RCRA
provide an avenue of regulatory control in those cases where an
imir.^nent threat of endangerment to USDWs and/or human health and
the environment exists from the operation of an injection
gallery.
-------
GUIDANCE
Ground water remediation actions utilizing a method of
discharge termed infiltration galleries should be subject to a
joint review by the UIC and RCRA program directors. If the
facility can be characterized as an injection gallery in light of
the definitions referenced in this guidance, it is subject to
SDWA requirements as well as RCRA and possibly CERCLA and is
eligible for the TC exemption. In cases where such remediation
actions are not RCRA or CERCLA authorized, the UIC Director
should decide whether a permitting or enforcement action is
necessary. Remediation facilities that do not meet this
criteria, such as pits, ponds or lagoons, are to be considered
disposal facilities under RCRA/CERCLA or other State authorities
and are not eligible for the TC exemption. Such facilities are
not subject to SDWA requirements unless a Section 1431 action is
warranted, but are subject to RCRA hazardous waste disposal
requirements.
CONTACT
For furthr-- information or questions relating to this
guidance, please contact Lee Whitehurst of the UIC Branch at FTS
260-5532.
Attachment
-------
INLET
AIR VENT
IfJLET
INLET
IMl.ET
NATIVE
rn.
GRAVEL (4 '-15')
v
r///////////// ////////////// ///////////////////////////'
200
INFILTRATION GALLERY
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9502.1992(02)
„ _^r* WASHINGTON, D.C. 20460
\*«*r
AU6 31 1992
OFFICE OP
SOLID WASTE AMD EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Use of the Corrective Action Management Unit (CAMU)
Concept
TO: Waste Management Division Directors, Regions I - X
RCRA Branch Chiefs, Regions I - X
RCRA Regional Counsel,; Regions, I - X
FROM: Sylvia Lowrance, Di
Office of Solid Wast
ruce Diamond,
Office of Waste Programs Enforcement
At the February 1992 Stabilization Conference in Colorado
Springs we discussed the possibility of implementing the
corrective action management unit (CAMU) concept before final
promulgation of the Subpart S regulations. At that time OSWER
made a commitment to provide further guidance to the Regions on
how to use existing RCRA regulations to achieve some of the
remedial benefits of the CAMU. The attached document, "Use of
the Corrective Action Management Unit Concept," provides that
guidance.
The CAMU portion of Subpart S is on a current schedule to be
finalized by December 1992. The attached guidance, which was
developed jointly by OSWER and OGC, clarifies the Agency's legal
authority for utilizing a CAMU-like approach before the CAMU rule
is finalized, and provides guidance on when and how to use the
concept. The concept can be applied during final remedies, and
in the implementation of stabilization actions to reduce imminent
threats and contain releases. We encourage the use of this
concept whenever the success of the remedial option at a
particular facility will be enhanced.
If you have any questions regarding the content of this
guidance, please call Dave Fagan at (202) 260-4497.
cc: Lisa Friedman, OGC
Henry Longest, OERR
Kathie Stein, OE
Printed on RecvclfrrI Par"*
-------
&ER&
Office of Solid Waste
United States
Environmental Protection
Agency
Office of Solid Waste and
Emergency Response
Washington, D.C 20460
August 1992
Use of the Corrective
Action Management Unit
Concept
BACKGROUND
Beginning in 1992, EPA began
implementing a new strategy to increase the pace
of cleanup and to achieve positive environmental
results at RCRA treatment, storage and disposal
facilities (TSDFs) requiring corrective action.
While comprehensive facility cleanup is still the
long-term goal for the RCRA Corrective Action
Program, this new initiative emphasizes the
importance of stabilizing sites by controlling
releases and preventing the further spread of
contaminants.
At most RCRA facilities, stabilization or
final remedial actions will involve excavation and
on-site management of contaminated soils, sludges
and other wastes that are subject to the RCRA
Subtitle C hazardous waste regulations. In these
situations, a number of issues can arise regarding
the applicability of certain RCRA requirements,
and how these requirements may affect the
remedial activities. Specifically, experience in the
RCRA and CERCLA remedial programs has
shown that the RCRA land disposal restrictions
(LDRs) and minimum technology requirements
(MTRs) may limit the types of remedial options
available at sites, as well as affect the types of
specific technologies that may be used, the volumes
of materials that are managed, and other features
of remedies under consideration.
Recognizing that strict application of these
RCRA requirements may limit or constrain
desirable remedies, including stabilization
programs, EPA is developing an important
regulatory concept, known as the Corrective
Action Management Unit (CAMU), to facilitate
effective and protective remedial actions. This
concept, first discussed in the proposed Subpart S
corrective action regulations (55 FR 30798, July
27, 1990), is similar to the Superfund concept of
the 'area of contamination," in which broad areas
of contamination, often including specif c subunits,
are considered to be a single land disposal unit for
remedial purposes.
CAMUs may be particularly useful for
specific remedial activities such as consolidation of
units or contaminated surficial soils. For example,
a group of uniined inactive lagoons that are
continuing sources of releases to groundwater may
be best remediated by removing and treating the
concentrated wastes in another unit, and excavating
the remaining low-concentration contaminated
soils from underneath the lagoons. These soils
could then be consolidated and placed into a
protective and cost-effective single-capped unit,
thereby controlling further releases to
groundwater. In other situations site remediations
will require excavation of large quantities of
relatively low-level contaminated surficial soils. In
these cases a protective and cost-effective remedy
might be to excavate the soils and consolidate
them into a single area or engineered unit within
the area of contamination. For both of these
examples, application of LDRs and possibly MTR
requirements would result in a more costly and
complex remedy, that may delay remediation and
result in little additional environmental protection
for the site.
As proposed in the Subpart S rule, there
may be certain types of situations in which
application of the CAMU concept (55 FR 30842)
would be inappropriate. In addition, several
-------
factors (55 FR 30883) may be considered by
decision-makers in determining how CAMUs
would actually be designated at sites. Although
owner/operators may propose a specific area as a
CAMU, it is the responsibility of EPA or the
authorized State to determine whether a CAMU is
necessary and appropriate, and, if so, to determine
the boundaries of the unit.
The Subpart S regulations have not yet
been finalized. However, although the CAMU
concept has been presented only in proposed
regulations, existing regulatory authority may be
used to implement this type of approach in site
remediations and stabilization actions. The
Agency's experience with the RCRA and CERCLA
remedial programs indicates that the CAMU
concept could be applied immediately to great
advantage at a significant number of RCRA
cleanup sites. This guidance is presented to clarify
the use of the CAMU concept prior to final
regulations.
USE OF LANDFILL DESIGNATION
REMEDIAL PURPOSES
FOR
Specifically, certain contaminated areas at
sites that require remediation, including groups of
units in such areas, may be designated as a
"landfill" under the current RCRA landfill
definition (40 CFR § 260.10). Designating such an
area of a facility as a landfill within the existing
regulatory framework can achieve remedial benefits
similar to those that would be obtained by using
CAMUs under the Subpart S proposal. Prior to
the promulgation of final CAMU rules, EPA
encourages the use of this approach at
contaminated sites, where it can promote effective
and expeditious remedial solutions. EPA
recommends that decisions on designating certain
contaminated areas or groups of units as a landfill
be made in accordance with applicable regulations
and generally in accordance with the CAMU
provisions in the Subpart S proposal
Owner/operators proposing to address
certain areas at a facility as a single landfill for
remedial purposes should request approval from
EPA or the authorized State agency. The
Regional Administrator or the authorized State
Director will be the ultimate decision-maker as to
whether such a landfill unit will help achieve the
remedial objectives at the facility. EPA
recommends decisions to use existing authorities,
waivers, or variances to achieve many of the same
objectives as the proposed Subpart S rule CAMU
provisions should generally follow the proposed
regulatory provisions (55 FR 30883) and preamble
discussion (55 FR 30842) in defining the
boundaries of the remedial unit. The Region or
authorized State may also look to Superfund
guidance in the designation of AOCs (55 FR 8758-
8760).
Designating an area of contamination as a
"landfill" will require that the unit comply with
certain RCRA requirements that are applicable to
landfills. The specific requirements that apply will
differ, depending on whether the landfill is
considered to be: (1) an existing non-regulated
landfill, or (2) a regulated hazardous waste landfill.
This distinction is determined by the regulatory.
status of the units or areas that are included as
pan of the landfill. The following discussion
explains further the requirements associated with
these two types of landfills.
Existing Non-Regulated Landfills
Figure 1 shows an area of contamination
at a facility that includes several land-based solid
waste management units (SWMUs) that are not
regulated as hazardous waste units under RCRA
(e.g., because all of the disposal occurred before
the RCRA hazardous waste regulations went into
effect). By designating this area as a single landfill,
EPA can approve movement and consolidation of
hazardous wastes and soils contaminated with
hazardous waste within the unit boundary, without
triggering the LDRs or MTRs. For example,
contaminated soils in and around SWMUs 1 and 2
could be consolidated into SWMU 3 and capped
without triggering LDR requirements.
This landfill would not be subject to the
RCRA Part 264 or Part 265 design and operating
requirements for hazardous waste landfills. This is
because the landfill would not have received
hazardous waste after November 19, 1980. (See 40
CFR § 270. l(c)). In the absence of specific Pan
264 or 265 requirements for such units,
appropriate ground water monitoring and closure
requirements for the landfill can be determined by
EPA or the State as part of the corrective action
remedial decision-making process. These
requirements would be based on an assessment of
site specific factors, such as waste characteristics,
site hydrogeology, exposure potential, and other
factors. This allows the regulator further flexibility
in designing remedial solutions which are effective
and protective based on actual site conditions.
These non-regulated landfills would
remain exempt from regulation under Parts 264
and 265, under the following circumstances:
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FIGURE 1
EXISTING NON-REGULATED LANDFILL
Contaminated Soil
Facility Boundary
Uncontaminated Soil
The landfill cannot receive hazardous
waste from other units, either on-site or
off-site. The landfill could, however,
receive non-hazardous wastes as part of
the cleanup actions. If it were to receive
hazardous waste, the landfill would
become a regulated unit (40 CFR §
270. l(c)) subject to the requirements of
Subparts F (40 CFR § 264.90) and G (40
CFR § 264.110). The facility permit
would have to be modified accordingly
(for interim status facilities, a change
would have to be approved under 40 CFR
§ 270.72), and the wastes would have to be
treated to comply with applicable LDR
standards prior to placement in the
landfill
If hazardous waste treatment (including
in-situ treatment) takes place within the
landfill, the owner/operator must comply
with all Pan 264 or 265 requirements
applicable to the treatment unit, and must
modify the permit or Part A to include
the new treatment unit
Similarly, residuals from treatment of
hazardous wastes that have been removed
from the landfill and treated in a non-
land-based unit cannot be redeposited into
the landfill unless the residuals meet the
LDRs. If the residuals were still
hazardous by characteristic or still
contained hazardous wastes, disposal of
the residuals into the landfill would
require the landfill to be designated a
"regulated unit,' as the unit would have
received hazardous waste after July 26,
1982.
• Hazardous wastes transferred from the
non-regulated landfill to another land-
based unit would also have to meet LDR
standards.
Regulated Landfills
Figure 2 shows an area of contamination
that could be designated as a landfill, which
contains two regulated units (as defined in 40 CFR
§ 264.90). As with the previous example in Figure
1, designating this area as a landfill would allow
wastes to be moved and consolidated within the
area without triggering the LDRs. However,
because this landfill contains regulated units, the
entire area must be considered a regulated unit.
Accordingly, the following requirements would
apply:
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FIGURE 2
REGULATED LANDFILL
urface Impoundments
Contaminated Soil
Facility Boundary
Uncontaminated Soil
• The unit boundaries of the original
regulated units that were specified on the
Pan A or Part B application would have
to be redesignated to encompass the
entire new landfill unit, according to the
applicable procedures in 40 CFR §§
270.72, 270.41 or 270.42.
• The landfill would have to comply with
applicable Pan 264 or 265 requirements
for landfills, including the Subpan F
ground water monitoring requirements
and Subpan G closure and post-closure
requirements. Subpan F requirements
would generally involve installation of
additional ground water monitoring wells.
Compliance with Subpan G would likely
also require modifications to the closure
and post-closure plans for the unit
MTRs would not necessarily apply to these
newly designated regulated landfills. If the original
regulated unit located within the landfill was not
subject to the MTRs (i.e., the landfill was not new
or expanding after 1984), the landfill could be
considered by the Agency or authorized State to be
a redesignation of that existing unit, rather than a
lateral expansion. As such, the landfill would not
be subject to the MTRs. However, if the regulated
unit encompassed by the landfill was originally
subject to MTRs, the entire area of the landfill
would be subject to MTRs.
SUMMARY
Existing regulatory standards (e.g.,
replacement of treatment residuals into the CAMU
triggers the LDRs) cannot be waived to implement
the CAMU concept prior to a final CAMU
rulemaking. EPA is considering removing some of
these limitations in the final rule. Nonetheless,
despite these current limitations, there may be a
number of situations where the use of landfills can
yield substantial benefits in remediating sites.
EPA recommends that the guidance provided in
this fact sheet be used in evaluating the use of
landfills to implement timely and protective
corrective actions at RCRA facilities.
FOR FURTHER INFORMATION
Inquiries concerning the guidance
contained in this fact sheet should be directed to
Dave Fagan (202) 260-4497, or Anne Price (202)
260-6725.
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9502.1993(01)
1 '- ^ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAY 11933
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
Doug MacMillan
Institute of Chemical Waste Management
1730 Rhode Island Ave., NW
Suite 1000
Washington, DC 20036
Dear Mr. MacMillan:
I am writing in response to your letter of January 28, 1993,
in which you expressed several concerns regarding the potential
effect that the newly promulgated regulations for corrective
action management units (CAMUs) may have on the management of
"as-generated" hazardous wastes.
As I understand from your letter, and from subsequent
discussions with my staff, your primary concern is that as-
generated containerized hazardous wastes being stored at a
facility could be considered remediation wastes, and therefore
could be managed at an area of a facility that has been
designated as a CAMU, with the effect that those wastes would no
longer be subject to the RCRA land disposal requirements, or to
minimum technology requirements.
Let me assure you unequivocally that it was not the Agency's
intent in promulgating this regulation to allow or to encourage
such waste management practices; furthermore, the regulations as
finalized prohibit such practices. As stated in the regulations,
and as explained in the preamble, CAMUs may only be used for the
management of remediation wastes (40 CFR $260.10; 58 FR 8663-4),
and only for the purpose of implementing remedial actions (e.g.,
corrective actions under RCRA 3004(u) or 3008(h) authorities).
The concept of remediation wastes is somewhat new to RCRA, and I
agree that it is important to have a clear understanding of what
these wastes are, and the limitations on the use of the CAMU
concept in regard to management of "as-generated" hazardous
wastes.
As-generated hazardous wastes, whether containerized or non-
containerized, are subject to the full set of Subtitle C
requirements applicable to treatment, storage and disposal of
hazardous wastes. These regulations are designed with the
primary goal of preventing such wastes from creating environ-
mental contamination problems that require remediation. Thus, so
long as as-generated hazardous wastes are managed in accordance
with applicable RCRA standards and regulations, there should be
-------
no need to "remediate" those wastes.
In contrast, remediation wastes as defined in the CAMU rule
include only wastes that are generated and managed for the
purpose of implementing corrective actions at facilities. It is
this purpose—cleanup of environmental problems resulting from
historic waste mismanagement practices—that is fundamental to
the concept of remediation wastes. In the preamble to the CAMU
rule we articulated the inherent differences between cleanup
(i.e., corrective action) and management of as-generated, or
"new" wastes. The Agency's rationale for promulgating the CAMU
rule is tied directly to our conclusion that cleanup is a
fundamentally different activity than management of as-generated
wastes, and that RCRA requirements for management of cleanup
wastes can and should differ from those for as-generated wastes.
As stated in the preamble of the final CAMU rule (58 FR
8664), "Today's definition of remediation waste excludes 'new' or
as-generated wastes (either hazardous or non-hazardous) that are
generated from ongoing industrial operations at a facility."
Further, the regulatory definition of remediation waste in the
final rule is limited to wastes "...that are managed for the
purpose of implementing corrective action requirements under
S264.101 and RCRA section 3008(h)." (40 CFR §260.10) In crafting
the definition of remediation waste in this way (particularly
when the definition is read together with the preamble
discussion), we believe that it is clear that CAMUs are not to be
used for management of as-generated wastes. However, we
understand your concern that if read alone, the definition might
mislead some readers or allow some room for abuse. We are
currently developing guidance for EPA and State decision makers
on implementation of the CAMU rule. Among other things, the
guidance will emphasize that containerized as-generated wastes
that are stored at RCRA facilities cannot be managed in CAMUs.
In addition, we are. willing to consider adding a clarification-to
the regulation that would specifically exclude management of as-
generated wastes in CAMUs, as well as in temporary units. I
would welcome further discussions with you and your organization
on this matter.
In your letter you suggested that owner/operators might have
incentives to stockpile containerized as-generated wastes, for
subsequent treatment and disposal in CAMUs^. As explained above,
such wastes would be as-generated wastes, not eligible for
placement in a CAMU (unless all applicable Subtitle C
requirements, including the land disposal restrictions, were
satisfied). Furthermore, in storage the wastes would be subject
to the applicable "prevention" requirements of Subtitle C, which
should serve to ensure that they are not mismanaged such that
"cleanup" of the wastes would be required. If an owner/operator
were to mismanage such wastes, for example, by dumping the wastes
with the intent that the wastes would then become remediation
wastes, such activities would clearly be illegal, and subject to
the substantial civil and/or criminal penalties under RCRA, as
-------
well as possible liabilities under CERCLA. In addition, such
purposeful dumping of wastes would likely result in contamination
of large volumes of soils or other media, and the costs of the
required cleanup could be many times the costs of complying with
the Subtitle C prevention standards. Thus, we do not believe
that the CAMU concept realistically creates an incentive for
mismanagement of as-generated wastes.
As an additional safeguard, it should be emphasized that
CAMUs may only be designated by EPA or an authorized State; an
owner/operator could not himself simply designate an area of a
facility as a CAMU, as a means of changing the requirements that
would apply to those wastes.
In your letter you suggested amending the CAMU regulation to
restrict the definition of remediation waste to contaminated
media resulting from corrective action at a facility. I would
like to clarify that in the CAMU rule the Agency did not intend
to distinguish between contaminated media and other cleanup
wastes. By restricting the definition to contaminated media,
certain other cleanup wastes could not be managed in CAMUs, such
as sludges disposed of before 1980. As explained in the preamble
to the rule, the CAMU concept is a response to the inherent
differences in the objectives and incentives of remediation of
"old" wastes, as distinguished from management of "new" wastes.
Since remediation of facilities will often involve management of
sludges and other pre-RCRA wastes that would not be considered
contaminated media, we do not believe that it would be
appropriate to amend the CAMU regulations to apply only to
contaminated media.
As you know, many of the issues addressed in the CAMU rule
are now being discussed in the context of the HWIR Forum, in
which you have been actively involved. As we have discussed in
the Forum, a major component of the HWIR discussions focuses on
contaminated media; this important dialogue is thus an
opportunity to reevaluate many of the issues associated with
remediation, as well as requirements for as-generated hazardous
wastes. It is possible that the HWIR dialogue will result in
substantial revisions to the existing RCRA regulations that
address management of remediation wastes, including the CAMU
regulations. If so, the Agency is committed to reviewing the
need for changes to those regulations. I p.ook forward to the
continued participation of ICWMA in these discussions.
I hope this has been responsive to the concerns raised in
your letter. If you have any further questions, please do not
hesitate to contact me or Dave Fagan ((703) 308-8620).
./tA,—'
Sylvia'K. Lowrance
Director, Office of Solid Waste
-------
.ito sr4>
-------
the National Registry of Environmental Professionals. However,
the definitions do state that a person conducting a particular
activity must have the appropriate training and experience.
Further, under 40 CFR 271.1(i)(l), States are allowed to adopt or
enforce provisions which are more stringent or broader in scope
than the federal RCRA provisions.
I hope that this information has been helpful. If you
have further questions, please call Wayne Roepe of my staff at
(703) 308-8630.
Sincerely yours,
Oichael Shapiro, Director
ffice of Solid Waste
Enclosure
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
FEB IT :S90 9502.1995(01)
OFFICE OF
SOUO WASTE AND EMERGENCY
RESPONSE
MEMORANDUM
SUBJECT: CAMU at U.S.S. Lead Facility
FROM: Devereaux Barnes,
Permits and State Programs Division, OSW
TO: Norm Jiliedergang, Director
Office of RCRA, '. Region V
Recently we have had several discussions with your staff
regarding the approval of a corrective action management unit
(CAMU) at the U.S.S. Lead Refinery facility in East Chicago,
Indiana. In those discussions we were asked to provide the
Agency's position on the specific question of whether a §3008 (h)
enforcement order is an appropriate mechanism for approving a
CAMU at this facility. As you know, interim status for this
facility was terminated under the provisions of RCRA §3005 (e) .
It is the Agency's position that §3008 (h) orders are an
appropriate mechanism for approval of CAMUs at facilities that
have lost interim status pursuant to §3005 (e). Other types of
hazardous waste management units (e.g., tanks, piles) that may be
needed to implement remedial actions at facilities like U.S.S.
Lead may also be approved under §3008 (h) orders. This
interpretation of the scope of §3008 (h) authority is supported by
the broad language of §3008 (h) (providing for "corrective action
or such other response measure as. . .necessary to protect human
health or the environment") . The legislative history supports
this interpretation in that the conference report indicates that
the intent was to allow EPA to address ongoing problems without a
permit. In addition, EPA's longstanding interpretation is that
§3008 (h) applies to LOIS facilities as well as facilities that
are currently operating under interim status, and the CAMU rule
itself imposes no limits on this interpretation. See memo from
J. Winston Porter, "Intepretation of Section 3008 (h) of the Solid
Waste Disposal Act" (Dec. 16, 1985).
We believe that this is a reasonable reading of the statute.
Based on this interpretation, RCRA permits are not necessary for
such units as long as they are part of the selected remedy (or
interim measure) , and they are specifically authorized under the
§3008 (h) order. Furthermore, we believe that from a policy
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-------
perspective, permits would generally be inappropriate in these
circumstances, since they would likely have the effect of
delaying cleanup and adding to procedural costs without
increasing environmental protection. As explained in the
preamble to the CAMU rule (58 PR 8676, February 16, 1993) , public
participation procedures similar to those for Class III permit
modifications should be followed in approving CAMUs under
§3008(h) corrective action orders.
If you or your staff have more specific questions about the
use of orders to approve CAMUs and other types of units, you may
wish to contact Barbara Pace in the Office of General Counsel, at
(202) 26*0-7713, or Dave Pagan of my staff at (703) 308-8620.
Please let us know if we can be of any further assistance.
cc: Joe Boyle
Kevin Pierard
Barbara Pace
Larry Starfield
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HOTLINE QUESTIONS AND ANSWERS
February 1995
9502.1995(02!
RCRA
2. Corrective Action Authorities -.
.' "' • '
RCRA §3004(u) requires corrective action
for all releases of hazardous.waste or .. .'
hazardous constituents from soM waste.
management units (SWMUs) at permitted
hazardous waste treatment, storage, and
disposal facilities (TSDFs). Is RCRA
corrective-aaion limited to releases from
SWMUs? : '"' ••'.;•"• ;• : -.
"- ' • * " r
Any release of solid or hazardous waste
which poses a threat to health or the
environment is potentially subject to RCRA
remedial authority. To this end, RCRA
provides EPA with several distinct authorities
to require connective action for contamination
stemming from sources other than SWMUs.
A SWMU is a discernible unit in which solid
wastes have been placed at any time,
irrespective of whether me unit was intended
for me management of solid or hazardous
wastes. This definition includes any area at a
facility, at which solid wastes have been
routinely and systematically released. RCRA '
§3004{u), which is specifically liTrrirrd to
releases from SWMUs, is the primary .
authority reqtming conective.actioa at
permitted TSDFi Section 3004(u) requires a
facility owner or operator to address releases
from SWMUs whenever seeking a RCRA
permit.
•• Many potential rdeases at permitted .
TSDFs do opt originate from SWMUs, -
however, and are not subject to (3004 cleanup
requirements. For example, a one-time spill
of hazardous waste froou vehicle traveling
acrossa facility is not m release from a
SWMU. For such releases not originating
from SWMUs at permitted TSDFs, and for
releases at TSDFs with permits that pro-date
HSWA and which therefore dp not contain*
§3004(u) provisions, EPA may choose to use
its omnibus permitting authority pursuant to
RCRA §3005(cX3) to modify the facility's
•permit as necessary to require corrective
action for any potential threat to human health
or the environment Additionally, RCRA .
§3004(v), which is not limited to releases
from SWMUs, requires TSDFs to cleanup
contamination beyond the facility boundary of
a permitted TSDF. *
RCRA also provides EPA with the author-
ity to issue admkustrative corrective action
orders or bring suit in a United States District
Court against TSDFs operating under interim
statris. The interim status TSDF corrective
action order authority, provided by RCRA
§3008(10, is not limited to releases from
SWMUs or any other type of .unit EPA can
invoke §3008(h) to address any release of
hazardous waste from an interim status facil-
ity. Section 3008(h) gives EPA authority to
issue corrective action orders or bring suit for
both on-site releases at interim status facilities
and releases which have migrated beyond an ;
interim status facility boundary.
-------
Finally, RCRA §7003 gives EPA broad
authority to abate hazards caused by releases
of solid or hazardous waste from any source,
including SWMUs. Specifically, §7003
provides EPA .with the authority to seek
ihjuncdve relief in the appropriate United
States District Court, or, after notice, to the
affected state, issue administrative corrective
'action orders for releases from any she where
the handling, storage, treatment, transportation
or disposal of solid of hazardous waste may
pose an imminent and substantial endanger-
ment to health or the'environment Use of
§7003 is hot limited to any particular type of
facility or waste unit' .
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OCT 181995 9502.1995(03)
OFFICE OF
SOLD WASTE AND EMERGENCY
RESPONSE
ML Mullins, Vice President
Regulatory Affairs
Chemical Manufacturing Association (CMA)
2501 M St, NW
Washington, DC 20037
Dear Mr. Mullins:
This letter is in response to your letter of August 22, 1995 in which you expressed
CMA's concern regarding the Agency's plans to "disallow continued use of the corrective
action management unit (CAMU) provision" that was promulgated on February 16, 1993
(55 FR 8658).
As I believe you know, the CAMU rule was the Agency's initial attempt at
resolving many of the problems that have been encountered by EPA State remediation
programs in applying the prevention-oriented Subtitle C regulations to the management
of remedial wastes. The Agency continues to support the need for flexibility in this area;
however, some parties have argued that the CAMU rule allows regulators too much
discretion in determining appropriate, site-specific management requirements for
remediation wastes. In recognition of this view,, the Agency agreed to evaluate whether
the CAMU regulations should be modified or replaced with a different regulatory
approach. As an outcome of this process, the Agency agreed the CAMU regulation
should be replaced with the Hazardous Waste Identification Rule for Contaminated
Media (HWIR-Media). The Agency is currently planning to propose the HWIR-media
rule in December of this year and issue final regulations in March 1997.
The Agency believes that much of the site-specific flexibility provided in the
CAMU will be preserved based on the current version of the draft HWIR-media
regulation, especially for less-contaminated media. Furthermore, the Agency intends to
include a provision in the proposed HWIR-media rule that would in effect "grandfather"
CAMUs that were approved before the HWIR-media rule is issued final However, no
new CAMUs could be approved after the that date. The Agency believes that this
"grandfathering" provision, if finalized, would will result in minimal disruptions to
cleanups involving CAMUs that are planned ^or underway. It should be noted, however,
that the Agency plans to ask for coment in life proposal as to whether grandfatHe ing" .
of CAMUs is appropriate, and, in particular, whether the Agency should set a date upon
which approval of "grandfathered" CAMUs would expire.
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"','
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In the interim, our recommendation to both the regulators and the regulated
community is to use a CAMU if it truly provides the best alternative for a site (and the
AOC concept, which is a concept independent of the CAMU rule, cannot be used). Of
course, the most conservative course of action would be to use a CAMU only if it can be
completed prior to publication of the final HWIR-msdia rule.
I hope that this letter helps to clarify the basis for our current plans. If you have
any questions regarding the HWIR-media rule and its impact on the CAMU rule, please
call Carolyn Hosltincon at 703/308-8626. Questions regarding the AOC concept should
be directed either to Hugh Davis at 703/308-8633 or Elizabeth McManus at 703/308-
8657. ,
Sincerely,
Shapiro, Director
f Solid Waste
-------
or
CHEMICAL MANUFACTURERS ASSOCIATION
_
Vcafntidart-tegutBtixyAMiri . AugUSt 22,1995
Mr. Michael H. Shapiro, Director
Office of Solid Waste (5301)
US. Environmental Protection Agency
401M Street S.W. -
Washington, D.C 20460
* • •"*-,"
Re: Collective Action Management Unto
Dear Mr.
- Trie Chemical Manufacturers Association (CMA) is concerned by reports that
EPA, in the context of die upcoming HWTR cor>|am*"atad mcdi? py^poffalj plane to .
disallow continued use of the coirective action management unit (CAMU) provision. -
that was promulgated on February 16,1993 (58 FR 8658). ••?••"
- EPA has recognised that "remediation of existing contamination problems is
inherently different from the management of i^-ger^rated industrial waste* (58 FR
8660) and that "the existing regulatory structure ofRCRA Subtitle C when applied to
management of hazardous waste for remedial purposes, can often seriously hamper the
ability of decision makers to >elect and implement yffrcHve/ protective, and cost
effective remedies" (58 FR 8659). The Agency promulgated the CAMlf provision to:
provide remedial decision makers with an added measure of flexibility in order to ^
Many CMA member companies have found
the CAMU provision to be highly successful in that regard. It has afforded valuable
and m^irh iwHpH fh>vfl>i]|tfy ^nd fr** «Jgnlf?efln0y ^XP^dftP^ t*rnfl^ia*frm efforts by
removing many of the impediments that existed under Subtitle C. . .
" * .**'••'• •" .
In her statement before the US. House of Representatives Committee on Science
on January 6,1995, Administrator Browner said: •.•••'•
•AD of us are committed to protecting public health and our air, land, x
and water. At EPA we warn to implement these corju^
most cost effective way possible. But to do this, we must move beyond a
"one size fits alT regulatory approach towards a more common sense
approach - an approach mat uses flexibility, creativity, and innovation in
reaching these goals." • >
CMA believes that the CAMU provision is an excellent example of focused
regulation that provides considerable flexibility, fosters creativity • and enables
expedited dean-ut> of contaminated hazardous wante (rite* in « mm*
-------
August 22,
. , .... . , ... .. .
manner. To disallow this sensible and valuable provision would be totally inconsistent
with the many CA-going EPA regulator^
achieving meaningful regulatory reform, it mast stand behind the good progress it has
-made with the CAMU provision aiuicontiriueio work tolden^^ ::~'-' '* '**'C\
opportunities, to better 'focus regulations b «
flexible cost effective manner. To disallow me CAMU precision would be a giant step
backward. .-• • ' . • . .: • ' ; •" '• ' -. :_ :. •' .
CMA recognizes mat some parties have challenged the legal and policy basis of
'the CAMU and temporary unit (TU) rules. CMA urges .the Agency^ tp vigorously ..;
OOTipanies have invjEiste^ effort in^^oratingCAMUs into their
^^iBtfiy have been approved and ar£pxeseii^ others/1 ,
are neafing'Sna approval EPA has provided^" )ustificitito
•prbtecfiye pradices that haVe been initiated uruier,theCA^^ •; ' '^':
minimum, EPA must gxandfath^e^ds^ G^MUs to protect ttie ^mvestm^j^ %;;./;
facilities have ifiadp in j)lannin£, obtaining appfnV'j> Viarid fanplpinf ^n^ i>tf tpnyfrdfal ^-'^ "- k.
information, please contact
Sincerely,
^.smM^.^-i^-r-.v.::. ,".••-.•••v;;.
"•XA -^>S^:-^-:;^--V;- <-
vO Vvcr^-^Vv • 7/fo -: :
, Vke President - Regulatory Affairs
,cc .MatthewHale,JrvDirector
Perm its and State Programs Division'
Office of Solid Waste .
Robirt Han Chief -
Corrective Action Programs Branch,
Office of Solid Waste'
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run
HOTLINE QUESTIONS AND ANSWERS
January 1996
9502.1996(01)
4. Corrective Action Beyond Interim
Status Facility Boundary .
'. RCRA §3004(v) requires owners/operators
of. permitted hazardous waste treatment, .
• storage, and disposal facilities (TSDFs) to
perform corrective action for any .
contamination that has migrated beyond the
facility boundary. What authorities can EPA
use to order Corrective action for releases
which have migrated beyond the boundary of .
an interim status facility? .
EPA can invoke §30Q8(h) or §7003
authority to address releases that have migrated
beyond an interim status facility boundary.
Pursuant to §3008(h), EPA can order
corrective action or bring suit for the "release
of hazardous waste into the environment" from
a facility that is interim status, should have had
interim status, or formerly had interim status.
This includes authority for releases which have
migrated beyond the facility boundary.
Although §3008(h) does.not explicitly state
that EPA can order corrective action .beyond an
interim status facility boundary, EPA interprets
the §3008(h) statutory authority to be at least
as broad as the permitted facility corrective
action authorities in §§3004(u) and (v) (50 FR
28716; July 15,1985). Thus, because
§3004(v) explicitly provides authority for
corrective action beyond a permitted facility
boundary, §3008(h) provides parallel authority
for releases beyond an interim status boundary.
. Section 7003 gives EPA the power to order
corrective action or bring1 suit to abate
imminent and substantial enddngerment caused
by the past or present handling, storage,
treatment, transport, or disposal of any solid or
hazardous waste. This broad and powerful
authority is not limited to any particular kind
of RCRA site. Section 7003 is, therefore, also
potentially applicable to contamination which
has migrated beyond the boundary-of an
interim status facility.
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,<
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advance approval at the Federal level. When the AOC concept is
applied outside the context of an overseen cleanup action, EPA
encourages consultation with the appropriate agency and routinely
'cautions individuals that mis-application of the AOC concept
could, potentially, result in substantial fines and penalties
associated with improper disposal of hazardous waste. EPA also
routinely cautions individuals that state standards may be more
stringent and may require oversight or advance approval of all
AOCs.
In your letter, you mention the specific concern that
individuals could store soils contaminated with hazardous wastes
in temporary piles anywhere within an overall area of
contamination while installing pipelines qr^foundation footings
and then replace the soil, "all with no RCRA-regulatory
requirements or governmental oversight." wV.note tljat, while
movement of soil contaminated with hazardous»,waste within an area
of contamination would not typically trigger RCRA, the AOC
concept in no way shields individuals from otherwise applicable
cleanup requirements. For example, in many states discovery of
contaminated soils triggers reporting requirements under the
state cleanup program. In these cases, .if a state determined
that cleanup was warranted it could require management or removal
of contaminated soils, independent of RCRA. We believe that,
addressing potential cleanup needs for contaminated soils
discovered during normal earthmoving and grading activities using
cleanup laws is more appropriate than imposing the RCRA
permitting process on these activities.
Thank you for your concern regarding the AOC concept. EPA
continues to believe that proper application of this concept will
support appropriate remedies and expedite cleanup processes, not
encourage avoidance of legitimate cleanup obligations. For
additional information, your staff may wish to contact Elizabeth
McManus or Hugh Davis, of my staff, at (703) 308-8657 and (703)
308-8633, respectively.
Sincerely yours,
Michaal Shapiro, Director
Offiofe of Solid Waste-
Enclosure
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Micnaei 0. Zaqaia
Commissioner
New York State Department of Environmental Conservation
Division of Solid & Hazardous Materials
0 Woif Road. Albany. New York 12233 - 7250
ivision of Solid & Hazardous Materials
(518) 457-6934 FAX (518) 457-0629
FEB 1.41996
Mr. Michael Shapiro
- Office of Solid Waste MC5301
U.S...Environmental Protection Agency
401 M St., S.W. -
Washington, D.C. 20460
Dear Mr. Shapiro:
We need your clarification of an important issue regarding
the CERCLA Area of Contamination (AOC) concept and its
applicability to routine excavations where soils containing
hazardous waste or exhibiting a hazardous waste characteristic
may be encountered.
These routine excavations can occur at construction sites or
pipeline trenches where soils are temporarily removed and
subsequently redeposited in the same excavated area.
Our specific concern is whether a June 11, 1992 guidance
letter from Ms. Sylvia K. Lowrance, Director, Office of Solid
Waste (EPA), to Mr. Douglas H. Green (see Enclosure No.l)
properly extended the AOC concept to excavations at non-CERCLA
sites or other sites without any federal or authorized state
oversight. This June 11, 1992 letter is being taken at "face
value" as allowing contractors to routinely excavate what may be
regulated hazardous waste soil, store it in temporary piles
anywhere in the overall area of contamination while installing
pipelines or foundation footings, and then replace the soil, all
with no RCRA regulatory requirements or governmental oversight.
We question if this June 11, 1992 letter was meant to have
broadly sanctioned such activities. We need your guidance in
this matter.
The AOC concept, as described in such documents as the EPA
memorandum of April 17, 1989 signed by Jonathan Z. Cannon (see
Enclosure No. 2) and EPA Superfund LDR Guide #5, "Determining
When Land Disposal Requirements (LDRs) Are Applicable to CERCLA
Response Actions" (see Enclosure No. 3), is used only in CERCLA
contexts.
i
EPA's letter of January 7, 1991 signed by Don R. Clay,
Assistant Administrator (see Enclosure No. 4), extended the AOC
concept to RCRA Corrective Action sites, but cautioned that
"designation of an AOC is a function performed by the regulatory
agency."
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Mr. Michael Shapiro
2.
The EPA June 11, 1992 letter, however, extended the AOC
concept to essentially any temporary excavation activities
anywhere.
We hereby request that your office reexamine the reasoning
behind this EPA June 11, 1992 letter (see Enclosure No. 1) and
determine whether it properly broadened the AOC concept to
sanction such activities, even at ordinary construction sites.
Thank you for helping us with this important matter.
call me if you have any questions.
Sincerely,
Please
'Norman H. Nosenchuck, P.E.
Director
Division of Solid & Hazardous Materials
Enclosures
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$ ^% ro UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
* WASHINGTON. D.C. 20460
' „. . 9502.1996(03)
•APR 24.1996. ;
OFFICE OF
SOLID WASTE AND EMERGENCY
RESPONSE
.The Honorable Michael J. Collins
Maryland General Assembly .
Senate of Maryland
216 James Building
Annapolis, Maryland 21401-1991
Dear Senator Collins: ; ••-•_-
Thank you for your letter of March 1, 1996 to Administrator
Browner urging the Environmental Protection-Agency (EPA) to look
into the performance and safe applicability of cold-mix
technologies and bioremediation for petroleum-contaminated sites.
As indicated in my earlier response to you on March 25, '
1996, we have been gathering the latest information on these
technologies fromrour research laboratory in Cincinnati, Ohio to
provide-.you^ with some valid information.
To respond to your specific concerns, we'll be addressing
the issues pertaining to cold-mixing ^technologies and
bioremediation separately in the following paragraphs.
Cold-mixing Technologies: All asphalt-based or cement-based -
mixtures are generally covered under Solidification/Stabilization
(S/S) technologies by EPA. .The term" cold-mix for Portland cement
mixtures may.not.be scientifically appropriate-because 'of: the
fact that a mixture .of Portland cement and -water causes aft ' -
exothermic reaction7~thereby generating some heat.
Appropriateness of. S/S for organics is addressed
specifically Tn the attached report (Attachment 1)f
"Solidification/Stabilization: Is it always appropriate?" by
Carlt.on Wiles et al. from the EPA research laboratory in
Cincinnati,*. OH. It is clearly stated in this report that the
opportunities to capture and contain organic materials in a
cement-based solidification -process-are limited"- (p." 4). Also,
referring to the EPA document cited in your -letter, EPA/530/R-
93/012, it states that all other factors being approximately. '
equal, destruction or extraction technologies^are preferred to
S/S because they eliminate "or remove the contaminant as opposed
to just immobilizing it (p. 2-59). It also states that S/S -
treatment is frequently appropriate for the residuals remaining
after the use of one of these other technologies, or for soils
Recycled/Recyclable
Printed with Soy/C«nota Ink on paper mat
contains «t lent 50% recycled fiber
-------
after the use of one of these other technologies, or for soils
and sludges containing low concentrations of organics (p. 4-48).
In general, generic binders such as Portland cement do a poor job
of immobilizing organics, with the exception of highly polar
compounds in low to moderate concentrations (p. 2-59). While
this is true,.Portland cement is rarely used by itself as a
binder to S/S organic waste. Additives such as carbon or
modified clays are usually added to the S/S formula. However,
the long term effectiveness of these additives has not been
established. '
About leaching possibilities of contaminants once treated by
~ S/S-.,. technologies, results of leach tests for a few .organics. are
shown-on -Figure 2, at the back of Attachment 1. Very limited data
exist on •leachin'g possibilities of the S/S treated matrix^. Leach
tests 'Shown on Figure 2 were conducted^OBgrcement: containing
charcoal' with adsorbed phenol, ^chlpjcqpheiivaiLy arid---2-r3-- ' • "-
dichlorophenol. There is-"always : a possibility "that contaminants
can leach £fom any medium; if they-are present.. This is
especially true for non-aqueous phases mixed with non-compatible
material-.; For these reasons, treatability tests incorporating
leaching"evaluation and.physical durability^are recommended.
As indicated in EPA's Best Demonstrated Available Technology
(BDAT) background document for hazardous soils, August 1993, (p.
4-95) organic hazardous constituents have not been shown to be
stabilized using cementitous and pozzolanic stabilization' agents
because organic hazardous constituents generally do not react to
form insoluble silicates or hydroxides. Thus, the Resource
Conservation and Recovery Act (RCRA) program would not consider
S/S technologies as a BDAT for treatment of commonly encountered
petroleum wastes.. However, EPA generally established performance
•standards for hazardous constituents achieved by the-BgAT.^ Any
technology" (except dilution) that meets those performance"' "T
standards is permissible under our rules.
- The role of volatilization during S/S is addressed in the
attached.paper (Attachment 2) by Terrence M. Lyons et al. of
. EPA's research laboratory in Cincinnati, This paper .presents .
tedults of .a. bench-scale .treatability stiidy^esignec^terquant
rtjhe release:,of • volatile organic compounds (VOCs) during ando.after
.ex situ S/S-treatment. Control of air emissions from waste"
management"facilities is addressed in.detail in several EPA
^publications- (EPA/625/R-92/012, Noy 92; EPA/625/R-92/CL03, Aug 92;
-EPA^45],/Rt93-OOti:,.Mar .93; arid EPA-453/R-94-070a, Sep 94). EPA.
has'recognized that volatilization of volatile organics with cold
mixing processes can" occur. At a minimum, control and capture of
these emissions are recommended. •
EPA's Office of Emergency and Remedial Response (OERR or ...
Superfund) has issued draft guidance'on the use of .S/S for ..
organics. The guidance states that S/S is riot appropriate for
•sites containing VOCs only.. This guidance suggests use of a
severe solvent extraction procedure to indicate whether the
-------
organics are bound. Several Superfund sites have had at least a
portion of the remedy involve cold mix processing of organic
waste. Two large sites are provided as examples. The Sand
Spring site in Oklahoma involved S/S of petroleum waste,
containing heavier hydrocarbons, and the Craig Farm site in
Pennsylvania -involved S/S of resorcinol waste. The S/S treated
wastes were placed in lined land disposal units based on the
recommendation of EPA's Office of Research and Development (ORD).
ORD has limited experience in the utilization of S/S-treated
wastes that were not characteristically-hazardous per RCRA after
treatment. This includes studies of using cement products for
light duty construction materials with ash from municipal waste
combustion (primary metals) incorporated, into the cement product.
Generally, there are site,-rspecific limitations on the use of
^treated mixtures depending upon the type of waste treated, soil
type, and probability of waste migration. EPA Region r approved
the stabilization of polychlorinated biphenyls (PC.B) contaminated
soil (<10 mg/kg) into ah asphalt emulsion mix that was to be
covered. . •...-•'
Bioremediation Technologiest Biopiles or ex situ
landfarming treatment technologies, which fall within the
category of bioremediation, are discussed below.
Although Bioremediation (which includes land treatment)-" is"V
-widely accepted for the treatment of petroleum-contaminated . :.
soils, the processes used and the riates of degradation that" can-
be achieved are very different. Although land treatment units
have been extensively used for'treatment of petroleum-
contaminated soils, available data.with .EPA do not indicate
.routine ex situ treatment of petroleum-contaminated ...soils by
biopiles or landfarming to 10 parts per milliohi(|^X_."y There, is
a. declining trend on the use of landfarming technology:-for- ""•-
treatment of-petroleum-contaminated sites. -An., in situ ^treatment
bioremediation technology known as bioventing. is beingj.used
increasingly to treat petroleum-contaminate^ soils. It is an
effective and relatively inexpensive technology which is growing
exponentially in the marketplace. ORD along with the.US Air Force
has been principally involved in its development and .evaluation.
Over the past 3-4 years it has been applied to about 1000 sites.
We anticipate a significant reduction in off-site treatment of
these wastes, given the costs, effectiveness and minimal site
disruption .with, its use." .
Pertaining to the claims referenced in your letter about
reductions in total petroleum hydrocarbons (TPH), EPA is not
aware of a bioremediation'technology that would degrade any.
concentration of petroleum-contaminated soils to 10 ppm in 30
days. Three critical factors in assessing biodegradability are
the soil type, concentration, and type of product being treated.
Without accounting for these factors specifically, it is
difficult -to. make a judgment regarding the actual rate and extent
-------
of degradation. Generally, bioremediation technologies
(bioventing) take about six months to two years for degrading
organic wastes (EPA-510-B-94-003, Oct 94, p. III-3).
Polynuclear aromatic hydrocarbons (PAHs), especially those
that are predominant in crude oils, such as the di-, tri- and
tetracyclic aromatics, are much more difficult to degrade than
aliphatic hydrocarbons, but are degradable to some extent. As the
ring structure becomes more complex, the compound becomes more
persistent. Pyrogenic PAHs, such as benzopyrene, are
significantly more resistant, but fortunately don't exist in high
concentrations in crude-oils. The tetracyclic aromatics and above
will not biodegrade in 30 days even-under optimized laboratory
conditions. ... """."•"":
Volatilization may.be significant depending.upon the age of
the material" and if it is exposedc.Ut-the' ground surface. Aged
material is" less likely to volatilize b.ut-^ependingj.upott'-any
agitation- (tilling, aeration)- and environmental:1 conditions,
fluctuations in volatilization can. occur.- Several EPA documents-,
referred to earlier, address the capture^ and control of organic''
air_emissions'from waste management facilities.
An EPA publication, nBioremediation in the--Field, EPA/540/N1
95/500, No. 12, Aug 1995, is attached (Attachment 3) for further
information. Also, bioremediation in the field search system-.
(BFSS) database is available.on EPA's Cleanup Information (CLU-
IN) bulletin board service (301-589-8366, data line) for
downloading. ' .
I hope this letter. addresses your ^concerns.,- "If your office
staff wishes to discuss any specific.concerns or issues related
to these technologies, please have them contact Subijoy Dutta, of
my staff, at (703) 308-8608.
•Sincerely yours,. .
Enclosure
H-. Shapiro, Direptor
of Solid Waste
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MICHAEL J. COLLINS
8TH LEGISLATIVE DISTRICT
(ORE • HARFORD COUNTIES
. CHAIRMAN
BALTIMORE COUNTY DELEGATION
MEMBER
ECONOMIC AND ENVIRONMENTAL
AFFAIRS COMMUTES
SENATE OF MARYLAND
ANNAPOLIS. MARYLAND 21401-1991
DISTRICT OFFICE
41 O EASTERN BOULEVARD
BALTIMORE. MARYLAND 2I22I-4576O
PMONE: «IO) 39I-78OO
PAX: (4IO) 39I-7BO3
ANNAPOLIS OFFICE
210 JAMES BUILDING
ANNAPOLIS. MARYLAND JI4OI-I99I
PHONE: MIO) 641-3642
March 1, 1996
The Honorable Carol M. Browner, Administrator
United States Environmental Protection Agency
410 M Street, S.W.
Washington, D.C. 20460
Dear Administrator Browner
The Maryland State Senate this year has begun considering legislation designed to limit
the State's liability from actions taken in response to releases of petroleum from above-ground
and underground sources. Before us this Session is proposed legislation that directs the Maryland
Department of the Environment (MDE) to maximize the use of technologies that destroy the
contamination found in soil and groundwater when they respond to petroleum releases. While
Senate Bill 668 (see attached) only pertains to the funds directly under MDE's control, the issue
is critical to generators throughout the State.
Maryland has many different types of petroleum-contaminated soil treatment facilities
operating state-wide. These facilities utilize technologies as varied as bioremediation, cold-mix
soil-cement, cold-mix asphah, brick-kiln incorporation, laridfilling and thermal desorption. While
each technology type has its proponents, of concern is whether the treatment technologies
currently operating in the State can adequately provide the cleanup levels mandated by State
regulation and claimed by the providers of the service.
The MDE has used a standard of 10 parts per million (ppm) Total Petroleum
Hydrocarbons (TPH) as a cut-off level below which treated soil is considered non-contaminated
and eligible for unrestricted use. Under this criteria, large quantities of soil have been treated in
the State, much from out-of-state sources and disproportional to the amount generated within the
state. Several of these technologies are not approved for use in most states, which gives cause for
concern that perhaps Maryland is not aware of the ramifications that can arise from the use of
some of these technologies.
We have been informed that a considerable amount of investigation has been conducted by
the Environmental Protection Agency regarding several of the specific treatment technologies in
:; -i I
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The Honorable Carol M. Browner, Administrator
United States Environmental Protection Agency
March 1, 1996
Page Two
question - bioremediation and cold-mixing. Recognizing that petroleum releases from
underground storage tanks are not considered, at least at this time, a hazardous waste, none-the-
less there apparently has been a great deal of work done by your RCRA office in deciding "Best
Demonstrated Available Technologies (BDAT) for a large variety of wastes that fall under 'land-
ban" restrictions. The studies seem to indicate that organic contaminants are not considered
candidates for treatment by using either asphalt-based cold-mix or Portland cement cold-mix
technologies. Apparently the concern by researchers is similar to the concern of this legislative
body, that is, that organic contaminants will tend to leach even after treatment. Also, I have been
informed that your Superfund office in Cincinnati, Ohio arrived at the same conclusion, and has
developed a guidance document (EPA/S30/R-93/012) which indicates that this practice should be
avoided.
Bioremediation is an accepted means by which many contaminated sites can be remediated
to decreased contaminant levels while leaving the contaminated soil in place. However, in
Maryland there are treatment facilities which claim remediation of any. petroleum-contaminated
soil at their off-she locations in thirty days to levels of 10 ppm or less TPH. While this would be
of tremendous benefit to the State, I've been told by industry experts that this is not a physical or
microbiological possibility. Apparently there are recalcitrant compounds routinely found in
petroleum, such as polynuclear aromatic hydrocarbons and oxygenates which have bioremedial
half-lives that are routinely measured in terms of years. I've also been informed that the means by
which MDE determines whether a treated contaminated soil is "clean" is by use of a teat (8015M,
purge and trap) that only measures the VOCs, therefore not measuring non-VOC hydrocarbons
when testing for acceptability as to unrestricted use.
We are therefore soliciting your response to the following inquiries:
1) Are the use of cold-mix technologies appropriate for hydrocarbon-contaminated
soil? Is there any possibility of the contaminants leaching once treated by these
methods? Are there any instances where RCRA would consider the cold-mixing
of a hydrocarbon contaminated hazardous waste, containing compounds similar to
those found in commonly encountered petroleum, a BDAT? What role does
volatization play in the disappearance of volatile organic compounds during cold-
mixing? Does EPA allow the use of cold-mix technologies to treat hydrocarbon-
contaminated soil at Superfund sites? If so, what conditions are placed on the
post-treatment use of this mixture? Lastly, are these cold-mix treatment mixtures
allowed to be used in an unrestricted manner?
-------
The Honorable Garol M. Browner, Administrator
United States Environmental Protection Agency
March 1,1996
Page Three
2) Is EPA aware of any form of biopiles or ex-shu landfarming that can routinely
treat hydrocarbon-contaminated soils to levels of 10 parts per million of total
petroleum hydrocarbons? Are there any instances where EPA has found that
bioremediatioa can be used to treat any petroleum-contaminated soil to a level of
10 parts per million total petroleum hydrocarbons within 30 days? Are certain
hydrocarbons such as polynuclear aromatic hydrocarbons or oxygenates
recalcitrant to bioremediation? What role does volatilization play in the
bioremediation of volatile organic compounds?
Your Agency's prompt response to these questions will enable us to proceed forward with
our deliberations in this matter. Mr. Steve Verch of my office is available to speak with your staff
member assigned to respond to this request. He can be reached at (301) 858-3642. Thank you
for your efforts in this matter.
Sincerely,
ichaelL Collins
Senator
Maryland General Assembly
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'?
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
' WASHINGTON. D.C. 20460
' •••••:•:•'••
•• • .--.-::•. ..' ' -..•••• . . '
• .'."' • • .. ,
• •'. -.' ..' • '.-'SEP 24 1996 : -. -. •-..•-; .
9502.1996(04)
MEMORANDUM I
SUBJECT:' . Coordination between RCRA Corrective'Action and Closure and CERCLA Site.
. :. . -•-.-•" Activities'..••'.';••/:>''-i'.'••/*'••*'•.';•'''-C^'--''-^'-.'••:•-'•': •'''. :--;,;:" " '•.>-.'.•:'.'>":"'.•
, ••• ..' .:••-.. s-:•*:•..•'•• fa AJff'*-•-• •'••-^—»-. •"••••'. '••:.' '•'.-•' ••:•••--•
FROM:
Steven A. Herman.
Assistant. Administrator ;- ' • • . . ; ••"'-.'.'. ;.••;.• •'
Office of Enforcement and Compliance Assurance
•, . _ • * . • ^*. . • *• ** . n .
..- V Elliott P, Laws ;
'•'••'- -Assistant Administrat
'.'Office of Solid Wasi
Response •'.:'/.'/.\-:1'-.'. ; '•'"; -.•_..- '•..•.'.'-
TO; :'\ {'•: ;-XRCRAyCERCLA National Policy Managers- .; • ; - : : ."-'•'. -: /';'" .
• -.'. .-. •..^;-; Regions I-XT.l- •;•'-.: .'•'•''•' '.• . • '/ ' .. '•.•'"•./' /l •;''••'•-.•; : .':.,:
. - _. .•.:...--.,;.,.. ° . .,•;•••.-;..=:• • . . _....••--...• •;.-. • ;...,...-..• " .-;. ". • 7 • - . -. .
Good RCRA/CERCLA coordination has become increasingly important as .our offices'.
have reorganized and programs 'have assumed new organizational relationships. ..We believe. .
that, in general, coordination of site cleanup activities among EPA RCRA, EPA CERCLA and
•state/tribal cleanup programs has unproved greatly; however, we. are aware of examples of
'some remaining coordination difficulties. In this.-memov we discuss three areas: . acceptance of
decisions made by other remedial programs; deferral of activities and coordination among EPA
RCRA, EPA CERCLA and state/tribal cleanup programs; and coordination of the specific
standards and adminis.trative requirements for closure of RCRA regulated units with other
cleanup activities. We also announce a revision to the Agency's policy on the use of fate and .
transport calculations to meet the "clean closure" performance standard under. RCRA. -We
hope the guidance ''offered here will assist 'in your continuing efforts to eliminate duplication of
effort, streamline cleanup processes, and. build effective relationships' with the states and tribes.
This memorandum focuses on coordination between CERCLA and RCRA cleanup ;••
programs; however, we believe the approaches outlined here are also applicable to . ' '
coordination between either, of these programs and certain state or tribal cleanup programs that
meet appropriate criteria. For example, over half of the 'states have "Superfund-like" . .
. .
fY A'fMm»dwithSoy/C«nol«lr*onpap«thal
V— i/*V — .-,-. ~.i«-^«yw. ,.™-wnibef
-------
authorities. In some cases, these state authorities are substantially equivalent in scope and
effect to the federal CERCLA program and to the state or federal RCRA corrective action
program. In accordance with the 1984. Indian Policy, EPA recognizes tribes as sovereign '
nations, and will work with them on a government-to-government basis when coordinating
cleanup efforts on lands under tribal jurisdiction. ' • . '
In addition to the guidance provided in this memorandum, ;two other on-going
initiatives address coordination of RCRA -and CERCLA, First, EPA is currently coordinating
an inter-agency and state "Lead Regulator Workgroup. " This workgroup intends to provide
guidance where overlapping cleanup authorities apply at federal, facilities that identifies options
for coordinating oversight and (deferring cleanup from one program to another. We intend for
today's memorandum and the pending guidance from the Lead Regulator .Workgroup to' work
in concert to improve RCRA/CERCLA mtegratioh and coordination; - Second,rEPA has also
requested comment on RCRA/CERCLA integration issues in the May -.1 ;i 1996 Advanced -:
Notice of Proposed Rulemaking-Corrective Action for Releases From Solid Waste '•:• : v "• •-
Management Units at Hazardous Waste Management FacilitieiXo"! FR 19432; commonly
. referred to as the RCRA "Subpart S" ANPR). .We intend to-coordinate all of these efforts as ;
we develop further policy oh integration issues.' '-.'•'•-. .'..-.'•' - . . -" '-.-"'
•Acceptance of Decisions Made hv D>h,»r Remedial Programs ';; : -: •;'.. / ;.• ' .-.• •. .-•
..GeneraUy, cleanups under RCRA corrective faction .or CEHCI^ wm.substantiyeiy : ^ ?
satisfy, the requirements of both programs.1.: We believe that, In most situations, EPA' RCRA
and CERCLA site managers can defer cleanup:actiyiti^ :
program to another with the expectation that no further cleanup' will be'required under the
deferring .program. For example, when investiga^hs or studies have been completed under •
one program, there should be no need to review or "repeat those investigations or studies under
another program. Similarly, a remedy that is acceptable under one program should be
presumed to ;meet 'the- standards of the other/ ; . .i . : .'• : ' .'" -';.•
. . It^has been our experience that, given the level of site-specific decision-making : !•
required for cleaning up sites, differences among the implementation approaches of the 'various
remedial prograjns primarily reflect differences in professional judgement rather than •
structural inconsistencies in the programs themselves, Where there are differences in
approaches among remedial programs, but not in their fundamental purposes or objectives
(e.g., differences in analytical QA/QC procedures), these differences should not necessarily
'•• . • In afew .limited cases, program differences may be sufficiently great to prevent deferral to the
other program (e.g',;the inability of CERCLA to address petroleum releases or RCRA to address certain radioactive.
materials). In these instances we encourage remedial programs to coordinate closely with each other to minimize
duplication of effort, including oversight •... • ' •'••.'. '^ .". • -..'..
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prevent deferral. We encourage program implementors to focus on whether the.end "results of
the remedial activities are substantively similar when making deferral decisions'and to make
every effort to resolve differences in professional judgement to avoid imposing two regulatory
-programs..' '•.'-. • ':•.••'.•'./. ;'. . -i''-- '.'',..-'".•;•• .".:'..'. •.,." -'•.'.''••''.•'••'.'/••'
. We are committed .to the principle of parity between the RCRA corrective action and .
CERCLA programs and to the idea that the programs should yield similar remedies in similar "i
circumstances. To .further this goal, we have developed and continue to .develop a'-number, "of .'-•"'
joint (RCRA/CERCLA) guidance documents. For .example, me.several "Presumptive ^-!>•.•'!'V
Remedies," which are preferred technologies for common categories of sites, and tie Guidance
for Evaluating the Technical impracticability of Ground-Water Restoration (OSWER.pirective
9234.2-25, September 1993), which recognizes me impracticability of achieving groundwater .-
restoration at certain sites, are applicable to both RCRA and CERCLA cleanups. .For mpre -./,
information on the concept of parity between the RCRA and CERCLA programs see: 54 FR
41000, esp. 41006-41009 (October 4, 1989),;RCRA deferral policy; ;,54 FR 10520 (March 13,-
1989), National Priorities List for Uncontrolled Hazardous Waste Sites .Listing Policy for
Federal Facilities; 55 FR, 30798. esp. 30852-30853 (July 27, 1990), Proposed Rule for
Corrective Action for Solid Waste Management Units at Hazardous Waste Management
Facilities;'60 FR 14641 (March 20, 1995), Deletion Policyfor RCRA Facilities; and,'61 FR:
19432 (May I, 1996), Corrective Action for Releases From Solid Waste Management Units at
Hazardous Waste Management Facilities, Advanced Notice of Proposed Rulemaking. .: . ; .;
.. / • .'•'•':; '..;';•: '•:••"-•',' .<..'v-..':". v--v':.--.;-:'-;-v., : •: ;•'.:•• ^C'-:.f:.--NV'J. VV;;'-';:;:^'';:<'.v:-.^.;-\;;r.-;. .••••;:':-'.':: '•
Program Deferral :. :y.n •^..••.'.;:\:'-::-^•'.-••.-/v./yi';^.i';-;.^.: '.::-'r,[: \ ' •••'•:^\--:'-.:.''."..^.''''.-\ •.''-.-.'. .' '
The concept of deferral from one program to another is akeady.in general use at EPA;:.\,
For example, it has long been EPA's policy to defer facilities that may be eligible for inclusion
on the National Priorities List
-------
. While EPA's general policy is for facilities subject to both CERCLA and RCRA to be
% cleaned up under RCRA, in some cases, it;may be more appropriate for the federal CERCLA
program or a state/tribal "Superfund-like" cleanup program to take the lead. In these cases,"' •
the RCRA permit/order should defer corrective action at all of the facility to CERCLA or a'
state/tribal cleanup program. For example, where program priorities differ, and a cleanup
under CERCLA has already been completed or is underway at a RCRA facility, corrective
action conditions in the RCRA permit/order could state that the existence of a CERCLA action
makes separate RCRA action unnecessary. In this case, mere would be no need for the RCRA
program to revisit the remedy at some later point in time. Where the CERCLA program has
already selected a remedy, the RCRA permit could- cite the CERCLAidecisiori document (e g
. ROD), but would not necessarily have to incorporate that document by reference. RCRA - • '
permits/orders can also defer corrective action in a similar way 'for cleanups undertaken under •
state/tribal programs provided the state/tribal action protects human health and the : ''•• •
environment to a degree at least equivalent to that required under theRCRA program^-: • V.
":: • ..Superfund policy on deferral of CERCLA sites for listing on the "NPL while states and '
tribes oyersee-response actions is detailed in the May 3, 1995 OSWER Directive^TS 6-11
("Guidance on Deferral of .NPL Listing; Determinations While States Oversee Response .
Actions"). The intent of this policy is to accelerate the rate of response actions by • ' '
encouraging a greater state or tribal, role, while maintaining protective Cleanups and ensuring -
full public participation in the decision-making process. Once a deferral response is complete;-;
EPA will remove the site from CERCUS and will not consider me site for the NPL unless the '
Agency receives new information of a release or potential release that poses a significant threat
to human health or the environment. The state and tribal deferral policy is ayailabie for sites1 1
hot listed on the NPL; deferral of final NPL sites must be-addresseci under the Agency's. ;C "'
deletion policy, as described above. ; • . V -. :r: J :/!...;. \':'..:. .> •' .
Coordination Between Programs . . / \-:.- -.•:•'..•'..'•• •. '••.', . . - •'•'•;.- "'•.
I- While deferral from one program to another is typically the most efficient and desirable
way to address.overlapping cleanup requirements, in some cases, full deferral will not be .
appropriate and coordination between programs- will be required. The goal of any approach t6
coordination of remedial requirements should be to avoid duplication of effort (including
oversight) and second-guessing of remedial decisions. We encourage you to be creative and
focus on the most efficient path to the desired environmental result as you craft strategies for
coordination of cleanup requirements under RCRA.and CERCLA and between federal-and '
. state/tribal cleanup programs.
Several approaches for coordination between programs at facilities subject to both
RCRA and CERCLA are currently in use. It is important to note that options for coordination
at federal facilities subject to CERCLA §120 may differ from those at non-federal facilities:
-------
because of certain prescriptive requirements under §120, EPA-anticipates issuing further
guidance on coordination options specific to federal facilities through the interagency Lead
Regulator Workgroup. Current approaches that are in use include: ' : . .
Craft CERCLA or, RCRA decision documents so that cleanup responsibilities are.
divided. CERCLA and RCRA decision documents do not have to require that the :
entire facility be cleaned up under one or the other program.; For example, at some
facilities being cleaned up under CERCLA, the RCRA units (regulated or solid waste)
are physically distinct and could be addressed under RCRA/ In these cases, the •
. CERCLA decision documents can fociis CERCLA activities on certain units or areas,;-
and designate others for action under RCRA. When units or areas are .deferred from
CERCIAto RC&A, the CERCLA program should^.include a'statement (e.g:;;in a ROD
or. memorandum submitted to me administrative record) that successful completion of
these: activities would eliminate me need for further cleanup under CERCLA;'at those
units and minimal review would be necessary to delete the site from the NPL." -
1 * ..." c . " • • ' .• • . • • . . "• *. • - • • " . • . *
Similarly, when Units or areas are deferred from RCRA to CERCLA,RCRA permits '
.or orders can reference the CERCLA cleanup process and state .that complying with the
terms of the CERCLA requirements would satisfy the requirements of RCRA.
• " '•:':"'- '•••'••;: .'-'. '''.••-'"•••••'.: -•:}. '•: '' 'V'-.'•/••• ' '..•'•" '••/•••-'• •./.'.•I' .••.''-••• •'••' ..•.'--•;• . .'•;'•;• " .'
Establish tinting sequences in RCRA and CERCLA'decision documents. RCRA.and .
.- CERCLA decision documents can establish schedules according to which the ; /:. •
requirements for cleanup.at.all or part of a facility under one authority would be;:;.. .''..:
determined only after completion of an.action underthe other.authority. For example,
RCRA permits/orders can establish schedules of compliance which allow decisions as -
to whether corrective action is required to be made after completion of a CERCLA ;
cleanup or a cleanup under a state/tribal authority.. After the state or CERCLA ., ,:
response is carried out, there should be no need for'further cleanup under RCRA and
the RCRA permit/order could simply make mat finding. Similarly, CERCLA or ;'. ..
state/tribal cleanup program decision documents could delay review of units or areas
. that are being addressed under .RCRA, with the expectation that no additional cleanup
will need to be undertaken pending successful completion of the RCRA activities,
although CERCLA would have to go through the administrative step of deleting the site
from the NPL. .'-. \. •''.'-.'''" -. ; ••-.'•" \
A disadvantage of this approach is that it contemplates subsequent review of cleanup by
the deferring program and creates uncertainty by raising the possibility mat a second
. round of cleanup may be necessary. Therefore, we recommend that program .
implementers look first to.approaches that divide responsibilities, as described above.
A timing approach, however, may be most appropriate in certain circumstances, for
example, where two different regulatory .agencies are involved. Whenever a tuning
approach is used, the final review by the deferring program will generallylbe very
-------
streamlined. In conducting this review, there should be a strong presumption that the
. cleanup under the other program is adequate and that reconsidering the remedy should
rarely be necessary.-'" . /'.• . ",.,•-.... .
the examples included in this memo demonstrate several possible approaches to :
deferring action from one cleanup program.to another. For example, under RCRA, situations
are described'where the RCRA corrective action program would make a finding that no action
is required under RCRA because the hazard is already being addressed under the CERCLA
program, which EPA believes affords equivalent protection. In other examples, the RCRA •
program defers not to the CERCLA program jigr. 5£, but either defers to a particular CERCLA
ROD or actually incorporate's such ROD by reference into a RCRA permit or order. In .
addition,.there are examples where the Agency commits to revisit a deferral decision once the'v
activity to which RCRA action is being 'deferred is completed; -ini other situations,' K - -
revaluation is not contemplated., As discussed'in this memorandum; vnb single 'approach is :
recommended, because me decision; of whether to defer action under one program to another :'
and how to structure such a deferral is highly dependant on site-specific and community.. '
circumstances.' In addition,;the type of deferral chosen may raise issues concerning, for
example, the type of supporting documentation that should be included in the administrative
record for the decision, as well as issues concerning availability and scope of administrative
and judicialreview; . ,- : v- ',.•"'••'•.•;.'.",'''.-.". v',.;'..'• '••' :.;:-':-' ' • ' . •.'•;.-.
Agreements on coordination of cleanup prograinYshould be fashioned to prevent -
revisiting of decisions and should be clearly incorporated and cross-referenced into' existing or
new agreements, permits or orders. We recognize that this up-front coordination requires
significant resources: Our expectation is that* over the long-term; duplicative Agency
oversight will bei reduced arid^cleanup efficiency will bVehhanced. . .
RCRA Closure and Post^Clcisure ,• • -;:'.-. . .-'•:_
.Some of the most significant RCRA/CERCLA integration issues are associated with
. coordination of requirements for closure of RCRA regulated units3 with other cleanup .-
activities. Currently, there are regulatory distinctions between requirements for closure of
RCRA regulated units and other cleanup requirements (e.g., RCRA corrective action
requirements): RCRA regulated units are subject to specific standards for operation,
characterization of releases, ground water corrective action and closure. Coordination of these
standards with other remedial activities can be challenging. In the November 8, 1994
proposed Post-Closure Rule (59 FR55778), EPA requested comment on an approach that
> • • In this document, the term "regulated unit" refers to any surface impoundment, waste pile, land treatment
unit or landfill that receives (or has received) hazardous waste after. July 26,1982 or that certified closure after
January26, 1.983. . . "-..•' •-::'. ' • • "'
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would reduce or^eliminate;the regulatory distinction between cleanup of releases from closed '
or closing regulated units and cleanup of non-regulated, unit releases under RCRA corrective
; action, the .Office of Solid Waste will address this issue further in the final Post-Closure and ; .
• SubpartS rules. •/:.....,' , :: ..:'••'. ;; "'' ,-v ' .•...•'•'.: Ovl; •:••'; '-•' •'•'. •/;• .•".;•;• ' '•'
• ' . '•':' ''• '.•''••'".'' •.-'••'• '•::. •;l.':V-.-:'r:' '-;' '.'''-..."• .'•..'., -',:'' •'"'':- •'''• v'.;" •:•••. V. ~ •'.''-••/• '•.''.':•'.'.-",'. '. •'.'. <'.'• ' ,•'!'•>•'.'.''.
".•;•'. ' At the present time,however,the dual regulatory^struc^e for RGRA closure and other '; ;
cleanup activities remains inplace. There are several approaches;programimplementors can
use to. reduce inconsistency and duplication of effort when implementing RCRA closure .; . .'.'•
' requirements during CERCLA cleanups or RCRA corrective actions. \These approaches are .,-,
analogous to the options .discussed above for coordination between cleanup programs. .For...
. exan^)le, a clean-up plan.for a CERCLA operable unit ihat physically encompasses_ a, RCRA'-._. .
regulated unit could be stractoed to provide ^ ;
RCRA closure and post-closurei requirements. In\t^^iac^lR;'^]B^^^n^ta^ could ; v-
cite the ongpuig CEIICLA qleanup, and uicorporate the CER.CLA requirements by reference. \ . • ;
RCRA public participation requirements would have to be met for the;pe"rmit/order t6 be , :; " :
issued;i however, ;at many sites it may be possible to^use a single process to meet this.need ; ;
;•' under RCRA and CERCLA. ;• -,-,/. v' ....;V;1. i ••;:' C'$!: ':.^'---^K^ '!.•• / ; •
EPA continues to believe, as stated in me March 19,1987 notice, that risk-based
approaches are protective and appropriate for clean-closure determinations. In EPA's view, a
regulatory agency could reasonably conclude that a regulated unit-was clean-closed under
RCRA if it was cleaned up under Superfund, RCRA corrective action, or certain state/tribal
cleanup programs to the performance standard for clean closure. This performance .standard
can be met with the use of risk-based levels. RCRA units that did not achieve the closure
performance standard under a cleanup would remain.subject to RCRA .capping and post-
closure care requirements. ; : -.:.., ••••'•' : . ' ;
The 1987 federal, register notice described EPA's policy that the use of fate and.,
transport models to establish.risklevels would be^^ inappropriate'for clean closure • • . .
determinations. .This discussion, however, also included the statement that, after additional
experience with clean closures, "the Agency may decide that a less stringent approach is
-------
sufficiently reliable to assure that closures based, on such analyses are fully protective of
.human health and the environment." After .nine years of further experience', EPA believes that
consistent with the use of risk-based standards in its remedial programs, use' of fate and • ':'
transport models to establish risk levels can be appropriate to establish clean closure
.determinations. EPA today announces that it is changing its .1987 policy on evaluating clean
closure under .RCRA to allow use of fate and transport models to support clean closure
demonstrations. EPA intends to publish this change in the Federal Register in the near future.
We encourage you to consider risk-based approaches when developing cleanup -levels
for RCRA regulated units and to give consideration to levels set by state/tribal programs which
use risk-based approaches. :EPA is developing guidance on risk-based clean closure and on the
use of models tomeet the clean closure performance standard. • -; ; . . ;.-. ......
' Since almost all states oversee the closure/post-closure process and more than half : :';
implement RCRA corrective action, coordination of RCRA corrective action and closure will -
often be solely a state issue. However, if a state is not authorized for corrective action, or if a
facility is subject to CERCLA as well as RCRA corrective action, close coordination between
federal and state agencies will be necessary. As discussed above, actual approaches to
coordination or deferral at any site should be developed in consideration of site-specific and
community.concerns. : ,. .-: ; .. : . .. "•-,. . .: . ; .. . ., • .. . ..-...;...
Summary --••' • '•.'•'- ..•'."•..••'•'•'..''..-v. ' ''•• .•-.•" •'•'.'• '• '•""••''."'.'•••"•.;'•!.••...'. •.'•'••.-••'•••..•••
• We encourage you to continue your efforts to coordinate activities between the RCRA
and CERCLA •programs and between state, tribal and federal cleanup programs. We are, :
aware that.severalof the EPA Regionsiare considering developing formal mechanisms t(f. •.' .
ensure that coordination will occur among these programs. We endorse these efforts and •
encourage all Regions, states and tribes to consider (he adoption of mechanisms or policies to
ensure coordination. If you have any questions on the issues discussed in this memorandum,
or on other RCRA/CERCLA issues, please call Hugh Davis at (703) .308-8633.
attachments " .
cc: Craig Hooks, FFEO
Barry Breen, OSRE
Robert Van Heuvelen, ORE
Steve Luftig, OERR
.Michael Shapiro, OSW
Jim Woplford, FFRRO . ;.•
Regional RCRA Branch Chiefs
Regional CERCLA Branch Chiefs
Federal Facilities Leadership Council ' ' ..
Tom Kennedy, Association of States and Territorial Solid Waste Management Officials
8
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Robert Roberts, Environmental Council of States
John Thpmasian, National Governors Association
Brian Zwit, National Association of Attorneys General
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This Page Intentionally Left Blank
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9502.1996(05)
November 26, 1996
Mr. Anthony E. Perrotti
President
R. I. Analytical Laboratories, Inc.
41 Illinois Avenue
Warwick, RI 02888
Dear Mr. Perrotti:
Thank you for your letter of November 22, 1996 requesting
approval for the use of aluminum cap liners instead of Teflon for
soil sample containers.
The reason that the Agency recommended the use of Teflon cap
liners for soil sample containers in Chapter Four of SW-846, Table
4-1, was as a precautionary measure. Historically, .a few samples
collected for analysis for the RCRA and CERCLA Programs contained
constituents which could corrode the aluminum cap liners and
contaminate the collected samples. In order to minimize this
potential problem, the Agency recommended the use of Teflon-lined
caps for all soil sample containers.
However, we see no reason why aluminum cap liners cannot be
used for soil sample containers for the organic parameters
mentioned in your letter, TPHs, semivolatiles, PCBs, and
pesticides, provided that you can demonstrate that the samples in
question do not contain constituents that corrode the aluminum cap
liners.
If I can be of any further assistance, please call me at 703-
308-0476.
Sincerely,
Barry Lesnik, Chemist
OSW Methods Team (5307W)
RCRA Organic Methods Program Manager
SYMBOL I
SURNAME ^
OATE ^
fer^?^ )
.*£%&£.
///27/5*
Jt?0?vt>
tiawftT^-fr
///£?/? 4
COHCURftEMC
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6PA Form 13204 02-70)
OFFICIAL FILE COPY
-------
RJ. Analytical
Specialists in Environmental Services
November 22, 1996
Mr. Barry Lesnick
US EPA
OSW Methods Team
(5307W)
401 M Street, Southwest
Washington, DC 20460
RE: Aluminum Cap Liners
Dear Mr. Lesnick:
Pursuant to our recent telephone conversation, I am requesting a
written response approving the use of aluminum cap liners instead
of Teflon for soil sample containers.
The soils that are to be collected in these containers will be
analyzed for organic^ parameters such as; TPH's, semi-volatiles,
PCB's, and pesticides^
Thank you for your attention to this request.
Sincerely,
RIAL, Inc
Ri Analytical Laboratories, Inc.
41 Illinois Ave., Warwick, RI 02888, (401) 737-8500 • Fax:(401)738-1970
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9503 - SPECIAL
PERMITTING
UNIVERSE
ATKl/l 104/54 kp
-------
9503.1985(01)
MAY I 0 1985
MEMORANDUM
SUBJECT! Definition of Mixed Waste (DOB facilities)
FAOMi \4john Skinner, Director
\OffHee of Solid Waste
TOi Jamas H. Searbrough* Chief
Waate Management Division
Region IV ^
This is in response to your memo of April 1, 1985, concerning
DOB facilities.
The question of which radioactive wastes are subject to RCRA
control turne on the definition of "byproduct material" aa defined
under the Atomic Energy Act. Such "byproduct material" ia not aub-
ject to RCRA control. Radioactive wastes that are not "byproduct,"
i.e.* so called "mixed waates," are subject to RCRA control if the
waste exhibits a characteristic or contains listed waste. We have
been discussing this issue with DOE for several months and have
developed, at staff level* a reasonable definition of "byproduct
material." This definition will be proposed by DOC under Atonic
Energy Act authority. Subsequently, we will propose administrative
regulations setting out procedures for DOB facilities.
In any event, under the RCRA amendments* facility owners
and operators off land disposal facilities* including DOB* have
a atatutory reeponsibility to submit a Part 1 permit application
and certify that they are In compliance with the Interim status
Subpart ? requirements (see Section 3005(e)(2)). Since most
DOB facilities generate and dispose of non-radioactive hazardous
wastes just like other industries* they are subject to this
requirement even if the hasardous wastes are combined after
generation with radioactive wastes which are not aubject to RCRA
control. However, the requirements of the statute are not limited
to non-radioactive hasardous wastee, but cover all hazardous
wastes under RCRA control. There is no provision that exempta
land dispo«al facilities holding "mixed wastes" from the duty to
comply with Section 3005(e)(2) simply because DOB haa not yet
finalised its definition of "byproduct;•
-------
-2-
Until DOt promulgates the definition of "byproduct" I suggest
that you use th« staff level definition •• interim guidance. DO!
has determined, under that definition* whioh wastes from each
generating plant are byproduct* and whioh are "mixed vactea"
oubject to RCRA control. We have reviewed those lists and find
them to provide a reasonable split between wastes that are hasardous
primarily due to radioactivity and those that present primarily a
chemical hasard. We suggest .that DOB facilities proceed to develop
their Part B*s based on these tests.
To implement.this, we have written a letter to DOE management
advising them of their statutory responsibilities and suggesting
that they proceed in accordance with the draft definition*
Many DOE facilities will be interacting with authorized states
rather than BPA. where appropriate* Regions should pass this
information on to those States.
If there are any questions on this matter* call Andre* Pearl
(382-2222) or Jon Ferry (J82-4«M). '
cci RCRA Branch Chiefs* Regions I • III, V - X
Office of Federal Activities
Regional Federal Facilities; Coordinators*
Regions I - X '
-------
o
I
• Mr. Willlaw A. Vaughn
•* Acting Assistant Secretary for
2 Policy, Safety, and the Environment
Department of Energy
g Washington* D. C. 2058§
i
w Dear Mr. Vaughnt .
o
••
£ I am writing to be aure you are awars of certain statutory
\ responsibility* the Department of Energy (DOE) has in managing
x certain waatea under the new amendments to th* R**ouro* Conaarva-
«£ tion and Recovery Act (RCRA). Under theae amendments (Section
« 3005 (*H2)) ownars and operators of hasardous wast* land disposal
2 facilities, by November 8, 198S, musti
CM
s (a) submit a RCRA Part B permit application to EPA
t! or an authorised 8tat*,
(b) certify that they are In compliance with the
interim status groundwater monitoring require*
£ meats of Subpart F of 40 CFR port 2*5, and
m
JQ (c) certify compliance with the interim status
J* financial requirements of lubpart H of 40 CPR
* Part 265 (under I26S.140(c> Federal facilities
!£ are exempt from th*ae requirements—certification
£ should simply so stats).
x Failure to do ao will automatically reault In loss of interim
15 atatua for th«se facilities and they will therefore be operating
£ illegally.
m
i As you are probably aware, our staffs have been meeting for
at BOB* months to discuss acc*ptabl* definition* for d*t*rmining
2 which radioactiv* wast** ar* subject to RCRA control (so-called
o "mixed waotes") and which are "byproduct* materials and thus exevpt
from RCRAo Your Office of General Counsel has developed a definition
that reasonably accomplishes this and your generating plants have
identified specific waste streams that fall in each category.
My ataff haa reviewed these lists and finds that they generally
relegate waatoa that pose a chemical hasard to RCRA control while
thoae that poae a high level radioactivity haiard are generally
-------
-2-
•• "byproduct materiala*. But it doee not appear that In
the noar future remaining queationa aurrounding the definition
of "byproduct* will be fully resolved and tha definition proposed
and promulgated under tha Atomic Inargy Act*
Tha November 8 daadlina ia rapidly approaching, and developing
permit appllcationa and groundwatar monitoring ayatama that meet
tha RCRA requirement a ara tin* conaumlng aotivitiaa, Therefore,
ota an interim approach, X raeoaaand that DOB uaa tha liata of waataa
davalopad fro* tha ataff definition in determining which waataa
and woata management facilitiea ara aubjact to RCRA regulatory
control for tha purpoae of complying with tha November 8 deadline.
Alao, many of your'planta generate nonradioactive hasardoua
waatao subject to RCRA control* Theae waatea and DOB facilitiea
managing them muat alao comply with tha »ev aaendmenta to tme
atatuta . '
r .
Many gtatea have been authorised to manage the permitting •
operation* In thoae atatea, your Application should be aeat to
the appropriate State agency. Our regional officea (contact liet
onclooed) are prepared to counael your facilitiea on thla matter.
Truett DeGeare (382-2210) ia the appropriate contact on permitting
questions in Washington. Guidance on the mechanica of certifying
compliance with the monitoring rule* will bo issued in the near
future. Bob Linnett (3I2-4844) ia the appropriate contact should
you have questions in the meant law, ,
sincerely,
/•/.*•*; fcV
Jaok M. MoQrsv
Acting Assistant Adminiatrator
Bnclo»ure
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9503.1985(02)
\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
f WASHINGTON, O.C. 20460
AUG 3 0 1985
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Regulation of "Mixed Wastes" at DOE Facilities
FROM: •'_ John H. Skinner/''/' / / L L i,
^Director //r/^iW PM*-
^ Office of Solid Waste
TO: James H. Scarbrough
Chief, Residuals Management Branch
Waste Management Division, Region IV
The purpose of this memorandum is to respond to your
request for guidance on the ability of States and Regional
Offices to regulate "mixed wastes" (those wastes which have
both radioactive and hazardous characteristics, but which
are not "by-product" material) at DOE facilities.
The first issue is whether States are authorized to
handle mixed wastes. The answer is that they are not. A
State may of course regulate mixed waste pursuant to State
law, however, such regulation is not part of the authorized
State RCRA program. When a State applies for authoriza-
tion to operate its RCRA program, EPA reviews each portion
of its program to ensure that it is equivalent to the
Federal requirement. Because EPA had no interpretation on
the radioactive waste exemption, there is no way that EPA
could have reviewed the State programs for equivalence.
When EPA publishes a Federal Register notice explaining
its interpretation of the mixed waste issue, States will be
required to develop equivalent authority, or, if such
authority in already part of their hazardous waste program,
they will b« required to certify (through the Attorney
General) that they are interpreting the radioactive waste
exemption in the same manner as EPA. I refer you back to
my May 1, 1985, memorandum on the applicability of RCRA to
DOE facilities for a more detailed discussion of this issue.
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- 2 -
The next issue which you raise is whether DOE should
be sending Part B applications to various authorities
based on whether the facility handles mixed or RCRA-only
wastes. I understand your confusion on this issue and will
try to clarify it here.
For purposes of the wastes that are clearly under RCRA, the
answer here is no different than it is for any facility at this
stage of the RCRA program. Where a State is authorized for the
RCRA program, EPA and the States are currently involved in issuing
RCRA permits because of joint permitting under the Hazardous
and Solid Waste Amendments of 1984 (HSWA). Therefore, a complete
RCRA permit application should be sent to both authorities.
For a discussion of this joint permitting process, see RCRA
Statutory Interpretation t5, dated July 1, 1985. Where EPA
operates the hazardous waste program, DOE should submit only
one application directly to EPA.
Both EPA and DOE have agreed that RCRA also applies to DOE
facilities handling certain mixed wastes. Permitting these
facilities is a bit more complicated. Where a State is authorized
it can issue RCRA permits only for RCRA wastes. If a State
also has authority under its own laws to regulate mixed waste,
the State portion of the permit will address that mixed waste
although this portion of the permit will not be part of the
RCRA permit. We recognize the limitations of this approach,
however, we simply do not have the authority to do otherwise;
the State's authorized program operates in lieu of EPA's which
means that EPA cannot issue a RCRA permit covering those wastes
either. EPA has authority to directly conduct permit activities
in an authorized State only when the regulations governing that
activity derive from HSWA. The addition of mixed wastes to the
Federal universe of RCRA-regulated wastes is not pursuant to
HSWA. Therefore, EPA has no authority to permit such activity
in an authorized State. Until such time as the State is
specifically authorized for mixed wastes, EPA cannot enforce
any State permit conditions relating to such wastes.
Where the State is not authorized, EPA will be issuing
the permits for mixed waste and these permits will be RCRA
permits. The only* remaining question, therefore, is how
to define mixed waste. Although we do not yet have a final
definition of mixed waste (due to remaining questions over
"by-product" material), we recommend that permits be issued
for those mixed wastes which DOE acknowledges are subject to
RCRA, based on waste stream analyses that were generated by
DOE at individual plants. They were reviewed by the EPA
technical workgroup addressing DOE issues and were determined
acceptable for use in permitting. You should be requesting
those documents from the specific DOE facilities which you
will be regulating. You should make sure that the documents
are the original studies that have not been revised since
EPA's review. Headquarters policy is that where you suspect a
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- 3 -
DOE facility -is handling nonradioactive hazardous waste, you
should proceed with the Part B application unless and until you
are notified by the facility that it does not handle such wastes.
In addition, DOE controlled mixed waste as indicated in the waste
stream analyses ^s_ subject to RCRA if such wastes are mixed with
RCRA waste after generation, e.g., where the waste is placed in
a RCRA site.
I have also included a copy of the staff level definition
of by-product material referred to in my May 10, 1985, memorandum
as per your request, however, please realize that it is still in
draft form. If you have any additional questions on this matter,
please feel free to call Andrea Pearl of our State Programs Branch
at FTS 382-2210.
Attachment
cc: Thomas W. Devine, Director, Waste Management Division,
Region IV
RCRA Branch Chiefs, Regions I-X
State Programs Branch, OSW
Permits Branch, OSW
Fred Lindsey, OSW
Jon Perry, OSW
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OF
SOLID WASTE AND EMERGENCY RESPONSE
CEC 2 3 O'SWER Directive 09503 .50-lA(85)
MEMORANDUM
SUBJECT: RSI Memorandum for RD&D Permits
FROM: Marcia Williams, Director
Office of Solid Waste (WH-562)
TO: Allyn M. Davis, Director
Hazardous Waste Management Division (6H)
I am responding to your memorandum of November 13, 1985,
which requested policy guidance on the following issues pertaining
to RD&D permits.
1. May an RD&D permittee who collects hazardous waste from a
generator who does not have a TSD RCRA permit, return the unused or
reduced part of the waste to that generator after experimentation?
Although the Agency may modify or waive permit application
and permit issuance requirements to expedite the permitting of
RD&D activities, there is no authority to modify or waive the
requirements pertaining to shipping hazardous waste from an RD&D
facility. Waste shipped from an RD&D facility must be manifested
and go to a facility with a RCRA TSD permit. The RD&D facility
could arrange for the generator's transporter to pick up the
unused and reduced portions of waste and take it to such a
facility — either the facility normally used by the generator or
another facility.
2. How much reporting information should be required from
permiTte**/ and who should accept this information and in what
form?
The reporting requirements are determined by what information
is necessary for the Agency to ensure protection of human health
and the environment. Because each RD&D permit is unique, the
time-frame for reports and the level of detail required must be
determined on a case-by-case basis. Applicants who intend to
ultimately apply for a full RCRA permit must assure that their
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- 2 -
procedures meet routinely acceptable research practices, otherwise,
the Agency may not be able to consider their results in issuing
the permit. When Regions receive information on the results of
experiments, this information should be submitted to Art Glazer,
Program Manager, Permits Branch. This information will then be
shared with other EPA Headquarters staff and ORD to assist the
Agency in developing permit standards and analytical methods for
new techniques and processes, and to assist the Agency's research
efforts. There is no set form for submittal of information, except
that the information must be legible and the results clear.
3. If the permittee wants to test more than one machine/ whether
or not they are similar or modified, is a permit required for
one set-up or is it for an entire experimental process? When a
permittee is finished with one machine, he may want to decon-
taminate and dispose or sell it, but then he wishes to continue
similar experiments. Is this considered partial closure of an
RD&D permit?
RD&D permits should cover all experimental processes to
minimize the need for permit modifications. The permit applicant
should identify, as best they can, all potential alterations or
additions to their experimental equipment and this information
should be covered in the permit. Given the uncertainty with
RD&O activities, we see no problem with, including conditions in
the permit to cover activities that could potentially occur but
do not actually happen.
Decontaminating and disposing or selling one machine, when
other equipment is still operating/ should be considered partial
closure of the RD&D facility. Since an RD&D facility is required
to have a closure plan, the permit should address procedures to
partially close. Permittees should be required to decontaminate
equipment which will be sold. The procedures for decontamination
should be specified in the permit.
4. Has any dociston regarding mobile RD&D units been made?
Not at this time. As you may know, we have formed a workgroup
to develop recommendations for expediting the permitting of mobile
treatment units, including RD&D activities. We expect to issue
a set of draft recommendations to the Regions for comment in a
month or so. In the meantime if you have specific questions on
permitting mobile units or wish to provide your thoughts on the
issue please contact Art Glazer on 382-4692.
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- 3 -
If you have any further questions on permitting RD&D facilities
please contact Art Glazer on 382-4692
cc: Peter Guerrero
Bruce Weddle
Art Glazer
William Rhea
Permit Section Chiefs Region I-V, VII-X
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UNITED 5T-i '~.~ £NVI»CNMENTAL ?RC"CT:CN AGENCY
i s - • • ; ~ c N o i
06C24BB
9503.5L-1A
MEMORANDUM
SUBJECT: RD&D Permit for a Sludge Drying Process in a Wastewater
FROM: Marcia E. Williams, Director
Office of Solid Waste (WH-562)
TO: Allyn M. Davis, Director
Hazardous Waste Management Division (6H)
Region VI
In your letter of November 15, 1985, you requested written
confirmation that the use of a sludge drying unit, manufactured
by Water Management, Inc., at facilities with a wastewater
treatment unit, would not jeopardize their exemption from RCRA
permitting. The sludge dryer is intended to further reduce the
volume of sludge requiring disposal.
If the sludge drying unit is a tank, as stated in your
letter, then persons who are currently exempt from RCRA permit
requirements under 40 CFR §270.l(c) (2)(v) because they have a
wastewater treatment unit, will continue to be exempt from RCRA
permitting if they use this sludge dryer. The Agency has clari-
fied the definition of "tank", for the purposes of the wastewater
treatment unit definition in $260.10, to cover unit operations
which are not obviously tanks such as presses, filters, sumps,
and many other types of processing equipment. (See attached
memorandum dated July 31, 1981 from John Lehman to Richard Boynton,
"Suspension of Regulations for Wastewater Treatment Units.")
I understand that the intent of the sludge dryer is to
assist metal finishing industries, who have wastewater treatment
units, to Beet the waste minimization requirements of the new RCRA
§3002(b). You should advise Water Management, Inc. that although
their potential clients will continue to be exempt from RCRA permit
requirements, their clients must comply with the RCRA manifest
requirements of 40 CFR Part 262 for generators. Also, they must
comply with 40 CFR Parts 261-263, as appropriate. The clients will
need to sign the RCRA manifest for off-site shipments of the residue
resulting from the use of the sludge dryer, including the waste-
minimization certification statement on the- revised Uniform
Hazardous Waste Manifest Form (see 50 FR 28744-46, July 15, 1985).
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- 2 -
The client must also submit a biennial report to the Regional
Administrator which includes a description of the efforts under-
taken to reduce the volume and toxicity, as well as a description
of the changes in volume and toxicity of the wastewater actually
achieved during the year, by comparing it to previous years
(§262.41, 50 FR 28746, July 15, 1985).
Since the sludge drying unit is intended for use by persons
with wastewater treatment units, and the facilities with these
units are exempt from RCRA permitting, it is unclear why Water
Management, Inc. wants a research, development, and demonstration
permit to test the unit. You should discuss this issue with
Water Management, Inc. to determine if you should spend the
resources on processing their permit application.
If your staff has any further questions on this matter,
please have them contact Nancy Pomerleau at (FTS) 382-4500.
Attachment
cc: Bruce Weddle
Jack Lehman (WH-565)
Irene Homer (WH-565A)
Ken Gray (LE-132S)
Peter Guerrero
Art Glazer
Nancy Pomerleau
Tina Parker (WH-562)
William Rhea, Region 6
Hazardous Waste Division Directors, Regions I-X
-------
\ UNITED STATES EN VIRONMENTAL PROTECTION AGENCY
WASH.NCTON. O.C. 204 9503.51-lA
Attachment
JU. 3 I 1981
OMici
IQUIO
lichard C. Bojntoa, ChiLef
Permits D*»elopmeae Section
U.S. EaTiroamaaeal Prouaceioa Agency
John F. lamedy loildim
lee too, Haaaacboaeeta 02203
tat Suspeasioa of lafulacioms for Vaseevaeer Treatm*ne Daies
Mr. Boyacoa:
This letter responds to your receat request for aa interpretation of the
regulations of November 17, 1980 (45 FX, 76074) which suspended certain require-
aaaes of eha hazardous waste regulations for owners and operators of vastewatar • •
eraeemaac uales where ouch facilities ara subjece eo regulation uader Section 402*
or 307(b) of the dean Vaear Ace.
Tour laeear is correct ia stating that there is aochiag ia ehe definitions,
preamble, or refulaeions which precludes aa off-site hazardous waste management
facility froa qualifying for a suspeasioa of the hazardous waste requirements in
40 CF1 Parts 122, 264 and 26S. The Agency considered limiting ehe suspension and
proposed amendments eo oa-siee facilities bue was unable eo Justify chat this
type of facility was inherently less hazardous than aa off-site facility so as to
aecassieaca differeae standards. Accordingly, EPA does aoe iaeaad eo diseinguish
between on-sita aad off-site facilities ia this regulatioa.
Even under tha terms of the suspension, hazardous waste shipped to an off-
site facility will, of course, ba subject eo ehe manifest requirements. In addi-
eion, ehe creacmene facility must be subjece eo regulation uadar eieher Seceion
402 or 307(b) of the Clean Vaear Act.
To ba compleeely exempted for now (aad uleiaaealy subjected eo the permit
by rule) all units ia a facility aust meet the definition of 'eank" in $260.10.
Lagoons, incinerators, aad oeher types of facilities are not eligible. I: is,
however, true that ehe defiaieioa of "tank" is rather broad, covering unit opera-
eioas which are aot obviously tanks such as presses, filters, sumps, and many
other types of processiaf equipaeat.
The Ageacy also iatends that ehe phrase "subject to regulatioa uadar either
Sectioa 402 or 307(b) of ehe Clean Vaear Act* should be liven e broad interpre-
tatiott. This phrase includes all facilities that are subjece to HPDIJ permits
aaor encompasses facilities subject to either categorical pretreitment standards
or fsjaaral pretreAtaetit standards. It is not necessary that tha permits aeeually
be Issued or that pretreatmant standards actually ba ia force. It is sufficient
chat the facility ba vubject to tha requirements of tha dean Vater Ace.
-------
- 2 -
It should b« aotitd th/--. alUibl* faellitias must la ftct ba traatiaf •vaats-
watara' aad aot comcsjntratad chemicals or aoa aqua out vast as. Wall* v« hara aec
promulfacad a fornal tfaflaltioa, «• ara iatarvratiaf tha tan to rafar to vast**
vhlch *r« •ubtcaelAlly ««c«r vita coatamia*ats aeuatiaf ce « f«v p«rc«ac ac
909 1. It b*J b««c augiMtad that a fenal dafiaieioa would b« helpful. V«
ceaaidartnf addlaf inch a dafialciea ee ca« floal promulgation.
Public eooaaati on ch« BoT«mb«r 17, 19*0 proposal also aottd taat SOM t-
vacar craataaae uales do aoe diaeharia a liquid atraaa aad tbu« art not subjact to
tha Qaaa Watar act. OA la eoaaldarlac caaaflaf tali '•ubjtct to" laafuaia to
* axp«et to flaallM tha propoaad
rafolatloaa for vaatavatar tra*CMat oalla aad alaMatazy aaatrallcatloa units
wit his ta« aaxt f«w month*.
If you hava any furtaar quastlons, plaasa do not hasltata to <•-M
Lladaay, tha Dapvtj Division Mraetor at ITS 753-9113.
Siaearaly yours,
M or rrad
Jobs ?. Uhaan, Diraetor
Eaxardout & laduatrial Vajta Wrlaion
ee: Daaals Haubaar
EPA, Rafioa I
Eraast
EPA lag ion II
Bobart L. Allan
EPA tef ioa III
Jaaaa Scarbroufh
EPA teflon Z?
1. Staa Jorfaasaa
Z?A lagloa 71
tobart L. Herby
0A Ugioa VII
Lavrnea ?. Gasda
ETA lafloa VIII
Arnold t. Dan
EPA Uflon IX
Karl J. KLapitsch
EPA Bag ion 7
Kaaaath D.
EPA Rafion Z
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UNITED STATES ENVIRONMENTAL PROTEC -"-~
WASHINGTON. D.C. 20460 9503.52-lA
JAN 2
SOLID WASTE AND EMERGENCY RESPONSE
C. T. Philipp, P.E.
President
Water Management, Incorporated
2300 Highway 70 East
Hot Springs, Arkansas 71901
Dear Mr. Philipp:
In your letter of December 5, 1985 you requested that the
Agency identify the Resource Conservation and Recovery Act
(RCRA) status of sludge dryers that are part of a "conventional
treatment system* not regulated by RCRA. You questioned whether
adding a sludge dryer to a wastewater treatment unit exempted
from RCRA permitting will jeopardize the exemption. The RCRA-
Superfund Hotline correctly identified sludge drying for you as a
treatment process according to the definition of treatment in
40 CFR §260.10. However, when sludge dryers meet the definition
of wastewater treatment units, they qualify for the wastewater
treatment exemption of SS264.1(g) (6), 265. He) (10), and
270.l(c)(2)(v). In your case, adding a sludge dryer to treat
sludge generated by a treatment system operating under a wastewater
treatment exemption does not subject the treatment system to RCRA
permitting.
As you know, sludge dryers must meet the three criteria in
the definition of wastewater treatment unit in order to be
part of a wastewater treatment exclusion. First, the information
you sent shown that your sludge dryer qualifies as a tank as
defined in $260.10} that is, it is designed to contain hazardous
waste and is constructed primarily of nonearthen materials that
provide structural support. Furthermore, the Agency has clarified
the definition of tank—for this exemption—to include unit
ope ratio no such as presses, filters, sumps; and many other types
of processing equipment. (See the attached memorandum dated
July 31, 1981, from John Lehman to Region I.) In addition,
the preamble of the November 17, 1980, proposed rule (45 PR
76077-76078) clarified the definition of a wastewater treatment
unit as follows:
This definition. ..covers.. .the sludge) digesters,
thickeners, dryers and other sludge processing tanks...
in which hazardous wastewater treatment sludge is
treated? and any...tanks used for the storage of
such sludge.
-------
Secondi th« sludge dryer treats or stores a wastewater
treatment sludg« which is a hazardous waste as defined in $261.3
(i.e., the Kludge itself is a listed waste, derived from treatment
of a listed waste, or is hazardous on the basis of characteristics
identified in $261 Subpart C). This means that the treatment of
sludges generated from wastewater treatment units is also exempt
from regulation under the RCRA treatment standards.
Tanks (here a sludge dryer) that do not themselves have any
discharge subject to regulation under Sections 402 or 307(b) of
the Clean Water Act, but that are part of the wastewater treatment
system, qualify for the exemption if other tanks in the treatment
train have discharges that are subject to these Clean Water Act
provisions. So the third condition, being pa0t of a wastewater
treatment unit subject to regulation under Section 402 or 307(b)
of the Clean Water Act, can be met by sludge dryers in certain
circumstances. However, as the November 17, 1980 preamble stated
(45 PR 76077), even the proposed regulations....'may not provide
adequate environmental protection where treatment of the hazardous
wastewater tends to result in the escape of hazardous waste
constituents into the atmosphere (e.g., the treatment of highly
toxic volatile wastes in open tanks).* Unless the Administrator
promulgates regulations covering wastewater treatment units,
wastewater treatment tanks that qualify for exemption under
current RCRA standards may volatilize their contents and retain
the exemption.
Sludge dryers may be used as part of a program to meet the
waste minimization requirements of Section 3002(b) of RCRA without
requiring permitting if the above conditions are met. Of course,
although exempted from permitting requirements in the wastewater •.
treatment units, any hazardous waste sludge that is removed from
the tanks is subject to applicable regulations under $5260-266,
such as manifesting off site, permitted storage after 90 days,
and so on. If you have any additional questions regarding this
exemption £or wastewater treatment units, please do not hesitate
to call Irene Homer at 202-382-7917.
Sincerely yours,
if W«
Winston Porter
V Assistant Administrator
\\
Enclosure
-------
WATER MANAGEMENT, INCORPORATED
2300 HIGHWAY 70 EAST
HOT SPNINOS. ARKANSAS 71901
-------
Page Two
U.S. EPA
December 5f 1985
Blll you please "view chis
accurate unifornsvers to this quests.
6
C.T. Philipp, P.
President
CTP/mjt
Enclosures
cc: Marcia Williams,
Director of Office of Solid Wastes
Governor Bill Clinton,
State of Arkansas
-------
9503.1991(01)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
MAY 2 I 1991
...- t,ct Ot-
RESPONSE
Mr. Steve Nowak, Controller
Compacting Technologies International
2417 N.W. Thurman
P.O. Box 29046
Portland, Oregon 97210
Dear Mr. Nowak:
I am writing in response to your letter, dated
March 14, 1991, in which you request clarification of the
definition of treatment. Of particular concern to you is whether
treatment includes practices such as compacting hazardous waste
inside a steel drum.
As described in your letter, Compacting Technologies
International (CTI) sells a machine that compacts hazardous waste
inside a steel drum; the benefit to the customer is a reduction
in waste volume and thus, a reduction in disposal cost. Your
concern seems to be whether such a practice constitutes treatment
that is subject to the permitting requirements of
40 CFR 270.
Treatment is defined in 40 CFR 260.10 as "...any method,
technique, or process, including neutralization, designed to
change the physical, chemical, or biological character or
cpmposition of any hazardous waste so as to neutralize such
waste, or so as to recover energy or material resources from the
waste, or so as to render such waste non-hazardous, or less
hazardous; safer to transport, store, or dispose of; or amenable
for recovery, amenable for storage, or reduced in volume"
(emphasis added). Based on the limited amount of information in
your letter, a machine that compacts hazardous waste in a drum
will meet the definition of treatment if the reduction in volume
results in a change in the physical, chemical, or biological
character or composition of the waste. Bear in mind, however,
that under many circumstances, RCRA permits are not required for
generators who treat their waste on-site in tanks or containers
(see enclosed memorandum dated June 17, 1986).
-------
A final determination on whether a permit is required for
such a compaction practice, however, must be made in the EPA
region or authorized state where this machine will be operated.
The determination will be subject to site-specific conditions and
waste types that are best assessed by regional or state
personnel.
I hope thj.3 information is helpful. Again, if more specific
information is needed, please contact the applicable EPA regional
office or the authorized state.
Silvia K. Lowrance
Director
Office of Solid Waste
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f dT» \ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
*" " ^ WASHINGTON. D.C. 20460
9503.1993(01)
PEC 02 1993
OFFICE OF
SOLID WASTE AND EMERGENCY
RESPONSE
MEMORANDUM
SUBJECT: Eligibility of In-Situ Vitrification Technology to
Research, Development, and Demonstration Permitting
FROM: Frank McAlister, Chief
Assistance Branch
Permits and State Programs Division (5303W)
TO: Dan Duncan
RCRA Permitting Section (HW-1'06)
Region X
Thank you for your recent inquiry regarding the Department
of Energy's (DOE) June 25, 1993 request for an eligibility
determination on the permitting of in-situ vitrification (ISV)
technology under the Research, Development, and Demonstration
(RD&D) permitting program (40 CFR 270.65).
In their June 25 letter to Region X, DOE expressed concern
that ISV may not be eligible for RD&D permitting, citing a
section from page 7 of the "EPA Guidance Manual for Research,
Development, and Demonstration Permits under 40 CFR Section
270.65" (EPA/530-SW-86-0008, July 1986) prohibiting the RD&D
permitting of technologies that involve placement of hazardous
wastes into or onto the land. Placement of hazardous wastes
triggers the land disposal restrictions (LDRs), and constitutes
disposal, not treatment. However, ISV technology treats wastes
in place and does not involve placement. The Agency, at
55 FR 8758, March 8, 1990, states that "Placement does not occur
when waste is consolidated within an AOC [area of contamination] ,
when it is treated in situ, or when it is left in place." Since
in-situ treatment is not considered placement, it does not
constitute disposal, and, therefore, should not be denied
eligibility for permitting under RD&D based on the placement
issue.
If an RD&D permit is issued to DOE for ISV technology, we
are interested in receiving monitoring data obtained at the
collection hood, and from the lateral and lower boundaries of the
unit. This information will help us further evaluate ISV.
technology.
Recycled/Recyclable
Printed with Soy/Canola ink on paper mat
contains at least 5CTX recycled lloer
\ <{\
~K~7
-------
Thank you for the opportunity to respond and provide input
to RCRA permitting activities in Region X. If you have any
questions, please call Jeffrey Gaines at (703) 308-8655.
cc: James Michael, OSW
Larry Rosengrant, OSW
Jeffrey Gaines, OSW
Barbara Pace, OGC
James Cummings, TIO
Carrie Sikorski, Region X
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9504 - COMPLIANCE
AND ENFORCEMENT
ATKl/l 104/55 Icp
-------
9504.1984(01)
\ UNITED ST.- TLJ ENVl^C* 'MENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
1C 1S34
MEMORANDUM
SUBJECT: Enforcing Groundwater Moni'toring Requirements In
RCRA Pare B Permit Applications
FROM: Courtney M. Price
Assistant Administrator for Enforcement
and Compliance
Lee M. Thomas
Assistant Administrator
Office of Solid Waste and Emergency Response
TO: Regional Counsels
Regions I-X
Air and Hazardous Materials Division Directors
Regions I-X
Existing regulations under the Resource Conservation and
Recovery Act (RCRA) require owners and operators of hazardous
waste land disposal facilities to conduct groundwater monitoring
in order to obtain a Part B RCRA permit. (40 CFR 270.14(c)(4) .
(6), and (7); 40 CFR 264.98(h)(2) and 264.99(f». To satisfy
these requirements, owners and operators oust, under certain
circumstances, monitor for each constituent listed at 40 CFR
Fart 261, Appendix VIII.
Recently a number of Regional Offices, in response to
inquiries from the regulated community, have questioned whether
certain groundwater^monitorlDg .requirements .might, be wafveiTTh
appropriate circumstances" Specif icially questioned is the
need to monitor for each and every constituent listed in
Appendix VI XI.
There are essentially three arguments advanced to support
selective waiver of the regulatory requirements:
1) certain constituents listed In Appendix VIII are
un rt ab I^^n^aaj^r-Amf-tharef^^e^^wiLi^narJbe^etected in
g'roundwater using generally accepted analytical techniques;
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- 2 -
2) EPA-accepted, standardized test procedures do not exist
for some Appendix VIII constituents.Until such procedures are
specified. E.r'A shOvlld not mquire facility owners to monitor
for these constituents; and
3) certain constituents are not analyzable by scan
methodology.Testing for these constituents is difficult, and
che"Individual chemical methods used, are very expensive and
•hould noc be required unless there is some reason co believe
that such constituents are actually present in the groundwater.
DISCUSSION
Any request to waive or selectively enforce groundwater
monitoring requirements runs counter co Che high enforcement
priority the Agency has assigned co groundwater monitoring
violations and muse be viewed carefully. Nevertheless, the
Agency recognizes chac Chere Is Cechnical merie Co some^of the
contentions sec forch above and isj^eveloping^ regulacory
cHangesco correcc these problems. Proposal of chese changes
by Che Office of Solid Waste is expected In August 1984. and
chac Office plans Co promulgace the changes as a final rule by
early 1985.
Recognizing the problems created by existing regulations,
we believe chac it is permissible for Regional enforcement'
personnel to"assign low prioricy co certain technical r^gu1 a -
cpry violacions in appropriate cireunscances. The firsc situa-
tion concerns che regulation which currencly requires permic
applicants co monitor for constituents which, because of their
chemical propercies, are noc detectable in groundwater using
generally accepted analytical cechniques. The constituents
chac fall inco chis group art sec forch ac Attachment I co
chis memorandum. Because chese constituents cannoc be detected
in groundwater, chere is no conceivable environmental benefit
Co be gained by requiring formal laboracory analysis.
The second sicuacion which we believe aeries low
enforcement prioricy involves Che failure co monitor for chose
constitucncr for which chere are no EPA-approved test methods.
These constituents are sec forch ac Attachment II cp chis
memorandum. Vt believe chac low enforcemenc prioricy is
warranced in Chese cases because che absence of any approved
test mechod makes meaningful analysis of any reporced data
difficult:.
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- 3 -
.Unlike t:he first two situations, the last situation
presented by permit applicants does not warrant any change ,in
our enforcement priorities. This situation concerns the need
to monitor for those constituents that are not analyzable by
scan methodology. These constituents are listed In Attachment
III to this memorandum. Applicants have argued that absent
some indication that such constituents are present in the
groundwater, no monitoring should be required.
Thin argument it not persuasive. The regulations clearly
require analysis for these constituents. Unlike those constit-
uents Hated In Attachment II, accepted test procedures do
exist for Attachment III constituents. The face thatTsucb7
test procedures are expensive Is legally Irrelevant. Moreover,
EPA has previously rejected the notion that facility owners
can determine the hazardous constituents emerging from a land
disposal unit from records detailing the wastes previously
disposed of at the facility. Therefore, a facility owner's
failure to monitor for these Attachment III co'n'stlegend" should
ordiharily fesult in enforcement action. ~
Attachments
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ATTACHMENT I
Acetyl chloride
Aluminum phospbl.de
Carbon oxyfluoride
Dimethylcarbamoyl chloride
Fluorine
Methyl chloroeairbonate
Methyl isocyanate
Nitrogen dioxida
Phosgene
Toluene dliaocyanate
Zinc phosphide
ATTACHMENT II
Cacasin
Echylenebisdithiocarbamic acid
2-Fluoroacetaraide
Iron dextran
Lasiocarpine
Mustard gas
Nitrogen mustard, N-oxide and HC1 salts
Nitrogen mustard and HC1 salts
Nitric oxide
Phosphine
ATTACHMENT III
Cyclophosphaoide
Formaldehyde
Formic acid
Hexachlorohexahydrodimethanonaphthalene
Hydroxydiaethylarsine oxide
7-Oxa.bicyclo[2.2.1]heptane-2,3-dicarboxylic acid
Selenourea
Streptozotocin
Stry chine
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9504.1984(02)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
NOV 291964
MEMORANDUM
SUBJECT: Part B Permit Applications with Insufficient
Ground-Water Monitoring Data
FROM:
TO:
Lee M. Thomas
Assistant Administrator for* Solid Waste and
Emergency Response
Courtney M. Price V_J**~-<-—^ . _^
Assistant Administrator for Enforcement and
Compliance Monitoring
Regional Administrators, Regions I-X
Regional Counsels, Regions I-X
Air and Hazardous Materials Division
Directors, Regions I-X
BACKGROUND
Regional personnel
with RCRA Part B permit
ground-water monitoring
data, specifications on
past monitoring results, and other aspects
protection as required by 40 CFR $270.14(c)
submitted in Part Bs is often insufficient
informational requirements of $270.14(c).
facilities to generate appropriate GWM data
have raised questions as to how to deal
applications containing insufficient
(GWM) data. (This includes hydrogeological
well construction, sampling methodology,
of ground-water
.) The GWM data
to satisfy the
The failure of many
prior to the Part B
due date has resulted in a number of incomplete Part Bs, as well
as complications and delays in the permitting process.
While general guidance on responding t
Part B applications is set out in a memo da
the deficiency of a Part B with respect to
special case. This type of deficiency is o
facility's failure to comply with Part 265
addressed (or if detected early can be avoi
of the Part 265 requirements. Further, Par
GWM data are often submitted by facilities
of presenting substantial hazards to human
o late and incomplete
-ed September 9, 1983,
y..*M data presents a
ften the result of a
requirements and can be
•led) through enforcement
- Bs with inadequate
that have been suspected
health or the environment
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-2-
through ground-water contamination. If Orders issued under RCRA
$3013 are used to require such facilities to gather appropriate
ground-water data, that data may also satisfy the Part 270 informa-
tional requirements and thus ensure that such facilities submit
adequate Part Bs.
The purpose of this memorandum is to provide EPA Regional
Offices with guidance on which mechanisms can be used to prevent
GWM deficiencies in Part Bs, and to discuss what mechanisms are
available to respond to deficiencies when they occur.
This memorandum was prepared before RCRA reauthorization, and
therefore does not reflect the new provisions regarding ground water
protection or permitting. Guidance on implementation of those
provisions will be provided separately.
I. GWM Information Needed in Part Bs
Section 270.14(c) lists the requirements for GWM information
in Part Bs. In essence, the permit applicant must characterize
the uppermost aquifer, describe any existing contamination, and
provide all information necessary for EPA to establish either a
detection, compliance, or corrective action program in the
facility's permit.
Data generated during a facility's interim status period may
or may not fulfill the Part B information requirements. In general,
if a facility has fully complied with the GWM requirements of Part
265, including well placement, sampling frequency, and sampling
methodology, the results of interim status monitoring should be
deemed conclusive evidence of the presence or absence of contami-
nation. In a majority of cases, however,.facilities have not
complied fully with 265 requirements. This category includes
facilities which have installed only three downgradient wells,
where a minimum of four or more is necessary to meet the standard
of $265.91. Facilities which have not fully complied with 265
requirements may need to do substantially more work, in some cases
including hydrogeological investigations and well installations,
before they can successfully meet Part 270 requirements.
EPA's Permit Applicant's Guidance Manual for Hazardous Waste
Land Treatment, Storage, and Disposal Facilities, and the RCRA
Permit Writers' Manual for Ground-Water Protection, provide
descriptions of specific information needed from applicants.
Prior to or upon calling in a facility's Part B, Regional
personnel should examine any available interim status data from
the facility, and determine what additional data the facility must
generate in order to produce a complete Part B. This determination
should be coordinated with the joint permit writer/inspector site
visit conducted when the Part B is called in. This initial review
of the facility, and early setting of expectations by EPA, is
essential to expediting the Part B process.
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-3-
If EPA makes clear to the facility what types of data are
expected in the Part B, and the initial Part B does not provide
this data, the Region should respond in accordance with.the
"Late and Incomplete Part B Policy'. In such cases, conservative
deadlines should be set for the facility's response to a Notice
of Deficiency.
It should be noted that $270.14(c) requires more and different
GWM data than does Part 265. In particular, S270.14(c)(2) and
(4) to require facilities to investigate hydrogeological conditions
at the site, including any plume of contamination that has entered
ground water from a regulated unit at the facility. In addition,
in order to satisfy $270.14(c)(6) - (8), facilities must provide
information to support a determination of whether hazardous
constituents (i.e., compounds listed in Part 2'61 Appendix VIII)
are present in the ground water. Regional personnel should
explain to facility owners and operators as early as possible
what kinds of data (e.g., pieziometric, resistivity, pump-test,
sampling for Appendix VIII compounds, etc.) will be necessary to
meet the Part B requirements.
Clearly, the exact type and extent of testing and information
gathering will vary considerably from facility to facility due to
such site-specific factors as geology and contaminant behavior.
Also, as a technical matter, Regional personnel initially may not
know exactly what types of data gathering are necessary from each
facility. Experience has shown that initial ground-water
investigations often uncover problems which require further
investigations. Even under the best conditions of Regional
'attention to facility Part B preparation, applicants may have to
submit several Part B documents before the application can be
deemed adequate. Although we understand that some delays of this
nature are inevitable, certain delays can be avoided through early
involvement between the Regions and applicants.
II. Facilities for which the Part B Due Date Has Passed
In generalf the most appropriate response to a facility
that has submitted an incomplete or inadequate Part B is
enforcement action under RCRA $3008. The action should cite
violations of 40 CFR Part 270. The "RCRA Civil Penalty Policy"
should be used to determine appropriate penalty amounts.
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-4-
III. Facilities for which the Part B is Not Yet Due, and where a
Hazard May Exist
Some facilities with significant deficiencies irv Part 265
ground-water data may also be presenting hazards to human health
or the environment through ground-water contamination. EPA's
authority under RCRA 53013 can be used to gather data at
facilities for which the Administrator determines that the
presence or release of a hazardous waste may present a substantial
hazard to human health or the environment. A 53013 Order may be
used to require such monitoring, testing, analysis and reporting
as the Administrator deems reasonable to ascertain the nature.
and extent of such a hazard. Revised Guidance on writing 53013
Orders was issued on September 26, 1984, and supersedes previous
Guidance.
Data generated by facilities in response to 53013 Orders
could be used to satisfy Part B informational requirements.
Therefore, activities required by 53013 Orders should be consistent
with monitoring activities required for compliance with Part
270, as well as with Part 264 requirements that will be applied
in the future.
IV. Facilities for which the Part B is Not Yet Due, and which
are in Violation of Interim Status Standards
A major category of GWM deficiencies involves owners and
operators who are subject to but have not complied with interim
status ground-water monitoring requirements in Part 265. There
are a variety of Part 265 violations at facilities, ranging from no
monitoring wells in place to inappropriate sampling techniques.
The result may be insufficient data from which the facility can
respond to $270.14(c).
In some cases, prompt enforcement of Part 265 violations may
be sufficient to ensure the development of adequate GWM data to
meet the Part B requirements. For instance, if the Part 265
violation is an insufficient number of monitoring wells, the
specified remedy (installing additional wells1 may be sufficient
to provide data for the S270.14(c) requirements for information
regarding possible ground-water contamination and for a proposed
well network.
Alternatively, where a Part 265 remedy will not provide usable
or sufficient information to satisfy a Part B requirement, and
where a substantial hazard may exist, it may be more appropriate
to use EPA's broader authority under RCRA 53013 to obtain data.
Also, where a Part 265 remedy will not satisfy Part B requirements,
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-5-
and the Part B will be due shortly, enforcing the Part 265
requirements may be counterproductive. In that case it may be
more practical to wait for the Part B due date and enforce the
requirements of Part 270. Of course, it is generally appropriate
to assess penalties for past violations of the Part 265 requirements,
regardless of whether future compliance with Part 265 is sought.
V. Facilities Not Currently in Violation of Interim Status GW*
Standards
There is a range of situations where an applicant is not in
violation of Part 265, but has not generated complete Part 265
data either. These facilities' Part Bs do not include enough
Part 265 data to address the 5270.14(c) requirements properly.
This category of facilities includes:
0 neutralization surface impoundments;
0 facilities operating under a $265.90(c) waiver which
was not evaluated by EPA or an authorized state;
0 facilities located in states which prohibited
well installation prior to state approval, and the state
issued its approval late (or has not yet done so); and
0 facilities in early stages of Part 265 ground water
•assessment"., and where contamination data is not yet
available.
In addition, new facilities often present little or no
existing data from which to evaluate compliance with 5270.14(c).
The foregoing are complex situations and the appropriate
response may vary. We intend to develop further guidance on the
information-gathering mechanisms that may be applicable to
these categories. As mentioned in Section I of this memorandum,
Regional personnel should notify facilities as early as possible
prior to or upon calling in their Part Bs (or upon knowledge of
a planned new facility submittal) of the types of data that must
be submitted in the Part B in order to satisfy S270.14(c).
These informational requirements should be further clarified
during the EPA joint permit writer/inspector site visit when the
Part B is called in.
cc: John Skinner
Fred Stiehl
Gene Lucero
Tony Montrone
Bruce Weddle
Jack Lehman
Eileen Claussen
Peter Guerrero
Ken Shuster
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9504.1985(01)
RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION
MAY 1985
PCRA Inspections
6. Section 3007 of RCRA allows for the entry of any duly authorized representative
of the Agency to obtain copies of records and to inspect and obtain sanples at
any establishment where hazardous wastes are or have been generated, stored,
treated, disposed of, or transported from. Is this Agency representative in
any way limited to what he or she can inspect and sanple?
Authorized officers, employees and representatives, including authorized
contractors, are allowed to enter any portion of a facility which is being
or has been used to generate or nonage hazardous wastes. Such persons nay
inspect and obtain sanples of v>3**rA-nR wastes and inspect containers and
labelling of such wastes. The inspection nust be for the purpose of devel-
oping regulations or enforcing provisions of RCRA. The specific objective
of the inspection does not have to be written in any form, but the inspection
mist strictly deal with the generation, management or transportation of
hazardous waste.
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ttJG-15-1996 18:56 FROM EPft OE-RCRft TO ,97032088609 ; Pi 02 ;-,
^
*
ussy
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460 -"' -
9504.1986(02)
17 1386.
MEMORANDUM
SUBJECT* Inspection Authority Under Section 3007 of RCRA
PROM: Francis 6. Blake«£— fc <&/££~/* —
General Counsel .
TOi J. Winston Porter
Assistant Administrator for Solid Waste and
Emergency Response
A number of questions have arisen concerning the scope
of the Agency's ilnspection authority under section 3007 of
RCRA. AS discussed below in more detail, I believe that our
inspection authority (Including the authority to sample)
extends to any establishment, place, or facility that either
presently or* in the past has handled solid wastes that EPA
reasonably believes may meet the statutory definition of a
hazardous waste. This authority is limited by the fact that
it must be used to gather information concerning hazardous
wastes and must be exercised for the purposes of RCRA rule-
making or enforcement. Within these limits, section 3007
authorizes inspections in connection with a number of RCRA
provisions including the Agency's section 7003 imminent
hazard authority, its present Subtitle C regulations, its
corrective action authority under sections 3004 (u) and 3008{h),
and its Subtitle D authority under sections 4005 and 4010.
Section 3007 (a) provides that "If lor purposes of developing
or assisting in the development of any regulation or enforcing
the provisions .of this title," EPA is authorized
(1) to enter at reasonable times any establishment
or other place where hazardous wastes are or
have been generated, stored, treated, disposed
of or transported from;
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RUG-15-1996 18:56 FROM EPfl OE-RCRfl ,JO .'.y. -..-:-. 97033088609 . P.63
• - 2 -
(2) to inspect and obtain samples from any person of
any such wastes and samples of any containers or
labeling for such wastes.
A plain reading of this language unambiguously suggests
a broad grant of•inspection authority. As noted above/ the
exercise of this authority is expressly limited by only two
conditions. First, the specific information gathered must
relate to hazardous wastes. Second, it must be used for the
purposes of RCRA ruleraaking or enforcement. .Each of these '
conditions, while providing clear limits on the use of the
Agency's inspection authorityt is nonetheless stated in
expansive terms. I/
• a. Hazardous Wastes
The first condition is stated in general unrcstrictivc
language. By providing authority to enter "any establishment
or other place where hazardous wastes are or have been gener-
ated t Stored, treated, disposed of or transported from*
(emphasis added)/ Congress unequivocally provided for a broad
application of the Agency's inspection authority. There is
no limiting reference in this language to Subtitle C facilities
or units. Nor is there any requirement that the hazardous
waste management activity be currently ongoing or even that
the site of the activity be a disposal area. For example, .
under the language noted above, EPA's inspection authority
extends to generator sites, storage areas, treatment opera-
tions and transfer points. Thus, the emphasis is on any
geographical location where hazardous wastes presently may be
or in the past have been handled - whether or not in compliance
with Subtitle C. Quite clearly, this may include solid waste
management units otherwise subject to Subtitle D.
Use of the phrase "hazardous wastes" is itself a further
indication that the scope .of section 3007(a) is not limited
to Subtitle C facilities and units. Unlike sections 3002
through 3004 and section 3010, Congress did not confine the
operation of 3007(a) to "hazardous wastes identified or listed
under this subtitle" (emphasis added). As explained in the
preamble of the May 19, -I960 hazardous waste identification
I/ The inspection provisions of section 3007(a) are similar
to those under section 104(e) of -CERCLA. Although not
addressed in this discussion/ it is important to note that
section 104 (e) as well as other provisions of CERCLA may
provide additional and independent grounds for entry and
inspections at solid waste facilities.
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RUG-15-1996 10:57. FROM \EPfl OE-RCRR .. TO . . 97033888689 P.84
- 3 -
and listing rules 2/ and more recently articulated in the
Agency's amendments to the definition of solid waste 3/ , EPA
believes Congress* unrestricted use of this phrase confirms
that the scope of section 3007(a) extends to any solid waste
that the Agency reasonably believes may meet the statutory
definition of a hazardous waste under section 1004(5).
As defined by Congress, the term hazardous waste means
any solid waste that EPA reasonably baliovoe
because of its quantity, concentration, or
physical, chemical, or infectious charac-
teristics may .
(A) cause or significantly contribute to an
increase in mortality or any increase in
serious irreversible,, or incapacitating
revere iole, illness; or
(B) pose a substantial present or potential
hazard to human health or the environ-
ment when improperly treated <• stored,
transported, or disposed of/ or otherwise
manage'd. ( eiuphas is added )
Clearly a waste which is "classified* as hazardous pursuant
to regulations under section 3001 (i.e., is listed or meets
one of the characteristics) would automatically fall within
the scope of the section 1004(51 definition. But just as
clearly, any other solid waste that "may pose a. . .hazard. ..
when improperly. ..managed" (emphasis added) also meets the
statutory definition even though no formal action identifying
it as a hazardous waste has been taken. This second group
includes, for example, solid wastes containing any of the
hazardous constituents lie ted in Appendix. VIII to Part
2/ 45 Fed. R<32.. 33084, 33090 (May 19, 1980).
3/ 50 Fed. Reg. 614, 6.27 (January 4, 1985); 40 CFR §
2€l.l(b)(2).
4/ This view was expressly affirmed by Congress in its
consideration of the 1984 Hazardous and Solid Waste
Amendments: "EPA's authority under these provisions [sections
3007 and 70031 is.not limited to wastes that are 'identified
or listed* as hazardous, but rather includes all wastes that
meet the statutory definition of hazardous waste.* E.R. Rep.
No. 198, 98th Cong., 1st Sess. 47 (1983).
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RUG-15-1936 18:57 FROM EPfl OE-RCRfl TO . •• , • 97833888689 ; P.85
- 4 -
which may form the basis for listing actions under 40 CFR
§ 261.11. As explained at length in the Agency's Hay 19,
1980 rule, "the presence of any of these constituents in the
waste is presumed to be sufficient to list the waste unless
after consideration of the designated multiple factors
[specified at 40 CFR S 261.11] EPA concludee the waste ie not
hazardous." 5/ .
"*" . . *
There ie little guoction that znaterialc mooting the
definition of hazardous waste may be improperly disposed of
at Subtitle D solid waste management sites. We, therefore,
believe the scope of section 3007(a) may extend to such
locations. As Congress recognized in enacting amendments to
Subtitle D as part of the 1984 Hazardous and Solid Waste
Amendments, -
Subtitle D facilities are the recipients of-
unknown quantities ot hazardous waste and other
dangerous materials resulting from the disposal
. of household waste, email quantity generator
wastes and illegal dumping. 6/ (emphasis added)
To interpret EPA's inspection authority as applying only
to wastes managed at Subtitle C facilities or units leads to
the incongruous result of EPA'6 inspecting a self-defined
class of facilities that have already acknowledged their
hazardous waste management responsibilities. This narrow
interpretation essentially precludes the Agency from identi-
fying other situations where the improper and unacknowledged
storage or disposal of hazardous wastes may pose a threat to
the environment, we do not believe that this is either whaf
Congress intended or what the plain language of section
3007(a) suggests.
b. Ruleraaking and Enforcement
The second condition of section 3007(a) explicitly provides
hazardous waste inspection authority "tfJor the purposes of
developing or assisting in the development of any regulation or
enforcing the provisions of this title" (emphasis added). In .
passing the 1980 amendments to the Solid waste Disposal Act,
Congress substituted the tern "title" in place of "subtitle"
specifically to extend the scope of section 3007(a) beyond
Subtitle C. As explained in the accompanying Senate report,
this change
5/ 45 Fed. Reg. 33084, 33107. '
6/ H.B. Rep. No. 1133, 98th Cong., 2d Bess, 117 (1984).
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HJG-15-1936 10:58 FROM EPfl OE-RCRfi TO . - 97033888609 P.86
- 5 -
, . * expands the Administrator's authority
to request information or examine the records
of a person handling solid waste. At present,
this authority applies only to actions under
Subtitle C dealing with hazardous wastes.
The amendments would allow such access for
purposes of the entire Act. 7/.
.
Thus it ic clear that the Agency's inspection authority
extends not only simply to Subtitle C actions but also to •
activities under other RCRA Subtitles, as well. Within the
general constraint, that it be related bo haeardouc waste, the
scope of section 3007(a) authority is determined primarily by
the specific ruleraakinc. or enforcement purposes for which it
is used. . in tills context^ we believe there are e number of
legal bases under which the authority to enter and inspect is-
broadly available to the -Agency.
1. Rulemaking
With regard to rulemaking, section 3007(a) by its term*
is available to assist "in the development of any regulation"
under RCRA. Undec this provision, we believe that the Agency
has the authority to gather preliminary data both to determine
the need for regulation and, where the need is established,
to develop an appropriate regulatory strategy adequate to
carry out the requirements of FCRA. Depending on the criteria
and relevant requirements of the provisions or section under
which a particular rulemaking is developed, this may include
detailed scientific, technical, or financial questionnaires
and surveys/ as well as on-site inspections and sampling.
This authority extends not only to ruleroakings under
Subtitle C but, as noted above, to ruleraakings under other
provisions of RCRA. With recpoct to Subtitle C, this authority
would extend, for example, to gathering information to as'sist .
in developing corrective action standards under section
3004(u). Because the provisions of section 3004(u) apply to
both solid waste and hazardous waste units at any facility
seeking a section 3005(c) permit, the inspection and sampling
authority of section 3007 would also extend to such unite to
assist in gathering data relevant to the rulemaking process.
With respect to nbn Subtitle C provisions, section 4010
provides an example of section 3007's applicability under
Subtitle p. Enacted as part of the 1984 BSWA amendments,
section 4010 requires the Administrator to conduct a study on
7/ S. Hep. No. 172, 96th Cong., 2d Sess. 3 (1979); see also
H.R. Rep. No, 1444, 96th Cong., 2d Sess. 35 (1980).
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UG-15-1996 18=58 FROM EPR OE-RCRfl . TO -: 9TO33088609 . P.8?
the adequacy of existing Subtitle D guidelines and criteria
and to promulgate revised criteria for Subtitle D facilities
that "may receive hazardous household wastes or hazardous
wastes from small quantity generators under section 3001(d)*.
Because one of the purposes of the study and the central
purpose of the revisions is to address hazardous wastes at
Subtitle.D facilities, we believe the-Agency's entry and
inspection authority under section 3007{a) extends to gather-
ing information at Subtitle D facilities both for hhe purpose
of conducting the study as it relates to hazardous wastes and
to assist in developing revisions to existing Subtitle D
criteria.
2. Enforcement
With regard to enforcement, the scope of section 3007(a).
is equally broad and, again, extends not simply to Subtitle C
actions but also/ tor example, to enforcing Lhe broad imminent
hazard provisions of section 7003(a). By its terms, this
section applies to any situation under RCRA (whether or not
it is regulated under Subtitle C) in which "the past or pre-
sent handling, storage, treatment, transportation or disposal
of any solid waste or hazardous waste may present an imminent
and substantial endangerment to health or. the environment"»
In addition to enforcing section 7003, the Agency's
inspection authority is available to gather information in
support of actions under the general Subtitle C enforcement
authority of section 3G08, as well as under the Subtitle D
enforcement authority of section 4005(c). With respect to
both sections, EPA interprets its "enforcement" inspection
authority to extend not only to information gathering in
connection with a particular judicial or administrative
proceeding but also to assist in the preliminary day-to-day
information gathering end data analysis associated with
permitting and compliance assessments that ultimately may
lead to specific enforcement actions. Section 3008 applies to
a "violation of any requirement11 of Subtitle C and thus, for
purposes of enforcement, the inspection and sampling authority
of section 3007 is available for determining and assuring
compliance with any Subtitle C requirement* Onder section
4005(c), EPA's inspection authority is also available but in
a somewhat more limited context for purposes of enforcing
Subtitle D open dumping criteria that have been revised under
section 4010. This open dumping enforcement authority and,
by extension, EPA's inspection authority is available only in
those circumstances where a state has tailed to adopt an
adequate program assuring compliance with the revised criteria.
In the case of inspections at a Subtitle C facility to.
determine compliance with applicable hazardous waste regulations/
the scope of section 3007(a) authority is determined, again.
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UG-15-1996 18:59 FROM EPfl OE-RCRfl TO ... 97833088609 P.88
- 7 -
by the two constraints that the information gathered relate
to hazardous wastes and be used to enforce a RCRA provision.
The clearest example of an authorized inspection at such a •
facility under section 3007(a) is, of course/ sampling at
solid waste units that are expressly managed as Subtitle C
hazardous waste units. The information obtained unquestion-
ably will relate to hazardous wastes and can be used to
enforce applicable regulatory requirements. However", it
should be emphasized/ as noted above, that section 3007{o)
inspection authority just as clearly extends to other non-'
subtitle c units at a Subtitle C facility where there is some
basis for concluding that they nay also provide information
relating to hazardous wastes. Samples from the non-Subtitle •
C unit may provide information concerning hazardous wastes
that have been disposed of in the unit Itself,-and, .in certain
circumstances, the samples may provide information 'regarding
the management of hazardous wastes 'that have been placed in
nearby Subtitle C units. An example of the second case would
be a situation in which both the solid waste and hazardous
waste units were located near one another over the same
aquifer. Depending on the hydrogeology at the site and the
placement of wells at each unit, samples from the solid waste
unit, may well provide information regarding leachate from the
hazardous waste unit.
The corrective action requirements in sections 3004(u)
and 3008(h) provide additional grounds for the broad applica-
tion of section 3007's enforcement inspection authority.
Section 3004(u) requires corrective action 'for all releases
of hazardous waste or constituents from any solid waste
management unit at a...facility seeking a permit under this
Subtitle [C]B (eni phasic added], B/ Congrecs made clear that
the phrase "solid waste management unit* .was specifically
8/ Congress specifically provided that the corrective action
requirement is to be implemented through standards promul-
gated under section 3004 and permits issued after November 8,
1984. EPA's inspection authority for rulemaking purposes is
discussed above. The Agency has incorporated the general
requirement for corrective action in its regulations at 40
CFR § 264.101. See 50 Fed. Reg. 28747 (1985). Thus, the
requirement is presently in effect and applies to any "facility
seeking a permit for the treatment, storage or disposal of
hazardous waste..**. 40 CFR § 264.101(a).. EPA intends to
issue more detailed national standards addressing appropriate
corrective action for releases of hazardous waste or consti-
tuents from solid waste management units at such facilities,
but until such standards are established the Agency will
implement the corrective action requirement of section 3004(u)
on a case-by-case basis. See 50 Fed. Reg. 28713 (1985).
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RUG-15-1996 11:03 FROM EPft OE-RCRfl TO 97033888609 . P.09
- 8 -
added to the language of section 3004(u) "to reaffirm the
Administrator's responsibility to examine all units at the
facility £rom which hazardous constituents might migrate,
irrespective of whether the units were intended for the
management of solid or hazardous wastes."
By explicitly requiring that the provisions of section
3004 (u) apply to any solid waste management unit at a hazardous
waste facility/ Congress has made the cleanup of such units
an element of hazardous waste management under section 3004.
Congress' specific reference to releases o£ hazardous consti-
tuents from solid waste management units confirms the broad
scope of section 3004 (u) and is consistent with the Agency's
Interpretation of hazardous waste discussed above/ which
includes not only "identified" hazardous wastes but also
those wastes that may contain hazardous constituents listed
in Appendix viii of 40 CFR Part 261. These factors when
considered in conjunction with the explicit legislative
history noted above reaffirming "the Administrator's respon-
sibility to examine all units" at a Subtitle C facility
confirm that Congress considered the regulation of these
units to be an integral, part of the hazardous waste program
under Subtitle C and thus clearly within the scope of section
3007 (a) inspection authority.
With respect to interim status corrective action authority/
section 3008 (h) provides that "whenever on the basis of any
information the Administrator determines there is or has been
a release of hazardous waste into the environment from a facil-
ity authorized to operate under .section 3005 (e) of this
subtitle, tho Administrator way issue an order requiring
corrective action." Congress viewed this provision as "a
supplement to EPA' s power to impose corrective action through
permits* 10/y that EPA would uec "to achieve the environmental
standards promulgated under section 3004." ll/ Because section
3004 has been amended to extend corrective action requirements
to all solid waste management units at facilities seeking a
RCRA permit/ the Agency has interpreted this mandate to
authorize the issuance of corrective action orders to any
interim status facility containing solid waste management
units (regardless of whether they are Subtitle C or Subtitle
D units) from which there has been a release of hazardous
waste to the environment. 12/
9/ H,R. Rep. No. 198, 98th Cong., 1st Sess. 60 (1983).
H.R. Rep. No. 1133, 98th Cong., 2d Sess. Ill (1984).
12/ See 50 Fed. Reg. 28716 (1985)
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RUG-15-1996 11:01 FROM., EPfl OE-RCRfl TO 97833888609^;, P.10
- 9 -
Because section 3008(h) extends corrective action
authority to releases from any solid waste management unit at
an interim status facility, we believe that section 3007(a)
inspection authority also extends to such units for the
purpose of determining whether. there has been a hazardous
constituent release and what corrective action would be
appropriate.
cc: Richard H. Mays (LE-133)
Regional Counsels .
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This Page Intentionally Left Blank
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9504.1987(01)
JUL 201987
SUBJECTi Enforcement of Applicable RCRA Regulations at Facilities
with rending Dellsting petitions
FBOHz G«ti« A. Lucero, Director
Office of Waste Programs Enforcement
flarcia Williams, Director
Office of Solid Waste (WH-562)
TOi waste Management Division Directors
Regions I, IV, V, VIZ, & VIZI
Air ft Waste Maogeaent Division Director
tegioa ZZ
Haiardous Waste Management Division Director
Region III, VI | X
Tocics i Waste Management Division Director
Region ZX
The purpose of this Msworanduai is to restate Agency
policy regarding the enforcement of applicable RCRA
regolatioos at hazardous waste handlers that have pending
(5*11 at ing petitions. It has cove to our attention that so*«
Kegions and States aay be allowing non-compliance with sone
or all of the BC2A Subtitle C requirements pending a decision
on .active delisting petitions. We are reaffirming nere that
these was.tea remain hasardoas wastes and that they, and the
units in which they are managed, are subject to all applicable
RCRA regulations, including financial responsibility, groandvater
aonitoriag and closure requirements, until the delisting is
officially granted* In addition, facilities are still subject
to the 1988 and 1989 statutory deadlines for permit issuance.
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-1-
Sections 260.29 and 260.22 establish • petition process
which allowu a facility to demonstrate that its waate, although
captured by tha broad liatings of section 261.3, doe§ not aw«t
any criteria under which the waste was listed, including the
presence of additional conatituanta. Decisions on waate
delisting have alwaye been baaed on a chemical characterisation
of the waste itaelf and of tha processes generating that
waste, not on facility deaign, management practices or sit*
conditions. Therefore, until a final daciaion ia made to
grant the petition, the waste is hazardous and tha facility
remains subject to enforcement of all applicable regulationa
(including compliance with Subpart F groundwater monitoring
requireaents). Facilitiaa that are not in compliance with
RCRA regulations are subject to enforcement action.1
Concommitantly, facilities (excluding those with temporary
or informal exclusions) that had pending deliating petitiona
on November 8, 1985, were aubject to the Loss of Interim
Status (LOIS) provision of the Hatardous and Solid Waste
Amendments of 1984 (HSWA). Facilities that failed to validly
certify compliance with Subparts F and H and submit a Part B
application for an operating permit on or before November 8,
1985 were required to cease operating their hasardous waste
land disposal unita and submit a cloaure plan for those units.
by November 23, 1985. Facilities with pending daliating
petitions that failed to retain interim statua and continued
to operate after November 8, 1985, and/or failed to submit the
required closure plan are subject to enforcement actions
under Section 3908 Of RCRA.
1 Facilities whoaa only waste was subject to a temporary or
informal oxclusion ware not required to meet Part 265
standards during the effective time of the exclusion.
However, all temporary and informal axclusiona that had
not previously bean actad on expired by statute on 11/8/86
(Section 3001 (f)(2)(8)). Facilities that had either a
temporary or informal exclusion were in one of four
categories on 11/8/86t (1) the final daliating waa granted
and that wast* is no longer subject to regulation under
RCRA| (2} the petition was denied when, after repeated
requ*sta from the Agency, tha facility failed to provide
additional information for tha petition) these facilities
had %•> bo in compliance with Part 265 regulationa immediately;
(3) the) completed petition waa denied baaed on the merits
of the petition (i.e,, the waste was determined to b«
hasardous)} these facilities had six months from tha date
of publication of the denial in the Federal Register to
come into compliance with Part 265 standards} or (4) tha
exclusion expired by statute} these facilities' petitions
moved back into the standard dalisting process and the
facilities ware again aubjact to all applicable RCRA
requirements.
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If you have aey questions regesdiag the itetafeiee of
this policy, please call Steve Heeze fit
ccs Elaine Stanley
Bcuce w«ddl«
RCRA T-.L . ^ Branch Chief a,
R«9ions I « X
NBrownc:cmc:WH-527:6/19/87t475-9326
Nancy 1: File 1
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UMHEM^TES ENVIRONMENTAL PROTECTS 9504.1987(02)
JUN-5 1967
MEMORANDUM
SUBJECTt OSHA Hazardous Waste Site Activity
PROM* Art Glazer, Chief
Incinerator/Storage PAT Section
TO: Hazardous Waste Branch Chiefs, Regions I-X
During the March Permit Writers Conference Call, I polled
the Regions to determine if you anticipated needing large-scale
assistance from the Occupational Safety and Health Administration
(OSHA) to address issues relating to worker health at RCRA
facilities. The potential need for OSHA assistance had come
up during earlier discussions with the Regions when we were
identifying candidate facilities for health assessments by AT SDR
under Section 3019 of RCRA.
As it turns out, the polled Regions generally did not foresee
the need for large-scale OSHA assistance in addressing worker
health issues at this tine since there had been only a few isolated
cases where worker health issues had surfaced. However, several
Regions indicated it may be helpful to have access to information
OSHA has prepared on TSDs they have inspected in order to assist
the permit writers in evaluating worker safety/contingency plans
or other aspects of the Part B. My staff talked with OSHA'a staff
and they can provide us with information on OSEA's compliance
aonitoring history at RCRA facilities.
OSHA has been inspecting RCRA facilities and has developed a
data system. QSHA's data system divides the RCRA universe into
two cetegoxies)! generators (including on-site facilities) and
off-site Tttto. Attached is a list of OSHA Regional Administrators
responsible cor monitoring RCRA/CERGLA facilities and an example
of how OSHA fsiicord* inspections in it's data system. This infor-
mation was furnished by staff at OSHA's Health Response Team
(HRT) which is located in Salt Lake City.
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- 2 -
£PA and OSHA have worked together in the past at several
RCRA facilities (e.g., i-'PA inspectors have referred facilities
to CSHA's inspectors when there was concern for worker safety).
Although EPA dots not hav^ a signed agreement with OSHA to do
joint inspections at RCRA facilities, or for that matter, to
make reicrrals. OSHA's HRT provided us with a print-out from
their data .system of past OSHA activities at RCRA commercial
facilities; about 75 inspections (some repeats) have been recorded
over the last several years. The print-out is not in a format
that lends itself to easy reproduction, so I an attaching several
pages as an •sample. OSHA's information on RCRA facilities
appears to fee unel'ul in writing permits and performing inspections.
You arc encouraged to contact th« appropriate OSHA Regional
Administrator (note. OSHA's Regions are the sasw as LPA's Regions)
to discuss inspection philosophies or to obtain a compliance
revert on a particular racj-lity.
On< or OohA's LfcT objectives is to prepare a "Compliance
Directive and Targeting Notice" (CCTN) which will list facilities
targeted Icr inflection. OSHA agreed to send us a copy when it is
completed and in turn I'll provide each of the you with a copy*
You can else contact HRT's Cindy Coe at FTS 583-5896 or OSHA's
HU-RCKA representative Chap Pierce at FTS 523-7216 to discuss
this infcmation system or their general operating procedures.
I hot*? thi« information aids you in the working with OSHA.
If you hav.- any questions regarding OSHA's standards, policy, or
guidance froir the EFA standpoint, please contact Chet Oszwan at
FTL 362-449v-
Attachments
cc. Bruce wedd.lt, OSW
Suzanne RudcinsKi, OSW
Cindy co«, CSHA
Chap Pierce, OShA
Chet Oezroan, CSV*
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9504.1991(01)
»)«..
?0/ 7 199!
OFPiCE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Concurrence on 7003 Order for Shell Pipe Line Corporation
of Niobrara County, Wyoming
FROM: Bruce Diamond, Director
Office of Waste Program5-cfcrfr:orcement
TO: Robert Duprey, Director
Hazardous Waste Management Division, Region VIII
In the matter of Shell Pipe Line Corporation, I concur on your
use of Section 7003 to compel the rcompany to clean-up the spilled
oil.
The use of Section 7003 to compel clean-up of an oil spill is
a proper use of the RCRA statute. Spilling meets the definition of
disposal and spilled material generally qualifies as a solid waste.
For this reason, the spill is potentially subject to RCRA §7003
authority (40 CFR 260.10 and 40 CFR 261.2), regardless of whether
or not it may meet the definition of a characteristic hazardous
waste, e.g. TC for benzene.
The New York State Petition addresses the question of how
benzene contaminated petroleum waste must be managed during
remediation. If the petition is approved by the Agency, it will
only affect the final management and disposal of such waste, not
the Agency's ability to use Section 7003 to obtain clean-up in
cases of imminent and substantial endangerment.
In the future, you might also consider using the authority of
the Oil Pollution Act (OPA) to compel clean-up. This Act, which
amends the Clean Water Act may soon be available for Regions to use
in enforcement actions requiring clean-up of oil spills. Among
other things, the OPA allows an enforcement action to be taken
against a facility that discharges oil or hazardous substances into
or upon navigable waters of the United States, adjoining
shorelines, into or upon the waters of the contiguous zone, or that
may affect natural resources belonging to, appertaining to, or
under the exclusive management authority of the United States
[Federal Water Pollution Control Act §311 (c)]. This authority may
apply to spills like the Shell Pipe Line incident. In the FINDINGS
Printed on Recyc/ed Paper
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OF FACT (Section IV) of the proposed §7003 Order for the Shell
spill, paragraph E states that portions of land on which are
located "navigable waters" were saturated by the spilled oil.
Presumably, the oil went into or upon the navigable waters or onto
adjoining shorelines. Also, Shell Pipe Line Corporation meets the
definition of a facility as described in the OPA §1001 (9)
"facility" and is liable for removal costs and damages as described
in §1002 (a) of the same Act. The advantage of the OPA is that
should a facility fail to comply with an administrative order for
removal, the facility may be subject to a penalty up to three (3)
times the cost incurred by the Oil Spill Liability Trust Fund
[Federal Water Pollution Control Act §311 (b)(7)(B)(ii)].
Previously, EPA could not order a company to clean-up under
the Clean Water Act §311. Only the President had that authority
[Federal Water Pollution Control Act §311 (c) and (e)]. On October
18, 1991 the President delegated his authority to the Administrator
of EPA and the Secretary of Transportation. The Agency is
presently working on delegating this authority to the Regional
Administrators.
If you have any further guestions regarding the Oil Pollution
Act, please contact Cecilia Smith of my office at FTS 260-9811.
cc: Matt Hale
Stephen Heare
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9505 - PUBLIC
PARTICIPATION IN
PERMITTING
ACTIVITIES
ATKl/l 104/8 kp
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
September 1C, 196*
MEMORANDUM
SUBJTCTi Pieltf Assessment antf Public Involvement Plan
for the Occidental Incinerator
PP.Ofi: Vanessa K.usarave, HQ
TOt Drew Lehimn and Larry Ennist, Region II
It occurred to na that them ars several point* you ;a<*y
want to ccrnrunicate to F.PA Regional and State staff who have
not been involved with th« planning for the Occidental incinerator
facility's public involv*msnt plan to date. In particular, you
need to be sure that these staff clearly understrata the purpose
and likely outcona of the field assessnsnt and public involverwnt
plan, otherwise, I think, they may have unrealistic *xpcct«tions
about how much the plan can accomplish and 4\at is involved in its
preparation. Specifically, they should undsrstam! thati
o The purpose of the field assessment is to research
ccn.nunlty concerns, not to provide net information
to the ccnmunity. Vie will mostly be listening in
our interviews with citizens and officials in the
Niagara Falls area.
o Th<* findings fron this researach effort vill be useJ
to nrepare the public iovolverasnt
The public involvement plan is only the first step
in <£!*• overall public involvensnt program tor the
permitting process for the Occidental facility.
Tn« plan will describe the findings of the field
assoasBent and describe activities to be undertaken
by th« State and Region during ths) permitting process
to provide; information to the public and provide
opportunities for public input.
The plan will be consistent with the facility Kan»j*bi«*nt
plan. In addition, the plan will include public partici-
pation activities ruquirert under State and Federal law
SYMBOL
. . _. , , . ^COHCUauMfiOj . .-^J- ~.* ^w« _ ^ .<. • . i i
i n*f'tT r*Tj.VJ.Tl^T TC *f^ ^Y*ar^~r^' ttmmnm nr *na 1VT •frtr ^ * *
W affcocted public near[ the Occidental..*Jcility._ I
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-2-
c One important reason tcr developing thia tal3n is t^
a nodal for public involvement plan* to oe developed b/
other Regions or States. In particular, because i&any
facilities involve both RCRA and CERCL& activities, this
plan can begin to address the coordination of these
activities.
It is important that all staff involved with tne Occidental
incinerator understand the limits on the amount a public involve-
ment plan can accomplish before the field assessment is con-Jucteu.
A plan can help coordinate public involve rant activities and
prevent unnecessary friction with the community caused by hap-
hazard or insufficient ef Sorts. However, no one should exjyect
thft plan to identify activities that will resolvt all the oublic'*
concerns and prevent any local opposition to Federal or State
government actio-is.
If you have any questions or want to Discuss these topics
further, please give rae a call at 202/332-4751.
cct Suaan Katz
Taul Counterran
Jin Dolan
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9505.1987(01)
AUG 1 3 .='wT
SUBJECT! Negotiated Penr.its
PROM i Marcl a Williams, Director 2 ° ^^' -- '
Office of Solid Waste (WR-562)
TOt Regional Division Director a
Regions I-X
As we move toward the 1988 and 1989 permitting deadlines
an
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- 2 -
Please let ne Know if you have any facilities in your
Region that you believe are appropriate fcr negotiation,
an-3 if you are interested in financial support frau OS..' for
a i?ilot project. If you have any questions on tnis issue,
please contact FranX "cAlister of the Permits Branch (3C2-2223)
cci Regional Cranch Chiefs, Regions I-X
Bruce WecMle
Matt Hale
Frank HcAlister
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\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
* • WASHINGTON, D.C. 20460
18* 9505.1994(01)
OFFICE OF
SOLID WASTE AND EMERGENCY
. RESPONSE
MEMORANDUM
SUBJECT: Application of Enhanced Public Participation and
Stronger Combustion Permitting Requiremei
FROM: Elliott Laws, Assistant Administrate,
TO: Regional Administrators, I - X '«
The Agency is proposing the "RCRA Expanded Public
Participation and Revisions to Combustion Permitting" rule.
This proposal represents a major step in our efforts to enhance
public involvement in the RCRA process, one of the key elements
of the Draft Strategy on Hazardous Waste Minimization and
Combustion, announced by Administrator Browner last May.
The principal goals of the proposed rule are:
»• to provide more opportunities for public involvement in
the RCRA permitting process, both early on and
throughout the decision-making process; and
> to provide improved interim status combustion
permitting procedures.
In the spirit of the Administrator's desire to increase
public involvement, I strongly encourage all EPA Regions to start
meeting the goals of the proposed rule as soon as possible.
Where EPA is the permitting authority, the Regions should begin
implementing those portions of the proposed rule that are to be
implemented by the permitting authority. Among such provisions
are proposals to: issue a notice upon receipt of a permit
application (proposed Section 124.32); conduct permitting
activities in such a manner as to assure the opportunity for
meaningful participation by all segments of the public, including
non-English speakers (proposed Section 124.30); and issue public
notices announcing the scheduled commencement and completion
dates of facility trial burns (proposed Section 270.62). I
believe the Agency has discretionary authority to implement these
provisions on a case-by-case basis before the Agency promulgates
the final rule.
Recycled/Recyclable
Printed with Soy/Canola Ink on paper thai
contains at least 50% recycled fiber
-------
Where the State is the permitting authority, I would like
the Regions to encourage the States to implement these provisions
as well. Many State programs have such provisions already.
Where requirements proposed in the rule would fall on RCRA
permit applicants EPA cannot require applicants to comply.
However, I urge the Regions to encourage these applicants to meet
the enhanced proposed requirements where feasible. Among these
are proposed requirements to require RCRA permit applicants to
hold pre-application meetings (proposed Section 124.31); the
provision providing for an information repository in certain
instances (proposed Section 124.33); and the requirement that
interim status facilities submit proposed trial burn plans for
approval with Part B of their RCRA permit applications (proposed
Sections 270.19 and 270.74 (c)).
I am issuing this guidance in light of the rulemaking
procedures that we must follow. I anticipate a 60-day comment
period following the proposal, and then several more months to
respond to the comments. It/ therefore/ may be six to twelve
months before the rule in promulgated as a final rule. In the
interim, unless the Regions and States expeditiously begin to
implement the goals of the proposal, the public will not have the
expanded opportunities that the rule would afford.
As you know, the interim status universe of BIFs and
incinerators is the Agency's top priority in RCRA permitting. We
believe that providing meaningful public involvement in the RCRA
permitting process and strengthening the combustion permitting
process for interim status facilities is consistent with the
Administrator's objectives and fortifies the RCRA permitting
process.
The proposal should be published in the Federal Register in
the coming weeks. Copies will be sent directly to all Regions
and States to facilitate speedy implementation of the goals set
forth.
I appreciate your cooperation in promoting early and
effective public involvement for all RCRA facilities and a
stronger permitting process for interim status combustion
facilities. I urge you to consult with your respective Offices
of Regional Counsel on the application of these goals in
individual cases. If you need any additional information about
this proposed rule, please contact Victoria van Roden of my staff
at (703) 308-8623.
cc: Michael Shapiro
Matt Straus
Devereaux Barnes
Fred Chanania
Patricia Buzzell
-------
Larry Starfield, OGC
RCRA Branch Chiefs, Regions I r X
RCRA Section Chiefs, Regions I- X
RCRA Public Involvement Network
RCRA ORC Branch Chiefs, Regions I-X
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This Page Intentionally Left Blank
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3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
,.-•.-
DEC 20 1995
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
9505.1995(01)
MEMORANDUM
SUBJECT: Implementation of the RCj(lA Expanded Public Participation Rule
FROM: - . Elliott P.
Assistant
TO: Regional Administrators
Regions I - X .
The Agency recently took a major step forward in its effort to promote public
involvement and environmental justice by promulgating the "RCRA Expanded Public
Participation Rule" (60 £R 63417-34, December 11,1995).
The final rule improves the RCRA permitting process by: (L) providing earlier
opportunities for public involvement in the process and (2) expanding public access to
information throughout the permitting process and the operational lives of facilities. The rule's
requirements include: a facility-led pre-application meeting; agency notice at application
submittal; agency notice of impending trial burns; and a provision for information repositories.
Immediate Implementation
While the effective date of the rule will not arrive until six months after promulgation, I
am recommending that all EPA Regions start meeting the goals of the final rule as soon as
possible. The Regions, in turn, should encourage the States and individual RCRA facilities to
meet these goals even as States are pursuing authorization for components (e.g., this rule, BIF
permitting, and corrective action) of the RCRA program;
Early implementation of the final rule will allow the public to benefit immediately from.
the rule's new.and important procedures. This early implementation will be useful for the entire
program and help the Agency fulfill its commitment to meaningful public involvement in RCRA
permitting.
Printed on Recycled Paper
-------
I would like to express my appreciation to the Regions for working to achieve these goals
since the Agency proposed the rule in June 1994.- We are encouraged by the positive reception
these new standards have received, and look forward to full implementation.
Guidance on Equitable and Flexible Public Participation . ^
The development of the final rule involved a balance between broader, more equitable ..
public participation and flexibility for individual permit writers, facilities, and communities to
adopt the most appropriate, site-specific approaches. Some of the principles underlying the final
. rule would have been difficult to prescribe through regulation. We decided that, instead of trying
to achieve these goals through regulatory language, the public interest would be served best by
encouraging permitting agencies and permit applicants to adopt these principles through
guidance. .- ''•"'. ••. • - '••''.•';. . ' •'_•';
Consistent with this approach, you should abide by the following principles in your '.
permitting efforts: - -
• Using all reasonable means to ensure that all segments of the population have an equal
opportunity to participate in the permitting process and have equal access to information
in the process. These means may include, but are not limited to, multilingual notices and
fact sheets,;as well as translators, in areas where the affected community contains
significant numbers of people who do hot speak English as a first language;
• Addressing environmental justice concerns, in part, by expanding access to information
. (particularly in a multilingual format) and opportunities for public input (through tools
such as information repositories); and
• Going beyond the regulatory requirements, where appropriate, to provide for a level of .
public involvement that is commensurate with public interest in the permitting issue.
. I also encourage State permitting agencies and permit applicants to adopt these principles in their
dealings with the RCRA program. These policies will improve the RCRA permitting program
and promote the Agency's commitments hi the area of equitable public participation.
We are providing further guidance for implementing the final rule and this policy
directive in our update of the 1993 RCRA Public Involvement Manual (EPA530-R-93-006,
September 1993). We anticipate issuing the new guidance document in Spring 1996. The.
revised manual will provide guidance to regulated facilities and affected communities, as well as
permitting agencies. .
. 2
-------
:i ?•''•:. If you need any additional information about the rule, the policies in this memorandum,
or the upcoming guidance manual please contact Patricia Buzzell of my staff at (703) 308-8632.
cc:: ; Michael Shapiro
Linda: Garczynski, OSPS
.Matt Hale X • "• ;
Frank McAlister ,
Patricia Buzzell '•'- -
•Fred Chanania . -
:' Paul Bangser, OGC .".!..
Hazardous Waste Management Division Directors, Regions I - X '
^Hazardous Waste Management Division Branch Chiefs, Regions I - X
RCRA Public Involvement Network ;• ;'
Lance Miller, Permits Improvement Team
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9520 - PERMITTING
PROCEDURES
Part 270
ATKl/1104/4kp
-------
9520.1986(01)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
FEBRUARY 86
2. The Qnnibus Provision and Permits
An interim status landfill contains reactive hazardous waste (D003). The land-
fill is a regulated unit because it accepted hazardous waste after July 26, 1982.
Since it is a regulated unit, the landfill is subject to 40 CFR 264 post-closure
standards. EPA enforces 40 CFR 264 post-closure standards by issuing a post-
closure permit. Prior to closure, the waste at tne facility will be treated
until it no longer exhibits the characteristic of reactivity. The permit writer
is concerned that during the post-closure period, waste residues will be reduced
anaerobicallyi to the point where the material would again exhibit the characters
tic of reactivity. The permit writer wants to require the owner of the site tc
perform hydrogen sulfide gas monitoring and sulfide detection during the post-
closure period to measure the rate of anaerobic reactions. Can these monitoring
requirements be included in the post-closure permit?
Yes; the Hazardous and Solid Waste Amendments of 1984 (HSWA) significantly
increased the authority of the EPA when writing permits by adding an "omnibus
provision" to the Solid Waste Disposal Act ($3005(c)(3)). This provision
states that "[ejach permit issued under this section shall contain sucn terms
and conditions as the Administrator (or the State) determines necessary to
protect hujaan health and the environment." The final codification rule
published in the July IS, 1985 Federal Register (SO PR 28702) incorporated
the statutory provision into 40 CFR 270.32(b)(2) of the regulations. This
provision gives permit writers the authority to impose permit standards in
addition to applicable permit standards found in 40 CFR 264, as long as the
permit writer can justify Che need for the additional standards in terms of
protection of human health and the environment. Additional standards can be
justified by basing the standards on such.sources as documented studies,
expert opinions, and published articles.
Source: Lillian Bagus (202) 382-4691
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9521 - GENERAL
REQUIREMENTS
Part 124 Subpart A
ATKl/l 104/1 kp
-------
1984(01)
.
a -n
:NJ
..J
o
2 - MAY 1384
MEMORANDUM
SUBJECT: Inadequate Part B Permit Application
FROM: John H. Skinner, Director
Office of Solid Haste (WH-562)
Gene A. Lucero, Director
Ufflce of Waste Programs Enforcement (HH-527)
_ TO: James H. Scarbrougn, Chief
5 Residuals Management Branch, Region IV
You have requested guidance on whether the use of Section
3UO« administrative orders is appropriate to compel RCRA permit
applicants to submit "technically adequate" Information after an
application has been determined "complete."
A determination that an application is complete is not
necessarily a determination tnat tne application is free of
deficiencies. Uuring tne detailed review of the application and
tne drafting of permit conditions, it may become necessary to
clarity, modify or supplement previously submitted material
oefore progressing to a draft permit or a decision to deny.
o The regulations specifically provide the Regions authority
T tor gathering information after an application has been determined
^ complete. "After the application is completed, the Regional
~2 Administrator may request additional information from an applicant
^ but only when necessary to clarify, modify, or supplement previously
^ submitted material." 40 CFR 124. 3(c).
•si
~ If applicants do not supply the requested Information, the
^ Regions may compel them to do so. If tne information is not
^^ forthcoming, the Regions may deny the perait. "If an applicant
..^ fails or refuses to correct deficiencies in tne application, the
a . permit may be denied and appropriate enforcement actions may be
"^ taken under tne applicable statutory provision including RCKA
«=> Section 3UU8..." 41) CFR 124. 3(d).
4-» •
ij° You are correct in concluding that tne enforcement guidance
-3 dated September 9, 1983, speaks only to "late or incomplete"
-------
-2-
app 11 cations. That guidance w«s Intended to apply to tht period
Dtfore tht application 1s determined complete. After tht finding
tnat the application 1s complete, suppleoenta1 Information way
bt needed. Tou ruve several options for obtaining this additional
Information.
If you otHete written or vtrtoal atttmpts to ««t additional .
Inforaatlon *111 not »• successful, /ou •*/: Issue a warning
Utttr (Itadlnj to a Section 3U08 adalnl strati \rt order), 90
dlrtctljr to a Section 3008 order, or Issue • notice of Intent to
deft/ tut eeralt. The specific Mechanise) used 1s an are* of
discretion and requires case bjr case judgaents by Regional offices.
Tie Regions should select the ad«1«1strat1»e or enforcement
•echinlsais that *111 most efflcleatl/ expedite tht dettlopaent
of Information necessary for RCRA permit decisions. The) office of
Waste Programs Enforcement Is currently working on galdance which
Hill assist yoo In selecting among enforcement responses. This
guidance should be available mldsemmer.
cci Branch Chiefs, Regions I-III, V-l
Regional Directors, Regions 1-1
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9521.1984(02)
MAY 7 1984 !T J,
9t
> U>
I I
(- B>
-» 71
cn •
~- >
Dr. Robert Bornstein, Commissioner %%
Texas Department of Health M J
1100 N*«t 4»th Street -^
Austin, Texan 78756 o
i
»
Mar Dr. Bernsteint
HH A
3 \
Thank you for your letter of April 4 expressing your « £ •>
concern about EPA'a requirement that authorised states hold *« i
a public hearing after Issuance of a draft hazardous waste *"*.*.
permit. I understand that the Texas Department of Health is * » o
committed to an effective public participation program in ' *
permit issuancef and I appreciate your concern about the m -j
regulatory agency appearing to have made up its mind at the *
time of the permit hearing.
Section 7004(b) of KCKA requires BPA and authorised
States to publish notice of the Agency*s intention to issue
a permit and*..to hold a hearing if written notice of opposition
is received. BPA and authorised States are thus required by
RCRA to publicly notice their intention to issue a permit
prior to holding a hearing. The statute requires this approach
in order to allow the public opportunity to review and provide
comments on the specific conditions which the Agency intends
to apply in the draft permit.
Nothing in RCRA or the CPA regulations precludes a State
from holding a public hearing or meeting prior to issuance of
the draft permit, as long as an additional opportunity for a
hearing Is provided following issuance of the draft perr.lt.
We do, in fact* recognize the value and importance of early
public involvesMtnt in the permit process, in our draft National
permits Strategy we Include Regional office preparation of
facility-specific public participation plans and suggest that
a public meeting be held prior to issuance of the draft permit,
in addition to the hearing which is subsequently held.
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to CCMBMAd tha ft»t* Of T«X«« for lt« eoaaUtaant tO
a aound basardoua wast* Mnagastant prograau Yaxaa has
bean in th« fora£ront in p«ra«lt of intarlai and final author-
illation. Plaaaa lat aa know if I aay ba of fvrthar aaaiatanca.
•inoaraly
/a/ JAOJL 1^ MoOrtt»r'l
Laa H. Thomas ^
Aaaiatant Adxiniatrator
eei Dick «kittin«toaf P.I., lagion vx
Charloc I. ffanir, Taxaa Oapartawnt of Watar Kaaoareaa
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9521.1984(03)
9 JUL 1984
Subjecti Reporting withdrawals as Final Ptnnit Determinations
Promt John H. Skinner, Director/
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-2-
Protective P-ilers -
In no cane should the withdrawal of a protective filer be
r^'virted •• • final oerMt determination. A withdrawal is con-
sidered a final determination only if the facility qualified
for interim status, requetted withdrawal (e.g., went out of
buiineac, changed "waste streams, s»ve<1 to under "D-day storage),
an inspection wa» conducted of the facility* /and a closure plan
was approved after public notice.
Less Than 90-day fltorers
Regarding lens than 90-day storers, •one regions bare asked
whether closure plans should be required and, if so, when such
plans should be inpleaented. We are also developing guidance In
this area i In the interim, you should report reversions to less than
90-day storage as final determinations in SPM3 only if the procedures
outlined in this u«*o are followed (i.e., inspection, public notice,
closure olan aonroval, etc.). Depending on our future guidance
on facilities which have beecoe less then 90-day storers, we Bay
track activities related to actual closure of these facilities
outside the SPNS iiystea entiraly.
facilities T*«t
Applications withdrawn for new facilities will not be counted
as final determinations in SPMS since there is no closure process
fo*1 t**»A facilities. t»ov«»v*r, you should indicate these withdrawals
in »>* n»m»e raT-milt action record because we do want a record of
thos* action* to ins let us in evaluating reolonnl workload. (If FPA,
or an authorised ntate, drafted a permit (or a notice of intent to
deny a pen-It) prior to the applicant's request for withdrawal, the
draft permit Is counted in 8P«S towards the region* s commitment for
draft permits) .
RVDMS Data Elements
We recognise that you stay need to channe your procedures for
reporting final determinations in RWDHS to accoanodate this guidance.
The OSW Infonution Management Task Porce reviewed a draft of thin
guidance during their meeting of June 19 and 20 and made reconnenda-
tions for chancing the renortinn procedures to nininlze the burden
in the regions. The primary changes involve redefining some of the
codes under the C11P5 cowr»n*nt (facility status information). Ve
will be sending a wemorandun to you shortly recuestirp? your commentn
on the Ta«v forces' reco»«»endatlonii. Hntll the final reoortlna
procedures for F».T5«S are developed, we will continue to verity the
number of withdrawal final cV terminations over the phone with vcur
staff before we forward this information for use in SPHS.
-------
If you have any questions or comments please contact
Peter Guerroro on 8-382-4740 or Doug Ruby on 8-382-4499.
Attachment "•••'-..
cct Haxardoue Waste Branch Chiefs, Regions I-X
RWDHS RPOs, Regions I-X
Peter Guerrero
Steve Lew
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9521.1985(0
WASHINGTON, O.C. 20460
OF
•rQ O C SOLID WASTE AND EMERGENCY RESPONSE
*Ci £ O
MEMORANDUM
SUBJECT: Applicability of Post-Closure Permitting
Requirements to Non-Regulated Units
FROM: Marcia E. Williams, Director
Office of Solid Waste
TO: Charles E. Finley, Director
Hazardous Waste Division, Region X
In your memorandum of May 20 (attached) and in phone
conversations with Jeff Webb of your staff, you requested
clarification on several points regarding closure for disposal
facilities that stopped receiving waste prior to July 26, 1982.
Outlined below is a discussion of those points.
We agree with your interpretation that land disposal units
that stopped receiving wastes prior to July 26, 1982 and closed
after January 26, 1983 are subject to the post-closure permit
requirements of §270.l(c), but not ground-water monitoring
requirements of Part 264 Subpart F. We do not agree with your
conclusion, however, that such a permit could require compliance
with Part 265 ground-water monitoring requirements. Part 265 is
applicable only to interim statue units and cannot be incorporated
into a permit.
If the unit deecribed above is the only unit at the facility
subject to permitting, ieeuance of a poet-closure permit would
have little benefit eince ground-water monitoring requirements
cannot be applied. The unit/facility in this caee should be
closed under interim statue, and thue subject to the general
closure performance etandarde of Part 265 and poet-closure ground-
water monitoring ($265.117), ae applicable. If the unit hae
caused ground-water contamination, enforcement action to compel
corrective action under $3008(h) should be initiated. Alternatively,
if the unit ie located at a facility which hae another unit(e)
requiring a permit, the 3004(u) corrective action authority would
apply when the permit ie ieeued since the unit ie a "solid waste
management unit."
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-2-
If you 'have any further questions regarding this issue, please
contact Dave Fagan, Acting Manager, Permits Policy Program at
~
Attachment
cc: RCRA Branch Chiefs
Permit Section Chiefs
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UNITED STATES ENVIRONMENTAL KKU I cl DON AGcuCY,
9521.1986(02)
MAR24886
Mr. C. Edward Ashby, Jr.
Envirosafe Services, Inc.
115 Gibraltar Road
Horsham, PA 19044
Dear Mr. Ashby:
I am writing in response to your letter of February 25, 1986,
to the Administrator, in which you offered several observations
and raised specific concerns regarding the RCRA permitting process.
I appreciate your having taken the time to communicate these
concerns, based on your company's particular experiences with
permitting of your hazardous waste facilities.
I agree with your general assertion that the RCRA permit
process is time consuming and resource intensive, and that there
may be regulatory and other changes which can be made to enhance
the efficiency of the permit process, without sacrificing environ-
mental protection. In recognition of this, the Office of Solid
Waste recently established a task force to comprehensively examine
the problems of the RCRA permit program as it currently functions,
and to recommend changes to improve the process. The results of
this tasK force effort should be available in the next several
we ek s.
Your basic observation regarding the fundamental differences
between the RCRA permit process and other EPA permit programs is
also well taken- It is true that RCRA permits are quite compre-
hensive in nature, in contrast to other types of environmental
permits, such a« NPOES permits. However, the RCRA permit does not
cover a discrete discharge from a well defined source, but rather
must address in a comprehensive way a number of design and oper-
ational aspects of a facility relevant to the management of hazardous
wastes. This in a reflection of the complex nature of hazardous
waste management facilities, and the various means by which hazardous
wastes, if mismanaged, can cause environmental damage* The objective
under RCRA is not to control pollutant levels at a specific emission
source/ buT rather to minimize potential threats to human health
and the environment from a variety of potential sources. This
requires a more comprehensive approach to permitting than is the
case with most other environmental permit programs.
In regard to your specific concerns over the need to fully
characterize proposed new units in a Part B application, ajid to
j* ^"H—" i-»- .**»»— *»«...- «^/unn— •
--
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in this re<^rd. The owner/ooerator has the option of permitting
oroposed naw units as part of the Part B application, or
after the permit has been issued through a major modification
to the permit. In either case, however, sufficient information
must he submitted to enable the Agency to determine whether or
not the unit complies with all applicable standards. Similarly,
the contingency olan for a facility must adequately address
notential hazards from all permitted units at the facility. If
a new unit is added during the term of the permit which raterially
increases the potential for hazards, or changes the response
necessary in an emergency, the contingency plan must also be
amended.
Your letter also specifically expressed your concern
regarding the current regulations for permit modifications,
contained in Subpart D of 40 CFR Part 270. The Agency recog-
nizes that the regulations as currently structured do impose
a substantial administrative burden on both EPA and facility
owner/ooerators. It is our hope that a regulatory negotiation
effort which is now being organized will develco a more
workable approach to modifying RCRA permits. The regulatory
neaotiation group for this effort has not been selected. I
appreciate your offer to participate in this important effort;
it will certainly be considered.
I appreciate the opportunity to respond to your concerns
with the RCRA permit program. Please let me know if I can be
of any further assistance.
Sincerely,
/B/ Jafi* i««. AiiiU'a*
J. Winston Porter
Assistant Administrator
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April 8, 1986 9521.1986(03)
Honorable William M. Thomas
House of Representatives
Washington, D.C. 20515
Dear Mr. Thomas:
Thank you for your letter of February 4 in which you raised
questions concerning the permitting process in the State of
California. Specifically, you inquired about the processes which
govern the award of permits for new hazardous waste land disposal
facilities and the use of local government permits to prevent
out-of-county wastes from being accepted for disposal.
States can be authorized under the Resource Conservation and
Recovery Act (RCRA) to operate their State hazardous waste
programs in lieu of the Federal program. In States that are not
authorized, hazardous waste disposal facilities are subject to
Federal requirements if the wastes they handle meet the Federal
definition of hazardous waste in 40 CFR Part 261. In those
States, EPA is responsible for reviewing and processing permit
applications in accordance with Federal regulations. In
addition, disposal facilities in unauthorized States must meet
any State requirement.
Generally, counties and municipalities may also separately
regulate or issue permits for hazardous waste facilities. Under
RCRA, political subdivisions of States are expressly authorized
to impose requirements, including those for site selection, which
are more stringent than those imposed by EPA regulations.
However, they may not impose less stringent requirements. State
law may also restrict the ability of localities to regulate
hazardous waste facilities and the intrastate transportation of
wastes. Questions concerning State law should be directed to the
State of California.
In your second question you solicited EPA's views on a
possible prohibition by Kern County, California on the
importation of hazardous wastes generated outside the county.
RCRA provides that States and localities may impose more
stringent requirements on hazardous waste facilities than those
imposed by EPA regulations. However, not all more stringent
State or local requirements are valid. Courts have found that
certain more stringent requirements which significantly affect
out-of-state persons and threaten important Federal interests are
inappropriate for State or local resolution. For example, under
the Clean Air Act and Clean Water Act, courts have held that
State laws which control pollution which moves interstate can
significantly affect persons in other States. In some cases,
these restrictions have been held to be precluded by Federal
statute under the Supremacy Clause of the United States
This document has been retyped from the original.
-------
-2-
Constitution. In addition, courts have held that State waste
import bans violate the commerce clause of the Constitution and,
therefore, are illegal. Local requirements on transporters that
unreasonably burden or discriminate against waste generated in
other localities have been declared invalid for the same reason.
Also, where it is physically impossible to comply with both
Federal and State or local rules, the courts have held that
Federal rules prevail.
In addition, local regulation of hazardous materials
transportation may be preempted by the Hazardous Materials
Transportation Act administered by the U.S. Department of
Transportation (DOT). The Act provides a procedure whereby
States and localities may seek an advisory opinion on whether a
requirement is preempted. Your constituents may wish to contact
DOT for further information.
EPA opposes unreasonable restrictions on the free movement
of hazardous waste which are not related to legitimate health and
safety concerns. The Agency is concerned that barriers will
prevent shipment of hazardous wastes to the most appropriate
facility for treatment or disposal. Therefore, EPA discourages
the enactment of restrictions on the free movement of wastes, and
will not grant authorization to a State that bans the
transportation of wastes into or through the State.
If I can be of further assistance, please do not hesitate to
contact me.
Sincerely,
Lee M. Thomas
bcc: Deputy Administrator
Assistant Administrator, OSWER
General Counsel
Enforcement and Compliance Monitoring
Region IX
Regional Operations
External Affairs/Manson
Congressional Liaison
This document has been retyped from the original.
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^toir^ 9521.1986(04)
J -^^- 'r
i
| UNITED STATES ENVIRONMENTAL PROTECTION AGEN
V '.(/ WASHINGTON. D.C. 20460
THE AOMINlSTPATQR
Mr. Alfred B. Devereaux, Jr.
Assistant Secretary
State of Florida Department of
Environmental Regulation —_„ ^ ^^.^
Twin Towers Office Building £ ~;M
2600 Blair Stone Road LTLlLiJ \^/^^ u
Tallahassee, Florida 32301-8241
Dear Mr. Devereaux:
Thank you for your July 7, 1986, letter expressing
concern about the Environmental Protection Agency's (EPA's)
policy for expanding public involvement opportunities in the
Resource Conservation and Recovery Act (RCRA) permitting
program.
EPA's public involvement program is designed to provide
information and uncover citizen concerns while there is
still opportunity to address them during the permit review
process. We encourage the States to integrate early public
involvement activities into the permitting process to ensure
responsive and effective permitting.
RCRA and the Hazardous and Solid Waste Amendments mandate
the Agency respond to citizens' concerns and provide a defined
role for the public in the decisionmaking process. The
Guidance on Expanded Public Involvement in the RCRA Permitting
Program allows great flexibility to Regions and States to
provide such opportunity as appropriate in each community.
This guidance is relevant to both new and existing facilities,
whether it is for closure or operation.
Tho guidance does not state that every RCRA facility
must ha?* an expanded public involvement program, but rather
that spueifie facilities be targeted for expanded public
involv«Mntr and it provides criteria for targeting these
facilittesj
- facilities that receive wastes from a Superfund site;
- facilities that are environmentally significant;
- facilities that are already controversial or have the
potential to become controversial; and
- facilities for treatment and incineration, existing or
proposed.
-------
We believe that it is important for the States to apply
this guidance in administering their permit programs. We
encourage the States to review the permit applications to
discover which are or may become controversial and develop an
expanded public involvement program for those permits. If
you have any further questions concerning the implementation
of this program, please contact Vanessa Musgrave in the EPA
Permits and State Programs Division, Office of Solid Waste, at
(202) 382-4751. '
Sincerely,
Lee M. Thomas
WH-562/MUSGRAVE/D.ZEITLIN/sld/7-23-86/Control No: AX601099
382-4651/Due Date: 7-28-86^
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9521.1986(4A)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
APRIL 86
3. Appeal/Recourse Process for Permit Denial
An owner/operator (o/o) of an interim status facility is seeking a final
RCRA permit. If the o/o submits a complete permit application, but
the state or region denies the permit, what procedural recourse or
appeal process may the o/o follow? It appears that Part 124 Subparts
A and E both state procedures to follow for appealing a permit denial.
If the o/o of an interim status facility submits all necessary
information, then a final decision to grant or deny the permit
can be made. An o/o wanting to appeal a permit denial would
follow the procedure in §124.19 of Part 124 Subpart A, which
addresses recourse for permit denial. This Subpart contains
procedures for informal hearings. Briefly, the o/o has a 30-day
period in which he may reo^jest a review by serving a notice to
the Regional Administrator.
On the other hand, Part 124 Subpart E outlines a more formal appeal
process for permit or interim status terminations. Thus, if the
o/o of an interim status facility fails to submit adequate infor-
mation for a final permit application, then its interim status
could be terminated, and the Agency would follow the appeal
procedures in Subpart E. Generally, the formal or "evidentiary"
hearing of Subpart E is applicable to RCRA facilities only where
there has been a termination of a permit based upon a RCRA violat i.-->n
or the termination of interim status based upon a failure to submit-
information necessary to make a final permit decision.
Sources Carrie Wehling (202) 475-8067
Research: Margaret Kneller
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9521.1986(5A)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
MAY 86
2. Interim Status and SQGs
A small quantity generator (SQG) has been treating hazardous waste on-site
in compliance with 40 CFR 261.5(g) since May 1980. During the month of
January 1986, the generator produced more than 1000 kgs. of hazardous
waste, exceeding the quantity limitation for SQGs. Now, the hazardous
waste must be managed as large quantity generator waste according to 40-
CFR Part 262. The hazardous waste must be sent off-site or managed on-
site at a facility which is RCRA permitted or in interim status. Since
the generator has been a SQG up to this point, the generator never
obtained interim status for his SQG waste treatment facility. Can the
generator now obtain interim status in order to continue treating the
waste on-site?
According to Section 3005(e) of RCRA, any owner/operator (o/o)
may obtain interim status if the o/o meets three requirements,
and has not already been denied a permit. The first requirement
the o/o must meet is to be in existence on November 19, 1980,
or on the effective date of regulatory changes which first
render the facility subject to the permit requirements. The
above mentioned generator meets this requirement because the
facility was treating hazardous waste on November 19, 1980
even though the o/o was not subject to substantive regulations.
The second requirement the o/o must meet is to conply with
Section 3010 of SWDA. Section 3010 required the o/o of a
treatment, storage, or disposal facility to submit a
notification of hazardous waste activity form within 90 days
of the date when the hazardous waste first became subject to
regulation. Because small quantity generators were exempted
under 40 CFR 261.5 from the 3010 notification requirement,
this o/o need not have submitted a 3010 notification in order
to obtain interim status per 40 CFR 270.70.
Finally, Section 3005(e) requires the o/o to submit a permit
application. Where, as here, the facility becomes subject to
RCRA permitting due to changes at the facility, not regulatory
action, 40 CFR 270.10 requires the o/o to submit Part A of
the permit application within 30 days of the date the facility
first becomes subject to 40 CFR Parts 265 or 266.
Source: Carrie Wehling (202) 475-8067
Research: Ingrid Rosencrantz
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4. Corrective Action in Permits
9521.1986(6A)
Section 3004(u) of RCRA requires owners and operators (o/o) of
disposal facilities seeking a permit to conduct corrective action for
all releases of hazardous waste or constituents frcm any solid waste
management unit (SVWU) at the facility. Are there any situations in
which an interim status facility could avoid corrective action
requirements under §3004(u)?
Any facility that is not reouired to obtain a permit under
Section 3005(c) of RCRA will not have to meet Section 3004(u).
Interim status units that continue operating will generally have
to obtain permits.
- However, a permit would not be required for an interim status
facility where all units containing hazardous wastes are
tanks or containers, if it continued to operate after converting
to generator status and met the accumulation standards in
40 CFR 262.34.
Permits will also be required for sane facilities that close
under interim status. Under 40 CFR 270.l(c), some surface
impoundments, waste piles, land treatment units, and landfills
("land disposal units") must obtain post-closure permits.
- No permit would be required for a closing interim status
facility that has no land disposal units. Units such as
tanks, containers and incinerators do not require post-closure
permits.
- The current version of 40 CFR 270.l(c) requires post-closure
permits for all facilities with land disposal units that
close after January 26, 1983. To implement new Section 3005(i)
of RCRA, EPA recently proposed to change this requirement to
« require post-closure permits for all land disposal units that
w received waste after July 26, 1982 (see 51 FR 10706). EPA is
2 considering a further revision to require post-closure permits
^ for facilities with land disposal units that received waste
after July 26, 1982 or closed after January 26, 1983.
Facilities that would not be required to have post-closure
permits under these criteria will not be subject to Section
3004(u).
Although Section 3004(u) would not apply to closing units that
fall in these three categories, EPA could use authorities under
the closure regulations and Section 3007 of RCRA to investigate
the facility for releases from the closing hazardous waste
units. This investigation could also extend to other potential
sources of contamination at the facility, especially if information
about additional sources were needed to determine whether the
closing hazardous waste units were the sources of any contamination
found. This investigation could be very similar to the RCRA
Facility Assessment (RFA) required under Section 3004(u) for
permitted units. If EPA found a release of hazardous waste, or
hazardous constituents from hazardous or solid waste, it could
order corrective action under the interim status corrective
action order authority in Section 3008(h). Section 3008(h)
orders may be issued both before and after closure.
Contact: Tina Kaneen (202) 382-7706
Research: Kevin Weiss/Charlotte Mconey
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9521.1987(01;
AUG -7 I98T
Subject) Thertwx Energy/JUdlan'» request for guidance on
the compliance dates for submitting a Part B pent It
application, issuing or denying a 1CHA permit/ and
complying with the minimum technological
roquireaents for surface impoundments.
Tot Hichael J. Sanderson* Chief
RCRA Branch
EPA Region VII
Prosit Susanine Rudxineki, Chief
Aflelstanee Branch
EPA Headquarters
On July 2, 198? and July 10, 19§7 Thermex Energy/Radian
requested guidance on the regulatory status (i.e., permitting
requirement!)) of Thermex's manufacturing and laboratory
facilities located in Hallovell, Eaasas from hoth the Eanaaa
Department of Health and Environment and EPA, respectively.
Specifically, Thermex/Radian has asked us to identify (1) the
minimum technology requirements (HTR) compliance date for
the three surface impoundments at the Vallovell manufacturing
facility; (2) the date Thermex must submit a Part B application
for the three surface impoundments and tank at the laboratory
in order to prevent the loss of interim status; (3) the date
that the Kansas Department of lealth and Environment must issue
a final permit or final permit denialj and* (4) the date closure
of th« three surface Impoundments must £tgin if a closure plan
is submitted by November t, 1987.
Im respoawo to their first question* Section 3005(j)(l) of
the Resource) Cmnservation and Recovery Act (RCRA) requires that
all surface impoundments either meet the minimu* technological
requirement* (IffR) of Section 3004(o)(l)(a) of RCRA by
November 8* 1999 or stop receiving haiardous wastes.
Section 300S(jHO of RCRA* however* specifies that any
surface Impoundment brought Into the hazardous waste management
-------
/ system, as a result of the promulgation of additional
hazardous wasts listings or characteristics, shall have
four yaars froH ths dats of promulgation of a new hazardous
vasts listint or characteristic to either meet ths MTR or
stop receiving hazardous wastes. Ths revocation of Therm ex'«
temporary exclusion was promulgated on July 17, 1986 (see
51 PR 25887). As a rssnlt of the revocation of Themes's
temporary exclusion, Thermex's waste was brought back into
the hasardous waste management systeai. We agree with
Thermex/Radian's interpretation of Section 30OS(j)(6) that
revocation of a temporary exclusion has the sasie impact as
bringing a wasts into ths system by a new listing. As a
result, Thermex should have four years from the promulgation
date of the revocation of its temporary exclusion and
final denial of its delisting petition to either comply
with the MTR or to stop receiving hazardous wastss. Ths
dats by which Thsrmex must either comply with ths MTR or
stop receiving hazardous wastss, therefore, is July 17,
1990.
Ths second question raised in Thermex/Radian's 1stter asks
by what dats must Thermex submit a Part B permit application
for the impoundments (at the manufacturing facility) and the
tank (at the laboratory facility) to prevent the loss of
interim status. RCRA Section 3005(e)(3) does not apply to
facilities having temporary exclusions. As long as Thsrmex
had originally filsd Part A applications for their three surfacs
impoundments and for their tank and did not nodify their Part
A applications to delete the units handling the temporarily
excluded wastes, the facilitee have not lost interim status
and no futher action is required-by the facilities. We note
that Part B permit applications for the three surface
impoundments and the tank are not required until the State or
Region calls in the permit applications* however the facilities
are subject to interim status standards until ths permit is
issued.
Their third question asks by what date must the Kansas
Department of Health and Environment (KDRZ) issue a final
permit or final permit denial if Thermex submits a permit
application for the Ballowell surface inpoundnents by
Movember 8, 1M7. As indicated above. Thermex is not
required to submit a Part B permit application unless a
Part B psamit application is called in by the State or
Region. Should Thermex, however, submit an application on
November 8* 1967* KOBE is not required to prooses the Part
B permit application for the Rallowell surface impoundments
by November 8, 1988.
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The me x/Radian's fourth question asks us to identify the
date implementation of closure of the three surface impoundments
must begin after submittal of a closure plan on November 8, 1987.
Again, as stated in response number two, Thermex does not have to
submit a closure plan or implement closure. If Thannex voluntarily
submitted a closure plan or stopped receiving hazardous waste,
they would, under federal regulations, be required to initiate
Part 265 closure within either 90 days after the surface
impoundmenta stop receiving wastes or the closure plan is approved
by the State Director or Regional Administrator, which ever is
later, demure would then have to be completed within 180 days
(see 40 CFR Part 265.113). We note that the State Director or
Regional Administrator may extend the time period in which closure
must be implemented or completed if Thermex were to demonstrate
the requirements of 40 CFR Part 265.113(a) or (b), respectively.
We are not planning on responding directly to Thermex on their
substantive issues, rather we are directing them back to the Kansas
DHE. I truot you will be conveying our guidance on this issue to
the Kansas Bureau of Waste Management so that they can respond to
Thermex.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9521.1988(02)
APR I 9 i^
MEMORANDUM
SUBJECT: Call-in of Storage and Treatment Applications
FROM: SylviatLowrance, Director
Office of Solid Waste
TO: Waste Management Division Directors
Regions I-X
Section 3005(c)(2)(C) of RCRA provides a statutory deadline
which interim status treatment and storage facilities must submit ^bheir
Part B permit applications or their interim status will terminate <%>n
November 8, 1992 if EPA has not issued a permit. The deadline for*
storage and treatment facilities to submit their permit applications is
November 8, 1988.
You should be aware, however, that these deadlines apply only to
facilities and units that were in interim status on November 8, 1984. A
unit handling temporarily excluded waste on November 8, 1984 or a unit
added to an interim status facility after this date through a change in
interim status would not be subject to the 1988 application deadline or
the 1992 permitting deadline.
In order to give facilities subject to the 1988 deadline a full
six-month period to prepare and submit their applications (at least for
affected units), I urge you to send letters notifying these facilities
of the deadlines, and reminding then that they should submit a Part B
application if_t&«3f*djy.ity intends to continue operating after
November &ffi3Pjly> J'^U^M facility (or unit) plans to close prior to
November Sfl^Hgbr Wi'iibould consider requesting a written confirmation
of intent €^HBm^&ll lieu of a Part B application. For closing
facilitieirr<^PIpw^(JM^ useful to remind them that they must submit
their closure plari-foV approval at least 45 days prior to the date that
closure will begin. (Section 265.112(d)(1) requires owner/operators to
submit closure plans 45 days before they begin final closure of a
facility with only tanks, container storage, or incinerator units.)
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- 2 -
These letters should be received by the regulated community on or
before May 8, 1988. In authorized States, the letters could
consolidate
the State and Federal permit application requirements so that the
permitting jurisdiction of the two agencies is clear. (Note that this
requirement to send letters to storage and treatment facilities is
referred to on page 2.1 of the FY 1988 RIP.)
You should also expect facilities submitting Part B applications
by the 1988 deadline to make a good faith effort to provide complete
applications. I believe that there are good reasons to require
preparation of a complete application by the 1988 deadline. For
example, preparation of a complete Part B may initiate actions which
are environmentally beneficial. These actions include:
o Precipitation of decisions to close facilities that will
have difficulty complying with Part 264 regulations or
that do not intend to upgrade to meet permit standards;
and
o Stimulation of applicant decisions to begin improvements.
I am sensitive to the problems created when applications become
stale during the time they are awaiting processing. Some of these
problems might be alleviated if an additional letter is sent to
facilities several months prior to the scheduled date of permit
processing. This will give them an opportunity to amend and update
their Part B before processing begins. You may wish to consider
trying this approach.
Thank you for your cooperation in meeting this important deadline.
If you have any questions, please call Frank McAlister at FTS 382-2223
cc: RCRA Branch Chiefs,
Regions I-X
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
9521.1988(03)
:OF
SOLID WASTE AND EMERGENCY
MEMORANDUM
SUBJECT: Staying HSWA Permit Conditions
FROM: U Sylvia K. Lowrance, Director
of Solid Waste (
TO: Allyn M. Davis, Director
Hazardous Waste Management Division, Region VI
This memorandum responds to your request of October 26,
1988 for clarification of certain issues related to the staying
of permit conditions. You asked us to address the applicability
of §124.16(b) (2) to HSWA/RCRA joint permits. In addition, you
asked whether the Region can and should postpone the effective
date of the HSWA portion of the permit in each of the following
cases:
a. Where both the HSWA portion and the authorized State
RCRA portion of the permit were appealed, the HSWA
issues have been resolved, but some time will elapse
before the State issues are also resolved and the
State portion of the RCRA permit can become effective,
and
b. Where the State portion of the permit is appealed
without any appeal of the HSWA conditions.
You explained that your questions arose in the context of
appeals of facility permits in authorized States. We address
your questionii below in that context.
I. Applicability of § 124.16(b) (2) .
Section 3.24. 16(b) (2) provides that N[n]o stay of an
EPA-issued RCRA, UXC, or NPOES permit shall be granted based on
the staying of any State-issued permit except at the discretion
of the Regional Administrator and only upon written request from
the State Director." In your memorandum, you suggest that
§ 124. 16 (b) (2) was promulgated before the enactment of HSWA and
was not intended to apply to the situation where an authorized
State is issuing its authorized portion of a RCRA permit and EPA
-is issuing the HSWA portion of that permit.
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We agree that §124.16(b)(2), along with its requirement for
a written request from the State Director, does not apply to
joint EPA-State issuance of RCRA permits in authorized States.
As you know, under our interpretation of the statute and
regulations, only one permit is typically issued to a facility
under the authority of Subtitle C. Because most authorized
States are not yet authorized for HSWA, however, the permit
usually consists of a Federal portion (issued by EPA pursuant to
HSWA) and a State portion (issued by the authorized State
pursuant to RCRA). The HSWA portion, in and of itself, is only
part of the RCRA permit. It would not qualify, therefore, as an
"EPA-issued RCRA...permit" under §124.16(b)(2). A different
situation exists in unauthorized States, where EPA issues the
entire RCRA permit (HSWA and non-HSWA portions). Such a permit
would qualify as an "EPA-issued RCRA...permit" under •
§124.16(b)(2).
II. Staying of HSWA Permit Conditions.
In your memorandum, you outline situations in which the
HSWA portion of a permit might become effective before
resolution of an appeal on the State portion. You express
concern about declaring the HSWA portion of a permit effective
because doing so might cause the facility to lose interim
status.
We recognize that problems might arise if facility interim
status were to terminate before a permit became fully
effective. However, issuance of the HSWA portion of a jointly
issued RCRA permit does not terminate the interim status of a
facility. Interim status ends when final administrative
disposition of the RCRA permit application occurs. Thus,
effectiveness of the authorized State's permit decision is a
prerequisite for termination of interim status. This will be a
matter of State lav (e.g., whether the State appeal stays the
State permit decision). If permit effectiveness is stayed
during an appeal as a matter of State lav, facility interim
status most likely continues under State lav until the entire
State portion of the permit goes into effect. We believe that
the Region will, in most cases, want to issue the HSWA portion
of the permit and begin corrective action as soon as possible.
This will not jeopardize a facility's interim status should
non-HSWA State portions be appealed. Furthermore, corrective
action conditions can become effective when the permit is
"issued" (per the language in RCRA section 3004(u)), not
necessarily when all permit appeals are completed.
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If, for some reason, the Regional Administrator wishes to
delay the effective date of the HSWA portion, as your memorandum
suggests, the ability to do so depends on the circumstances in
each case. We have, therefore, addressed the issue in the
context of each scenario you present in your memorandum.
a. Both the HSWA and State RCRA portion of the permit are
appealed (under EPA and State procedures respectively).
In the first scenario you describe, both the HSWA portion
and the RCRA portion of the permit are appealed and Federal
resolution of the HSWA issues occurs before the State appeal is
resolved. We believe that, in the course of reissuing the HSWA
portion after an appeal, the Regional Administrator has
discretion to postpone the effective date of the HSWA -portion
under the procedures of §124.15(b)(1) and §124.19(f). 'It should
be noted that such a postponement may not be necessary in many
cases because we interpret §124.16(a)(2) to mean that
uncontested HSWA provisions that are inseverable from stayed
State provisions are also stayed.
b. The State portion is appealed and the HSWA portion is not.
Under your second scenario, the State portion of the permit
is appealed without any appeal of the HSWA conditions. In this
case, the Regional Administrator does not have an opportunity to
delay the effective date under either §124.15(b)(2) or §124.19
because the Regional Administrator's final permit decision has
been issued and become effective prior to advent of the permit
appeal. " •••—.••
This outcome is a function of the nature of the joint
RCRA/HSWA permitting process. In the case of an authorized
State, where issuance of the full RCRA permit is a combined
action, State procedures must be followed to issue the State
portion and th« procedures of Part 124'must be followed to issue
the Federal portion. While there may be a joint proceeding, two
separate decisions must be made because the State has no
authority to issue the Federal portion or vice versa. These two
decisions can occur at the same or different times. In turn,
the State portion must be appealed through State procedures and
the HSWA portion through the procedures of Part 124. Where
there is no appeal of the HSWA portion, no stay of the HSWA
portion occurs automatically per §124.16(a)(1) as no appeal is
taken under §124.19. Furthermore, the Regional Administrator's
issuance of the HSWA portion will already have an effective date
specified, per §124.15(b). Hence, the Region will .not have the
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opportunity to alter that date orice the final HSWA permit
decision becomes effective, except via permit modification
procedures. However, the effective date of the HSWA provisions
could otherwise be delayed automatically under S124.16(a)(2) if
they are inseverable from stayed RCRA permit conditions.
I hope this addresses all of your concerns. If you have
any questions, please call Barbara Foster at FTS 382-4751.
cc: Michelle Anders
Fred Chanania
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9521.1990(01)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
MW23B90
MEMORANDUM
SUBJECT: Splitting a Federal RCRA Permit
FROM:
TO:
Dev Barnes, Director
Permits and State Programs Division
James Scarbrough, Chief
RCRA and Federal Facilities Branch, Region IV
This memorandum is in response to your correspondence, dated
May 1, 1990, in which you requested guidance concerning the
proper procedure for "splitting" RCRA permits which were
originally issued for a non-authorized State, when the State has
subsequently become authorized and has issued a "base" permit
identical to the non-HSWA portion of the Federal permit. We
offer the following suggestions:
One procedure, which may have some advantages, would be for
EPA to modify the Federal permit and specify an accelerated
expiration date (e.g., 30 days hence) for the entire permit.
Simultaneously, EPA would modify the State permit to incorporate
explicitly the HSWA provisions which were originally in the
Federal permit. This portion of the State permit would remain
Federally administered. If the permittee requests the
modifications, both could be Class I modifications according to
40 CFR Part 270.42. Accelerated expiration is a specifically
listed Class I modification, and the addition of already existing
HSWA permit conditions to a State permit would qualify as Class I
under 270. 42 (d), since it would not constitute a substantive
change. The. advantage to this procedure would be that only one
permit would remain, thereby reducing any potential confusion.
Another possible alternative would be simply to modify the
Federal permit to allow for accelerated expiration of the non-
HSWA portion. The Region would have to be careful to make sure
that only the base portions of the permit were identified and
allowed to expire, and not the HSWA elements. This would achieve
in effect the same result as the previous option. However, two
separate permits would continue to exist, at least until the
State is authorized for corrective action, at which time
Federal permit could be ej.j«Mtoa>gtfcgsanfl
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lajS^-^XSjiiSfc**--
'•-*-"$&*•-•
-' tmtmi'. freg*
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
to incorporate a State-implemented HSWA portion.
Under either procedure, actual termination of the permit or
portions thereof, according to 40 CFR Part 124, would be
unnecessary. Although we believe there is a potential advantage
to using the first procedure (that is, having a single
consolidated permit), either option would be legally acceptable
and should be relatively straightforward administratively.
We have consulted with the Office of General Counsel
concerning this issue, and this memorandum reflects our joint
wisdom. If you have any questions, please call Dave Fagan of my
staff (382-4497) or Carrie Wehling of OGC (382-7703).
cc: Pat Tobin
RCRA Hazardous Waste Branch Chiefs, Regions I-III & V-X
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9521.1991(01)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
AUG27 199!
MEMORANDUM
Subject: Potentially Conflicting Regulation of Infiltration
Galleries by the Office of Ground Water and Drinking
Water and the Office of Solid Waste
From: Sylvia K. Lowrance
Director
Office of Solid Waste
To: Frederick F. Stiehl
Enforcement Counsel for Water
This is in response to your July 26 memorandum regarding
potential conflicts in the regulation of infiltration galleries
by OGWDW and OSW as a result of our April 2, 1991 Federal
Register notice extending the Toxicity Characteristic compliance
date for certain injection wells. Apparently, since the
compliance date was not extended for infiltration galleries, our
discussion was construed to indicate that injection wells and
infiltration galleries are mutually exclusive unit types. As is
explained below, this was not our intention.
The intent of the extension was to provide relief to
operators of injection wells used in certain hydrocarbon recovery
operations. Since application of the TC would cause these Class
V wells to become Class IV wells, these beneficial cleanup
operations would be halted in cases where the Class IV wells do
not have UIC permits and where the cleanup operations do not meet
the conditions of Section 3020 of RCRA. We believed that
owners/operators of these units were in an impossibility
situation—that is, their operation would be in violation of
RCRA, but the continuation of the cleanup was ordered by the
State. Where the unit was not an injection well, this
impossibility did not exist, since they could continue to operate
the unit under interim status. For such units (i.e., units
other than injection wells), the extension was not provided. In
distinguishing between units to which the extension was
applicable vs. other units, we noted that if the infiltration
gallery met the definition of an injection well, then the
extension would apply. That is, we recognized that some of the
units identified by the industry as "infiltration galleries" may
meet the UIC program's definition of an injection well and, if
they did, they were included in the extension. On the other
nana, certain units mat couj.o«(7oac«iL¥
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
"infiltration galleries" (e.g., leaking surface impoundments)
were not injection wells and thus were not included in the
extension.
We believe that this approach is consistent with that of
OGWDW and the Department of Justice, as described it in your
memorandum. In order to clarify this matter, there are two
apparent options: we could either issue a clarifying memorandum
to the Regions or publish a short clarification notice in the
Federal Register. We would be pleased to work with you to
develop appropriate language to ensure consistency between our
offices. Should you wish to pursue either of these options, or
discuss another course of action, please contact Dave Topping of
my staff at 382-7737.
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9521.1991(02)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
ALJS30I99I
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Permit Status of Underground Injection Wells Used in
Certain Hydrocarbon Recovery Operations
FROM: Sylvia K. Lowranc& A ^V -P
Director t7ju\s J^ A-
Office of Solid-
Lil^tX *
L-t^stft
TO: Janes R. Elder
Director
Office of Ground Water and Drinking Water
On April 2, 1991, OSW promulgated a rule that extended the
compliance date for the Toxicity Characteristic until January 25,
1993 for groundwater that is reinjected through injection wells
during certain cleanup operations. More specifically,
application to produced groundwater from free-phase hydrocarbon
recovery operations at petroleum refineries, marketing terminals,
and bulk plants was deferred at the point at which the
groundwater is reinjected. Without this extension, most
reinjected groundwater from these operations would have become a
RCRA hazardous waste on September 25, 1990.
The basis for this compliance date extension was a
regulatory "impossibility" situation encountered at these
operations. In many cases, the cleanup/recovery operations were
mandated under State orders but would be banned under both RCRA
and UIC regulations unless they were, among other things, part of
a cleanup under either RCRA or CERCLA. The two-year extension
was intended to allow time for the Agency to develop a mechanism
to permit these wells (as Class IV) upon the January 25, 1993
compliance date of the TC. The purpose of this memorandum is to
ensure that our Offices work together to resolve this situation
before that date.
In a February 19, 1991 memorandum from Peter Cook to Jeffery
Denit (copy attached), it was stated that ODW's policy is that
Agency approval of these operations under RCRA or CERCLA
constitutes "authorization by rule" for the Class IV wells
involved in the cleanup. Since this may be- crucial to
establishing the mechanism to allow continued operation of these
operations, we should ensure that the affected programs are
comfortable with this policy and that it is legally defensible.
Printed on Recycled Paper
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Key issues include the meaning of "approved under RCRA or
CERCLA." It must be determined whether this "approval1.1 is in the
form of a permit, a written order, or some less formal
endorsement of the operation. Likewise, the scope of the RCRA
permit-by rule provisions of 40 CFR 270.60 (b), which afford a
RCRA permit to a UlC-permitted injection well, should be
discussed and clarified. There are also procedural issues to be
addressed, including whether the policy has been subject to
sufficient public notice and comment.
Depending upon the resolution of these issues, one of
several options may be preferred. If additional notice and
comment is not required, an explanation of the policy could be
included in an upcoming TC clarification notice planned by OSW.
Otherwise, notice and comment requirements could be satisfied
through an OGWOW rulemaking to codify the policy into the UIC
regulations.
We look forward to working with you on this issue to ensure
that the purpose of the compliance-date extension is realized.
The OSW lead for this project is Dave Topping, who can be reached
at 382-7737. Please have the appropriate member of your staff
contact him-at your earliest convenience.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9521.1994(01)
OCT 11 1994
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Regulation of Fuel Blending and Related Treatment and
/Storage Activities
FROM: /^Micnaer H. Shapiro, Director
/tl: Off iae of Solid Waste
u (y
TO: Hazardous Waste Management Division Directors
Regions I-X
The purpose of this memorandum is to address a number of
questions under the Resource Conservation and Recovery Act (RCRA)
regarding the regulatory status of hazardous waste fuel blending
activities. The memorandum is concerned primarily with
facilities that are commonly known as "fuel blenders," although
the waste management activities of these facilities most often
include a set of integrated waste processing operations more
diverse and complex than just the fuel blending activities
themselves. A number of issues have been raised regarding the
applicability of the RCRA permitting requirements and the land
disposal restriction (LDR) requirements to these facilities. The
guidance provided below discusses these issues generally.
However, since many fuel blending operations are complex, there
may be some f acility- specif ic regulatory concerns that are best
addressed on a case-by-case basis.
Permit Requirements
The RCRA program regulates hazardous waste storage,
treatment and disposal activities with the permitting
requirements of 40 CFR Part 270, and with unit -specific standards
and other substantive requirements of Parts 264-268. Hazardous
waste fuel blending facilities have activities that constitute
storage and/or treatment of hazardous wastes. Consequently, they
are subject to full RCRA regulation, including permitting, with
few exceptions as discussed below.
Fuel blending operations are addressed in Part 266.
Specifically, §266. 101 (c) states that, "owners and operators of
facilities that store hazardous waste that is burned in a boiler
or industrial furnace are subject to the applicable provisions of
Parts 264, 265 and 270 of this chapter..." This provision
Printed on Recycled Paper
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further states, "These standards apply to storage by the burner
as well as to storage facilities operated by intermediaries
(processors, blenders, distributors, etc.) between the generator
and the burner."
Some fuel blenders have asserted that, since their
activities are considered recycling, the blending operation is
exempt from permit requirements according to §261.6(c)(1).
Section 261.6(a)(2), however, clearly states that hazardous
wastes which are recycled materials and are burned for energy
recovery "...are regulated under Subparts C through H of Part 266
of this chapter and all applicable provisions in Parts 270 and
124 of this chapter." This provision makes it clear that fuel
blending is not exempt from regulatory standards or permitting.
It is possible that fuel blending in tanks or containers
could be exempt from permitting, but only if the blending occurs
at the site where the wastes being blended are generated. - The
permit-exempt management would have to meet the provisions of
§262.34, which requires the waste to be processed within 90 days
in units that comply with the technical standards of Part 265,
Subpart J (for tanks), and Subpart I (for containers). The
generator must also comply with specific emergency response and
personnel training provisions of Part 265. This permit exemption
is not available if the unit is classified under Part 265 as a
thermal treatment unit (Subpart P). Thus, fuel blending is
treated like any other treatment or storage activity for purposes
of qualifying for the ninety-day generator permit exemption.
There may be some recycling operations at a fuel blending
facility that are exempt from permitting, even though the fuel
blending process itself is not exempt. The exemption is only
available to units that are solely engaged in permit-exempt
recycling; if the reclaimed materials are sometimes sent for use
as a fuel, then the recycling unit would be subject to the
permitting standards. In States that are authorized for the RCRA
program, the State recycling exemptions must be as stringent as
the Federal program.
Appropriate Unit Standards
Most fuel blending facilities employ unit operations that
are regulated under the tank standards of Subpart J of either
Part 264 or 265. However, some facilities are using other
devices such as shredders, grinders, filters, microwave units and
distillation columns in their hazardous waste management
operations. Depending on the specific configuration of these
operations, they are permitted as either tank systems (including
ancillary equipment) or as miscellaneous units under Subpart X.
Furthermore, additional permit conditions may be imposed using
the omnibus authority of RCRA Section 3005(c)(3) as necessary to
protect human health and the environment. Since these operations
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vary from site to site, the appropriate permitting authority (the
State or EPA Regional Office) must decide which unit standards
are the most relevant for each specific facility.
Air Emission Standards
Another question that has been raised concerns the
applicability of the organic air emission standards for process
vents and equipment leaks (Subparts AA and BB, Parts 264/265).
These standards limit organic emissions from (1) process vents
associated with distillation, fractionation, thin-film
evaporation, solvent extraction, and air or steam stripping
operations that manage hazardous wastes with 10 parts per million
by weight (ppmw) or greater total organic concentration, and
(2) leaks from equipment that contains or contacts hazardous
waste streams with 10 percent by weight or greater total
organics. Due to the typically high organic content of the
hazardous wastes managed at fuel blending facilities, we would
expect the Subpart AA and BB requirements to be applicable.
The AA and BB requirements are also applicable to hazardous
waste recycling units if they are located at hazardous waste
management facilities that have other units subject to
permitting. Although some recycling units are exempt from the
unit-specific standards of Parts 264 and 265 pursuant to
§261.6 (c), such units must comply with any applicable AA and BB
requirements of those Parts. See §261.6(d).
On July 22, 1991 (56 FR 33490), the Agency proposed unit-
specific air emission standards that would provide additional
controls on tanks, containers, and Subpart X units, among others.
When these standards are promulgated as final rules (promulgation
is scheduled for November 15, 1994), they will be applicable to
fuel blender facilities.
Transfer Facilities
Transfer facilities are those transportation related, sites
including loading docks, parking areas, storage areas and other
similar areas where shipments of hazardous wastes are held or
repackaged during the normal course of transportation. Section
263.12 allows these facilities to store wastes in containers
without RCRA permits as long as specific packing requirements are
followed and the wastes do not remain on-site for more than
10 days. Transfer operations are limited to bulking and
consolidation of wastes. Selective blending of hazardous waste
fuels to meet a fuel specification at a transfer facility is not
an appropriate activity under §263.12; this would constitute
hazardous waste treatment requiring a permit.
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Land Disposal Restrictions
Generators
Generators of prohibited hazardous wastes (i.e. hazardous
wastes required to meet a treatment standard before they can be
land disposed) must comply with certain notification,
certification, and recordkeeping requirements designed to assure
proper tracking of the waste and adequate notice to the treatment
facility of applicable treatment standards, as set forth in
40 CFR 268.7(a). (Note that if an offsite fuel blender/multi-
purpose facility treats or otherwise manages a waste such that a
new point of generation occurs, then the offsite facility becomes
a generator and is therefore subject to these generator
requirements.) These provisions apply whenever a generator ships
a prohibited waste to another entity for eventual land disposal,
and so apply when generators send prohibited wastes to fuel
blenders/multi-purpose treatment/storage facilities. Although
the wastes may be combusted, some residue (such as combustion
ash) would be land disposed and must meet the treatment standard
applicable to the combusted hazardous waste (as discussed at 58
FR 29872; May 24, 1993). Information normally required to be
included in the notice are:
EPA hazardous waste number
constituents of concern
treatability group
manifest number
waste analysis data (where available)
According to §268.9(a), these provisions also apply when
generators send characteristic wastes off-site. If the generator
treats the characteristic waste to make it non-hazardous before
sending it to a fuel blender/multi-purpose facility, a one-time
notice and certification must be placed in the generator's files
and also be sent to the EPA region or authorized-State, according
to §268.9(d). This one-time notice provision applies only to
cases where wastes are hazardous by reason of characteristic
alone, (as discussed in 55 FR 22662-63; June 1, 1990), and so
does not apply when a mixture includes a listed waste.
There are circumstances where an otherwise-prohibited waste
destined for combustion may not be subject to LDR requirements
(including the tracking requirements) because neither the waste
nor the residue from treating the waste is subject to a treatment
standard when land disposed. This could occur where hazardous
wastes are going to be burned for energy recovery in a Bevill
device, such as a boiler or cement kiln. If the wastes are
burned for energy recovery in a Bevill device that processes
normal Bevill raw materials as well, and the Bevill device can
show that its residues were not significantly affected by its
hazardous waste-burning activities (the "significantly affected"
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test is found in 40 CFR 266.112), then the residues can retain
Bevill-exempt status and not have to meet LDR treatment
standards. Further, if the Bevill device produces a product that
is used in a manner constituting disposal (e.g., a cement or
light-weight aggregate kiln), and the hazardous waste is burned
for energy recovery rather than for destruction or as an
ingredient, then the product is not required to meet LDR
treatment standards.' In these situations where neither residues
nor products are subject to LDR treatment standards, the original
generator's waste would not be considered prohibited from land
disposal. According to §268.7(a)(6), if such a generator can
assure that the conditions discussed above are all true regarding
the disposition of its otherwise-prohibited waste, then the
generator is only required to prepare a one-time notice for its
facility records documenting this disposition and not to comply
with other tracking/notification requirements. If a generator is
not in a position to know that this is the case, then the full
notification/certification requirements under §268.7(a) would
apply.
Fuel Blending Facilities
According to §268.7(b), treatment facilities (e.g., fuel
blenders, BIFs, etc.) must also prepare a notification and
certification for prohibited wastes. These provisions ordinarily
apply to fuel blending operations because combustion residues are
ultimately land disposed and the combustion residue ordinarily
remains subject to LDR treatment standards. These treatment
standards would continue to apply to characteristic wastes that
no longer exhibit a characteristic when land disposed, according
to §268.40(e), so that de-characterized residues from burning
prohibited characteristic wastes are still subject to treatment
standards. (Note, that for D001 wastes, combustion residues meet
the BOAT standard since these standards require a method of
treatment rather than treating hazardous constituents to a
specified concentration level.)
Because fuel blenders are intermediate treatment operations,
they must comply with §268.7(b)(6) (assuming the intermediate
treatment does not: fully achieve the treatment standard) .
Specifically, this section requires the fuel blender to prepare
the same notification and certification that is required for
generators, which in some cases will be the one-time notification
discussed for generators above and in other cases will be
applicable to each waste shipment. The notification and
certification would accompany the blended fuel when it leaves the
site to be transported to the subsequent treater (e.g., BIF) .
If you have any questions on the applicability of the
regulations and permitting requirements for fuel blending
activities, please call James Michael of my staff at
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(703) 308-8610. Questions on the applicability of the land
disposal restrictions (LDR) on fuel blending activities should be
directed to Rhonda Craig of my staff at (703) 308-8771.
cc: RCRA Branch Chiefs, Regions I-X
RCRA Permit Section Chiefs, Regions I-X
Enforcement Section Chiefs, Regions I-X
Waste Combustion Permit Writers' Workgroup
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bcc: Dev Barnes, PSPD
Frank McAlister, PSPD
Jim Michael, PSPD
Sonya Sasseville, PSPD
Jeff Gaines, PSPD
Fred Chanania, WMD
Bob Holloway, WMD
Frank Behan, WMD
Mitch Kidwell, CAD
Larry Starfield, OGC
Steve Silverman, OGC
Brian Grant, OGC
. Susan O'Keefe, OECA
Kate Anderson, OECA
Jim Thompson, OECA
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASH.NGTON. O.C. 20460 QSWER POLICY DIRECTIVE NO.
9522,00^1 -
/ 5 :'
OFFICE OF
SOLID WASTE AND EMERGENCY
MEMORANDUM
SUBJECT: Effect of Land Disposal Restrictions on Permits
FROM: Marcia E. Williams, Director
Office of Solid Waste
TO: Hazardous Waste Division Directors
Regions 1-X
On or before November 8, 1986, the Agency will promulgate
regulations that will restrict the disposal of certain solvents
and dioxins that are hazardous wastes. (Note that in the absence
of such regulations a ban on the land disposal of these wastes
would automatically take effect on November 8 pursuant to the
self-implementing RCRA provision at $3004(e).) The land disposal
restrictions will apply to all land disposal facilities regard-
less of any existing permit conditions.
The HSWA land disposal restrictions supersede the §270.4
provision which currently provides that compliance with a RCRA
permit constitutes compliance with Subtitle C. Therefore, the
permit does not shield the facility from the new land disposal
requirements. The Agency is in the process of amending $270.4
to make it consistent with the self-implementing requirements
of RCRA. (See 51 FR 10715, March 28, 1986.) However, these
provisions automatically apply to permitted facilities even
without the regulatory change. In addition, there is no need
to reopen or modify the existing permits to incorporate those
provisions. The land disposal restrictions are fully enforceable
notwithstanding contrary or absent permit provisions concerning
land disposal.
Similarly, for those land disposal permits that are now
being proc«««ed it is noc necessary to provide permit conditions
regarding the applicability of the land disposal restrictions
since they apply automatically. However, the Fact Sheet should
briefly describe the effect of the new requirements for the
benefit of the public and the facility owner/operator. The
following language is recommended for inclusion in the Fact
Sheet:
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OSWER POUCf OIRECTWl Ittt
9 5 22 2 . 0 0 a 1 r-
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SELF- IMPLEMENTING HSWA PROVISIONS
In several instances HSWA imposes self- implementing
requirements that apply to all facilities regardless of
their current permit conditions. RCRA provisions that
supersede permit conditions include: 1) requirements that
go into effect by statute, and 2) regulations promulgated
under 40 CFR Part 268 restricting the placement of hazardous
wastes in or on the land. Pursuant to this RCRA authority,
certain dtoxins and solvents have been restricted from
land disposal unless treated according to* specified standards,
Although the permit does not contain conditions regarding
the management of the restricted dioxin and solvent wastes,
the facility is required to comply with the standards in 40
CFR Part 268."
Once the Land disposal restriction program is established.
it will be preferable to incorporate the applicable standards
and practices into new permits. This will clarify specific
activities at che facility and will simplify enforcement of
the land disposal requirements at permitted facilities.
Please feel tree to contact Frank McAlister of the Permits
Branch (FTS 382-2223) if you have any questions regarding this
matter.
cc : Hazardous Waste Branch Chiefs, Regions I-X
Bruce Weddle, OSW
Lloyd Guerci, OWPE
Carrie Wehling. OGC
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Policy Directive 9522.00-3
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
NOY 13 1987
O'f ICE Of
SOLID WASTE AND EM£«GEMC"
MEMORANDUM
SUBJECT:
FROM:
TO:
Region >Cs Recommended. Revision of 40 C.F.R. §5270.4(a)
and
,t.-
GenaLucero, Director
Office of Waste Programs Enforcement
-'• •/
Marcia Williams, Director .,X
Office of Solid Waste .-'
/ I.'
Charles E. Findley, Director
Hazardous Waste Division
Region X
In your memorandum dated June 26, 1987, you identify
several potential enforcement problems in the RCRA permitting
regulations and in the corresponding language in the Agency's
model permits. In addition, you present alternative language
that Region X intends to incorporate into permits to prevent
these enforcement problems. Specifically, you express concerns
with the language of $270.4(a) (and similar language in
$270.32(b)(1)) which states:
Compliance with a RCRA permit during
constitutes compliance, for purposes
with Subtitle C of RCRA.
its term
of enforcement,
Several issues are involved in the consideration of this
"permit shield* provision. First, we agree that this language
mav be ovarly broad for some of the reasons you cited in your
memorandun. However, we do not believe that it presents a
serious impediment to enforcing the RCRA Subtitle C requirements
that arc outside the permit's scope. Although an argument can
be made that $270.4(a) limits the enforceability of any RCRA
Subtitle C requirements not addressed by the permit, such an
interpretation would conflict with the intent of other RCRA
provisions. Many of the Subtitle C requirements are not designed
for, and are not appropriate for inclusion a» periM* "«-v-'i(.1oi.
nam«l/ oarts 260, 261, 262, and 263, An iil""k-iLlvn of the
Agency's intent to i*-lo,.i«nc fc>*-:i- rart 260-263 standards ?utj>ide
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OSWER Policy Directive 9522.OC-3
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of the permit is S262.10(f) which applies the Subtitle C Part
262 generator standards to permitted facilities that generate
hazardous wastes.
Second, the regulations at $270.32( b) ( 1) indicate that a
permit should include conditions that incorporate the standards
specified in Parts 264, 266, 267, and 263. (Note, however, that
the applicability of Part 267 has expired.) The purpose of
$270.32(o)( 1) and the "permit as a shield" provision of $270.4(a)
is to assure the permittee that by complying with the permit, he
or she is in compliance with the RCRA facility standards. Thus,
given $270.32(b)(1) , the permit shield applies in all cases to
the facility standards of Parts 264 and 266.
•
The relation of the permit shield provision to Part 263 is
nore complex. As a result of HSWA, the self-implement ing
facility standards imposed by statute and the Part 268 land
disposal restrictions apply to all permitted facilities despite
the shield provision of $270.4(a), except in those cases where
the self-implementing requirements have been incorporated into
the permit. (See the March 28, 1986 proposed amendment to $270.4,
51 FR 10715.) Consequently, if the self-implementing RCRA
provisions are incorporated into the permit, the permit will act
as a shield from these self-implementing requirements. EPA
maintains its position that it is generally preferable to incor-
porate the Part 268 and related statutory standards into new
permits whenever possible. At the same time, the Agency must
assure that the permittee is obligated to comply with new or
amended self-implementing provisions that occur after permit
issuance. Sample permit language is provided below to achieve
that effect.
Based on the two points discussed above, we believe that
$270.4(a) is not as serious an impediment as you suggest.
However, we agree with your concern that there is a potential
for confusion, and concur with your approach to modifying the
permit language to clarify the effect of the permit for
enforcement purposes. We recommend a few changes to your
suggested alternative language to indicate more clearly which
40 C.F.R. Parts are shielded by the permit and those that are
not shielded. Thus, the boilerplate language should read as
follows:
Compliance with this permit during its term
constitutes compliance, for purposes of enforcement,
with 40 C.P.R. Parts 264 and 266 only for those
management practices specifically authorized by this
permit. The permittee is also required to comply
with Parts 260, 261, 262, and 263 to the extent the
requirements of those Parts are applicable.
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OSWER Policy Directive 9522.00-3
Tn addition, one of the following conditions should be used
to reflect the applicability of the statutory and Part 268
self-implementing provisions:
1. For permits that do not incorporate self-implement ing
requirements:
The permittee must also comply with all applicable
self-implementing provisions imposed by the RCRA
statute or the Part 268 regulations.
2. For permits that incorporate self-implementing
requirements:
•
Compliance with this permit constitutes compliance,
for purposes of enforcement, with Part 263 only for
those management practices and related standards
specifically authorized by this permit. The permittee
must also comply with all applicable self-implementing
provisions that take effect after issuance of this
permit, whether they are imposed by the RCRA statute
or the Part 268 regulations (including amendments)-
You may also add a general provision which states that compliance
with the permit does not constitute a defense against any action
brought under law to protect human health or the environment,
including other requirements not necessarily included in the
permit.
Thank you for bringing this matter to our attention. We
will, continue to reexamine the entire permit shield issue to
determine whether further changes to 5270.4(a) are warranted.
If vou have additional Questions or observations on this subject
please contact Frank McAlister of the Office of Solid Waste
(FTS 382-2223) or Susan Hodges of the Office of Waste Programs
Enforcement (FTS 475-9315).
cc: Waste Management Division Directors, Regions I-IX
RCRA Branch Chiefs, Regions I-X
Regional Counsels, Regions I-X
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, B.C. 20460
OFFICE OF
GENERAL COUNSEL
March 22, 1979
MEMORANDUM 9522.1979(01)
TO: Steffen Plehn
Deputy Assistant Administrator
for Solid. Waste (WH-562)
FROM: James A. Rogers
Associate General Counsel
Water and Solid Waste Division (A-131)
SUBJECT: Applicability of the National Environmental Policy Act's Environmental
Impact Statement Requirements to EPA's Actions Under the Resource
Conservation and Recovery Act.
INTRODUCTION
You have requested a legal opinion on whether your office must comply with the
Environmental Impact Statement (EIS) requirements of Section 102(2)(C) of the National
Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §4321 et seg., 83 Stat. 852 (1969),
when it takes actions under the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. §6901 et seg., 90 Stat. 2795
(1976). For the reasons set forth below, I conclude that there is no legal requirement for
your office to comply with the procedural requirements of Section 102(2)(C) of NEPA prior
to rulemaking, issuing permits to hazardous waste disposal facilities, or approving State
hazardous and solid waste programs. However, I conclude that Environmental Impact
Statements may be required before financing the construction of demonstration projects or
solid waste disposal facilities if such actions are "major federal actions significantly affecting
the quality of the human environment," as that key phase is used in NEPA.
BACKGROUND
Section 102(2)(C) of NEPA, requires the consideration of environmental impacts,
alternatives, and commitments of resources for any "major federal action significantly
affecting the quality of the human environment." Procedurally, this section requires the
responsible federal official to prepare an environmental impact statement in writing before
the action is taken, circulate it to other federal, state and local agencies, and make it
available to the public. Courts have enjoined federal actions because an environmental
impact statement was not prepared before the project was commenced or because it was not
Tliis document has been retyped from the original.
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circulated for public comment.1 And many federal projects have been halted because not all
the environmental impacts were considered or because not all alternatives were considered.2
Although one early case held that NEPA applied to agencies engaged in the protection
of the environment,3 subsequent cases have stated in various fashions that EPA is exempt
from NEPA in the performance of its regulatory functions. This exemption is based on
functional equivalence between the actions of EPA in carrying out statutes designed to
protect the environment, and the requirements of NEPA.
THE FUNCTIONAL EQUIVALENCE TEST
The term "functional equivalent" was coined by the D.C. Circuit in Portland Cement
Assoc. v. Ruckelshaus.4 Its requirements have been concisely summarized by the U.S.
District Court for Maryland in Maryland v. Train. 415 F. Supp. 116, 122 (1976):
where federal regulatory action is circumscribed by extensive
procedures, including public participation, for evaluating
environmental issues and is taken by an agency with recognized
environmental expertise, formal adherence to the NEPA
requirements is not required unless Congress has specifically so
directed.
Through application of this test, EPA has been found to be exempt from NEPA when taking
regulatory actions under the Clean Air Act,5 the Federal Insecticide, Fungicide and
See, e.g.. Greene County Planning Board v. FPC. 455 F.2d 412 (2d Cir. 1972);
Hanly v. Kleindienst. 471 F.2d 823 (2d Cir. 1973).
See, e.g.. Hanlv v. Mitchell. 460 F.2d 640 (2d Cir. 1972); Natural Resources
Defense Council v. Morton. 459 F.2d 827 (D.C. Cir. 1972).
Kalur v. Resor. 335 F. Supp. 1, 12 (D.D.C. 1971) But, see Portland Cement
Association v. Ruckelshaus. 486 F.2d 375, 384 n.41 (D.C. Cir. 1973) ("Kalur was
dismissed as moot on appeal to this court ... and is of no precedential value.")
486 F.2d 375 (1973), cert, denied 417 U.S. 921 (1974).
See, e.g.. Appalachian Power Co. v. EPA. 477 F.2d 495 (4th Cir. 1973) (Section
110); Portland Cement Assoc. v. Ruckelshaus. supra (Section 111); International
Harvester Co. v. Ruckelshaus. 478 F.2d 615 (D.C. Cir. 1973) (Section 202); Amoco
Oil Co. v. EPA. 501 F.2d 722 (D.C. Cir. 1974) (Section 211).
This document has been retyped from the original.
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Rodenticide Act (F1FRA),6 and the Marine Protection, Research and Sanctuaries Act
(MPRSA).7
APPLICABILITY OF THE FUNCTIONAL EQUIVALENCE TEST TO RCRA
To determine whether EPA is exempt from NEPA for actions taken under RCRA, it
is necessary to examine whether all of the requirements of the functional equivalence test are
met.
As a starting point, since the functional equivalence test applies only to regulatory
actions, some actions taken under RCRA are not exempt from NEPA. The funding of
demonstration projects8 and solid waste disposal facilities9 are not regulatory; therefore,
they are not exempt. However, this does not necessarily mean that environmental impact
statements are required. NEPA requires impact statements only for "major federal action
significantly affecting the quality of the human environment." Existing regulations provide
procedures for reviewing research and development projects and financial assistance for solid
waste disposal facilities which can be used to decide whether impact statements are needed
for specific projects.10
RCRA also requires a number of studies and reports.11 Although these activities are
not exempt as regulatory activities, it is unlikely that they would significantly affect the
environment. For all practical purposes, they can be considered to be exempt from NEPA.
There remains three major sets of regulatory actions:
(1) rulemaking,12
6 See, e.g.. Environmental Defense Fund v. EPA (DDT). 489 F.2d 1247 (D.C. Cir.
1973) (Section 6); Environmental Defense Fund v. Blum (ferriamicide). 458 F. Supp.
650 (D.D.C. 1978) (Section 18).
7 Maryland v. Train, supra.
8 RCRA §8004.
9 RCRA §§4008(e)(l) and 4009(c).
10 40 C.F.R. Part 6 Subparts F and G.
11 E.g. RCRA §§2005, 7007(c), 8002, 8003, 8005.
12 See, esp.. RCRA §§3002-04 (standards of performance for hazardous waste
generators, transporters, treaters, and disposers); 1008 (guidelines for solid waste
disposal methods); 4002 (guidelines for State solid waste plans); 4004 (criteria for
identifying open dumps); and 3006 (criteria for State hazardous waste plans).
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(2) permits for hazardous waste facilities,13
(3) approval of State hazardous and solid waste programs.14
The threshold tests of the functional equivalence test; i.e., "... federal regulatory action...
taken by an agency with recognized environmental expertise...." are clearly met with respect
to these regulatory actions, but it must also be determined whether the regulatory actions are
"... circumscribed by extensive procedures, including public participation, for evaluating
environmental issues...." This is best done by comparing public participation and
environmental consideration requirements which have been found to meet the test in other
cases with the requirements of RCRA.
Public Participation
Public participation adequate to satisfy the requirements of NEPA can be achieved
through notice-and-comment rulemaking procedures or through public hearings. In Portland
Cement the court concluded that "although the rulemaking process may not impart the
complete advantages of the structured determinations of NEPA, it does, in our view strike a
workable balance between some of the advantages and disadvantages of full application of
NEPA."15 The court also conclude that the rulemaking process offered an opportunity for
other agencies to submit their comments and served to alert the public and Congress to
possible adverse impacts.16
Public participation in the approval of State hazardous and solid waste programs
under RCRA §§3006 and 4007, respectively, is assured through required public hearings on
hazardous waste plans and through public participation in the development of both types of
plans as required by Section 7004(b).
The approval of State hazardous waste programs under RCRA and the approval of
State Implementation Plans under Section 110 of the Clean Air Act both require public
hearings on the development of the plans.17 Since the approval of State Implementation
13 RCRA §3005.
14 RCRA §§3006 and 4007.
15 486 F.2d at 386. But the court also pointed out that "an EPA statement of reasons
for standards and criteria requires a fuller presentation than the minimum rule-making
requirement of the Administrative Procedure Act." [citing Kennecot Copper Co. V.
EPA. 462 F.2d 846 (D.C. Cir. 1972)]. Jd.
16 Id. However, the court suggested that EPA or CEQ guidelines for the distribution of
impact statements be adapted to provide for circulation of statements of reasons and
supporting documents to other agencies. 486 F.2d at 386, p. 43.
17 Compare Clean Air Act §110(a)(l), 42 U.S.C. 1857c - 5(a)(l) with RCRA §3006(b).
This document has been retyped from the original.
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Plans has been held exempt from NEPA,181 conclude that public participation in the
approval of State hazardous waste plans through public hearings satisfies the requirements of
the functional equivalence test.
RCRA does not specifically provide for public hearings on the approval of State solid
waste plans.19 However, Section 7004(b) requires the Administrator to develop minimum
guidelines for public participation in the development and implementation of any program
under the Act. If public hearings are required before approval of State hazardous waste
plans, the requirements of the functional equivalence test will be met.
Although Section 3005 of RCRA does not provide for public hearings for the issuance
of permits for hazardous waste treatment, storage or disposal facilities, the Administrative
Procedure Act requires hearings on the issuance of licenses.20 In four cases involving
actions similar to licensing or permitting actions, public hearing requirements were found
adequate to satisfy the functional equivalence test.21 It is not necessary that a hearing
actually be held to satisfy the functional equivalence test's public participation requirement
for permit actions.22 Thus, I conclude that, if provision is made for public hearings on
hazardous waste facility permits, the public participation requirements of the functional
equivalence test will be met.
Consideration of Environmental Issues
The central requirement of the functional equivalence test is that the Agency's
procedures provide for the consideration of environmental issues. In International Harvester
Co. v. Ruckelshaus. supra the court said that
we see little need in requiring a NEPA statement from an
agency whose raison d'etre is the protection of the environment
and whose decision ... is necessarily infused with the
18 Appalachian Power Co. v. EPA. 477 F.2d 495 (4th Cir. 1973); Duquesne Light Co.
v. EPA. 481 F.2d 1 (3rd Cir. 1973); Buckeye Power. Inc. v. EPA. 481 F.2d 162
(6th Cir. 1973); Anaconda Co. v. Ruckelshaus. 482 F.2d 1301 (10th Cir. 1973).
19 See RCRA §§4003, 4007.
20 5 U.S.C. §558(c).
21 Environmental Defense Fund v. EPA (DDT). 489 F.2d 1247 (D.C. Cir. 1973)
(suspension and cancellation of pesticide); Wyoming v. Hathaway. 525 F.2d 66 (10th
Cir. 1975) (suspension and cancellation of pesticides); Maryland v. Train. 415 F.
Supp. 116 (D. Md. 1976) (ocean-dumping permit); Environmental Defense Fund v.
Blum. 458 F. Supp. 650 (D.D.C. 1978) (emergency exemption of a pesticide).
22 See. Wyoming v. Hathaway, supra.
This document has been retyped from the original.
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environmental consideration so pertinent to Congress in
designing the statutory framework of NEPA. To require a
"statement", in addition to a decision setting forth the same
considerations, would be a legalism carried to the extreme.
478 F.2d at 650, n. 130. In Portland Cement the court held that EPA was exempt because
"... [wjhat is decisive, ultimately, is the reality that, Section 111 of the Clean Air Act,
properly construed, requires the functional equivalent of an environmental impact statement."
486 F.2d at 384.
The threshold test for environmental consideration is very low. For instance, EPA
has been held exempt from NEPA where the statute required the Administrator to determine
that the action was "essential to the public interest or the public health and welfare. "23 The
Administrator's action in cancelling the registration of pesticides is similarly exempt from
NEPA.24 The criteria for cancellation is whether the use of the cancelled pesticide
"generally causes unreasonable adverse effects on the environment" although FIFRA also
requires a study of the economic impacts of cancellation.25 Much the same type of
regulatory language is used in RCRA. For instance, the standards of performance for the
handling of hazardous waste must be such "as may be necessary to protect human health and
the environment." RCRA §§3002 - 3004. Permits for hazardous wastes must insure
compliance with the standards in Section 3004; they therefore must protect human health and
the environment. RCRA §3005(c). The objective of Subtitle D is "to assist in developing
and encouraging methods for the disposal of solid waste which are environmentally sound
...." RCRA §4001. Similar considerations apply to other regulatory actions under RCRA.
Because the basis for exemption from NEPA is that the statute requires consideration
of the adverse impact of the proposed action on the environment, I conclude that all
regulatory actions under RCRA are exempt from the NEPA requirement to prepare separate
environmental impact statements. However, in the documentation for actions taken by your
office, you should indicate any consideration of environmental impacts or alternative courses
of action.
23 International Harvester Co. v. Ruckelshaus. supra.
/
24 Environmental Defense Fund v. EPA, supra; Wyoming v. Hathaway, supra.
25 FIFRA §6(b).
This document has been retyped from the original.
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9522.1983(02)
MEMORANDUM
SUBJECT: Definition of "Major Handlers" of Hazardous iiaste
Lee M. Thonas i.sTgr.s?/. Uce ft. Thomas
Acting Assistant ArtirlnistlTStor" for
Solid waste and Krargency Response
TO: Prograr Irj-lcrentation Guidance Adcressees
ISSU5
what definition will trovtdo consistency in the designation
by £PA and authorized States of "irajor handlers" of hazardous
waste?
DISCUSSION
Compliance with the 40 CFR Parts 270 and 271 requires certain
hazardous wa«t« handlers to be designated as "icajor." This desig-
nation is intended to identify, for administrative purposes, environ-
rentally significant hazardous waste handlers and to be used in
coocontrating inspection, permitting, and reporting resources on
those handlers»
The original definition of a "rajor handler" of hazardous
waste, which was the subject of PIG-82-2 (Hay 14, 1982), was based
on information available to the Aqency at the tire, including our
experience with ifreinent hazard and Super fund sites. It was a
first step in fro*iding a uniform, nationally consistent stanaard
to identify rajor handlers to serve as a focus for limited RCRA
resources. As more data have becoire available, it Mas becore
evident that changes and clarifications to the existing definition
would rake it more useful in the implementation of RCRA. That
revision is identified below.
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The suites and EPA Regional Offices should jointly develop
updated list* oil designated "rajor handlers" based on this
revised definition. The lists will be used by authorized States
and the Regions for progras implementation, budget decisions,
inspections,, reporting, and permit overview. The increased
attention which must b« directed to these facilities is resource
intensive. Thus, the resulting lists of major handlers will be
considered in the budget planning process for allocations of
resources. The effective implementation date for this definition
is October 1, 1984. The Regions and the States will develop
lists of rajor handlers on the basis of this definition during
FY 1984 for use in PY 1985.
DECISION
The following hazardous waste handling activities are to
be designated as 'major's
I. All facilities subject to ground-**ater iron i tor ing
and/or protection requirements
II. All incinerators
III. Up to 10% of retraining TSDP's
IV. Up to 3% of generators and transporters
Percentages are to be based on the nuafter of known handlers in
HWDMS as of October 1, 1983. EPA or the State pay add facilities,
generators or transporters to the list, subject to the 10% and 3%
ceilings, and shall notify the other party in writing. However,
tne deletion of any facility, generator or transporter mist be
agreed to in writing by both parties. The list will be- reviewed
and renegotiated at least annually..
Reporting requirements in 40 CFR 270.5 or in the annual
RCRA Guidance which refer to major handlers apply to the above
designated list. Those Mjor handlers which cor prise categories
I,II, and III nr» designated as major facilities for EPA permit
overview.
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9522.1984(01)
RCRA/SUPERFUND HOTLINE SUMMARY
An interim status container storage facility has a surface impoundment
without interim status. The surface impoundment is used for storage
of storawater run-oc'f frcra the facility and parking lot. The sludge
that has accumulated in the impoundment has becone EP toxic due to
lead. Can the surface impoundment qualify for interim status since it
was in existence on Novencer 19, 1980, and is now generating a hazardous
waste? Does this impoundment meet the definition of "existing portion'?
According to the November 19, 1980, Federal Register, page 76633,
a facility that determined on August 18, 1980, that its solid waste
was not hazardous may retest that waste after November 19, 1980
and discover that the waste now exhibits a Subpart C characteristic.
If the facility files Part A of the permit application within 30
days of discovering that the waste is now hazardous, the facility
should qualify for interim status. In this case, the facility
could revise its Part A to include the surface impoundment. The
impoundment meets the intent of "existing portion" and does not
need a liner since the impoundment was in existence for waste
management before November 19, 1980, and has received hazardous
waste pr ior^ to jeijaif issuance.
rce: Fred Lincsey, Debbie Vtolpe, OSW
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9522.1984(02)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
MAY 84
A Part B applicant: has an "existing" storage surface impoundment with a liner.
According to 270.2(b)(l) and 264.221(a), "existing" surface impoundments are not
required to install liners but are required to conform with all other design
and operating requirements in 264.221, as well as the ground water protection
requirements. Must the applicant describe the liner in the Part 3 application?
The applicant' is not required to describe the liner in the applica'.ion.
E?A, however, recommends that the applicant include Such information
1n their Part B.
Source: Art Day
Research: Gordon Davidson
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9522.1984(03)
JUL 1984
HgMORANDCH
SOBJECTt Issuance of RCRA Permits to Facility Owners and Operators
PROMi John Skinner
Director, Office of Solid Waste (WH-563)
TOi Regional Division Directors, Regions I-X - "*•• ..• • •
This Office continues to learn of RCRA permits being issued
only to facility operators in those instances where the facility
operator and the facility owner are different people* Section
270.l(c) requires that "owners and operators of hasardous waste
management units must have permits during the active life (includ-
ing closure) of the facility....* In addition, 1270.10(5)
requires the operator to apply for the permit mnd the owner to
sign the application along with the operator when the facility
operator and owner are different persons (see |270.10(b)).
~~ Please ensure in the future that all RCRA permits are issued
to both the owner and operator of the facility in those cases
where the facility Is owned by one person and operated by another.
WH-563:CMiller:sed:S243:382-4692:7/23/84:Disk Chaz 4 13
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9522.1984(04)
OCT i 13m -
n
• I
F?.OMi Brurfl R. Keddle '•
Director, Pemits and State
Division (VH-563)
TO: Jan«« Scarborough, Chief
Residuals'Management Branch, Region IV
This neraorandua"is in response to your recent Inquiry
concerning the neid .for the Regional Administrator's signature
on tne transmission of consents resulting froa EPA18 review of
draft Sthte FC71A permits. As you pointed out, 40 CFR 271.19 and
271.134 provide that '(tine •Regional Administrator «ay cocreent
on the permit applications and draft peraits as provided in -the
Hertorandua of Agreement...* (oophaais added]. You also correctly
noted, tnat this authority has not Deen formally delegated to any
other EPA official) i.e., it is not .specifically addressed in
EPA'a Delegations Manual. ... . .
Ho have consulted with the Office of General .Counsel and
concluded that it is not necessary to amend EPA'e Delegations
Manual to provide a foraal, explicit redelegation of this
authority. Sufficient authority exists within EPA's regulations
to allow another EPA official to sign conaonts resulting fron
CPA'a review of draft State permits. For the explicit purposes
of 40 CFR Parts 270, 271 and 124, section 270.2 defines the tern
Regional Administrator to include "the authorized representative
of the Regional Administrator. - We suggest that you ask your
Regional Administrator to designate in writing either the Air and
waste Management Division Director or yourself, as appropriate,
as his authorized representative foe transaittal of SPA'S coranents
resulting t'ron draft perwit reviews. .-
If you hove any further questions on this issue, please feel
frse to contact Truett CeGeara at (FTS) 382-2210.
cc: Hazardous Waste Management Division Directors,
Pegionn I - X
F»tsr •*3U'tf*,'-*ro, OSW
GSil Cooper, OSrf
Susan Scbt;uG9; OSW
SUBJECT: SPA aoviow of Draft State PCRA Penalts '» £
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9522.1985(01)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
FEB i: £?5
MEMORANDUM PIG-85-1
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
SUBJECT: Assignment of a Memorandum to the Program
Implementation Guidance System
FROM: John Skinner, Director
Office of Solid Waste (WH-
TO: Program Implementation Guidance System Addressees
On January 25, 1985, the Offices of Water Enforcement
and Permits, Drinking Water, Federal Activities, and Solid
Waste issued the attached memorandum to Regional Administrators.
The memorandum identifies the appropriate signatories for
Department of Defense permit applications. I think that the
guidance contained in this memorandum is of such value as to
warrant wider distribution and incorporation into our system of
Program Implementation Guidance. For future reference and ease
in filing, I have designated this memorandum as Program Implemen-
tation Guidance number *>'-< •
Attachment
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
JAN 2 5 1985
MEMORANDUM
SUBJECT: Signatories to Department of Defense Permit Applications
FROM: Rebecca
Office"*f Wate/ Enrcifent and Permits (EN-335)
Office of DrinMXg Water (WH-550)
Allan Hirsch, Director
Office of Federal
John H. Skinner, Director
Office of Solid Waste (WH
TO: Regional Administrators
Regions I-X
Purpose
This memorandum identifies Mho must sign Department of Defense (DoD) permit
applications for four permit programs:
o National Pollutant Discharge Elimination System (NPDES), 40 CFR Part 122
o Underground Injection Conrol (UIC), 40 CFR Part 144
o State Dredge or Fill "404" (404), 40 CFR Part 233
o Hazardous Waste Management (HWH), 40 CFR Part 270
Exception
Government-Owned Contractor-Operated (GOCO) facilities that require permits
under any of the four permit programs listed above are not covered since they
present significantly-different Issues than Mere considered during the development
of this guidance.
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Development
This document' has been developed in conjunction with staff of DoD and the
four permit programs involved. Attachment A contains the regulatory language
for corporate and Federal signatories to permit applications. Attachment B
contains a discussion of the criteria used to develop this guidance.
Background
In compliance with a settlement agreement arising from litigation of the
Consolidated Permit Regulations, EPA modified corporate signatory requirements
and established requirements for Federal agencies under the NPDES, UIC, State
404, and HWM permit programs (48 FR 39611, September 1, 1983; §§122.22, 144.32,
233.6, 270.11). In the preamble to the September 1 rule, EPA gave two examples
of how the signatory regulations were to be applied to Federal agencies. In
essence, the proper signatory level for Federal permit applicants is that compar-
able to EPA's Regional Administrator.
However, because DoD has no geographical division of responsibility that
parallels EPA's Regional Administrators, the EPA Regional Offices are not clear
who they should accept as a proper DoD signatory. The confusion is compounded
because DoD lines of authority and responsibility for the management and budgeting
o^ environmental activities are complex and difficult to follow. This problem
first surfaced in regard to several permits in the HWM permit program, but applies
to the four permit programs.
Issue Resolution
The acceptable signatory for DoD permit applications is the Installation
Commander of a rank of 06 or higher, if the installation employs more than 250
persons and authority to sign permit applications has been assigned or delegated
to the Installation Commander in accordance with applicable DoD procedures.
If an Installation Commander does not meet these requirements, the permit appli-
cation must be signed by a superior officer who meets the requirements.
In addition, where a tenant is present on the installation and has authority
or responsibility for any aspect of the regulated activity, the Tenant Commander
(rank of 06 or higher) must also sign the application. The Tenant Commander
must also employ more than 250 persons and have been assigned or delegated authority
to sign permit applications 1n accordance with applicable DoD procedures. Again,
if the Tenant Commander does not meet these requirements, the permit application
must be signed by a superior officer meeting the requirements.
Nothing in this guidance precludes applicable delegated States from requir-
ing signatories to DoD permit applications to conform to more stringent State
requirements.
Implementation
EPA Responsibilities:
EPA will inform each of Its Rec*™*1 CiVice1-- ?nd applicaL.1* delegated States
of this guidance.
Permit authorities will keep both the m .ification of changes in personnel
and the DoD directive discussed below in the appropriate permit file.
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DoO Responsibilities:
DoD will Inform all Installation Commanders and Tenant Commanders conducting
regulated activities of their responsibilities under this guidance.
In some situations, DoD has allowed low level officials to sign the permit
applications for existing permits. DoD will notify the permit authority of the
appropriate personnel, as identified in this guidance, to ensure that the proper
signatories are included in the existing permit file.
Since 1n the past, the authority and responsibility for all activities
required during the conduct of regulated DoD facilities (e.g., planning, manage-
ment, budget, and compliance activities) has been unclear, DoD will develop the
appropriate delegation procedures to Implement this guidance. This guidance
will clarify the responsible party or parties for conducting regulated activities.
DoD will furnish this delegation directive to the permit authority 1n order that
it may be appended to the permit file. DoD will delegate the authority and
responsibility to sign permit applications in accordance with DoD procedures
prior to future permit Issuance.
In addition, for any replacement of personnel at the Installation Commander
or Tenant Commander level during the term of the permit. DoD will notifv the
permit authority of the change and furnish the name of the new person(s) respon-
sible for the regulated activities.
Attachments
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ATTACHMENT A
Corporate Signatory Language
40 CFR §§122.22(a)(l). 144.32(a)(l), 233.6(«)(1), 270.11(a)(l) reads:
"For a corporation: by a responsible corporate officer. For the purposes of
this section, a responsible corporate officer means: (i) A president, secretary,
treasurer, or vice-president of the corporation in charge of a principal business
function, or any other person trfio performs similar policy- or decision-making
functions for the corporation, or (ii) the manager of one or more manufacturing,
production, or operating facilities employing more than 25C persons or having
gross annual sales or expenditures exceeding $25 million (in second-quarter 1980
dollars), if authority to sign documents has been assigned or delegated to the
manager in accordance with corporate procedures."
Federal Signatory Language
40 CFR §§122.22(a)(3), 144.32(a)(3), 233.6(a}(3), 270.11(a)(3) reads:
"For a municipality. State, Federal, or other public agency: by either a principal
executive officer or ranking elected official. For purposes of this section, a
principal executive officer of a Federal agency includes: (1) The chief executive
officer of the agency, or (11) a senior executive officer having responsibility
for the overall operations of a principal geographic unit of the agency (e.g.,
Regional Administrators of EPA)."
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ATTACHMENT B
SIGNATORIES TO DEPARTMENT OF DEFENSE PERMIT APPLICATIONS
Discussion
The Department of Defense (DoD) is headed by the Secretary of Defense, a
Cabinet level appointment. Reporting directly to the Secretary are the Secretaries
of the three Military Departments (Army, Navy and Air Force). The Military
Departments are organized into varying numbers of Major Commands that are functional
alignments rather than geographical divisions. Subordinate to the Major Commands
are the Installation Commanders.; the numbers of installations in each Major
Command vary widely. In the DoD chain-of-command, the Installation Commander is
responsible to one Major Command. Each Installation Commander is expected to
establish the necessary organizational structure to fulfill the Major Command's
function (i.e., training, air defense, etc.).
Also reporting directly to the Secretary of Defense are the Directors of
the 12 Defense Agencies. The Defense Agencies have varying management structures
— some geographical and some functional. Defense Agencies do not have independent
installations; rather, Defense Agencies' activities are tenants on installations
operated by the Military Departments.
Since the heads of the Military Departments, the Defense Agencies and the
Major Commands are centrally located within the Pentagon, they are not directly
responsible for the Implementation of systems necessary to gather complete and
accurate permit application information. In addition, the Major Commands are
far removed from the operation and management of day-to-day environmental activities
on individual installations.
Generally, the Installation Commander holds a rank of 06, which is a Colonel
(Army and Air Force) or a Captain (Navy). The Installation Commander is responsible
for operating pollution control facilities on the installation. He is also
responsible for planning and for anticipating the need for new pollution abatement
projects. However, some installations have tenants that share responsibility
for pollution control. One example is the Defense Logistics Agency (DLA) that
shares responsibility for the handling and storage of DoD hazardous wastes with
the Installation Commander. The budgets for both the Installation Commander and
Tenant Commander(s) are subject to approval from their major commands, their
Military Departments and eventually the Congress.
DoD installations usually cover hundreds of acres and provide complete
support for thousands of civilian and military personnel and military families
living on the Installation. The Installation Commander oversees, controls and
manages complete communities that consist of such things as housing, stores, gas
stations, utilities, waste treatment facilities, dining halls, fire and police
departments, warehouses, motor pools, runways and hospitals.
A review of the organization of DoD indicates that the Installation Commander
fulfills the literal requirement of the signatory regulation promulgated on
September 1, 1983. Defense Installations are the principal geographic unit of
DoD and the Installation Commander has responsibility "or ^ts ov. .-:V operation.
However, sirr
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9522.1985(02)
RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION
MARCH 1985
Part B Application
3 A facility's Part B permit application 1s due after a Federal Register
announcement of a final rule affecting the facility's hazardous waste
management activities but prior to the effective date of the final rule. Is
the permit applicant required to address applicable sections of the new final
rule in the Part B permit application?
Since the new final rule 1s not effective when the initial Part B
application 1s due, the permit applicant 1s not required to address
the new ffnal rule provisions 1n the Initial Part B application.
However, all 'permits Issued must reflect all applicable Part 264
requirements in effect on the date of Issuance. Therefore, 1n most
cases, if the new final rule will be 1n effect prior to permit Issuance,
the initial Part B application should be modified to reflect the new
rule. If the new final rule will become effective shortly after permit
Issuance, the applicant may still want to address the requirements of
the new rule in the Part B application rather than go through a permit
modification at a later date.
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9522.1985(04)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
AU630B85
MEMORANDUM
SUBJECT: Partial Permitting
OFFICE OF _
SOLID WASTE AND EMERGENCY RESPONSE
FROM: John H. Skinner
Director, Office if Solid Waste (WH-562)
TO: Harry Seraydarian"^
Director, Toxics and Waste Management Division
In your memorandum of May 9 (attached) you requested our
response to your proposal for permitting of a new incinerator unit
at the Dow Chemical plant in Pittsburg, California. Outlined
below is a discussion of that proposal and our recommendations
regarding issuance of a separate permit.
We agree with your conclusion that issuance of a new
incinerator permit for the facility which is to be phasing out
its land disposal units is consistent with EPA's policy of encour-
aging treatment alternatives to land-based waste disposal methods.
As you know, however, any such permit must address corrective
action for releases from all solid waste management units at the
facility as required by new section 3004(u) of RCRA. You proposed
that the preliminary assessment, site investigation and/or corrective
action for those land disposal units be addressed through a schedule
of compliance in a permit which could be issued for construction
of the new incinerator, but which would not otherwise cover the land
disposal units at the facility.
The existing land disposal units at the facility are also
regulated units as defined in $264.90(a). As discussed in the
preamble to the HSWA final codification rule, (see discussion of
§3005(i)) regulated units are subject to existing standards under
Subpart P of Part 265 and Part 264 for gathering information on
releases to ground water. Permit schedules of compliance for
information gathering — as provided for in §3004 (u) for solid
waste management units — cannot be used for investigating ground
water releases from regulated units. Consequently, the proposed
approach which you have suggested for permitting this facility does
not appear to be workable.
We can, however, suggest an alternative approach which would
cxped'*-" the issuance of the permit to the incinera«--~r- unit by
addi.\*««^ng any releases '^^ ground <••**• it- JtXXfi r.ne -^yuxated units in
separate penults.
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Section 3005(i), as amended by HSWA, reaffirmed that ground
water releases from regulated units are subject to existing RCRA
regulations. This regulatory scheme encompasses not only the
substantive cleanup requirements in Part 264 Subpart F, but also
the procedural permitting requirements in Part 270, and the
provision for partial permitting in 40 CFR 270.1(c)(4) in par-
ticular. We could, therefore, issue a partial permit covering
the new incinerator unit, all releases to media other than ground
water from the regulated unit, and all releases from non-regulated
units. A permit issued separately to the regulated units would
address any needed ground water corrective action in accordance
with Subpart F of Part 264.
We believe this approach is fully consistent with the
basic objectives of sections 3004(u) and 3005{i). If you have
any further questions on this issue, please call Peter Guerrero,
Chief, Permits Branch at 382-4740.
Attachment
cc: Regional Hazardous Waste Management Division Directors
Regional Hazardous Waste Branch Chiefs
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C 8 MAY 198|
Multiple RCRA Permits «t A Single Facility
Original Signed
Harry Seraydarlan
Director* Toxics and Waste Kanageoent Division, Region 9
John B. Skinner
Director, Office of Solid Haste (WH-562)
Issuei
Are the Regions precluded by statute, regulation or policy
froa issuing wore than one RCRA perclt at a single hazardous
waste nanageaent facility? In particular, «ay we issue a
perftit for a new incinerator at an existing land disposal
facility, deferring until a later date the issuance of a permit
for the land disposal units?
background!
Although the subject of issuing several permits at one
•facility* has been discussed in the past with your staff, to
our knowledge no official policy postion was ever taken. In
1982, wnen only tank and container facilities could be percltted,
we had several discussions with Headquarters staff which led to
our understanding that we could begin to process pereits for
tank/container units at facilities wnich also had land disposal
or incinerator units. Since we felt that this could ultimately
lead to a duplication of effort, we never followed this course
of action. By virtue of having only Phase II A authorization,
California has proceeded with issuance of tank/container peraits
at sites also conducting lane disposal.
In a few recent cases, we have been presented with
circumstances wjiich cause as to recxacine our policy ot going
through the pernit process only once at each facility. When
your btaff has been presented with the issues, we have received
conflicting advice.
Perhaps tfte best exauple ot the situation we have in mina
is the Dow Chemical plant in Plttsburg, California. Dow has
existing tank/container, inciner&tor, and surface impoundment
units operating under interim status. In response to our
request, Dow submitted a Part a permit for its existing units.
Due to complex ground water Issues at the facility and trial
burn requirenentc, we do not expect early issuance of a perc.it
tor the Dow interim status units.
365B - T-2-2/H'iis>cr ^rr.-e: b/^5/85
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-2-
Recently *• received • permit application frost Dow for a
new waste incinerator at the Pittsburg plant. The unit IB part
of Dov's efforts to upgrade its vast* management practices and
discontinue land disposal both on-site and off-site. Tbe new
unit* because of its large cost, can not be constructed under
interim status„ and Bust receive a RCRA permit before comaenee-
men t of construction. We are persuaded that expedited issuance
of a RCRA permit fur the nev unit would be environmentally
responsible, for the following reasons.
1. It would be.consistent with CPA's policy of
encouraging high technology waste disposal as an
alternative to land disposal.
2. Although the .incinerator would only dispose of
wastes generated at Pittsburg ano a few other seall
Dow facilities, any reduction in the aaount of waste
going to land disposal is an advance.
3. Tbe installation of the incinerator (and additional
on-site treatment facilities) la required for Dow to
close its surface lapoundaonts. Due to the lengthy
lead tiae required for Incinerator construction, the
surface impoundment closure will be d«layeo if the
incinerator is not peneitted.
Recommended Actiont
The passage of the KSn'A has clearly led to coaplications
in the issuance of multiple permits at a single facility.
Since tne statute now requires that we Address all releases
fros> Solid Waste Management Units (SViMUs) in all RCRA percits,
we must deal with this provision. In Oow*e case, the existieng
Hazardous uaete nanage&ent Units (HKKUs) are, of course, al&o
SWhUa.
fc> propose the following course of action at Dow and other
facilities with similar circuawtancea.
1. 'Fast-tiradcing* the permitting of new, higher
technology units by adoresoing the* ir. a single-unit
permit*
2. Addressing corrective actions at SWMJs (including
BWMU6) through perr.it conditions that require the
continuation of preliminary assessment, site
investigation, ano/or corrective action in general
r.gryj. The conditions will include a compliance
«crteouly for coapl^tion ^' tne ne*t prase of the
corretlve ae.ion ^r'-ceas, depending on its st»*"'* •?.?
of tne time of permit iacuanci.
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-3-
3* Continuation of interia status for other unite at
ta« facility until p«ruit issues can ot resolved.
4. Major notification of tne permit to incorporate all
otner unite ac the facility. At thic tune, the
corrective action provisions would b« updated.
Requested Action
Your review of our recommended course of action is
requested. Unlesa we receive objections within thirty (30)
days* we will assume that you have none, and w« will proceed
•b outlined above. '
we also request that in developinq regulations to codify
the KSHA, you consider tne circumstances above, and allot
anoquate £lexiability tor the Regions to proceed with approval
ot new ni
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9522.1985(05)
DEC 1 3 1985
Mr. Eliot Cooper
Manager
Environmental Affair*
Haste-Tech Services* Inc.
445 Union, Suite 223
Lakewood, Colorado 80228
Dear Mr. Cooperi
This letter confirms the information that was provided to
you in our December 3, 1985, meeting regarding the RCRA permitting
issues which were raised in your letter of October 21, 1985.
In that correspondence you presented three RCRA per a it issues
regarding on-site treatment by fluidlsed bed incineration and your
interpretation* of those issues. Our response to those issues are
as follows!
Issue It "Waste-Tech Services will own and operate the incinerator
on the leased property of the generator. Waste-Tech Services will
b« applying for all environmental permits to be issued to Waste-
Tech Services.'
Answert Undor 40 CfR 1270.10, both the owner and the operator
of the facility must sign the RCRA permit and are subject to the
conditions of the regulation. Although Waste-Tech Services will
be the owner and operator of the hazardous waste incinerator, it
is not tho sole owner or operator of the facility under RCRA. A
•facility" is defined under 1260.10 as "...all contiguous land,
and structures, other appurtenances, and improvements on the land,
used for treating, storing, or disposing of hazardous waste."
Therefore, the generator's property (including property leased
to Waste-Tech Services for the unit) will be considered the
"facility" under Subtitle C of RCRA ($260.10) and the generator,
as owner of the land, and Waste-Tech Services, as the operator
of the incineration unit, must sign the permit for the incinerator.
As a matter of general policy, the owner or operator of the
facility will includes the owner of the land, the owner of the
structures («.g., the incinerator unit) and the operator of the
facility or unit (45 £R 33169, May 19, 1980). The ownership
status of tho property for purposes of RCRA permit signatory
requirements will be determined based on State and Federal laws
.:or«n» eit aqjeg*nnt hejfcwecn the parties.
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-2-
of the Issue of who is the "owner" of the facility is provided
in the Regulation Interpretation Memorandum which was published
in 45 PR 74489, November 10, 1980. A copy of that memorandum la
enclosed.
Issue 2i "Wasto-Tech Service's incineration facility will be
located on the generator's property leased to Waste-Tech Services.
Waste will never cross any public highway or leave the generator's
property. Therefore, manifesting of the waste transferred from
the generator to Waste-Tech Services will not be required.*
Answert The iusue, as stated, is correct. Or-site treatment of
hazardous waste is excluded from the manifest requirements in
§260.10.
Issue 31 "Waste-Tech Services will be incinerating waste materials
on-site at a generator's facility. Waste-Tech Services contract-
ual relationship with the generator requires that the generator
assume all responsibility for the proper treatment and disposal
of incinerator residuals, including bed material, aah, and scrubber
waste water sludge."
"Since the generator already has inplace • closure plan
that accounts for all the wastes that are generated on site,
and assumes responsibility for all residuals resulting from
incineration of their waste, Waste-Tech Services closure plan
will only address the costs necessary to decontaminate our equip-
ment and enaure that our leased site has not been contaminated."
Answeri Issue 3 is directly related to the issue of permit
signatories which Is discussed under Issue 1. Since both Waste-
Tech Services and the owner of the property must sign the permit,
they will be jointly and severally responsible for all RCRA
requirements which include, but are not limited to* the treatment,
storage^, and disposal of residue resulting from incineration,
since the residue is a hasardous waste (S261.3), and the removal of
incinerator residue, from the Incinerator site for closure of the
unit ($264.351).
The generator and Waste-Tech Services may use a contractual
agreement to determine who prepares the permit application and
who carries out the conditions of the permit (e.g., performance
of closure plan). This agreement, however* does not eliminate
liability incurred by either the owner or the operator of the
facility. Although the contract may provide for a division of
responsibility and liability, EPA may, if necessary, bring
enforcement actions against all responsible parties involved
US ?R 531S3V May \9, 19*0).
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In conversations that you have had with members of my staff
you have indicated that you are considering using fluidised bed
Incinerators for no bile treatment of haiardous waste. I would
like to point out that my Division is presently conducting a study
to develop procedures for facilitating the permitting of mobile
treatment unitti and invite you to discuss any additional issues
on this subject with Nancy Pomerleau at 202/382-4500. Technical
questions about the RCRA incinerator requirements should be
addressed to Robin Anderson at 202/382-4498.
Sincerely,
Bruce R. Waddle
Director
Permits and State Programs Division
Enclosures t
PR Notice, November 10, 1980, 40 CPR Part 122
Summary of meeting with Waste-Tech Services on December 3, 1985
cci Peter Guerrero
Art Glater
Robin Anderson
Nancy Pomerleau
Carrie Wo hi ing (LE-132S)
Hazardous Waste Branch Chiefs, Regions Z-X
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9522.1985(06;
DEC 28 1985
Mr. Kevin Rookstool
Environmental Chemist
Mineral By-Products, Inc.
27? Regency Ridge Drive
' Suite 120
Dayton, Ohio 47464
Dear Mr. Rookstool:
Thank you for your letter of August 12, 1985, proposing
an alternative permitting process that will reduce the time for
granting a permit for small quantity hazardous waste treaters.
Under the Resource Conservation and Resourcy Act (RCRA) the
Environmental Protection Agency (EPA) is responsible for regulating
the management of hazardous wastes in the United States. In
order to accomplish this task several guidelines and procedures
has been established to monitor and regulate the treatment,
storage and disposal of hazardous waste throughout the U.S.A.
Our major responsibility under RCRA is to protect the human health
and the environment from pollutants contained in hazardous wastes.
Because of this we must assure effective treatment of the wastes
through the submission of the data required in a Part B permit
application.
The use of lime, pozzolanics, cement, fly ash, etc. does not
by the very nature of the process assures adequate treatment of
the waste. It is because of this that a Part B permit application
is required for small or large scale hazardous waste treaters.
While your suggestion has many attractive features it does
not appear to provide the adequate assurance that Congress desired
for treatment of hazardous wastes. Therefore, EPA can not justify
such modified permit procedures at .this time.
Thank you for your interest and suggestions.
Sincerely yours,
Juan A. Baez-Martinez
Chemical Engineer
Treatment, Recycling and Reduction
Program
RCRA Permit Policy Compendium Documents
This has been retyped from the original document.
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This Page Intentionally Left Blank
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9522.1986(01)
Mr. Ronald D. Conte
Operations Coordinator
Petroswill Chemicals, Inc.
2523 Hogadore Road
Akron, Ohio 44312
Dear Mr. Conte:
I am responding to your letter of June 27, 1986, which
requested clarification of the definition of several terms in 40
CFR 270.2.
The terms "holding" and "temporary period" are not
explicitly defined in the RCRA regulations. Holding in context
of these regulations means containment. Storage, as defined in
RCRA means "the containment of hazardous waste, either on a
temporary basis or for a period of years, in such a manner as not
to constitute disposal of such hazardous waste." The term
disposal (the opposite of storage or containment) is defined in
RCRA (and in the RCRA regulations) as "the discharge,... leaking,
or placing of any waste into or on any land...so that
such...waste...may enter the environment." The types of
"holding" devices (i.e. containers, tanks, surface impoundments,
and waste piles) are defined in the regulations.
The term "temporary period", although not explicitly
defined, is indirectly limited in the regulations by the closure
plan and financial responsibility requirements. These require
the facility owner/operator to specify up front the operating
period (closure time) and the maximum amount of waste in storage
at any time and at closure. This defines the extent of the
"temporary period" and storage activity. At closure, the waste
must be removed from all storage units.
All hazardous waste storage units, including storage units
at recycling facilities, are regulated by the RCRA rules unless
exempted in Part 261, 264, or 265. Items associated with storage
units that are used to transfer hazardous waste, such as pipes,
funnels or hoses, are regulated as part of the storage unit.
This document has be-^n .retyped from the original.
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-2-
I understand that you recently met with staff in EPA's
Region V to discuss these definitions as well as the
applicability of the requirements in 40 CFR Parts 264, 265 and
270 to your facility. Since implementation of our regulations is
the responsibility of our Regional offices I urge you to continue
working with Region V. However, if you need additional help
please feel free to contact me.
Sincerely,
Marcia Williams, Director
Office of Solid Waste
cc: Y.J. Kim, Region V
Lisa Pierard, Region V
This document has been retypeo from the original.
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9522.1986(02A)
RCRA/SUPERFUND HOTLIHE MONTHLY SUMMARY
OCTOBER 86
6. Post-Closure Permits
A storage and disposal facility has a surface impoundment. The facility stopped
receiving waste on January 25, 1983. However, the facility did not get
certification of closure until September 10, 1984. Is this facility required
to have a post-closure permit?
Yes; Permits covering the post-closure care period are currently required
for all disposal units that close after January 26, 1983 (§270.l(c)).
Units are closed once certification of closure is received not when the
unit stops receiving waste. 50 FR 28712 n. 14 (July 15, 1985).
Section 3005(i) of RCRA, which was added in the 1984 amendments requires
that any landfill, surface impoundment, land treatment unit, or waste-
pile unit which qualifies for the authorization to operate under interim
status and which receives hazardous waste after July 26, 1982 must meet
applicable permit standards concerning groundwater monitoring, unsaturated
zone monitoring, and corrective action under Section 3004.
In order to bring §270.1 permitting requirements in line with RCRA
Section 3005(i), EPA proposed on March 28, 1986 to amend its regulation
generally to ensure that all landfills, surface impoundments, waste piles
and land treatment units that received waste after July 26, 1982 will be
reviewed for conpliance with tfie permitting standards for groundwater
monitoring, unsaturated zone monitoring, and corrective action. EPA's pre-
ferred alternative for conducting this review is the issuance of a post-
closure permit.
Source: Matt Hale (202) 382-4740
Research: Carla Rellergert
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9522.1986(03)
WASHINGTON, D.C. 204(0
OFFICE OF
MTV ?0 IOQR *OUD WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Applicability of Post-Closure Permit Requirements
FROM: Marcia Williams, Director
Office of Solid Waste
TO: David Wagoner, Director
Waste Management Division, Region VII
In your memorandum of October 30, 1986, you requested clari-
fication as to the applicability of post-closure permit requirements
to the Armco Steel facility in Kansas City, Missouri. Based on our
understanding of the facts of this particular situation, we offer
the following guidance.
The basic question posed by Armco is whether or not their
facility requires a post-closure permit under current regulations,
based on the facility's having ceased receiving hazardous wastes
at their landfill on January 25, 1983, and having certified closure
of the landfill in September 1984. Armco's interpretation that the
facility is not required to obtain a post-closure permit, based on
the fact that waste was not received after the January 26, 1983
effective date, is incorrect. The requirement to obtain a post-
closure permit [§270.l(c)] is tied to the date on which the unit
is closed. The concept of "closure" in this context is discussed
in the preamble to the July 15, 1985 Final Codification Rule, as
follows:
"...closure...does not mean simply ceasing to place waste in a
unit. Closure, as a regulatory concept under these rules, is
a proceeding during which EPA determines, after public review,
that the facility has an adequate closure plan and that the
facility implements that plan. Thus closure is not complete
under the hazardous waste regulations until a certification
of closure has been given under 40 CFR 265.115." (50 FR 28712
n. 14)
Clearly, since the Armco landfill did not certify closure until
after January 26, 1983, the facility is required to obtain a post-
closure permit.
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-2-
The language in the preamble to the proposed codification
rule (51 PR 10715), which is cited by Armco as supporting its
contention that the facility is not subject to a poet-closure
permit, has been misinterpreted. This preamble discussion, parts
of which are quoted in Armco's letter of June 11, 1986, explains
the §3005(1) provision of RCRA, and the proposed approach for
codifying it. As explained in the preamble, the applicability of
post-closure permits is tied to the date of closure of regulated
units [$270.1(c)L while the applicability of Subpart F require-
ments is tied to the date of last receipt of hazardous wastes
[§264.90(a)]« The March 28 proposed rule would have created a
consistent test for applying post-closure permits and Subpart F
requirements; i.e., receipt of wastes after July 26, 1982. It
should be understood that the March 28 proposed rule would thus
have changed the test for post-closure permit applicability from
the current requirements. Mote that under either situation, the
Armco facility would be subject to the poet-closure permit require-
ment, since wastes were received after July 26, 1982.
Because post-closure permit requirements are explicitly
spelled out in the July 15, 1985 rule and elsewhere, we do not
believe it i» necessary at this point to publish a Federal Register
notice clarifying these requirements. However, we will address
the question specifically in the rule finalizing the March 23
proposal. In addition, we are sending a copy of this memorandum
to RCRA Branch and Section Chiefs in the other regions.
If you have any further questions, please contact George Faison
at FTS 382-4422.
ccs RCRA Branch Chiefs, Regions I-X
RCRA Permit Section Chiefs, Regions I-X
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9522.1987(02)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
DECEMBER 87
j. Mixture Rule - Discharges to Wastewater
Incidental spills, onto a cement slab, from the normal
handling or transfer of virgin solvent into cleaning
tanks, are collected ;n an underlying sump. The
contents of the sump are at times diluted and
eventually discharged to an on-site wastewater
treatment system meeting the exemptions under 40 CFR
§264.Kg) )6) , §265 .1 ( c ) ( 10 ) , and §270 . 1 ( v ) and
regulated under §402 of the Clean Water Act. The
cleaning operation is at a manufacturing site. Will
the wastewater qualify for the §261.3(a><2)
mixture rule "de minimis losses" exemption?
Ves, although the material spilled is not a
chemical intermediate used in a production process
or a raw material used in a production process, ir.
is a discarded commercial chemical product which
has been spilled during normal material handling
operations at a manufacturing site and is disposed
of via drainage to the wastewater treatment
process. The amount of material would not be
counted against the 1 to 25 ppm exclusion level
for spent solvents mixed with wastewater (see
footnote 37, 46 FR 56587, November 17, 1981). In
this case, what is being discarded is not a spent
solvent, but an unused commercial product and will
meet the requirements of §261.3(a)<2>(iv)(D) de
minimis losses.
Source: Mike Petruska (202) 382-4765
Matt Straus (202) 475-8551
Research: Craig Campoell
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RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY 9522.1988(01)
FEBRUARY 88
3. Clean Closure of Interim Status Surface Impoundment and Waste
Pile
A waste pile and surface impoundment, both interim status,
were clean closed in 1985 per Section 265.228 and Section
265.258. Closure was certified as per Section 265.115. Will
the waste pile and surface impoundment site require ground-
water monitoring?
According to the December 1, 1987, Codification Rule (52
FR 45788), owners/operators of surface impoundments and
waste piles that received waste after July 26, 1982, or
certified closure after January 26, 1983, must have
post-closure permits unless they demonstrate that the
"clean closure" met Part 264 standards (Section
270.l(c)).
Sections 270.1(c)(5) and (6) outline the procedures for
determining if the closure met Part 264 standards (i.e.,
equivalency determination). If equivalency is shown,
then the surface impoundment and waste pile will not be
required to have a post-closure permit. If, on the
other hand, the Agency decides equivalency was not met,
a post closure permit will be required. The post
closure permit would have to address applicable Part 264
Ground-water monitoring, unsaturated zone monitoring
corrective action and post-closure care requirements.
These requirements also apply to landfills and land
treatment units.
Source: Sharon Prey (202) 475-6725
Research: Cheryl McNabb
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9527.1987(02)
AUG 3 1987
Mr. Die Olsen, Sale* Manager
Fenton Company, Inc.
1608 N. Beckley
Lancaster, Texas 75134
Dear Mr. Olaent
Thank you for your letter of June 30, 1987, in which
you requested information on the regulatory status of sludge
dehydration equipment which is part of a wastewater treatment
facility.
Your understanding of the requirements contained in
40 Ct'R 270.l(c) (2) (v) is correct. Sludge dehydration equipment
that in part of a wastewater treatnent system is excluded froa
the need to obtain a RCRA permit provided the equipment meets
the definition of wastewater treatment unit as defined in.
40 CFR 2b0.10, and actually is used to evaporate water from
the sludge.
It is important to note that the exclusion provided by
$270.1(c)(2)(v) does not apply to conventional incinerators.
Such devices are subject to Subpart 0 of Parts 264 or 265 even
when part of a wastewater systea.
I oust caution you that various States hafe requireaents
that are different from the Federal standards. Under their own
authorities, States can establish requireaents that are acre
stringent than the Federal requireaents. In this instance, the
owner or operator is required to comply with the nore restrictive
requirements. Thus, I encourage you to contact an appropriate
State official to determine what the requirements will be for a
specific unit.
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If you have any further questions regarding the Federal
requirements, please contact Mary Cunningham of my staff at
(202) 332-7935.
Sincerely,
Marcia E. Williaas
Director
Office of Solid Waste
cc: Mary Cunningham
Steven Silvennan, Esq.
bcc: R. Holloway
B. v;eddle
S. Hudzinski
R. Dellinger
M. hale
G. Garland
L>. Ferla
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
MAR 7 1988
9522.1988 (02)
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
Mr. Die Olsen
General Operations Manager
Fenton Company, Inc.
JL608 'North Beckley
Texas 75134
Deer Mr. Olses:
Your understanding of the requirements in 40 CFR 270.l(c) (2) (v)
is correct. Sludge dehydration equipment is excluded from the
Environmental Protection Agency's (EPA's) hazardous waste regu-
lations provided the equipment meets the definition of wastewater
treatment unit as defined in 40 CFR 260.10 and actually is used to
evaporate water from the sludge. The definition of wastewater
treatment unit includes the requirement that the device meets the
definition of a tank. We believe that most sludge dryers do meet
the definition of tank. One such example would be a sludge dryer
integrally equipped with a feed hopper that contains and accumu-
lates waste. It is, however, important to note that the exclusion
provided by §270,l(c)(2)(v) does not apply to conventional incin-
erators. Such devices are subject to Subpart O of Parts 264 or 265
even when part of a wastewater treatment system.
As we have discussed in recent telephone conversations, there
is soae confusion regarding the regulatory status of direct-fired
dryers. While direct-fired dryers may meet the current definition
of incinerator, 1TA did not intend to regulate dryers as incinera-
tors. As we have discussed, EPA is developing a Federal Register
notice -that vill clarify the regulatory status of sludge dryers and
propose to revise the definition of incinerator to exclude sludge
dryers specifically. We are also proposing a new definition for
sludge dryers that would cover both direct and indirect-fired
units.
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This proposal, soon to be published in the Federal Register.
will clarify that all sludge dryers meeting the criteria in 40 CFR
270.l(c)(2) (v) are eligible for the vastewater treatment exclusion
provided the equipment meets the definition of vastevater treatment
unit in 40 CFR 260.10. Sludge dryers not eligible for the vaste-
vater treatment exclusion, including direct and indirect-fired
units, vould have to comply vith the interim status standards of
Subpart P of Part 265 or the permit standards of Subpart X of Part
264 (52 FR 46946, December 10, 1987).
If I can be of further assistance, please don't hesitate to
contact ate at <202}382-7S35.
Sincerely,
Mary Cunningham
Chemical Engineer
Waste Treatment Branch
cc: Joe Carra
Dave Bussard
Bob Dellinger
Bob Hollovay
Sonya stelmacX
Steve Silverman
RCRA Hotline
Incinerator Permit Writers1 Workgroup
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9522.1988(03
•° S?Am C™«ON*ENTAL PROTECT.^ ACeMCY
APR 2 8 1988
MEMORANDUM
SUBJECT: Review of Shell Oil's Wood River Manufacturing
Complex - Minimum Technological Requirements
Waiver Petition, Section 3004(o)(2)
FROM: James Michael, Chief
Land Disposal PAT Section (WH-563)
TO: Kevin J. Moss
RCRA Permitting Branch, IL Unit
Region V
In response to your March 18, 1988 memorandum, the Land
Disposal Permit Assistance Team (PAT) has completed its review.
of the petition submitted by Shell Oil for its Wood River
Manufacturing Complex for a modification of the minimum
technological requirements (MTR) under Section 3004(o)(2) of
RCRA.
Our review indicates that the alternative design and
operating practices as presented by Shell Oil, together with
location characteristics will not prevent the migration of
hazardous constituents into the ground water or surface water as
effectively as the double liner and leachate collection system
outlined in Section 3004(o)(1)(A)(i) of RCRA.
Shell Oil has argued that the impoundment for which it is
seeking the waiver is situated within a larger, engineered
ground-water management system beneath the entire Wood River
Manufacturing Complex that prevents the migration of
contaminant* beyond the property boundary. Essentially the
engineej|mjk«ystem consists of an on-site well field that creates
a copa-^^tdiiipreasion to contain and collect any hydrocarbon
product^Xafcees and soluble contaminants emanating from the
bottom or* the impoundment. The waiver petition attempts to
provide a detailed description of the ground-water flow pattern
and demonstrate that the well field will indeed provide
effective containment.
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-2-
Section 3004(o)(2) authorizes a waiver of the double liner
and leachate collection system requirements only upon a
demonstration that a proposed alternative will "prevent the
migration of any hazardous constituent into the ground water or
surface water" at least as effectively as a double liner and
leachate collection system. Shell Oil's proposal, however,
specifically allows migration of hazardous constituents into the
ground water. The terra "ground water" in Section 3004 (o) (2) is
not qualified by the phrase "beyond the property boundary". Nor
is there any evidence of Congressional intent that the term
"ground water" means only ground water beyond the property
boundary. Surely if Congress had intended such a test for
waivers of the double liner and leachate collection system
requirement, it would have stated so clearly. To the contrary,
in amending Section 3004 of RCRA, Congress devised a threefold
scheme to ensure protection of human health and the environment
for hazardous waste treatment, storage and disposal activities.
The first "line of defense" is the requirement of a liner
and leachate collection system to prevent the escape of
hazardous constituents from landfills or surface impoundments.
The second "line of defense" is the requirement for ground-water
monitoring to detect any failure of such containment device.
The third "line of defense" ia the requirement to take
corrective action to clean up any problems resulting from such
failure. Containment with collection and removal of leachate
within the unit to prevent leakage to ground water, as the
intended purpose of the liner and leachate collection system
requirement, is supported both by the language of Section
3004(o) (2) in authorizing waivers of such requirements only for
methods equally effective at preventing migration t£ ground
water , and by the language of Section 3004(o)(5) (B). That
section provides that the liner requirements of Section
3004(o)(1)(A)(i) can be satisfied pending issuance of
regulations by construction of a liner system " . . .to prevent
the migration of any constituent through such liner. . ." Any
system, therefore, that only controls constituent migration
after it enters ground water cannot meet the equivalency test of
Section 30B4(o)(2).
The situation outlined by Shell Oil in its petition fully
allows migration of hazardous constituents to the ground water
beneath th« unit and therefore does not prevent the migration of
hazardous conotituents "into the ground water." Moreover,
because migration of hazardous constituents freely occurs with
respect to such ground water, the Shell Oil control scenario
cannot be "as effective as" a double liner and leachate
collection system in preventing migration to the ground water.
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-3-
We are, therefore, unable to conclude that the proposed
alternative would be as effective as the liner and leachate
collection system requirement in preventing migration of
hazardous constitutents into the ground water. Should you have
questions regarding the content of our response please contact
Chris Rhyne at FTS 382-4692.
cc: Bruce Weddle
Suzanne Rudzinski
Chris Rhyne
Karl Bremer, Region V
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9522.1988(04)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20480
OFFICE OF
SOLID WASTE AND EMERGENCY RESPQNS
Mr. Ronald T. Taritas
Environmental Technology Corporation
1124 Morse Avenue
Schaumburg, IL 60193
Dear Mr. Taritas:
This is in response to your letter of September 19, 1988 in
which you raise several questions about permit requirements as
they relate to on-site treatment and wastewater treatment unit
exemptions.
Under Subtitle C of the Resource Conservation and Recovery
Act (RCRA), the scope of the RCRA permit requirements are
detailed in 40 CFR Section 270.l(c). A RCRA permit is required
for treatment, storage, or disposal of any hazardous waste.
Treatment, storage, or disposal of hazardous wastes are defined
as hazardous waste activities in 40 CFR Section 260.10.
Specific exclusions to the RCRA permit requirements are
found in 40 CFR Section 270.1(c)(2). Generators that
accumulate hazardous waste on-site in compliance with 40 CFP
Section 262.34 are exempt from the reauirement to obtain a RCRA
permit, as specified in 40 CFR Section 270.l(c)(2)(i). The
Agency currently interprets this regulatory exemption from
permitting to cover storage and treatment activities in a
generator's accumulation tanks or containers. The reasoning
behind this policy can be found in Office of Solid Waste (OSW)
memoranda dated June 17, 1986 and December 15, 1987 (copies
enclosed), and preamble language in 51 FR 10168, March 24,
1986.
As I understand your letter, you are interested in applying
the on-site treatment exemption for generators to the ribbon
blender unit that stabilizes the listed F006 sludge, and
possibly to the filter press, as well. It is important that
you understand that this response is only dealing with a
theoretical situation since the final determination as to
whether and which RCRA regulations apply is facility-specific
and, thus, must be made by the appropriate ETV. S«r^-'onal Office
or authorized State- In che *•'':-.j.uwA,.^ discussion. I wiiA
with your C >vc ra'cot'o A and B separately.
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-2-
Generator A
Your description of Generator A did not include enough
detail to determine which RCRA regulations are applicable. One
possibility is to assume that every unit at the facility meets
the definition of a wastewater treatment unit per 40 CFR
Section 260.10. If this is the case, the on-site treatment
exemption for generators is not relevant since Part 264
standards (i.e., Subpart J — Tank Systems) and Part 270 permit
requirements do not apply to owners and operators of wastewater
treatment units, in accordance with 40 CFR Sections 264. Kg) (6)
and 270 . 1 ( c) (2 ) ( v) , respectively.
For the above assumption to be correct, however, Generator
A's wastewater treatment plant must be subject to regulation
under either Section 402 or 307(b) of the Clean Water Act. In
addition, each unit at the facility must either treat or store
hazardous wastewater or hazardous wastewater treatment sludge
(listed waste F006) and each unit on-site must meet the
definition of a tank in 40 CFR Section 260.10. If material
entering the filter press from the wastewater treatment plant
is identified as a wastewater, rather than a wastewater
treatment sludge (listed waste F006), the wastewater must
exhibit a characteristic of a hazardous waste, such as EP
toxicity for lead, cadmium, or chromium, to be identified as a
hazardous wastewater. The Agency defines wastewaters as wastes
that contain less than 1% total organic carbon and less than 1%
total suspended solids (i.e., total filterable solids).
See 53 FR 31145, August 17, 1988.
Another possibility is to assume that Generator A's
facility is not subject to regulation under either Section 402
or 307(b) of the Clean Water Act. If this is the case, no
units on-site are eligible for the wastewater treatment unit
exemption. All units not meeting the definition of a
wastewater treatment unit could be regulated as generator
accumulation tanks or containers, depending on when the
wastewater is identified as a hazardous waste. If the
wastewater can be identified as a hazardous waste at its point
of generation, the 90-day accumulation time period begins when
the wastewater first enters the first unit (90-day accumulation
tank or container) at the facility. Shipment of the stabilized
(as specified in your letter) hazardous waste from the ribbon
blender must take place within 90 days of the begiT.i^q point
mentioned above.
possibility is to assume that all units on-site can
L<= identified as wastewater treatment units except for either
the filter press or the ribbon blender. This condition could
only exist if either the filter press or the ribbon blender
does not meet the definition of a tank (e.g., container) in 40
CFR 260.10. This scenario becomes much more complicated and
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-3-
would best be answered by the appropriate EPA Regional Office
or authorized State based on the specific facility design and
operating parameters.
In any case, all tanks or containers at the facility must
be in compliance with Subparts J or I, respectively, of Part
265 and Generator A must also comply with Subparts C and D of
Part 265, as well as Section 265.16, as specified in 40 CFR
Section 262.34. In other words, Generator A must be in
compliance with all the time-frames and technical requirements
outlined above and detailed in Section 262.34 to utilize the
on-site treatment exemption for generators.
Generator B
Based on the information provided in your letter, the
treatment of the listed waste K061 in the central accumulation
tank would not require a RCRA permit provided the following
conditions are met. First, from the moment Generator B places
the K061 in the central accumulation tank, the K061 must be
shipped off-site within 90 days. Second, the accumulation tank
must be in compliance with the technical standards for
hazardous waste tanks in Subpart J of Part 265. Third,
Generator B must comply with Subpart C. Preparedness and
Prevention and Subpart D, Emergency Procedures, of Part 265.
Finally, all other regulatory requirements in 40 CFR Section
262.34 must be met by Generator B.
I want to reiterate that the above discussion addresses a
theoretical situation. Facility-specific determinations as to
the applicability and extent of regulation under RCRA must be
made by the appropriate EPA Regional Office or authorized
State. As you know, an authorized State may have more
stringent regulations than those of the Federal government.
If you have further questions or need additional
clarification, please contact Steve Cochran at (202) 475-8551.
Sincerely
/u
Sylvia v ^u^T=
Oirtccor
Office of Soi-d Waste
Enclosures
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9522.1988105)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
NOV 3 Q 1988
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONS
Mr. Ronald B.L. Jones
Environmental Consulting
15 Hollow Road
Watertown, Connecticut 06795
Dear Mr. Jones:
In your letter of October 24, 1988, you requested information
on the December 1, 1987, Codification Rule (FR 45798 and 45799),
as it applies to interim status surface impoundments and waste
piles that had "clean closed." The following information should
answer each of your specific questions.
o The time period during which a RCRA Part B post-closure
permit must be obtained for a unit that received hazardous
waste after July 26, 1982 and has closed under Part 265
rules:
The EPA Regional Office or the State Agency responsible
for the Subtitle C program, if authorized for this aspect
of the program, will request you to submit a RCRA Part B
permit application for these units. This is done on a
priority basis, with the units at facilities that pose
the greatest environmental risk being reviewed first. An
application for a post-closure permit must be submitted
to the agency within 6 months of the request.
The time period during which an owner or operator of a
waste pile that "clean closed" under Part 265 may petition
the Regional EPA Administrator for an equivalency waiver
to the Part 264 clean closure requirements:
The procedures for such a petition are described in 40 CFR
270.1(c)(6), a copy of which is enclosed. The owner or
operator who wishes to submit an equivalency demonstration
is urged .to do so before the Part B permit application is
requested, since submitting this demonstration will not
exempt the owner/operator from having to submit the
requested RCRA Part B post-closure permit application.
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Since processing an equivalency demonstration and
reviewing the data submitted to support the demonstration
may be-time consuming, it may not be possible for the
responsible agency to make a final determination on the
petition during the six month period prior to the date
that the permit application is due. The owner or operator
should not therefore await such a determination prior to
initiating the required permit application when requested.
Does EPA have any guidance on equivalency demonstrations:
At the present
directive that
expect from an
to demonstrate
requirements.
time, my staff is preparing a policy
will explain in more detail what we will
owner or operator who submits a petition
equivalency with Part 264 clean closure
I expect to have a completed policy
directive by early January 1989. When it is available,
you can receive a copy by contacting the Regional EPA
Waste Management Division office.
o How can I obtain a copy of the "Surface Impoundment Clean
Closure Guidance Document":
The draft document is under internal review at this time,
Therefore, it is not available for public distribution.
We will announce the availability of this guidance when
it is completed in the Federal Register.
I hope the above information has adequately answered your
questions. If there is any further information that you may
need, please call Lea Otte of my staff at (202) 382-4654.
Sincerely,
Lowrance
Solid Waste
Sylvia K.
Director
Office of
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05 ^-
,,eo sr,,, 9522.1990(01
cT <-
\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
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- 2 -
over all of the permit responsibilities, as discussed above.
Finally, you asked about incorporating some of the interim
status operations at the site into the state permit. We
recommend that if the state plans to add such operations to the
permit that it first take whatever action is necessary to give
the state administrative authority for the RCRA permit. Then any
subsequent permit modification by the state will satisfy both the
state and Federal requirements.
I hope that this response has addressed your concerns.
Please contact Wayne Roepe of my staff at 202-475-7245 if you
have further questions.
—i /,
Since_rely yours> '•':
''"' W '
""-Sylvia/ K. Lowrarice', Director
Office of Solid Waste
cc: Wayne Roepe, OSW
Wayne Garfinkle, U.S. EPA Region 4
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9522.1992(01)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
6 i992
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
Mr. Thomas 17. Corvine, P.E.
Colonial Pipeline Company
Lenox Towers
3390 Peachtree Road, N.B.
Atlanta, GA 30326
Dear Mr. Cerviiio:
This letter is in response to your August 9, 1991
correspondence requesting a clarification of the conditions under
which waste water treatment units qualify for an exemption from
RCRA permitting requirements. In your letter you explained that
Colonial Pipeline Company has several locations that generate waste
waters that are hazardous under the toxicity characteristic, and
you asked whether a RCRA permit would be required for a new
treatment unit that you are considering.
The primary reason for the waste water treatment exemption is
to avoid imposing duplicative requirements pursuant to both a NPDE8
permit and a RCRA permit for the same unit. As you are aware, in
order for a unit to qualify for this exemption contained in 40 CFR
§264. l(g) (6) , it
(1) Be part of a waste water treatment facility that is
subject to regulation under either Section 402 or 307 (b)
of the Clean Water Act;
(2) Receive, treat, or store influent wastewater; or
generate, accumulate, treat, or store a wastewater
treatment sludge; and,
(3) Meet the definition of tank or tank system in 40 CFR
§260.10.
The main question that you raised concerns the first criteria;
i.e., which units are considered subject to the Clean Water Act.
As you are aware, the Agency provided some discussion of this
requirement in 53 PR 34080 (September 2, 1988) which states that!
"the wastewater treatment unit exemption is
intended to cover only tank systems that are
part of a wastewater treatment facility that
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(1) produces a treated vastewater effluent
which is discharged into surface waters or
into a POTW sever system and therefore is
subject to the MPDES or pretreataent require-
ments of the Clean Water Act, or (2) produces
no treated vastewater effluent as a direct
result of such requirements".
It is important to note that it is not necessary that the Clean
Water Act permits actually be issued for the units to be eligible
for the RCRA exemption; it is sufficient that the facility be
subject to the requirements of the Clean Water Act.
Based on ft reviev of the information provided/ EPA has
determined that any of the treatment systems (including the
proposed treatment unit) at the Colonial Pipeline facilities vhich
are currently permitted, were ever permitted, or should have been
permitted under NPDE8, all meet the first test of the Section
264.1(g)(6) exemption. The key issue is vhether the treatment
system ever had a discharge to surface vater, and thus vas ever
permitted (or should have been permitted) under NPDE8. If there
vas never a discharge to surface vaters, then the exemptionv
criteria :? not satisfied. You also mentioned that some of your
facilities employ vaste vater treatment systems vhich are regulated
in accordance vith other applicable state lavs, rules, and
regulations. Without more specific information regarding these
state requirements and permits, EPA cannot address vhether these
facilities would qualify for the exemption. Hovever, as discussed
above, the exemption in the federal regulations vould only be
available if the state requirements stem from the identified
sections of the Clean Water Act.
with regard to the question of a "zero discharge" facility,
EPA vould like to clarify the difference betveen a facility that
produces no treated vastevater as a direct result of Clean Water
Act requirements and units that are not required to obtain an NPDES
permit because they do not discharge treated effluent. In the
first case, the facility vould have had a surface vater discharge
at one time, but has since eliminated the discharge as a result of,
or by exceeding, NPDES or pretreatment requirements. Such facility
vould qualify for the vaste vater treatment unit exemption under
RCRA. in the second case, the facility never had a surface vater
discharge, and therefore vas never subject to MPDES permitting or
T'.esn Water Act requirements (S3 FR 34080). The RCRA exemption is
not available in these cases. (We should point out that the
language you referred to on Page 2 of the May 22, 1984 memo on zero
discharge has been further refined and clarified by recent program
policies and interpretations.)
There is another management option that my staff has discussed
vith you on the phone. That approach vould be to treat your vaste
vater in tank units pursuant to the generator accumulation
exemption of 40 CFR §262.34. This provision allows generators of
hazardous wastes to treat or store such wastes in tanks or
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containers for short periods of time (i.e., 90 days) without
obtaining a RCRA permit, provided that all the conditions of
§262.34 are met, including compliance with specified tank or
container standards in 40 CFR Part 265. In many cases air
strippers may be considered tank units under RCRA and might be
eligible for this exemption, of course, as long as the treated
waste water meets a hazardous waste listing description or exhibits
a hazardous wasto characteristic it must continue to be managed as
a hazardous waste.
If you have facility-specific questions, please contact
individuals in the appropriate EPA Regional Offices. For Region
III (Philadelphia), contact Ms. Susan Sciarratia at (215) 597-7259
and for Region IV (Atlanta), contact Ms. Beth Antley at (404) 347-
3433. Should you have further questions about this letter, please
contact Glenn Strahs of my staff at (202) 260-4782.
rDrrector
of Solid Waste
cc: Kathy Nam, OGC
EPA RCRA Branch Chiefs, Regions I-X
Barbara Simcoe, A8T8WMO
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9522.1993(01)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MAR - 4 1993
Mr. Edward J. Ciechon, Jr.
Chief Counsel
Sun Company, Inc.
Ten Penn Center 1801 Market Street
Philadelphia, PA 19103-1699
Dear Mr. Ciechon:
Thank you for your December 10, 1992, letter requesting the
continuation of the existing Toxicity Characteristic (TC)
compliance date beyond January 25, 1993. This extension had been
given to facilities reinjecting produced ground water as part of
state-authorized cleanup activities. After that date, if
hazardous waste is generated during site clean up activities, the
reinjection operation can only be performed in underground
injection wells that are permitted under the RCRA regulations or
in the Class IV injection wells permitted under the UIC program.
EPA requires that non-UST hydrocarbon recovery operations not
meeting these two conditions but expecting to continue
reinjection, must submit a RCRA Part A permit application and
obtain interim status, within 30 days after the January 25, 1993
deadline (see 40 CFR 270.10(e)(1)(ii)).
The Agency has been aware of the shut-down of some
reinjection operations since the expiration of the TC compliance
date extension and we are considering alternatives.
Sincerely,
Sylvia/K. Lbwrance,
Director
Office of Solid Waste
Printed on Recycled Paper
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9522.1993(02)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
APR 26 1993
OFFICE OF
SOLID WASTE AMD EMERGENCY RESPONSE
Edmund W. Kelso, Jr.
Chief
FBI Bomb Data Center
Quantico, Virginia 22135
Dear Mr. Kelso:
This is in response to your letter of March 3, 1993 to Matt
Hale, in which you discussed the applicability of 40 CFR
270.1(c)(3) to immediate response activities relating to the
removal, transportation and/or treatment of bombs or other
explosive devices. Specifically, you asked for confirmation that
the bor.b removal activities would constitute an immediate
response to a discharge, or an imminent and substantial threat of
a discharge, which are exempt from the RCRA permitting and other
substantive requirements. In addition, you indicated that you
would like to develop an agreement that would permit the public
safety bomb squads to safely perform their mission while
conforming to environmental standards.
In EPA's view, bomb squad activities in response to an
immediate, or imminent and substantial threat of a discharge of
hazardous waste are pot required to have a RCRA permit. These
would include the five activities you identify in your letter, as
long as they were taken in response to an immediate or imminent
threat: (1) the response to a bombing and recovery of
undetonated explosives or improvised explosive devices (lED's);
(2) the neutralization and/or rendering safe of an IED; (3) the
service of a search warrant on an improvised bomb factory or
illegal explosives manufacturing facility; (4) the recovery of
explosives illegally stored in a residential neighborhood; and,
(5) the recovery of deteriorated explosives unsafe for storage
anri transportation.
The two interpretative letters you noted in your letter
(S.K. Lowrance to Fred Smith) explain our current policy in
addressing immediate response activities. However, the Agency
has developed other interpretative letters that better relate to
the bomb removal scenarios you provided. They are enclosed for
your information. Take particular note of the letter to the Law
Enforcement Department of the Bureau of Alcohol, Tobacco, and
Firearms. It includes the scenarios of storage during analysis
and law enforcement proceedings.
Printed on flecycted Paper
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Another important aspect for you to consider is the
regulation of your activities by States. States can be
authorized by the USEPA to operate in lieu of and in a manner
which is consistent with and no less stringent than the Federal
RCRA program. These criteria do not prevent the States from
operating a more stringent or broader-in-scope hazardous waste
program. Therefore, you should consider appropriate State
standards for possible additional requirements.
I believe the enclosed letters are a good starting point in
developing an agreement on the management of explosives by bomb
squads. Matt Hale is available to meet with you and discuss in
more detail the Federal and State RCRA requirements per 40 CFR
270.1(c)(3). He can be reached at (703) 306-8704.
Sincerely,
Director
of Solid Waste
Enclosures
cc: Matt Hale, PSPD, OSW
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
S:P 2 6 --•
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Handling of Explosives by Law Enforcement Agencies
FROM: Joseph S. Carra, Director
Permits and State Program^ [)ivision (OS-343)
TO: Regional Hazardous Waste Branch Chiefs
Regions I-X
Attached for your information, is a copy of a recent letter
to the Bureau of Alcohol, Tobacco, and Firearms (BATF). The
letter describes the Agency's guidance on handling of explosives
that are an immediate safety threat, or secured for analysis and
possible use in law enforcement proceedings.
Much of the guidance stated in the BATF letter has, in the
past, been informally communicated by phone to the Regions,
regulated community, and law enforcement agencies. Since
inquiries continue in this area, I believe it prudent to share
this written guidance with you. Please feel.free to provide it
to your States and encourage them to follow the same approach.
If you have any questions or would like to discuss the guidance,
please call Elizabeth Cotsworth (8-382-3132; or Chet Oszman
(5-382-4499).
Attachment
-c: Regional Hazardous Waste Section Chiefs, Regions T-X
Susan Bromm, OWPE
Frank McAlister, OSW
x*tt Hale, OSW
Tred Chanania, OGC
ATSS staff
I'.RS staff
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* UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
AUG I 11983
O'riCf 0»
$OUO WA5TC AND EMI HGENCV MS*C
Mr. Phillip C. McGuire
Associate Director, Lav Enforcement
Department of the Treasury
Bureau of Alcohol, Tobacco, and Firearms
Washington, DC 20226
Dear Mr. McGuire:
This letter is in response to the issues raised recently by
the Bureau of Alcohol, Tobacco, and Firearms (BATF) with respect
to compliance with the Resource Conservation and Recovery Act
(RCRA) . Specifically,., your staff has requested EPA guidance for
two situations: (1) when a BATF agent ia called to a location
where there is an immediate safety threat, and (2) when
explosives or explosive related materials that do not present an
immediate safety threat are stored in BATT secured lockers for
analysis and possible use in lav enforcement proceedings.
The guidance given below for these tvo situations is based on
the federal RCRA program as administered by EPA pursuant to 40
CFR Parts 260-271. In authorized States (which are 43 in
number), EPA has delegated the hazardous vaste program to the
States pursuant to statutory provisions in RCRA. Although each
authorized State program Bust be consistent with and at least as
stringent as tne Federal program, a Stat:* is free to be more
stringent. Hence, any guidance given belov must be followed up
by a BATF analysis of any different provisions that an authorized
State may have chosen to enact.
1. ExplQflivaa Thati Praaent an Jqpnadiat,^ Safety Threat.
According to our discussions, this scenario involves
identification by a trained BATF agent of explosives that create
an immediate) safety threat, removal of those explosives fro* the
original location to a safe area (often a local lav enforcement
agency's botib disposal sitt or a nearby military installation).
and immediate destruction, normally by detonation or open
burning.
Under current RCRA regulations (40 CFR Sections 264.1tqnii.
265. He) (1X1) , and 270.1(c)(3)), all activities taken in
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immediate response to a discharge of hazardous waste, or an
imminent and substantial threat of discharge of a hazardous
waste, are exempt from the RCRA permitting and substantive
requirements, since the explosives in question would be
hazardous by virtue of their reactivity and ignitability, any
BATF actions taJcen to eliminate the imminent and substantial
danger would qualify under this exemption, if the response
actions involve transportation to a remote site for destruction
then the transportation as well as the destruction would be
exempt. However, the transportation is exempt only to the extent
necessary to respond to the immediate threat. Hence, we expect
the transportation would normally cover a relatively short
distance.
Should there be any question about the exempt or nonexempt
status of the BAIT action, the RCRA emergency permit regulations
(Section 270.61) can be used for destruction activities. As
these regulations provide, an emergency RCRA permit can be Issued
by an SPA Regional Office or by an authorized State official via
telephono or in writing. These permits may be issued when the
Region or State finds that an imminent and substantial
endangerment to human health or the environment exists, according
to the requirements of Section 270.61. This permit can address
both treatment and storage of hazardous waste. (Under RCRA, open
detonation or burning of explosives waste qualifies as thermal
treatment.) If necessary, transportation can also be authorized
by a provisional identification number, obtainable by telephone.
To reiterate, however, no permit is necessary when a BATF agent
determines that an immediate safety threat exists.
2. Exploaivaa Material Storay* Purina Analysis and Law
Enforcement Proceedings
When a hazardous material (such as explosives and certain
types of explosives-related material) is discarded, it becomes a
hazardous wast* and therefore subject to RCRA. Although the
situation Buy vary, we believe that explosives and explosive
material become waste when the court (or BATT) no longer has any
use for then (i.e., when no longer needed for evidence, referred
co as •judicial forfeiture* by your staff in our discussions).
When explosives are stored pending judicial proceedings, they are
not subject to the hazardous waste regulations. However, when
they are to be discarded, they become waste. At that point, RCRA
requirements pertaining to waste generation, transportation, and
treatment, storage, and disposal (40 CFR Parts 260-271) become
applicable.
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- 3 -
Under 40.CFR Section 262.11, generators of solid waste must
determine if their wastes are hazardous. "Generator" is defined
by person and by site. Thus, for example, each of your storage
locker areas would be a generator site. Except for generators
who meet the conditional exemption in Section 261.5, generators
of hazardous waste are subject to all applicable Sections of Part
262. [In tho case where a BATF field office generates less than
100 kilograms (kg) per month, Section 261.5 allows the disposal
of the explosive waste at a permitted or interim status hazardous
waste facility, or at a facility permitted, licensed or
registered by a State to manage municipal or industrial solid
waste.] Among other requirements, generators of hazardous waste
must have EPA ID numbers (40 CFR Section 262.12). Each BATF
field office must apply for an EPA 10 number for each site at
which hazardous waste is generated in excess of 100 kilograms per
calendar ?wn»h. This.is a simple process involving the suboittal
of one short fona for each generator site. These xorms can be
obtained from EPA Regional Offices or we at Headquarters will be
glad to supply them to you.
We note that, under 40 CFR Section 262.34, hazardous waste
may be stored in tanks or containers without a permit for up to
90 days. So, even after a material becomes a waste (i.e., an
intent to discard is present), the generator has 90 days to make
necessary arrangements for transportation, treatment, or
disposal, according to applicable regulations in 40 CFR Section
262.34, and Parts 264, 265, 266, 268, and 270. As a general
matter, we believe the Bureau should consider a policy that would
require removal of explosive material stored in BATF lockers
within 90 days from the time the material becomes a waste.
Otherwise, RCRA storage permits may be required.
BATF may transport hazardous waste explosives themselves, or
may hire a transporter. In either case, the transportation is
subject to the requirements in 40 CFR Parts 262 and 263.
Transportation of hazardous waste off the site of generation is
subject to MJiUest requirements (40 CFR Section 262.20). The
generator Bout designate on the manifest a facility that has the
proper B£Kft permit or interim status to receive the waste.
In general, destruction of explosive waste by open
detonation/open burning is thermal treatment that must b«
conducted at a RCRA interim status or permitted facility in
compliance with Parts 264, 265, and 270. In the event that the
destruction is being done under court ordtr or under directions
from the U.S. Attorney's office, RCRA is not automatically
waived. Tn« Bureau should therefore locate facilities nearest
its field offices that have the appropriate RCRA permits or
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- 4 -
interim status for open detonation/open burning of explosives
wastes. Some of the military facilities already used by the
Bureau may have the necessary permits or interim status, and
these facilities may accept BAIT explosives wastes, under the
terms of their permit or under the provisions of Part 270,
Subpart G, without any special permission from EPA. Other
facilities with RCRA permits or interim status could handle the
open detonation/open burning of BAIT explosive materials via
permit modifications (Section 270.41-270.42) or changes during
interim status (Section 270.72). In those cases where a permit
modification or change during interim status is needed by a
facility that agrees to manage BATF wastes, these must be
approved by the appropriate State agency (or EPA Regional office)
in advance of the initial receipt of the BATF wastes.
Finally, we understand that stored explosives material
sometimes deteriorates to the point where a safety hazard
exists. In this type of situation, the discussion on emergency
response activities in Section 1., above, would apply.
I trust that this letter provides you with guidance helpful
to the Bureau's efforts to comply with RCRA requirements. I
understand that my staff has provided BATF with a list of
facilities that may have the appropriate permits or interim
status and a list of EPA Regional contacts for your field
offices. If you need additional assistance, please do not
hesitate to call me or have your staff call Michael Petrusfca
(475-9888).
Sincerely
Director
solid waste
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
NDV-3B92
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
Mark Hansen
Facilities Manager
Corporate Office
Environmental Products
& Services, Inc.
P.O. Box 315
Syracuse, NY 13209-0315
Dear Mr. Hansen:
Thank you for your letter of September 28, 1992 in which you
ask about the transportation and disposal of shock sensitive or
explosive mater_r.lc. Specifically, you requested EPA guidance on
how to handle materials like picric acid and ethyl ether while
removing old laboratory chemicals.
Under EPA's RCRA regulations (40 CFR 270.l(c)(3)), all
activities taken in immediate response to a discharge of
hazardous waste, or an imminent and substantial threat of
discharge of a hazardous waste, are exempt from the RCRA
permitting and substantive requirements. Since the chemicals in
question vould be hazardous by virtue of their reactivity, any
actions you take to eliminate the imminent and substantial danger
would qualify under this exemption. If the response action
involves transportation to a remote site for destruction, then
the transportation as well as the destruction would be exempt.
However, the transportation is exempt only to the extent
necessary to respond to the immediate threat. Hence, we expect
the transportation would normally cover a relatively short
distance and would occur in special transportation equipment such
as bomb trailers.
.Should ,there be any question about the exempt or non-exempt
status of removing a certain chemical, the RCRA emergency permit
regulations (40 CFR 270.61) can be used for destruction
activities. As these regulations provide, an emergency RCRA
pern it can be issued by an EPA Regional Office or by an
authorized State official via telephone or in writing. These
permits may be issued when the Region or State finds that an
imminent and substantial endangerment to human health or the
environment exists, according to the requirements of 40 CFR
270.61. This permit can address both treatment and storage of
hazardous waste. If necessary, transportation can be authorized
at the same time the emergency permit is authorized by obtaining
a provisional identification number. To reiterate, however, no
permit is necessary when the safety official determines that an
immediate safety threat exists.
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The guidance given above is based on the Federal RCRA
program as administered by EPA pursuant to 40 CFR Parts 260-271.
In authorized States, EPA has delegated the responsibilities of
the hazardous waste program. Although each authorized State
program must be consistent with and no less stringent than the
Federal program, a State is free to be more stringent (e.g., some
States may not offer emergency permits). In the end, you should
check with the authorized State where your facility is located to
ensure that there are no additional (more stringent) management
standards.
I trust that this letter provides you with guidance helpful
to your efforts to remove old lab chemicals. If you need
additional assistance, please call Chester Oszman of my staff at
(202) 260-4499.
Sincerely,
Director
Office of Solid Waste
cc: Chester Oszman, OSW
Ken Gigliello, OWPE
RCRA Permit Section Chiefs, Regions I-X
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9523 - PERMITTING
APPLICATIONS
Part 270 Subpart B
ATKl/l 104/57 kp
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9523.00-11
DEC 10
SOLID WASTE AHO EMERGENCY
MEMORANDUM
SUBJECT:
FROM:
TO:
Denial of RCRA Operating Pemii
Marcia Williams, Director
Office of Solid Waste
Hazardous Waste Division Directors
Regions I-X
A number of Regions have raised the question of whether they
can deny a permit for the active life of a facility, while
deferring a final decision on post-closure conditions. The
concern of these Regions is that, once a permit application has
been denied, a post-closure parmit can no longer be required.
Although EPA's permitting regulations envision only one
approval or denial decision on a permit application, they do not
prohibit the permitting authority fron dividing this decision
into two parts, one applying to the active life of the facility
and the other to the post-closure period. Consequently, EPA or
an authorized State (unless it has more stringent requirements)
may deny the active portion of a permit application, pending a
decision on post-closure conditions. After denial of the operating
portion, the facility would be required to cease receiving
hazardous waste and begin closure.
If a Region or an authorized State adopts this approach with
respect to a particular facility it should make it clear in its
tentative decision that it is denying the permit only with respect
to the active life of the facility and that the facility is
still required to obtain a post-closure permit. We recommend
that you include the following information in the Notice of
Intent to Deny with respect to such a facility.
The tentative decision to deny the permit application runs
to the active life of the facility only. The permit denial
will not. affect the requirement that the owner or operator
obtain a permit covering the applicable post-closure care
period with respect to the hazardous waste management units
for which the permit is denied, in accordance with 40 CFR
170.l(c).
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-2-
A comparable statement should be included* in the final notice of
denial..
We will also be proposing to anerid §270.l(c) of the permitting
regulations to clarify EPA's authority to divide permit decisions
in this v*y. The proposal is scheduled for publication in February
Before this clarification is issued, you should include the
statement cited above in any Notices of Intent to Deny.
If you have any questions on this issue, please contact Matt
Hale of the OSW Permits Branch.
cc: RCRA Branch Chief, Regions I-X
Bruce Weddle, OSW
Matt Kale, OSW
Carrie Wehling, OGC
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
MAR 30
MEMORANDUM
OSWER POLICY DIRECTIVE
No. 9523.00-12
OFFICE OP
SOLID WASTE AND EMERGENCY RESPO%3 =
SUBJECT: Summary of Permit Assistance Team (PAT) Comments
FROM:
TO:
_
Bruce R. Weddle, Director •
Permits & State Programs Division
Hazardous Waste Management Division Directors
Regions I-X
Attached is the second in a series of periodic reports
which summarize major issues that PAT members have addressed
in their reviews of specific Part B applications, permits, and
closure plans. (The first PAT Summary Report was issued on
March 14, 1936. ) These reports cover issues that are of generic,
national interest rather than strictly site-specific interest.
The attached report includes reviews conducted by the Land Disposal
PAT in the first half of 1986. In order to ensure that the
report reflects current EPA policy and guidance, we obtained
review comments from all divisions in OSW and from the Office of
General Counsel.
We are in the process of preparing another series of
documents which will summarize PAT reviews of proposals for
Alternate Concentration Limits (ACLs). These "ACL Fact Sheets"
will describe the setting, issues, and recommendations at sites
where the PAT reviews ACL proposals. The first ACL Fact Sheet
was issued by Ken Shuster on December 4, 1986. The Fact Sheets
are being prepared in response to the ACL Implementation Strategy.
For more information, contact Mark Salee at FTS 382-4755.
We hope that the recommendations provided in this document
will be helpful for permit writers encountering similar situations
at other RCRA facilities* By sharing the PAT's suggestions from
a few sites, .we hope that permit decision-making will be somewhat
easier and faster at many more sites nationally. We encourage
you to distribute this Report to your staff and State permit
writers. To make that easier, I have enclosed multiple copies of
the report.
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OSWER POLICY DIRECTIVE
No. 9523.00-12
- 2 -
Attachment A to the report lists the facility names, Regions,
PAT Coordinators, and dates for the reviews summarized in this
report. Attachment B provides a list of guidance documents and
directives used in preparing the PAT reviews. Attachment C is a
current roster of the members, expertise, and telephone numbers
of the Land Disposal PAT staff.
If you have any questions, comments, or suggestions on the
PAT Summary Report, please contact Terry Grogan at FTS 382-4692.
Attachments
cc: RCRA Branch Chiefs, Regions I-X
Permit Section Chiefs, Regions I-X
Winston Porter
Jack McGraw
Tom Devine
Marcia Williams
Jeff Denit
Bruce Weddle
Susan Bromm
Joe Carra
Sylvia Lowrance
Mike Gruber
Tina Parker
Suzanne Rudzinski
PAT staff
Jim O'Leary
Paul Cassidy
Les Otte
Jon Perry
Barbara Pace
Lloyd Guerci
Mark Greenwood
Matt Hale
George Garland
Art Day
Bob Tonetti
Jim Bachmaier
Ken Shuster
Sue Moreland (ASTSWMO)
Carrie Wehling
Tina Kaneen
Dov Weitman
Art Glazer
Myles Morse
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SUMMARY CF PERMIT ASSISTANCE TEAM (PAT) COMMENTS
Exemption Requests from Minimum Technology Requirements
1) Exemption Request under HSWA §3005 (j)(2)
An existing facility applied for a waiver from the surface impoundment
double liner requirement of §3005 (j)(l) under the exemption provided in
§3005 (j)(2). The waiver was requested for a holding basin constructed
by excavating a depression in natural, low permeability (1.0 x 10~7
on/sec or less) site soils. To receive a waiver under §3005 (j)(2), a
surface impoundment must have at least one liner that is not leaking
and meet certain other requirements. The facility contends that the
impoundment's native soil foundation constitutes a liner for purposes of
satisfying §3005 (j)(2).
Section 3005 (j)(12)(A) of HSWA defines "liner" for purposes of the
§3005 (j)(2) waiver as follows:
A liner designed, constructed, installed and operated
to prevent hazardous waste from migrating beyond the
liner to adjacent subsurface soil, ground-water, or
surface water at any time during the active life of the
facility.
A literal interpretation of §3005 (j)(12)(A) precludes the use of a
native soil foundation as a liner because such a liner is neither
"installed" nor "constructed". This reading is supported by the
legislative history indicating that the liner must satisfy EPA's
current regulatory standards. See 129 Cong. Rec. H8142 (daily ed.,
Oct. 6, 1983). Based upon the above statutory language and legislative
history, only facilities with an "installed" liner will be eligible
for this exemption and no "in-aitu" liners will be permitted (note that
a liner constructed by emplacing and recompacting excavated native
soils may meet this definition if it prevents migration during the
active life of the facility).
Land Treatment Facilities
1) Compatibility Test for Combined Waste Disposal
A demonstration of compatibility is required under §264.282 for any
new waste that is to be added to an existing land treatment unit.
This requirement applies even if the new waste has been treated to
render it non-hazardous prior to placement in the land treatment
unit. The demonstration of compatibility must demonstrate that the
new waste will not inhibit the land treatment unit from transforming,
Ir-i or -annobill-ing -i« v*i2*e currently being applied per 264.273(a),
»on to showing succe»»fvl treata*M?t: azardous
waste in the Dr«ser*ao of existing wastes. See gv **•«*«• ".-terete- 7.
- 1 -
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2) Waste Minimization Requirements
Sludge applied to land treatjnent units must conform to the waste
minimization requirements of HSWA. For sludge, waste minimization
usually requires dewatering. The optimum operation of units located
in arid climates, however, may require the application of sludge
with more water than normally remains after dewatering. Since the
owner/operator must comply with the HSWA waste minimization require-
ments only to the extent economically practicable, the PAT has interpreted
this to mean that the owner/operator nust dewater sludge only when the
water content is in excess of that required for optimum operation of
the land treatment unit. The water fraction, once it has been removed,
among other options, can be delisted (if derived from a listed waste),
or tested against the characteristics, or treated and discharged via
a NPEES permitted system. •
3) Principal Hazardous Constituents
When identifying Principal Hazardous Constituents (PHC) of land
treated wastes, which may be required for unsaturated zone monitoring
under 264.278(a) (2), it is important to identify all constituents
that may enter the hazardous waste stream(s) to be land treated.
This is particularly true at petroleum processing facilities where
solvents used in cleaning process equipment may enter the waste streams
to be land treated. Solvents used for equipment cleaning can vary
considerably within a facility and between facilities; the selection
of PHCs for individual monitoring programs should reflect these
differences, based on actual solvents used. Trichloroethylene, a
cannon solvent, can be of particular concern due to its high mobility.
4) Land Treatment Unit Performance
The performance of a Land treatment unit is measured in large part
by its ability to degrade, transform or immobilize all hazardous
wastes applied. For wastes containing both organic and inorganic
hazardous constituents, performance cannot be determined based solely
upon the ability to immobilize heavy metals. The ability of the
unit to degrade and treat organic constituents must also be monitored,
and the analyses should include all the principal organic constituents
in the waste. The Land Treatment Demonstration Guidance (reference 7)
can assist in determining land treatment unit performance.
5) Unsaturated Zone Monitoring— Soil Pore Liquid Sampling Frequency
The purposes of a lyaimeter system at a Land treatment unit are
(1) early detection of the transport of constituents or degradation
products through the unsaturated zone to the ground water, and
(2) to help monitor the effectiveness of the treatment process. If
hazardouo constituents are migrating cut of the treatment zone,
the waste treatment system parameters, typically including waste
application ratior, .i&ef- +o tat
- 2 -
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Guidance on Unsaturated Zone Monitoring (reference 8) is available.
A suggested approach for scheduling the sampling of soil pore liquid
at land treatment units is to sample one or two weeks after signifi-
cant rainfall events based upon the long term, site-specific meteor-
ology. Alternately, because the timing of sampling is critical, a
better approach is to use a tensiometer to identify the arrival of
the wetted front created by the rainfall or waste application. This
instrument can be used with the actual lysimeter system. As water
moves through the soil profile, a tensiometer located next to the
lysimeters will indicate when the wetting front is at the depth of
the lysimeters. Samples should be collected at this time to ensure
that the sample is of water and waste constituents moving through
the soil profile and not stagnant soil pore water.
Ground-Water Monitoring
1) Screening of Monitoring Wells
The proper screening of monitoring wells is critical in order to
determine the presence of contamination. Heavier constituents tend
to migrate and accumulate in the lower parts of an aquifer. Samp-
ling and well design must be able to detect this condition. Clay
and silty clay layers in the saturated zone should also be monitored
since studies have shown that some organic constituents can migrate
in some types of clay soils. The RCRA Ground-Water Monitoring Tech-
nical Enforcement Guidance Document (reference 9) is finalized and
covers monitoring well design and construction.
QA/QC Methodologies
1) Additional Verification by QC/MS
QA/QC methodologies are crucial to assure that the analytical data
collected for land treatment demonstrations are as accurate as poss-
ible. See guidance reference 7. When preparing a QA/QC plan for
organic principle hazardous constituent analysis by the alternative
method which uses a gas chrcmatograpny/flame ionization detector
(GC/FID) instead of the GC/MS method, the laboratory or owner/oper-
ator should verify a certain percentage (e.g., 10%) of the initial
run (and future runs, as necessary) by GC/MS. This approach will
corroborate and justify the use of the GC/FID.
2) Construction Quality Assurance Plans
A rigorcu* construction quality assurance plan should be developed
and implemented to insure that a completed hazardous waste facility
meets or exceeds all design criteria and specifications. Draft
Guidance is available for construction quality assurance for land
disposal facilities (reference 1).
- 3 -
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Any proposed plan should describe how the required limits of permeability
will be achieved and maintained during the construction of clay
layers in liners and caps. The guidance recommends the construction
of a test fill using the soil, equipment, and procedures to be used
in the final construction of the clay layer in order to assure that
permeability limits will be met. The construction of the test fill
must be as stringent as the actual liner for the facility.
Each construction quality assurance plan should identify who will
conduct (i.e., oversee and perform) the quality assurance measures.
It is important that the person(s) be qualified and independent of
the construction contractor to ensure proper placement and representative
sampling of the liner during placement.
Chemical Compatibility Testing
1) Method 9090
The Method 9090 chemical compatibility test exposes the membrane
liner materials to the waste or leachate being managed at a facility
and simulates the conditions expected during the actual use of the
liner material. After exposure, the liner material must be compared
to an unexposed sample of liner material using the physical testing
described in Method 9090. The parameters being compared include
changes in thickness, mass, area, and hardness, and the retention
of physical properties such as tear resistance and tensile properties.
The comparison should address any change in the properties of the
liner material when compared to the unexposed sample.
Method 9090 was originally developed to test only liner material;
however, it is important that all other nan-made materials that
cone in contact with waste or leachate be subjected to the immersion
test portion of Method 9090. Other materials that potentially come
in contact with waste or leachate are geotextiles, geogrid and piping
used in the leachate collection systems. Directive 9480.00-13
(reference 10) addresses Method 9090 and provides references for
the individual tests that these other materials must undergo after
the immersion test.
2) Obtaining and Maintaining Representative Leachate
Halogmated organics are one of the most deleterious chemical families
to high deniity polyethylene (HOPE). When performing compatibility
testing on HOPE, the owner/operator oust demonstrate that the sample
of waste or leachate used is representative of the waste or leachate
from their facility and that the proposed methodology is capable of
maintaining the concentrations of halogenated and other volatile organics
actually found in a facility's leachate throughout the test.
-------
Because these organic compounds are volatile, care should be taken
not to aerate the leachate sample. Since Method 9090 requires long
exposure time (120 days), loss of volatiles may occur. This change
in waste composition may require the waste or leachate to be replaced
at least monthly in order to maintain representative conditions throughout
the exposure! period. (Replacement of leachate does not trigger the
beginning of the 120-day period again. )
Waste Pile Liner Equivalency
1) The Use of a Concrete Pad as a Liner
A facility maintains that a concrete pad under a waste pile meets
the definition of "equivalent protection" under HSWA §3015(a) and
can be substituted for the liner requirement. A concrete pad,
however, fails to meet this definition and the performance requirements
of §264.251. Concrete is not impervious. It has a calculable
permeability and operations on the pad will likely degrade any
relatively impermeable coating that may be applied. Concrete has a
tendency to expand and crack, allowing the escape of leachate.
Also, the chemical compatibility of leachate with the concrete must
be demonstrated. Certain leachate constituents (e.g., sulfates,
acids) may be corrosive to concrete.
Landfill Design
1) Final Cover Slope
Final cover with slopes that exceed the recommended grade may exper-
ience erosion problems and slope instability. If the design slope
exceeds 3-51, the applicant should demonstrate that soil erosion will
not exceed 2 tons/acre using the USDA Universal Soil Loss Equation
and ray be required to perform slope stability analysis. (See
reference 3 for slope guidance.)
2) Waste Settlement
When calculating settlement of a landfill for final cover design,
allowances must be made for the settlement of the waste itself.
Most waste materials settle and decompose at a greater rate than
natural soils used in the final cover. Organic decomposition will
consolidate waste layers regardless of operational techniques.
3) Flexible Mertxrane Liner in Final Cover
fn interim status facility proposes to use a flexible meabrane
liner in the final cover of a landfill with steep slopes approaching
2:1 and a waate depth of several hundred feet in SOBS places. Membrane
liners are unstable when used as a component of a final cover system
on steep slopes and may fail catastrcphically under seismic and
other stresses in such situations. Additionally, :Ms Jsws-alZy
deep landfill is subject fo «jctra»» ^"t— .oaeni. uiuc will «i
nums-cue tsars Li -ir.y conventional flexible meaton r»i liner.
- 5 -
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Therefore, a flexible membrane liner is not recommended under
these conditions. Given the site-specific climatic and geophysical
conditions, an adequately designed and constructed soil-only cover
should be used for closure of this facility under §265.310.
4) Foundation Layer of the Final Cap
A facility proposed a final cap design with a low permeability
layer constructed out of either contaminated or clean soil. Since
this layer must provide long term minimization of the migration of
liquids, it must be carefully designed and constructed. Assurance
of a consistently low permeability soil requires that the soil be
relatively homogeneous. Soil contaminated with hazardous constituents
will likely not be uniformly low in permeability. In order to achieve
and maintain consistent low permeability, clean soils should be used
in this layer.
5) Leachate Collection System Design
In order to satisfy the requirements for landfill design specified
in §264.301(a), the leachate collection system design should generally
be based upon realistic infiltration rates (based upon actual daily
precipitation data for the area), not the annual average rate of
infiltration. This is because landfill cells are open depressions
during their active life.
6) Geotextile Materials
When geogrid and geotextile materials are specified as part of the
leachate collection system in place of conventional drainage material,
they should be evaluated to assure that they have the equivalent drainage
capacity of a one-foot layer of compacted sand.
7) Use of Berm Material from Manufactured Slag
A facility wishes to construct berms from manufactured slag. This
material should be investigated for the presence of hazardous
constituents. Based on the design presented, if any hazardous
constituents are found, the facility should be discouraged from
using this material. These oonsitituents may be detected in the
ground-water monitoring system, obscuring any releases from the
waste* in the unit.
8) UM of a Ocoqpoaite Primary Liner
Several facilities have proposed using a "composite" primary liner.
Directly below the primary synthetic liner, these facilities have pro-
posed adding an additional layer of either clay or chalk. This add-
ition is not specifically required by the Minimum Technological
Requirements of §3004(o)(l) of HSWA nor is it reocropndftd in the
"Double Liner Guidance" (reference 6). The extra 3Lsy-"- ha» *v^
advantage of providing a red^rtiort in .Ufsefci^a aeyuE..ri. anu ^Xwr*
long-term rallaaiiii*. Jii^&e che extra layer is not ntohibited, it
c
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Closure
1) Closure of a Land Treatment Unit with Vegetative Cover
Owners or operators of land treatment units must make their best
effort to establish a vegetative cover. This can involve the use
of soil conditioners, fertilizers and irrigation to supply the
necessary growing conditions. If the unit is closing under §265.280
requirements and the owner or operator can show that they have
tried to implement the vegetative cover without success, they are
justified in the use of another closure procedure (e.g., clean
closure or addition of another cover soil) for the site.
2) Extended Closure Period
•
A facility has requested an extended closure period so that the
facility can continue to receive non-hazardous solid waste in order
to bring the disposal area up to design grade. Extended closure
periods may be approved if: (l)(i) the partial or final closure
activities will, of necessity, take longer than 180 days to complete;
or (ii)(A) the hazardous waste management unit or facility has the
capacity to receive additional hazardous wastes and (B) there is
reasonable likelihood that the owner/operator or another person
will recommence operation of the hazardous waste management unit or
the facility within one year, and (C) closure of the hazardous
waste management unit or facility would be incompatible with continued
operation of the site; and (2) the owner/operator has taken and will
continue to take all steps to prevent threats to human health and
the environment from the unclosed but not operating hazardous waste
management unit or facility, including compliance with all applicable
interim status requirements (§265.113(b)).
The facility in question does not meet the criteria in §265.113(b);
extending the closure period for the purpose of receiving additional
non-hazardous waste is not necessary to proceed with closure nor
will it provide any environmental benefit.
Exposure Information and Evaluation
1) Role of the Agency for Toxic Substances and Disease Registry (ATSCR)
The rola of OTSER is to evaluate human populations with known or
suspected exposure, not to determine if a release has occurred and
has sigratod to potential human exposure points. It is not necessary
to refer a facility to XTSCR unless a release has occurred and human
exposure in either suspected or confirmed. All referrals to ATSLK
for health assessments under RCRA §3019 oust be approved by Headquarters.
Candidates for referral should be forwarded with the appropriate
summary report a* described in reference 2. ATSCR can provide less
formal technical assistance or consultation as also described in
reference 2.
- 7 -
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2) Exposure Information Reports (EIR)
In order to adequately review a facility's EIR, the Part B applica-
tion and any other documents pertaining to possible releases should
be examined. The objectives of these reviews are 1) to identify
human exposure to releases which may require ATSCR involvement and
2) to identify potential human exposure to future releases which
may be mitigated through permit conditions. Therefore, the EIR
review process should be closely integrated with ongoing RCRA Facility
Assessments (RFAs). Guidance (reference 2) describing the
procedure for reviewing EIRs is available and should be consulted.
- 8 -
-------
Facility
Attachment A
PAT Reviews Included in This Summary
Region PAT Coordinator
Review Date
Amax Nickel
BKK
Bob's Home Service
Casual i a Resources
CECOS
Chemical Waste Management
Environmental Waste Control
Fondessy
Hess Oil Virgin Islands Corp.
Murphy Oil USA, Inc.
RMT Properties, Inc.
VI
IX
VII
DC
II
IV
V
V
II
VI
VIII
Chris Rhyne
Chris Rhyne
Chris Rhyne
Chris Rhyne
Chris Rhyne
Chris Rhyne
Robert Kayser
David Eberly
Nestor Aviles
Nestor Aviles
Robert Kayser
June 1986
December 1985
January 1986
April 1986
December 1985
January 1986
December 1985
April 1986
February 1986
March 1986
April 1986
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Attachment B
List of Guidance Documents Used in Preparing the PAT Reviews
1. Construction Quality Assurance for Hazardous Waste Land Disposal
Facilities, October, 1985, EPA/530-SW-85-021.
2. Procedural Guidance for Reviewing Exposure Information
under RCRA §3019, September, 1986, Directive Number 9523.00-2A.
3. Draft RCRA Guidance Document: Landfill Design—Liner Systems and
Final Cover (Chapter E only); July, 1982.
4. Criteria for Identifying Areas of vulnerable Hydrogeology Under
the Resource Conservation and Recovery Act—Statutory Interpretive
Guidance (July 1986, Interim Final) NTIS No. PB-86-224946.
5. Interim Status Surface Impoundments, Retrofitting Variances, July 1986,
NTIS No. PB-86-212263.
6. Minimum Technology Guidance on Double Liner Systems for Landfills and
Surface Impoundments —Design, Construction and Operation, Draft
May 1985, EPA/530-SW-85-013.
7. Permit Guidance Manual on Hazardous Waste Land Treatment Demonstrations,
July 1986.
8. Permit Guidance Manual on Unsaturated Zone Monitoring for Hazardous
Waste Land Treatment Units, April 1986.
9. RCRA Ground-Water Monitoring Technical Enforcement Guidance, October 1986.
10. Supplementary Guidance on Determining Liner/Leachate Collection
System Compatibility, Effective Date 8/7/86, Directive Number 9480.00-13.
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Attachment C 2/27/87
Land Disposal Permit Assistance Team (PAT)
Current Organization and Staff
Assistance Branch
Suzanne Rudzinski, Chief (382-4761)
Land Disposal Permit Assistance Section
Terry Grogan, Chief (382-4692)
Chris Rhyne (Civil Engineer, 382-4695)
- Disposal Design & Operating Stds
(liners, leachate collection)
- Liner Compatibility
- Closures (clean-up standards)
Bob Kayser (Chemist, 382-4536)
- Exposure Assessments
- Chemical Analysis
- Appendix VIII Monitoring
Janette Hansen (Geologist, 382-4754)
- Ground-water Monitoring
- RFA Technical Assistance
- Corrective Action Technologies
Mark Salee (Environmental Scientist, 382-4755)
- ACLs
- Risk Assessments
- Ground-water Protection Regulations
Dav« Eberly (Civil Engineer, 382-4691)
- Disposal Design & Operating Stds
- Construction QA; Liquids in Landfills
- Closures (caps)
- Surface Impoundment Retrofitting and Waivers
Any Mills (Geologist, 382-3298/4692)
- Ground-water Monitoring
- Corrective Action
- RCRA T«c>nicc»l Ground-water Staff
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POLICY DIRECTIVE KQ.
9523.00?.! 4
\
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
MAR I 4 ;e8
Of f ICE O*
SOLID WASTE AND EMERGENCr RESPONSE
SUBJECT: Summary of Recent hermit Assistance Team
(PAT) Comments
CROM: Terrya GrogaVi, Program Manager
Land Oisoosal PAT Program
TO: Permit Section Chiefs
Regions I - X
The OSW Permits Branch plans to provide a semi-annual report
summarizing major issues that PAT members address in their reviews
of specific Part B applications. These reports will cover issues
that are of national interest rather than strictly site-specific
interest. The attached report is the first in this series; it
summarizes generic issues addressed in PAT comments prepared for
nine land disposal Part B applications reviewed during 1985. We
hope the recommendations provided in this summary of recent PAT
comments will be helpful for permit writers encountering similar
situations at other RCRA facilities. Therefore, we encourage you
to share this report with your staff and State permit writers.
Since this report is the first attempt to derive written
national suggestions from site-specific PAT comments, we are
very interested in your reaction. Please let me .know if the
report and current format are useful. Is the level of detail
provided here adequate? Would you like to see the original
PAT comments for specific sites or some other form of guidance?
Attachment A to the report lists the facility names, Regions,
and PAT reviewers for each application included in this report.
Attachment B provides a current roster of the members and expertise
of the Land Disposal PAT staff.
co Marcia Williams
Bruce Weddle
Jack Lehman
Eileen Claussen
Lloyd Guorci
?•»•? Guerrero
Ken Shuster
Jerry Kotas
Sylvia Lowranca
Mark Greenwood
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SO.
9523-00-1 4
SUMMARY OF RECENT PERMIT ASSISTANCE TEAM (PAT) COMMENTS
Sampling Procedures
1) Filtering Ground Water Samples
The practice of filtering ground water prior to analysis can
remove contaminants sorbed onto particulates which can give
misleading indications of ground water quality. The
August 1985 Draft RCRA Ground-water Monitoring Technical
Enforcement Guidance Document recommends that ground water
samples collected for metals analysis should be split into
two portions. One portion should be filtered through a 0.45
micron filter and analyzed for dissolved metals. The
recommended approach for the second unfiltered portion is to
use a mild acid digestion method (e.g., Method-3010, SW-846)
to yield total recoverable metals. Any difference in
concentration between the total and dissolved fractions may
be attributed to either the original metals content of the
particles or to the migration of dissolved metals onto
the particles.
2) Bailers
The composition of bailers is important when monitoring for
certain types of constituents. For example, brass bailers
should not be used when sampling for metals because brass can
introduce metallic ions into the samples.
The Use of Models
1) Unusual Ground Water Situations
In situations where aquifers are composed of highly
stratified sediments or have other unique features, most
current mathematical models may not accurately predict
aquifer characteristics. Therefore, the model used should
include a trial-and-error phase, in which computed drawdowns
are matched with observed field drawdowns. A recommended
reference isi Land, Larry P., "Utilizing a Digital Model to
Determine the Hydraulic Properties of a Layered Aquifer"
Ground Wattr v.15, no. 2 pp 153-159 (1977).
Applying HSWA Corrective Action Requirements to Releases
from Process Areas
\\ Interpretation of "SWMU'
A facility is unu^*-A4''.rt by v. ; .ceynin«t*i •'oils and grounH
water resulting from prior releases *rom p<-c— -- <»r>»»-
Draft policy guidance (January 30, 1985) interprets the terra
-------
OSWE3 POLICY DlitECTlVc ,-,„.
9523.00-1 4
-2-
"solid waste management unit" (SWMU) to exclude accidental
spills from production areas. However, the contamination at
this facility appears to be the result of routine,
deliberate, and systematic discharges from the process area.
Such deliberate deposition qualifies the process area as a
de_ facto SWMU.
Request for a Liner Exemption
1) Liner Exemption Based on Design Concept ,
A facility applied for an exemption from the landfill liner
and leachate collection and removal system requirements of
§264.301. The owner/operator claimed that the landfill
unit will not result in migration of leachate from the unit
due to its intergradient design. The unit is located
within the uppermost aquifer and the net migration of water
is into the unit. Theoretically, migration of contaminants
out of the unit will be prevented since this is counter to
the inward flow of water. However, this design does not
qualify for a liner exemption, which requires that the unit
prevents the migration of hazardous constituents into
ground or surface water at any future time. Although the
net flow of ground water is into the proposed facility,
under certain conditions (i.e., when the waste reaches
saturation) constituents can be expected to migrate out of
the waste and eventually out of the unit.
Stabilization of Bulk Liquids
1) Acceptable Chemical Stabilization Techniques
To treat bulk hazardous liquids, owner/operators must
demonstrate that the 'treatment* applied to the liquid is
not absorption. Chemical stabilization is one treatment
alternative fior bulk hazardous liquids. Stabilization
technologies commonly used include Portland cement-based
processes and other pozzolanic processes using lime
products and materials such as fly ash, ground slag, and
cement kiln dust.
2) Demonstrational of Stabilization
After chemical transformation has occurred, the end product
should pass the Paint Filter Liquids Test finalized on
*^ri! 3C, '985 (50 PR 18370). In addition, the owner/
operacot sust dAiuonatrate th»t the w*«t« has been
adequately staoiiizeo. *'A t« .t tiv^ ptwv.**:* of
recommending a performance standard to hslp
-------
GSficR PXCY DIRECTIVE NO.
9523.00- 1 4
-3-
operators and permit writers determine whether a process
is "chemical stabilization" (as opposed to absorption).
This standard uses an unconfined strength test to make
the determination. The owner/ operator has the option
of proposing a different methodology as long as adequate
stabilization can be demonstrated.
Corrective Action
1) Regulatory Status of Contaminated Groun'd Water
John Skinner's memo of December 26, 1984, states that
contaminated ground water collected and derived from a
listed waste or hazardous due to presence of.a
characteristic is a hazardous waste and subject to
Subtitle C regulations. Therefore, owner/ operators
proposing ai corrective action such as counterpumping
must manage such collected ground water as a hazardous
waste. The Part B application must include the
procedures used to manage ground water so that they can
be evaluated.
2) Removal of PCP by Activated Carbon
Passing contaminated water through activated carbon
usually works well for most organic chemicals. However,
the applicability of this method for PCP (penta-
chlorophenol) may be questionable. The phenolic group
in PCP is weakly acidic (pKa » 4.7) and PCP will ionize
in neutral water. In the ionic form, the compound is
highly water soluble and its affinity for carbon
severely reduced. Specific data must be provided
(e.g., from bench or pilot studies) that demonstrate
the applicability of activated carbon in removing PCP.
3) Permit Specifications
Corrective action programs, when warranted for regulated
land disposal units, must be specified as part of a
facility's permit. The permit should include the basic
measures to be taken for the corrective action, and
predict when the goals of the corrective action plan will
be met. Any future changes in the specifics of the
corrective action program would entail a permit modif-
ication, it is important that the owner/operator
~^juat;^,/ >i h«*s»-'«3us v.r-»sH tuents
ir. tl^ ^roundwater. The owner/op«*.o<.cL should conduct
ttlot pump tests to verify the performance of any counter-
pumping installation if necessary.
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OSV;ES POLICY o-.^ciivi.•;:.
9523 • 00- 1 4
-4-
ACL3
1) Use of Acceptable Surface Water Limits
When the only exposure to ground water contaminants is via
surface water, then it is possible to base the ACLs on
acceptable surface water limits for the contaminants
present in the ground water and to use a surface water
dilution factor to derive the ACLs. The dilution factor/
however, must be sufficiently conservative relative to the
assumed stream flow. In general, the owner/operator should
assume a 7-day, 10-year low flow. The dilution
calculations should only consider mixing within some
State-approved zone and will depend on the ground water
loading to the river.
Owner/operators intending.to use surface water dilution in
an ACL application must prepare a surface water analysis to
determine tho cumulative impact on the river. The analysis
should include upstream, downstream and point of discharge
sampling for the Appendix VIII constituents present in the
ground water-
The actual ground water discharge to a surface water body
must be verified by appropriate ground water delineation
methodology. It is not sufficient to assume that all
ground water discharges to a surface water body. It must
be demonstrated that ground water flow does not go under
and beyond the surface water body.
2) Potential Point of Exposure
In an ACL submission, the applicant must address the on-
site use of ground water as well as any use downgradient of
the facility. Ground water exposure is assumed to be at
the facility's waste management boundary unless there are
use restrictions on-site. The fact that ground water is
not currently used is not sufficient evidence to assume no
potential exposure. If ground water use restrictions,
i.e., deed restrictions, are implemented on-site, then the
property boundary is assumed to be the potential point
of ground water exposure. If the point of exposure is at a
surface water body, ground water use restrictions should be
in effect from the waste management boundary to the point
where groi«-i <*ate£ di sparges to surface water.
When calculating exposure tutough mV~?.
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OSWER POUCY u,!iw,..t ..,,.
9523-00- 1 4
-5-
cannot assume that water consumed will be treated prior to
consumption because the criterion is not technology-based
and exposure must be estimated adjacent to the mixing zone.
For surface waters, the potential point of use is at the
shoreline or area of the waterbody where contaminated
ground water discharges. The requirement that the point of
exposure is at the edge of the mixing zone is primarily for
the protection of the environment, as the ACL guidance
stresses the importance of protecting the environment as
well as human health. Aquatic toxicity data should be
compared with human toxicity data to determine limiting
effects of the constituents of concern. Information should
be submitted on aquatic habitats adjacent to ground water
discharges to the surface waterbody. Special attention
should be placed on bioaccumulation of hazardous
contaminants by benthic organisms and fishery resources.
3) Modeling Information Required for ACL Demonstrations
Modeling degradation and attenuation of constituents
between hazardous waste management units and a potential
point of exposure is a valid method for developing ACLs.
However, all modeling must be substantiated by sufficient
information and sampling* Model documentation is necessary
for most ACL proposals. For example, applicants must
provide the full name of all models used as well as
documentation on why and how the model was applied.
4) Grouping of Toxic Contaminants
Grouping can mask the effects of individual chemicals.
In addition, degradation products can be lost in grouping
schemes. Nevertheless, the ACL guidance allows grouping of
hazardous constituents in order to simplify the ACL demon-
stration. The burden of proof that a grouping of
constituents is appropriate is on the owner/operator.
Exposure pathways and metabolic endpoints for each
constituent must always be considered when determining
appropriate groupings. The fate and transport mechanism,
not concentration and volume, are the most important
factors Cor choosing the most mobile constituents within
a grouping.
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OSWSR POLICY DIRECTIVE NC
9523.00-1 4
Attachment A
PAT Reviews Included in This Suimery
Facility^
Allied Chemical
Chera Waste
Management
Ciba-Geigy
Eaton Corp
G.E. Waterford
Hytek
International
Paper
Penrapost
USPCI
Region
III
IV
IV
II
VII
X
VI
PAT Coordinator
Any Mills
•
Chris Rhyne
Rich Steimle
Any Mills
Any Mills
Any Mills
Usrnon Myers
Robert Kayser
Robert Kayser
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Attachment B
OSWEJTPCUCY DIRECTIVE .'
9523 .00-14
OSW Permits Branch
Land Disposal Permit Assistance Team (PAT)
0 Terry Grogan, Manager (382-4740)
Current Staff;
0 Chris Rhyne (Civil Engineer; 382-4695)
- Disposal D & 0 Standards
(liners, leachate collection)
- Closures (caps, etc.) •
- CERCLA sites
0 Bob Kayser (Chemist; 382-4536)
- Appendix VIII Monitoring
- Waste Analysis
- Exposure Assessments
0 Nestor Aviles (Chemical Engineer; 382-2218)
- Land Treatment
0 Janette Hansen (Hydrogeologist; 382-4754)
- Groundwater Monitoring
- Corrective Action
- PA/SI Field Test and Training
* Mark Salee (Environmental Scientist; 382-4740)
- ACLs
- Exposure/Risk Assessments
• Dave Eberly (Civil Engineer; 382-4691)
- Disposal Standards
9 Vacancy (Geologist)
Othersi
• Mickey Hartnett (Environmental Engineer; 382-4755)
- On detail from Region IV to develop program
for Corrective Action technical assistance.
• Rich Steimle (Hydrogeologist; 382-7912)
-On detail to Ground Water Task Force.
9 Amy Mills (Geologist)
- On academic i°—. „ ^til l/o/.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. Z04CO
9523.00-15
MAR 30 !988
MEMORANDUM
SUBJECT: Summary of Permit Assistance Team (PAT) Comments
FROM: Sylvia Lowrance, Director
Office of Solid Waste
orO^/A^ p^-
(WH^562\
TO: Hazardous Waste Management Division Directors
Regions I-X
Attached is the third in a series of periodic reports which
summarize major issues that PAT members have addressed in their
reviews of specific Part B applications/ permits and closure
plans. (The first and second PAT summary reports were issued
on March 14, 1986 (OSWER Policy Directive No. 9523.00-14) and
March 30, 1987 (OSWER Policy Directive No. 9523.00-12),
respectively.) These reports cover issues that are of generic
national interest rather than strictly site-specific interest.
The attached report includes reviews conducted by the Land
Disposal PAT from September 1986 thru April 1987. In order to
ensure that the report reflects current EPA policy and guidance,
we obtained review comments from all divisions in OSW and from
the Office of General Counsel.
We hope that the recommendations provided in this document
will be helpful for permit writers encountering similar
situations at other RCRA facilities. By sharing the PAT's
suggestions from a few sites, we hop* that permit decision-
making will be somewhat easier and faster at many more sites
nationally. We encourage you to distribute this report to your
staff and State pernit writers. To make that easier, I have
enclosed multiple copies of the report.
AttachMBt 1 to the report lists the facility names,
Regions, Flf coordinators, and dates for the reviews summarized
in this report. Attachment B provides a list of guidance
documents and directives used in preparing the PAT reviews.
Attachment C provides information on user access to the
Hydrologic Evaluation of Landfill Performance (HELP) Model.
Attachment D is a memorandum addressing the *CRA
status of contaminated ground wat**r.
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No. 9523.00-15
-2-
It you nave any questions, comment*, or suggestions on
the PAT Summary Report, please contact Janes Michael at
FTS 382-2231.
Attachments
cc: RCRA Branch Chiefs,
Regions I-X
Permit Section Chiefs,
Regions I-X
J. Winston Porter
Jack McGraw
Tom Devine
Jeff Denit
Bruce Weddle
Susan Bromm
Ken Shuster
Joe Carra
Mike Gruber
Jim O'Leary
Suzanne Rudzinski
PAT Staff
Paul Cassidy
Les Otte
Art Day
Jon Perry
Jim Bachmaier
Elaine Stanley
Lisa Friedman
Tina Kaneen
Fred Chanania
Matt Hale
George Garland
Terry Grogan
Tom Kennedy (ASTSWMO)
i
-------
Tooic
Ground^ater Monitoring
Landfill Design
3
Land Treatment Onita
Permit Issuance
Corrective Action
6
9 '
10
Miscellaneoua Tboics
13
Attachment A: List of PAT
Attachments: List of Guida^ and
References
Attachment C: Aeew, to HELP
W«*ta. _ _
-------
08WER Policy Directive No. 9523.00
SOWAR* OP PERMIT ASSISTANCE TEAM (PAT) CDMCNTS
Ground-water Monitoring
1) well Develoonent
An owner/operator indicated in his/her permit application that
extracting the required well volumes by bailing prior to sampling,
removed fine materials that were 'trapped during well installa-
tion'. This sample extraction that occured over i year of monit-
oring resulted in additional well development.
Prooer wwll develocment, as described in the RCRA Ground-water
Monitoring Technical Enforcement Guidance Document (TEGD)
(Reference 11), reouires that the wells be clay and silt free.
Turbid ground water promotes biochemical activity and possible
interference with ground-water sample quality. Turbidity
readings over 5 nephelometric turbidity units (w.T.O.) may be
grounds for rejecting samples from a monitoring well. TEGD
provides a decision chart for turbid ground-water samples.
The quality of any monitoring data that was obtained from
improperly developed wells is questionable.
2) Aooropriate Well Construction Materials
Several facilities have used polyvinyl chloride (PVC) as
monitoring well construction material in the saturated zone.
PVC is not an inert material and constituents such as phthalate
and tetrahydrofuran in ground-water samples have been attributed
to PVC well casing or pipe solvents. PVC materials can be
used, however, in composite well const ruction where PVC or
other non-Inert material is used above the saturated zone while
inert materials are used in the saturated zone. The TEGD
(Reference 11) provides a complete description of appropriate
•anltoriog well construction Materials.
• facility has already installed wells with materials that
neat the TEGD requirements, it is not necessary that the
Hnitoring system be replaced and the data discarded. A
properly constructed and located comparison well can be installed
and sampled. Comparison of data from the new well with the
existing data will determine if constituents detected in the
older wells, such as phthalate, are due to the PVC materials or
to contamination of ground water fro* other sources.
3) Calculation of Purge Volume
A cx7*nonly encountered err^t in saweling procedures involves the
calculation of the evacuation volume prior to sampling. Ths correct
calculation should include the volume of water in the gravel pack
as well as the volume of water in the casing. With a snail diameter
-------
OSNER Policy Directive NO. 9523.C
ling (e.g. 2 inches), the actual boring nay be much larger,
water in the gravel pack can represent a significant percentage of
the well volume and should be removed in order to sample the
aquifer correctly.
4) Appendix IX
In the July 9, 1987, Federal Register, EPA promulgated a new list
for ground-water monitoring, Apoendix IX to Part 264, which will
replace the Appendix VIII monitoring requirement. Existing sw-846
methods are adeouate for the compounds listed on Appendix IX.
[See Reference 4 for the final Appendix IX list]
Appendix IX is a list of chemicals taken from Appendix VIII for
which it is feasible to analyze in ground-water samples. In
addition, Appendix IX contains 17 chemicals routinely monitored
in the Superfund program.
5) Use of Accelerated Monitoring Schedules t
A facility which was deficient in the ground-water monitoring
section of their Part B Application was requested to improve thtir
monitoring network by drilling more wells and developing them
properly. Once these deficiencies art corrected, an accelerated
ground-water monitoring schedule, sampling four times within four
months/ was recommended.
recommendation, which was designed to bring a facility into
compliance as soon as possible, is in accordance with the recommend-
ations in the RCRA Ground-water Monitoring Compliance Order Guidance
(Reference 10). When scheduling the accelerated monitoring, the
facility could schedule one sampling event after a significant
rainfall, the second event after a dry period and the remaining two
events can be interspersed within the four month tine frame. At the
site in Question, this sampling scheme should allow data representativ
of the site to be obtained ouickly. Note, however, that this type
of an accelerated sampling scheme mty-not be appropriate for all
facilities in all locations.
6) mLotamaee of Ground-water Monitoring Networks
iter Monitoring networks that will be used during the life
of the facility and its closure period, will need at leaat some
Maintenance In order to assure that representative samples are being
obtained. Often the maintenance needed will be redevelopment of the
monitoring uell. The inital performance of a veil should be determ-
ined and any* significant changes over timt may indicate the need
for periodic redevelooment or a maintence mHusmant. in rrv*-
cases, ouch as after severe damage by accidental or *»*-.:;«i occur-
rence like flooding, well rep'*-£?£^ ,*/ t* warranted.
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Policy Directive NO. 9523.00-
A contingency plan should be prepared by the facility addresainc
the proposed course of action should the integrity of the monitoring
wells bocome damaged. The regulations ($264.310(b)(3)) clearly
require the owner/operator of'a landfill to maintain their monitoring
well network during closure period. However, appropriate language
should be included in the permit to make adequate maintenance of the
system during the life of a unit and its closure period a permit
condition. While not absolutely necessary for enforcement, further
elaboration of the reouirements will clarify the duties of the
owner/ooerator.
Landfill Design
1) Definition of Replacement Unit
A replacement unit, as defined in the preamble to the Final Cod-
ification Rule; Hazardous Haste Management System (50 PR 28706,
July 15, 1965) is a "unit that is taken out of service and emptied
by removing all or substantially all the waste from it" prior
to being reused. A facility planned to dewater half of an interim
status surface impoundment that is bisected by an underwater dike
and to route all incoming waste to the southern portion, it*
northern section was scheduled to receive consolidated waste
from several other impoundments and to close as a landfill.
The northern section, however, meets the criteria of a 'replace-
ment unit' since the deposition of the original waste material
has stopped1, substantial dewatering is planned and placement
of waste from other units is to occur prior to closure.
under S3015fb) of RS1A, facilities authorized to operate under
530t5(e) shall be subject to the mininun technological requirements
of 3014(•) for each replacement or lateral expansion of an existing
landfill or surface impoundment. The north section mat be retro-
fitted to satisfy these reoulrenents before the deposition of the
waste from other units can begin.
The southern unit, as an existing surface impoundment, becomes
subject to the slniiuB technological requirements and oust be
retrofitted if it continues operation after November 8, 1988
par I300MJ), unless a waiver is obtained.
2) Doofeli Lime ifelver Petitions
Another facility reouested a waiver fro* the double liner require-
ment for i new unit based upon Section 3004(o) (2), which allows
for an exception to the double liner requirement if "alternate
design and operating practices, together with location characteristics,
will prevent the migration of any hazardous constituents into the
ground water or surface water at least as effectively as such
liners or leachate collection syst<
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OSNBR Policy Directive tto. 9523. C
The proposed bottom liner design i« a 2-ft layer of com-
pleted nterlal with 5 x 10-* on/sec permeability, -mis bottom
liner design is substandard because it does not meet the requirement.
of section 264.221(c) (3-foot layer of recorapacted clay of at
least 1 x 10-" cm/sec permeability). Since the design does not
meet the requirements of S264.221(c), location characteristics
or operating practices must compensate for the deficiency, as
allows under $264.221fd). This unit is to receive wet sludges and
an unusually large amount of leachate is expected. The owner/
operator did not present anv operational reason to grant the
petition. Similarly, the location of the unit would not prevent
miaration of hazardous constituents to the ground water because
ground water is tyoically near or at the surface. Therefore,
the PAT saw no compelling evidence that hydrogeologic conditions
would favor a variance.
Since this alternate double liner design did not satisfy the
$264.221(d) criteria for preventing migration to ground water
at least as effectively as a double liner system under $264.221(c),
and location characteristics and operational practices did
not compensate for the liner design, the PAT recommended that the
petition for a double liner waiver not be granted.
3) Determination of equivalent Liner Design
The PAT reviewed a proposed double liner design in order to
verify that it meets the general minima technology requirement
set forth in Section 3004(oHl)(A)(i). The liner design was
compared to the interim statutory design found in Section
3004(0)(5)(B) of HSKA and codified in $264.301(c).
The comparison was conducted on a layer by layer basis. The pro-
posed primary leachate collection system, the top liner and
the secondary leachate collection system for the facility were
either identical or exceeded the Agency's recommended specifications
for the interim statutory design. The secondary liner system, how-
ever, varies significantly frc* the interim statutory design which
may be satisfied by at least 3 feet of 10~7 oVsec compacted clay
or other natural eaterial. The proposed bottom liner will con-
sist of DB 80 ail high density polyethylene (HDPI) liner to be
LHSjellad landiately over an existing ethylene propylene rubber
(MBl liner and an existing leak detection systesj. Before instal
latlon of the bottc* liner, the EPDJt liner will be cleaned and
the sees* tested for leaks. The HOPE liner will fora a oppression
fit over the existing liner and its teams will be constructed
perpendicular to the existing liner's
The interia statutory design requires that a bottc* liner be
designed, operated and constructed to prevent the sdgratie* ~?
any constituent through tuch * liner during th$ op**?..:.* and post-
cijouze ranitorlng p*ri<* (S300*;o>'"(«•)>» The PAT concluded
that a carefully constructed redundant PKL bottom liner should
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QSNBR Policy Directive NO. 9523.1
result in a liner that controls migration as well as, or better
than, 3 feet of 1 x 10-" cm/sec clay. As long aa waste/liner
compatibility is clearly demonstrated, a system constructed of the
proposed components was determined to be equivalent to the interim
statutory design.
4) Calculation of Leachate Volume for Collection system Design
An engineer for a facility desioned the leachate collection system
for their new landfill based upon leachate volume estimated from
calculations using Moore's Equation (see Permit writers' Guidance
Manual for Hazardous Waste Land Treatment, Stora5c~and""bispo3al
Facilities, Reference 7). While the use of this equation is ac-
ceptable, the equation best applies to a long term, steady-state
impingement rate and not to short-term storm events. In order to
most accurately consider variations in rainfall data such as
storm events, the KELP (Hydrologic evaluation of Landfill Perform-
ance) model is preferred. This model is available to any engineer
or technically trained individual for evaluating the design of
leachate collection systems. See Attachment C for information on
obtaining the user guide and software package.
5) Cap Design Modifications
A facility proposed several modifications to their cap design spec-
ifically to reduce erosion potential. The soil layer was increased
from two feet to three feet. The increased soil depth, plus the
presence of a drainage layer and geotextile material, mitigates
the impacts of frost action.
The facility also proposed to use roughened HOPE membrane as the
synthetic liner over the clay layer in order to reduce the potent-
ial for sliding. The friction angle between the roughened membrane
and the clay is 29 degrees, a significant increase over the
friction angle between a smooth membrane and the clay layer. A
potential proble* with the use of roughened BDPB Mfcrane is its
limited oojnercial availability at thffr tim.
Aocbor trenches have also been proposed to tie down the liner,
fiiear and drainage layer material for the purpose of increasing
stability. The trenches act as drainage conduits as well,
the efficiency of the drainage systea.
6) Ose of a test Plot to Support an Alternate Cover Design
A facility proposed a cap design that is significantly different
from the recomended design criteria specified in the July 1982
Draft Guidance Document: Landfill Design— Liner Svstess and Final
Cever (Jtofertnce 2).
- 5 -
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0»ER Policy Directive NO. 952J
final cover, based upon the guidance, should have two or more
feet of "soil capable of sustaining plant species", me facility
proposed that the cap will be comprised of 24 inches of contacted
Ponce clay, 18 inches of compacted caliche and 6 inches of veget-
ated, uncompacted caliche. Caliche is a limestone deposit that
_ is found in arid regions. This soil, when in contact with moisture
could harden like concrete and may not sustain vegetative growth.
The proposed plant specie, weeping lovegrass, is not indigenous
to the area and has roots up to 18 inches in length, which is
longer than the 6 inch vegetative layer could support.
The best alternative for this facility would be to redesign their
cap to conform to the specifications in the guidance. However,
they can use cap components which differ froa the recommended
design if the facility constructs a test plot in order to demon-
strate that the proposed material will support a vegetative cover.
7) Potential for HDPB Failure
An engineering report prepared for a landfill liner design indicated
that the material to be used as a sub-base under an HPDE liner
showed differential settlement of up to 1.5 feet over a horizontal
distance of 2 feet.
The engineering report assumed that the HDPE membrane could tolerate
such settlement, but research has shown that HOPE liners usually
fail along a narrow area. Stretching a localized imperfection,
such as a shallow scratch, over the 1.5 feet differential settle-
ment could result in a hole in the liner.
The facility should prepare a stable base under the HPDB liner as
required in $264.301 (aHlHii).
Land Treatment Onitir
1) waste Characterization/Maste Analysis Plan
A petroleua refinery is undertaking a-land treatment demonstration
but haa nor. adequately characterized its waste. A waste analysis
plan prepared according to the requirements of 15264.271 (b) and
2«f,272(cm)(l) «ust include testing for Appendix VTII constit-
that art reasonably expected to be in or derived from the
flw taste analysis plan for refinery wastes should
iaclalt tasting for the EPA approved subset of Appendii VTII
constituent* found in petroleum wastes (e.g., the "Skinner List").
The Permit Guidance Manual on Hazardous Haste Land Treatment
Demonatration* (Reference 5) should be referred to for a complete
discussion on, the development of waste analysis plans. Appendix 0
in reference 5 provides a copy of the list of Apoendix VIII
e/srsstituent* that may be found in ?c**oleii* waste*.
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Policy Directive NO. 9523.00-
2) Demonstration of Land Treatabllity
A facility based its land treatment demonstration on the degradation
of the oily fraction of the wastes and on the immobilization
of lead and chromium in the soil. They did not account for the
treatment of any other Appendix VIII constituents detected in
their waste. This same facility only conducted the feasibility
test program using leachate column tests. These tests will
provide information on the loading rate of the soil, but will
not be able to determine the site/soil assimilative capacity.
Section 264.272 requires that the owner/operator must demon-
strate that hazardous constituents in the waste can be complete-
ly degraded, transformed or immobilized in the treatment zone.
A properly conducted demonstration should evaluate all the pro-
cesses involved in a land treatment unit including degradation,
transformation and immobilization. A toxicity study, which
identifies toxic loading rates and evaluates the impact of the
wastes on indigenous soil microorganisms, should, be conducted.
A transformation/detoxification study, which is also a necessar'
part of the demonstration, should provide information on the
decrease in toxicity of the waste/soil mix to soil microorganisms
over time. Reference 5 provides complete Information on the
components of a good land treatment demonstration.
3) Control of Soil Moisture
A saturated land treatment unit is unable to accept sludge with
a high quantity of water since these conditions would promote
anaerobic conditions in the treatment zone. These conditions
would lead to a decrease in microbial degradation of organics
and the migration of run-off containing large amounts of hazard-
ous constituents. An owner/operator at a facility where satura-
tion of the unit is possibile, even during a portion of the
year, should conduct studies to measure and control soil moisture.
A water balance for the facility that accounts for seasonal
changes should be part of such a studyv
4) Selection of Principal Hazardous constituents (PBC)
art defined in 5264.278(a)(2) as "hazardous constituents
in the wastes to be applied at the unit that are the
difficult to treat, considering the combined effects of
degradation, transformation and immobilization". Therefore,
the PHC for any land treatment unit can only be selected after
the completion of an adequately designed land treatment demon-
stration (nee previous item 2). PHCs are those hazardous con-
stituents that have the lowest site/soil assimilative capacity.
CDn*«:<*'!*nt£ elected should also have * tow to sai:-?af» "*por
(rtvsiifre. so they *;il r«* volat.i* v fT" tf-e wuw shortly
after ..pplication. The criteria for the selection of PHCs is
cove -<*j in Reference 5.
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OWER Policy Directive NO. 9523.00-:
5) Permitting of Land Treatment units
After several years of an on-going land treatment demonstration,
a _facility still has not proven that their unit can degrade,
transform and immobilize the hazardous constituents in their
waste. A satisfactory land treatment demonstration will require
more effort, time and a large investment by the applicant.
The land ban restrictions for the 'California List' or 'first
third1 waste constituents will affect most of the current land
treated wastes. Due to the potentially short life of certain
land treatment units, the owner/operators of units that have
not demonstrated satisfactory treatment should be requested to
consider closure of their land treatment unit. As stated in
OSWER Policy Directive 9486.00-2 (Reference 6), any Part B defic-
iencies should be addressed quickly. Only one Notice of Deficiency
should be necessary for the applicant to submit a complete applic-
ation. If they are unable to quickly correct the deficiencies,
the Region should consider permit denial.
6) Presence of High Hater Table in Limited Areas of Onit
During a land treatment demonstration, a land treatment unit was
observed to have two central areas that had a seasonal high water
table within 3 feet of the treatment zone. The facility proposed
to use a pumping system to lower the water table.
While the treatment zone in any land treatment unit, per S264.271
(c)(2), must be at least 3 feet above the seasonal high water
table, a costly pumping system is not the only alternative to
achieve this standard. The facility nay clean up the areas with
a high water table and discontinue their use for the treatment of
waste. Clean up entails the removal of soil from these areas and
placement of the soil in the active treatment unit. NSW soil should
be replaced in these areas and the areas should be fenced off. In
effect, this land treatment unit could be operated as two smaller
units separated by the high water tabH artas.
7) issuance of on immediate Pull-Scale Facility Permit
A facility with an existing interim status land treatment unit
s^Bittad a carefully prepared, complete land treatment demonstra-
tion m pact of their permit application. The demonstration
addressed all the requirements of Subpart M - Land Treatment,
identifed all the potential problems encountered at the unit and
provided measures that will be implemented to correct these problems.
Because the demonstration addressed all Agency rtquirsmtnts, the
issuah* * of « ruli grating permit was rtcommended instead of a
two-phase permit. -
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OWES Policy Directive NO. 9523.00-
Permit l
1) Joint Permitting by EPA and a State
Facilities located in a state which has been authorized for the
RCRA 'base program1, but not the HSWA provisions, may currently be
issued joint State and Federal permits which together constitute
the "RCRA permit". The State prepares the portion of the permit
covering non-HSWA matters. EPA should incorporate the HSWA provisions
into the State issued permit or, if necessary, EPA may issue a
separate permit for HSWA requirements. In instances where a new
facility has a joint permit, the permittee must be informed that
construction cannot begin until both the State permit and the EPA
HSWA permit are issued (either jointly or separately) .
2) Use of HSWA Omnibus Provision to Incorporate Land Disposal Restrictions
in Permits
A Region prepared a draft permit in which they used the 'omnibus pro-
vision' ($3005(c) (3)) to incorporate proposed larid disposal restriction:
as a permit condition. The 'omnibus provision1, as stated in the
preamble to the December 1, 1987 final codification rule (52 PR 45788)
gives EPA the authority to impose permit conditions above and~beyond
existing regulatory requirements if the current requirements are
inadequate to protect human health and the environment.
The self-implementing HSHA provisions, such as the land disposal
restrictions, supersede the $270.4 provision (i.e., "permit as a
shield") which states that compliance with a RCRA permit constitutes
compliance with Subtitle C. Therefore, the land disposal restrictions
apply regardless of whether or not they are included in the permit.
OSHER Policy Directive No. 9522.00-1 (Reference 3) clarifies the self-
implementing requirements of HSWA.
To simplify enforcement and to clarify the duties of the owner/
operator, however, the PAT recommends that permits issued after land
ban or other self- implement ing HSWA regulations incorporate the
requirsmnts of those regulations, as they apply to the specific
facility, in the case under discussion, since the restrictions rule
mm only proposed at the tine, the PAT recommended that the
pssMt not contain specific conditions for these restrictions due
t0 tt» likelihood of changes in the rule.
3) Editing- off Permit Content prior to Issua
Several Regions have prepared draft permits with unedited portions
of the permit: application appended to the permit, unedited attach-
ment T«T cr" esrrjpona yiith w*:- -"'ding in the body of the permit
5rJ aomc sections may be contiidictcry a go**«i* ret* l.cmants ;..
the permit, Pswifc conditions need to be precise.
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Policy Directive No. 9523.00-
Appending Part B sections that are not relevant to the permit nay
Bean that any operational changes affectinq subjects within those
sections, however insignificant, may reouire a permit modification.
The PAT recommends that all portions of the permit be reviewed for
"applicability, importance and clarity."
4) Permit Language
A permit prepared for a container storage area stated that the
permittee can "store a maximum of 600 drums in the container storage
area". Because the permit is an enforceable document, the permit
language must be precise. This statement isplies that the only
containers to be stored at this facility will be drums. The language
should reflect all the types of containers to be stored at this
site.
5) Methods for Establishing Background
The use of the minimum detection limit (HDL) to .establish background
as a ground-water protection standard is an acceptable method.
However/ the permit should reference the appropriate analytical
methods in SW-846 (Reference 13) and specify target detection
limits. The new list of Appendix IX to Part 264 includes suggested
methods and practical quantification limits (See Reference 4).
6) Permit Condition for Corrective Action Site Investigation
A facility has several abandoned waste disposal ponds (SWHOs)
from a previous owner. Based on the results of the RCRA Facility
Assessment, the units to be evaluated in the facility's RCRA Facility
Investigation (RPI) should be specified as a permit condition.
Any comoonents required in the RPI, such as the characterization of
the nature and extent of contamination/ the definition of pathways
for migration/ the identification of areas threatened by releases and
the evaluation of interim measures, should alto be specified in the
permit. The draft document, RCRA Facility Investigation (RPI)
Guidance, July 1987 (Reference 9) should be consultecT
A site investigation could identify, a release that does not require
ilsMiate remedial measures because it is not currently a threat to
txsssft health or the environment, but has the potential to become a
threat in the future, corrective actions under $3004(u) should not
be limited to releases that already pose a threat. The monitoring
of such a release for a reasonable period of tine would be an
appropriate permit condition.
Corrective Action
i; notation of the Point rt Compliance Wells
Under Subpart ?, once ground-water contamination if detected from
any regulated unit, the owner/operator is required to establish a
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Policy Directive NO. 9523.00-:
ground-water protection standard as described in S264.92. The point
of compliance (POC) must be established directly downgradient of the
regulated unit(s).
POT corrective action programs under HSWA, however, specific monitor-
ing wells/ which were installed as part of the site investigation,
may be designated as POC wells. The POC wells for non-regulated solid
waste management units should be identifed in the HSWA portion of
the permit.
2) Treatment Reouirements for Ground water Removed During Corrective Action;
Permits including corrective action conditions for ground-water
treatment programs must not only include pumping and removal r ecu ire-
men ts but must specify treatment standards or methods of handling
contaminated ground water. Although ground water itself is not a
hazardous waste, ground water that contains hazardous waste leachate
must be managed as if it were hazardous waste since the leachate
is subject to regulation under Subtitle C. Once, the ground water
is treated such that it no longer contains a hazardous waste, the
water is no longer subject to Subtitle c regulation. See the neao-
randum from OSW to Region IV, "RCPA Regulatory Status of Contaminated
Ground water", November 13, 1986 (Attachment D).
3) Selection of Appropriate Treatment Technologies
A facility proposed a corrective action program where contaminated
ground waiter was treated by air stripping* One of the organic con-
taminants, methyl isobutyl ketone (MIBX), is extremely soluble in
water and may not readily volatilize from aqueous solutions.
The degree to which a contaminant leaves the water phase and enters
the air phase is dependent on the design of the system employed and
on a combination of physiochenical characteristics. A substance's
solubility in water and its vapor pressure are key factors for
determining whether a substance is amenable to air stripping. MIBK
tends to rsoain in the water phase instead of being released into
the air phase. Therefore, HIBX may not be a good candidate for removal
from ground water by the air stripping Mthod presented by the owner/
technology that if approved as part of the corrective
At a facility must be based upon the type of contaminants
found', tho level of contamination, and the technology's ability to
meet the treatment standard.
4) Evaluating Air Emissions from Treatment units
Some treatsanfc e^irxuggies oo not destroy Cc?fea«iMnu. *ul
„..«*. trc« one medium, such 2* ground water, and then release tn«m int.:
a second medium, such as air. Air emissions frca treatment unit*,
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Policy Directive HO. 9523.00-
particularly those resulting from air stripping and other air release
technologies, should be considered by the permit writer before approvi
a corrective action plan. The owner/operator should be required to
determine stack emission rate estimates as well as perform dispersion
modeling in order to determine if air emission controls are necessary.
While volatile organics released to the air via air stripping are not
hazardous waste, releases of hazardous constituents to the air from
hazardous waste management or solid waste management units are subject
to corrective action authorities. The permit (or a 3008(h) order)"she
address contamination of both the around water and the air resulting
from waste management at the facility as necessary to protect human
health and the environment.
5) Use of Field Studies in Approving Bnerging Technologies
A facility proposed to clean up contaminated soil with an in-situ
bio-reclamation technology. When a facility proposes to use an
emerging technology, such as insitu treatment, which depends
upon site specific conditions, it is best to require a pilot scale
field study which is separate from any laboratory test. Experience
at Superfund sites has shown that methods that work well in the
laboratory may not work well in the field. The reverse may also be
true. In lieu of any specific Agency guidance, the PAT will be able
to provide assistance when evaluating the results of field studies.
6) Verification Monitoring
Ontil HSWA corrective action policy on monitoring is established,
ground-water monitoring to verify that the ground-water protection
standards determined for hazardous constituents released from SWWUs
have been achieved under a HSWA corrective action should be similar
to existing monitoring requirements for compliance with ground-water
protection standards at regulated units. Thia monitoring should
include quarterly sampling and analysis of the POC wells for all the
contaminants specified in the ground-water protection standard. Flex-
ibility, however, can be included in the HSWA corrective action permit
After the first few years, for example, a different monitoring scheme
may be appropriate. -
the permit may also include requirements for monitoring of Appendix
ZZ enstituents "reasonably expected to be in or derived from the
wasfeo* in the SNKJs. The frequency of such monitoring (e.g.,
aomwlly) should be included in the permit.
7) TendaotiOR of B*A corrective Action Programs
Corrective action program for releases from regulated units can be
terminated when the ground-water protection standard has not been
exceeded for three consecutive ycate 'S2f4.it/uirM. This approach
can also bt applied -i t£~« con.Active action £?*mits. T* 8S«?\
^' r<-, ftowever, may also include 4 technical feasibility clause.
When the maximum possible reduction of contaminants from the ground
water has been achieved and »l* media (ground water) protection
- 12 -
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08«R Policy Directive NO. 9523.00-
•tandard is still being exceeded, further use of that technology »y
not b» retired. At that point, if no other technology or combination
of technologies will achieve any additional reduction in contaminant
levels, the corrective action program could be terminated.
Miscellaneous Topics
Disposal of Non-hazardous waste in RCRA Regulated Units Waiver Reouest
for Liquid in Landfill Restrictions
A facility wished to dispose of non-hazardous dredge material in a
landfill that was undergoing closure after the loss of interim
status. The facility sought a waiver under 53004(c)(3), contending
that there is no alternative disposal site and that the liquid
condition of the dredge material will not present a rink of contam-
ination to any underground source of drinking water.
The owner/operator did not meet the reouirement of 53004(c)(3)(A)
which requires the demonstration that no reasonably available altern-
ative exists other than placement in their closing landfill. The
facility based their contention of no available alternatives on the
refusal of neighboring states to accept the dredge material without
dewatering. The facility did not adequately investigate all altern-
atives, such as the deposition of dredge material in a sanitary land-
fill, which is considered to be an available alternative based upon
the statutory Interpretative Guidance of April 1986 (Reference 12).
The determination of 'reasonably available1 also involves technical
and engineering considerations. A dewatering option was never
thoroughly evaluated. If the dredge material could be dewatered to
pass the Paint Filter Liquids Test, the restriction in 53004(c)
would not apply. The disposal of nonhazardoua waste in a landfill
that has lost interim status, however, is discouraged by Agency
policy. As stated in Gene Lucero's meaorandun of December 20, 1985
(Reference 1), the receipt of non-hazardous waste is acceptable
only if it doto not delay closure.
Criteria for the Referral of Facilities to the Agency for Toxic Substances
and Disease Registry (ATSDR) under S3019
Dirt* facilities, each in different Regions, have ground-water
contoinaition that has migrated off-site. Releases at two of these
facilities have contaminated residential wells. At the third
facility wnile direct exposure to contaminated ground water has not
been dccuuented, public concern about potential exposure is extreme.
Due to tho history of contamination at these sites, the off-site
migration, and the promixity of the public, the assistance of
the Agency for Toxic Substances and Disease Registry (ATSDR) is
warranted. -
These sites were K*fr: -ad tw >uauR for a "health consultation*.
\ haaXfch e&nsuitation by the ATSDR enable* .. Jfegion to determine
what information should be gathered (e.g., during a ROU Facility
Investigation) to allow the ATSDR to undertake a nore detailed
- 13 -
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Policy Directive NO. 9523.00-1
- 14 -
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Policy Directive NO. 9523.00-
Attachnent A
PAT Reviews Included 1n this Summary
Facility
American Cyan amid
Ashland Chemical Co.
B.F. Goodrich
DOM Chemical
Fondessy Landfill
G.E. Waterford
Highway 36
International Paper Co.
IT Corporation
Lion Oil
McDonnell -Douglas
Mills Services
Ross Incineration Services
Shell Oil
United Technologies/
Hamilton Standard S1U
Union Carbldt
U.S. Pollution Control, Inc.
U. S'. Stetl
Region
II
V
IV
V
V
II
VIII
IV
V
IV
VI
II
V
X
I
II
VI
V
PAT Coordinator
Chris Rhyne
Janette Hansen
Robert Kayser
Robert Kayser
Chris Rhyne
Chris Rhyne
Mark Salee
Dave Eberly
Janette Hanseir
Janette Hansen
Robert Kayser
Chris Rhyne
Nestor Avlles
Amy Mills
Janette Hansen
Robert Kayser
Chris Rhyne
Nestor Avlles
* *
Robert Kayser
Davt Eberly
Jantttt Hansen
Oavt Eberly
Review Date
January 1987
January 1987
November 1986
March 1987
November 1986
December 1986
November 1986
March 1987
January 1987
February 1987
September 1986
» February 1987
March 1987
February 1987
April 1987
April 1987
February 1987
March 1987
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Policy Directive HO. 9523.00-1
Attachment B
List of Guidance Oscd in Preparing the PAT Reviews '
1. "Accepting Nonhazardous Wastes After Losing Interim Status",
Memorandum Gene Lucero, December 20, 1965.
2. Draft Guidance Document: Landfill Design—Liner Systems ard
Final Cover, (Chapter E only), July 1982.
3. Effect of Land Disposal Restrictions on Permits, Effective
Date 9/15/86, Directive No. 9522.00-1.
4. Federal Register, vol. 52, 25942.
5. Permit Guidance Manual on Hazardous waste Land Treatment
Demonstrations, July 1986.
6. Permitting of Litnd Treatment Units: EPA Policy and Guidance
Manual on Land Treatment Demonstration, Effective Date 9/17/86,
Directive 9486.00-2.
7. Permit writer's Guidance Manual for Hazardous waste Land
Treatment, Storage and Disposal Facilities, October 1983.
8. Procedural Guidance for Reviewing Exposure Information under
RCRA section 3019, September 1986, Directive No. 9523.00-2A.
9. RCRA Facility Investigation (Rfl) Guidance, Draft, April 1987.
10. RCRA Ground-water Monitoring compliance Order Guidance, August
1985.
11. RCRA Ground-Wfctejr Monitoring Technical Enforcement Guidance
19M, NTIS NO. PB87-107751.
12. Statutory>»t«rprttative Guidance of April 19M, April 19*6.
13. Jest Method* for Evaluating solid Waste, SW-846, March 1987.
-------
QSNER Policy Directive NO. 9523.00
Attachment C
Ac CMS to HELP Nodtl User Guide and Software
User Guides
Hydrolo$*c Evaluation of Landfill Performance. Vol. I NTIS PB85-100-840
Hydrologlc Evaluation of Landfill Performance, Vol. II NTIS P885-100-832
Software
c/o Or. Paul Schroder (601) 634-3709
Environmental Laboratory
Waterways Experiment Station
P.O. Box 831
Vlcksburg. Miss. 39180
Send 6 formatted blank discs
-------
03W Directive Mo. 9523.00-17
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
s
SOUO WASTE ANO EMEBGENC'' a-S"C\«
MEMORANDUM
SUBJECT: Summary of Assistance Branch Permitting Comments
i
FROM:
Sylvia Lowrance, DirectorAvA f\
Office of Solid Waste (05-3^0)
TO: Hazardous Waste Management Division Directors
Regions I-X
_/
Attached is the fourth in a series of periodic reports
which summarize major issues that Assistance Branch members
have addressed in their reviews of specific Part B applications,
permits and closure plans. (These reports were formerly called
the "PAT Summary Reports"; previous reports were issued in
March 14, 1986 -(OSWER Policy Directive No. 9523.00-14),
March 30, 1987 (OSWER Policy Directive No. 9523.00-12), and
March 30, 1988 (OSWER Policy Directive No. 9523.00-15)). These
reports cover issues that are of generic national interest
rather than strictly site-specific interest. The attached
report includes reviews conducted by the Disposal and
Remediation Section and the Alternative Technology and Support
Section from January 1987 to March 1988. In order to ensure
that the report reflects current EPA policy and guidance, we
obtained review comments from within OSW and from the Office of
General Counsel..
We hope that the recommendations provided in this document
will be helpful for permit writers encountering similar
situations at other RCRA facilities. By sharing the Assistance
Branch's suggestions from a few sites, we hope that permit
decision Baking will be somewhat easier and faster at many more
sites nationally. We encourage you to distribute this report to
your staff and State permit writers. To make that easier, I
have attached multiple copies of the report.
Attachment A to the report lists the facility names,
Regions, coordinators, and dates for the reviews summarized in
t.Ms report. Attachment B provides a list of guidance document
sr.d diirsc Lives asa^ in preparing the reviews.
-------
OSW Directive No. 9523.00-17
-2-
If you have any questions, comments, or suggestions on the
Summary of As«istance Branch Permitting Comments, please contact
James Michael at FTS 382-2231.
Attachments
cc: RCRA Branch Chiefs
Regions I-X
Permit Section Chiefs
Regions I-X
J. Winston Porter
Jack McGrav
Tom Devine
Jeff Denit
Bruce Weddle
Susan Bromm
Ken Shuster
Joe Carra
Jin O'Leary
Suzanne Rudzinski
Elizabeth Cotsvorth
Jim Michael
DRS Staff
ATSS Staff
Paul Cassidy
Les Otte
Art Day
Jim Bachmaier
Elaine Stanley
Lisa Friedman
Tina Kaneen
Fred Chanania
Matt Hale
George Garland
Tom Kennedy (ASTSWMO)
-------
OSW Directive No. 9523.00-17
Of AS!
Table of Contents
Topic Page
Issue Resolution ±
Ancillary Equipment on Tank Systems 1
New Tank Systems 2
Variances for Classification as a Boiler 3
Incinerators ^ 6
Land Disposal Expansions 6
Waiver Petitions for Minimum Technology Requirements 8
RD&D Permits 9
Recommendations 11
Tank Systems 11
Incinerators 11
Ground-water Monitoring 13
Ground-water Modeling 14
Landfill Design 15
Permit Condition* 16
Availability of New Guidance 17
Attachment A - Staff Reviews Included in this Summary 18
Attachment B - List of Guidances Used in the Summary 19
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OSW Directive No. 9523.00-17
SUMMARY OF ASSISTANCE BRANCH PERMITTING COMMENTS
January 1987 - March 1988
This is fourth in a series of documents summarizing some of
the comments provided to Regional permit writers by staff of
OSW's Asssistance Branch on permitting. It was formerly called
the "PAT Summary Report11.
This summary is organized into three sections. The first
section, Issue Resolution, provides examples of issues that have
been raised at one or more facilities. This section covers
special situations where regulations or policy decisions were
applied to actual circumstances. The second section,
Recommendations, addresses comments routinely made to answer
questions on items often overlooked or poorly understood, and to
convey technical information. This section should be generally
helpful to the permit writer. Finally, there is a section
describing new guidance that may be of interest to the Regions.
ISSUE RESOLUTION
Ancillary Equipment on Tank Systems
1) Secondary Containment for Flanges and Joints
Threaded joints and flanges used in tank system piping vary
widely. Frequently, the Assistance Branch staff is asked
to clarify if a specific design is exempt from the
requirement for secondary containment.
An owner/ opera tor asked if a joint consisting of a flange
bolted to a second flange is required to have secondary
containment. Bolted flange joints, that are above ground
and inspected daily, are not required to have secondary
containment; however, the completed and installed system
must b« tasted for tightness prior to use.
Secondary containment is intended to apply to any threaded
joint system, including threaded joints fabricated of
special materials such as teflon or plastic. Any joint
where waste may come in contact with the thread must have
secondary containment.
2) ^sconc^ry Cohtair^ent for Ancillary Equipment
A. facility submitted a design twr * secondary conta:-~ -^r
system for the waste lines entering a neutralization tank.
Th« proposed secondary containment system was an existing
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OSW Directive No. 9523.00-17
-2-
trench that conveyed non-hazardous wastewater to the same
neutralization tank. The Assistance Branch was asked to
determine if the existing trench was acceptable as
secondary containment.
The hazardous waste pipe was to be suspended over the
existing trench which was adequately sized to contain both
the flow in the pipe, should a leak occur, and the maximum
volume of wastewater. Secondary containment, however, must
be dry in order to detect any leaks from the hazardous
waste line. Once a release is detected, any waste must
then be removed. The proposed system, therefore, was not
acceptable.
The facility modified its proposal to include a dry trough
below the hazardous waste pipe. The second proposal met
the full intent of the secondary containment requirement
and was deemed acceptable.
New Tank Systems
1) The Status of New Tank Systems at Facilities Permitted
between the. Promulgation and Effective Dates of the New
Tank System Regulations
Any tank system installed after July 14, 1986 is, by
definition, a new tank system. About six months fall
between this date and the effective date of the revised
Federal regulations (January 12, 1987). For tanks subject
to RCRA standards but not HSWA, this time lapse is even
more pronounced in States that had pre-HSWA authorization
and have additional time to adopt equivalent tank system
regulations. Can permits issued during this time lag
reflect the intent of the revised tank regulation?
In the case of a State-issued permit, the permit must
reflect the State statutory or regulatory requirement in
effect prior to final permit disposition. If a State has a
regulation analogous to Section 270.41(a)(3) (Reference 5)
the Director can modify a permit in order to include new
statutory requirements or regulations applicable to the
permit upon the effective date of the legal authority.
Thus, a permit issued for a tank system can be modified to
reflect- the r*»':iz4»d standards when they go into effect.
After vNa permit moaificatioi., *w *»*.„ sy»t*m installed
af'cer July 14, 1986 would be considered & "new" tank system
wMcli must have secondary containment. The phase-in period
ii.lowed for 'existing1 tank systems would not apply.
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OSW Directive No. 9523.00-17
-3-
The State Director has the option to use a State law
analogous to the "omnibus provision" (Section 270.32(b)(2))
to reflect the requirements of the regulations during this
lag time. OSWER Policy Directive #9523.00-15 (Refer ence
11) clarifies when to use the (Federal) omnibus provision.
It should be noted that new underground tanks are regulated
under HSWA. At this time, no States are authorized to
apply these requirements.
Variances for Classification as a Boiler
The Assistance Branch was requested to determine if
specific units which do not meet the definition of boiler
were eligible for a variance to be classified as a boiler
under Section 260.32. Two proposals were reviewed and the
following issues were specifically addressed. An
evaluation of all the applicable criteria, however, was
conducted in each case prior to making the final
determination. At both facilities, the inability of either
unit to meet any of the criteria for classification as a
boiler supports the final determination that these units
are not eligible for a variance.
1) Integral Boiler Design of the Combustion and Energy
Recovery Sections.
In order for a controlled flame combustion unit to meet the
definition of a boiler given in Section 260.10, the
combustion chamber and the energy recovery section must be
of integral design. Two facilities have units which they
refer to.as "post-combustion chambers" located between the
combustion section and the energy recovery section. The
post-combustion chambers are insulated flow passages
between the main combustion chamber and the heat recovery
section. The owners of these units requested variances.
They contend that these passages are not ducts or other
connectors which, as stated in the regulations, are not
permissible as components between the combustion and energy
recovery sections in units which meet the integral design
requirement of a boiler.
The owners assert that additional thermal oxidation of
wastes occurs in the post-combustion chambers, providing
high hazardous waste destruction, and that combustion
therefore con*.lnu«s* until the 7*»«* reach the energy
rtcove**y ^action.
The oxidation of additional waste products, hovever, does
not mean that combustion occurs. Combustion, as defined
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OSW Directive No. 9523.00-17
-4-
in Webster's New Collegiate Dictionary, is a specific
process which is "accompanied by the evolution of light and
heat". In fact, information on the performance of these
units showed a net loss of heat over the length of the
chamber instead of a heat gain as would occur during
combustion. The conditions in the chamber that promote the
oxidation of trace organics is part of a good incinerator
design. The Assistance Branch found that these units do
not meet this criteria for a boiler.
2) Integral Boiler Design Based Upon the Operation of a
Control System Between the Combustion and Energy Recovery
Sections
40 CFR Section 260.10, which defines boilers, provides an
example of units that do not meet the integral design
requirement as units "in which the combustion chamber and
the primary energy recovery section(s) are joined only by
ducts or connections carrying flue gas..." An
owner/operator maintained that his unit was a boiler •
because the combustion section was "connected to the energy
recovery unit not only by a duct but by a control system as
veil. The Assistance Branch evaluated the owner's
contention that his unit was a boiler.
The control system in this unit does connect the steam
raising portion with the combustion chamber. The control
system, however, was designed for safety purposes to reduce
the risk of explosion and other unsafe conditions. Under
unsafe conditions this type of automatic control system
would shut the unit down.
True boilers have control systems designed to regulate
steam output. Boiler control systems would typically
provide at least a 3 to 1 turn down control on steam
production by varying the fuel, air and water. When
evaluating the appropriateness of any unit to meet the
definition of a boiler, the common and customary usage of
similar units is important. The lack of steam control by
this unit's control system is typical of incinerators. The
Assistance Branch noted that the lack of a true boiler-
control system supported the denial of the boiler petition.
3) Variance Petition under Section 260.32 for Classification
as a Boiler Based upon Innov*t:ve Design of the Unit
V-i
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OSW Directive No. 9523.00-17
-5-
the boiler classification variance was meant to allow for
new or unusual units which EPA did not have the opportunity
to consider when developing the boiler definition. During
the review of the petition, the Assistance Branch evaluated
the performance of the innovative component in order to
determine if it was significantly different from that of ~
the current technology.
The innovative component was the insulation around the
post-combustion chamber. The insulation was constructed of
8 inches of compressed refractory material installed by a
unique, soon to be patented process. The owner of the unit
and the designer of the process stated that the use of this
material was innovative.
The performance of the insulation was both theoretically
and practically evaluated. Actual performance was
considerably less than what was anticipated from the
theoretical calculations. Based on the theoretical heat
transfer calculations, the performance of the innovatively
applied insulation was not significantly better than that
for insulation designed and installed according to current
incinerator industry standards. While the installation
technique for the insulation may be "innovative", the
insulation process did not provide any improvement over
current practice. Thus, even though the insulation was
different from the type normally used, the difference was
deemed insignificant since it achieved results similar to
conventional insulation.
4) Thermal Efficiency Requirement for Boilers
Section 260.10 states that any "boiler" must "maintain a
thermal energy recovery efficiency of at least 60 percent".
As part of a: demonstration to support a waiver petition
for classification as a boiler, a unit was described as
operating with a 65% energy recovery. The Assistance
Branch evaluated this claim.
The unit in question is not able to measure the fuel flow
rate and the waste addition varies by 50 percent, without
appropriate documentation, the thermal efficiency data is
unsupported. The determination of boiler efficiency should
be conducted under controlled conditions following one of
the methods certified by th» .\z«»ricar. Society of Mechanical
Engineers.
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OSW Directive No. 9523.00-17
-6-
Ine;Ln«rators
1) Use of Thermal Relief Vents
Design drawings in a permit application for a new
incinerator included a thermal relief vent between the
combustion chamber and the air pollution control
equipment. The Assistance Branch was requested to
determine if the use of a vent to bypass the air pollution
control equipment should be allowed.
The thermal relief vent was proposed to protect the air
pollution control equipment from excessive heat during
emergency situations such as failure of power and water
cooling systems. OSVTER Policy Directive 19488.00-3
(Reference 1) discusses the acceptability of these vents in
new incinerators. Indiscriminate use of relief vents is
deemed to be a violation, however, EPA has recognized that
they may occasionally be needed to protect employees and
air pollution control equipment. Thermal relief vents,
therefore, are allowed in the design of new incinerators.
The permit, however, should require the design to include
the necessary backup systems to reduce the use of these
vents. The system should have interlocks such that the
vent can only open after the waste feed has been cut off.
The operating plan should include a list of parameters and
cut-off points at which the vent may be used. A review of
the permittee's operating plan should be made to identify
and eliminate the use of the thermal relief vent in
situations where it may not be absolutely necessary.
Miniquj Technology Requirements for Vertical and Lateral
Expansions
1) Application of Minimum Technology Requirements to Vertical
Expansions .
A facility planned to expand its landfill vertically.
During the. public comment period on their draft permit, the
applicability of minimum technological requirements to such
an expansion was raised. The Assistance Branch was
requested to evaluate the issue.
The facility opened the l-uat^Ii clench in question 1 I.7S
under ?? ?^C£ permit. Currently t:v« unit accepts RCRA waste
u.»uer interim status. The pro{ jsed vertical expansion
would not exceed the capacity of the unit stated in the
Part A application, and thera are no limits in the
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OSW Directive No. 9523.00-17
-7-
existing permits on the elevation of RCRA wastes placed in
the unit." The proposed expansion will extend 21 feet
vertically above the original grade limitation for TSCA
wastes; however, no waste will be placed beyond the
existing lateral boundaries.
The Assistance Branch found that the proposed vertical
expansion is permissible without meeting the minimum
technological requirements because: (1) The proposed
vertical expansion does not exceed the unit boundaries; and
(2) The landfill was in use and operational prior to the
date of the enactment of HSWA, therefore, the above-grade
expansion does not fit the definition of a new unit.
May 1985 guidance (Reference 4), however, states that a
vertical expansion beyond any hazardous waste permit
capacity or elevation limits affects the operational status
of the unit. If the operation of the unit was limited on
November 8, 1984, a subsequently proposed vertical
expansion would constitute a "new unit1* and is subject to
minimum technology requirements. This facility has no
vertical RCRA hazardous waste permit limits; therefore, the
minimum technology requirements do not apply to this
vertical expansion.
2) Lateral Expansion During Closure.
After a RCRA Facility Investigation (RFI), an
owner/operator planned to close several solid waste
management units by consolidating the waste from two waste
soil piles with the residue in a surface impoundment
regulated under interim status. The volume of the
resulting waste mixture is estimated to exceed the existing
capacity of the impoundment. The Region was concerned that
the proposed closure plan would not be permissible.
The consolidation of waste material is an acceptable
closure activity. If the proposed consolidation
necessitates the placement of any hazardous waste beyond
the boundary of the regulated unit or beyond any limits
imposed by a RCRA permit since November 8, 1984, the action
results in a lateral expansion which must meet the minimum
technological requirements. Moreover, if the consolidation
into the surface impoundment occurs after November 8, 1988,
the surface impoundment mus* me*t -•^•••'jawufl t- ihnoioqy
requirements. Final?", if *fmst,. trom any o:! the units
being placed u. wiie impoundment are sut-j«ct to the land
-iiaposai ban, then the waste may not be placed in the
impoundment unless it is treated in accordance with 40 CFR
268 Subpart D or the owner/opera tor has sucess fully
petitioned under 40 CFR 268.6.
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OSW Directive No. 9523.00-17
-8-
Waivar Petitions from Minimum Technological Requirements -
3004ro)f2)
A facility may petition for a waiver from minimum
technological requirements under Section 3004(o)(2) if
their alternate design and specific operating practices,
when viewed in combination with the characteristics of the
site location, will prevent the migration of hazardous
constituents into ground or surface water as effectively as
the required design. The Assistance Branch is often asked
to evaluate facility specific factors to see if they meet
the conditions of the waiver. During two recent
evaluations, the following issues were raised.
1) Minimum Technology Waiver Petition due to Alternate Design
and Operational Factors
An owner/operator of an existing surface impoundment
proposed to install a liner system consisting of a 36-ml
hypalon sheet over a leachate collection system constructed
o*er two existing 4-inch layers of bentonite separated by a
drainage layer. The owner contends that this design is at
least as effective as the minimum technology requirements
(NTR). The MTR specify a 36-inch clay layer because a
liner of such thickness would be constructed by the
placement of several clay lifts. Discontinuities in an
individual lift would be unlikely to occur in the same area
on subsequent lifts. The existing 4-inch layer is applied
in one lift and does not provide any safeguard over any
irregularities that might allow leakage.
While the new design alone was insufficient, the
owner/opera tor also planned to use operational factors
which he claimed would make the alternate design as
effective as the minimum technology requirements. The
impoundment has a limited life span with planned closure in
1989 which makes the unit a short-term operation. The
leachate system does not show any evidence of a leak, and
no ground-water contamination has been found. If a leak
were to occur, the owner plans to drain the impoundment.
While the liquids stored in the impoundment are listed
hazardous wastes, they do not exhibit any of the
characteristics for which the wastes were listed. The
Permit Assistance Staff recommended that the waiver be
granted contingent upon the short-te—•• c-^a*!-. of the
unit.
2) tfai"^? Pe^".tion Demonstrating Design and Operating
Practices which Prevent Migration
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OSW Directive No. 9523.00-17
-9-
A facility petitioned for an alternate design and operation
approach that prevents the migration of contaminated ground
water from under the unit. The Assistance Branch was asked
to determine if the proposed design met the intent of the
3004(o)(2) waiver provision.
The owner of the surface impoundment proposed to install
intragradient cut-off walls downgradient of th*ir surface
impoundment. The collected, contaminated ground water
would be removed from behind the walls and treated.
Migration of contaminated ground water beyond the waste
management area, therefore, would be prevented.
Section 3004(o)(2) allows a waiver only if the owner can
demonstrate that the proposed alternative will "prevent the
migration of any hazardous constituents into the ground
water". The term "ground water" is intended to mean any
ground water and not ground water beyond the waste
management area. In order to meet the equivalency test
required by this waiver, the alternate liner design must be
as effective as the minimum technology requirements for
liner design in preventing the migration of any constituent
through the liner. The Assistance Branch recommended
denial of this waiver request.
RD&D Permits
1) Qualifying for a RD&D Permit for an Incinerator
Research, development and demonstration permits, regulated
by Section 270.65, were intended to be available for
processes and units which treat hazardous wastes with
innovative technologies. Several Regions have received
applications for RD&D permits for technologies already
established for treating hazardous waste and which are
specifically regulated elsewhere under RCRA. The
Assistance Branch was asked to determine if incinerators,
in particular, could be eligible for a RD&D permit and
under what circumstances they would qualify.
The purpose of RD&D permits is to produce data on technical
or economic feasibility of experimental processes or
technologies; however, existing treatment methods may
qualify if the permit is intended to allow treatment of
waste streams not previously treated by this ty"« -r uiv
or if the operating conditions won1-4 be modified for
diifsxter.t or expanded 'ds»~ _ -»*• technology. Th*
Assistance Fr.'irtch., after discussion with the Office of
General Counsel, clarified that incinerators are eligible
for RD&D permits (Reference 8) if they further
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OSW Directive No. 9523.00-17
-10-
knowledge on treatability, design and/or combustion
research "through experimental (but not commercial) research
applications.
In one such instance, a research facility applied for an
RD&D permit for an incinerator and they proposed to conduct
a study on the products of incomplete combustion (PICs)
from incinerators. They also proposed to produce a
biological system study on the fate and transport of Pics
in the environment. The results of these proposed studies
would add to the body of information on the characteristics
and quantity of residuals emitted from incinerators. Based
upon the proposed study of the effects of PICs on
biological systems, the proposed incinerator was determined
to be eligible for a RD&D permit.
2) Operating Time for RD&D Permits
Section 270.65(a)(l) states that an RD&D permit can be
issued for up to 365 days of operation. A particular
facility wishes to continue operation under its RD&D permit
for longer than one calendar year. A Region asked the
Assistance Branch for appropriate wording on the permit.
While RD&D permits are limited to 365 days of actual
operation, many experimental units operate sporadically for
a few days and are then shut down for longer periods while
the results are evaluated. In some cases, 365 days of
operation may extend over numerous years. In order to keep
track of the unit's operation, guidance (Reference 3)
suggests that permit writers may include a calendar-based
expiration date in RD&D permits in cases when warranted.
RD&D permits may be renewed up to three times. The
appropriateness of the justifications for an extension
should b« considered with any future permit renewal
applications. The application will be evaluated based upon
the initial results of operation, the need for more data,
any changes in operating conditions and the occurrence of
any enforcement actions.
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OSW Directive No. 9523.00-17
-11-
RECOMMENDATIONS
Tank Systems
1) Applying Regulations Promulgated Under Two Authorities
The universe of hazardous waste tanJc systems currently affected
by the July 14, 1986 regulatory amendments varies from State to
State. The tank system regulations were promulgated under two
authorities. Those applicable to RCRA tank systems are now in
effect only in States that do not have authorized RCRA base
programs. States authorized for the base RCRA program must
amend their programs before the regulations become effective.
Those provisions applicable to HSWA regulated tank systems are
effective in all States. The Assistance Branch is often asked
to clarify which provisions apply universally and which apply
only in unauthorized states.
The following requirements apply in all States:
interim status requirements applicable to small quantity
generator tank systems (Section 3001 (d) )
leak detection for all new underground tanks that cannot be
entered for inspection (Section 3004 (o) (4))
permitting standards for underground tanks that cannot be
entered for inspection (Section 3004 (w) )
Regulations applicable to above-, on-, in-, and enter able
underground tanks currently apply only in unauthorized States.
Authorized States have until July, 1988 (if only regulatory
changes are needed) or July, 1989 (if statutory changes must be
made) to amend their programs to reflect the Federal
requirements. Further information is provided in the
Implementation Strategy for Tank Systems (Reference 12) .
Incinerators
1) Selection of Principle Organic Hazardous Constituents
(POHCs)
Ly th» University of
has !_,* *i ••'• new ircinerax.il i*v T-^J."? 2! Appendix VTII
compounds based upon thermal stability data (Reference 9) .
Until nov, incinerability ranking of Appendix VIZI compounds has
been based upon a compound's heat of combustion.
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OSW Directive No. 9523.00-17
-12-
Guidance is being developed to reflect the new ranking of
compounds. A Regional Office proposed to specify at least one
POHC based on each of these rankings as an interim approach.
The Assistance Branch agreed that this approach is acceptable,
and suggested additional criteria, such as chemical structure^
toxicity and concentration, which may also be used.
2) Use of Surrogate Wastes During a Trial Burn
Surrogate wastes are mixtures of chemicals combined to exhibit
the characteristics of the actual waste materials and to contain
the same hazardous chemicals expected to be burned by an
incinerator. Surrogate wastes are often proposed by facilities
for use during the trial burn. Simulating the burning
characteristics of any individual waste, however, is very
difficult. As a result of this difficulty, facilities should
use actual wastes during the trial burn if they are available.
In cases where the principle organic hazardous constituents
(POHC) concentrations in the actual waste are not high enough to
determine the destruction and removal efficiency (DRE), the
wastes may be spiked.
If the facility cannot modify its plan to burn actual wastes,
such as in the case of a commercial incinerator, the
owner/operator should provide justification for the use of
surrogates. If any facility must use surrogate wastes, the
surrogate waste should be as much like the actual waste as
possible. If an incinerator is planning to burn solid waste,
surrogate solids should be mixed with the POHC feed.
3) Destruction and Removal Efficiency (DRE) Calculations
A facility planned to include in their DRE calculations the POHC
input into the system from city water used to prepare a lime
slurry for removing acid gases by their scrubber. During a
review of the trial burn plan, the Assistance Branch evaluated
their methodology for the DRE determination.
According to Section 264.343(a)(1), the mass feed rate of POHC
input used for DRE calculations must equal the mass feed rate in
the waste stream only. In order to complete the determination,
all the POHCs in the exhaust gases must be included in the
calculations. Any additional POHCs volatilized from the slurry
used in the scrubber system must be included if they are
released with the emission gases.
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OSW Directive No. 9523.00-17
-13-
4) Sampling-During a Trial Burn
In their trial burn plan, a facility proposes to obtain on* grab
sample per test run for residue analysis. The proposed
frequency of sample collection is inadequate for the collection
of a representative sample from any test run. An acceptable
plan vould be to collect grab samples at frequent intervals over
the entire test period. These samples should be composited
before analysis.
5) Use of Sampling Trains in Modified Method 5 (MM5)
Several facilities planned to use a single MM5 train to sample
for both particulates and semi-volatile POHCs during a trial
burn. This approach is incorrect. The drying of the filter for
the particulate analysis results in the potential loss of
semi-volatile compounds. The correct procedure involves the use
of two separate trains, one for particulate sampling and one for
the sampling of semi-volatile organics.
Ground-water Monitoring
1) Confirming Ground-water Contamination
A draft permit condition for a detection monitoring program
required three sampling events to confirm ground-water
contamination. Under Part 264 Subpart F, only one confirmatory
sampling event is necessary to trigger a compliance monitoring
program.
The Subpart F requirement for triggering a compliance monitoring
program is based upon one sampling event and one confirmatory
sampling. A slug of contamination detected in the initial
sampling could pass the compliance point during the time it
takes to obtain results from additional confirmatory sampling
events.
2) Disposal of Purged Water.
The ground-water sampling and analysis plans at many facilities
have no procedures for handling purged water. Purged water from
monitoring wells should not be discarded onto the ground because
t-K~ purged water could contain hazardous waste. It should be
±ir*ed iu* i3az»*"i«»us GL*^acte*A»^<'"* in order to d»*-r^.*<
appropriate disj/wx~.l .-~L^-w>d, particularly 4f ntwi-** sampling
events indicated the presence of hazardous constituents.
Alternately, collected purge water can be disposed back into
surface impoundment* that are permitted to receive any
constituents expected in leachate or contaminated ground water.
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OSW Directive No. 9523.00-17
-14-
Ground-water Modeling
1) Extermination of Site-specific Permeability for Application
in a Model.
A facility proposed to use a model to support their no-
migration waiver petition. They obtained several soil samples
in order to determine a soil permeability factor. A mean value
was calculated for input into the model.
Modeling efforts to determine the potential for migration of
hazardous constituents to or in ground water should use the
worst-case value measured representative of a site in order to
incorporate a margin of safety. The applicant was asked to
re-run the model using the highest value of the coefficient of
permeability.
2) Selection of Critical Constituents for Use in a Transport
Model
A waiver applicant planned to demonstrate no migration into
ground water by selecting critical constituents for use in their
modeling effort. Inputs included half-life and.retardation
factors. The applicant selected acrolein and acrylonitrile
based upon their relatively long half-lives in ground water.
However, the high retardation factors which indicate slow
movement, make the selection of these two chemicals
unrepresentative of the worst case. The most appropriate
constituent (s) for modeling must be based on an evaluation of
all relevant factors. Concentration of the constituents in the
waste and their retardation factors should be evaluated along
with half-life when selecting constituents with the greatest
potential to migrate. The Assistance Branch recommended that
other constituents be chosen in this case.
3) Use of Appropriate Models based upon Site Characteristics
A waiver applicant proposed to use a one-dimensional model to
demonstrate no migration of hazardous constituents into ground
water. The hydrogeological and soil characteristics of the site
displayed several non-uniformities and could be described as a
fairly complex system.
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OSW Directive NO. 9523.00-17
-15-
A one-dimensional model, as proposed by the applicant, can be
very Halting. The attributes of the aodel must reflect the
conditions observed at the site. Also, data representative of
the whole site should be collected for input into the chosen
aodel. Given the complexities of the site, a acre sophisticated
model, such as a 2- or 3-D model, would be necessary to support
a demonstration of a 'no migration'.
Landfill Design
1) Composite Bottom Liner Equivalency
A facility proposed to install a 60-ml high density polyethylene
(HDPE) liner over a compacted clay layer with a permeability not
exceeding 1 x 10~6 cm/sec as the lower liner for a new cell.
The Assistance Branch was asked to determine if the proposed
liner was equivalent to the current requirement under Section
264.301(c) for a 3 foot compacted clay-only liner with a
permeability not greater than 1 x 10"~ centimeters per second.
The staff felt that a composite liner with a clay component of l
x 10~6 cm/sec permeability was equivalent to a clay liner with
lower permeability. Regulations proposed on March 28, 1986
(Reference 6), when they become effective, will be more
restrictive. They will require a composite bottom liner
consisting of a flexible membrane liner over a 3 foot clay layer
with a permeability not more 1 x 10" . Until then, the clay-
only liner requirement is the standard applied to evaluate liner
equivalency.
2) Evaluation of a Steep Slope Using the Universal Soil Loss
Equation
A facility proposed to install a cover with a slope that
significantly exceeds the recommended 3-5% grade. The owner
maintains; tbat the annual soil loss, based upon the Universal
Soil Loss Iquation, would be just less than the 2 tons/acre/year
limit recosottnded by EPA. The Assistance Branch was asked to
review the facility's calculations.
The five factors used in the soil loss equation are subjective
and selected based upon the site engineer's best judgement. If
slightly larger factors were applied than the ones selected by
th* ^vil'canu, tn*. «oil loss would be substantially greater (as
jaucn a« 33 tons/acr«/y«»r). Is. ~>c&**. *>r th* *«.»!*tance Bra«~w
to *cc^pt the applicant's predicted »oil los&, th« »rtii -r^t-J
loss should be significantly less than 2 tons/acre/year so that
any underestimation of the selected factors would not result in
an actual lose of more than the* soil loss limit. The Assistance
Branch requested additional documentation from the applicant.
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OSW Directive No. 9523.00-17
-16-
3) Demonstration of Material Durability
An applicant conducted a demonstration of material durability by
using polyethylene tanks to perfora the compatibility testing on
their HDPE liner components. The polyethylene tanJc material "
absorbs the same kinds of chemicals as the HDPE samples, thereby
reducing the constituent level in the test leachate. This could
lead to an unrealistic strength data after immersion testing.
The Assistance Branch recommends that glass vessels be used for
immersion testing.
4) Minimum Technological Requirements for Secondary Soil Liner
A facility planned to construct a side slope liner by scarifying
and remolding the exposed soils prior to placement of the
synthetic membrane. Section 264.301(c) requires that this liner
be constructed "with at least a 3 foot thick layer of
recompacted clay or other natural material with a permeability
of no more than 1 x 10"7 cm/sec." Scarifying and remolding
alone do not meet the requirements for recompaction.
Permit Conditions
1) Specification of an Adequate Number of Emergency
Coordinators
Assistance Branch review of a Part B application addressed the
contingency plan for the facility. This facility had only one
emergency coordinator designated in their plan.
The regulations in Section 264.55 require that an emergency
coordinator be available at all times. At the minimum, one
additional employee must be designated and trained as emergency
coordinator to provide around-the-clock and vacation coverage.
At this particular facility, the Assistance Branch recommended
that two more emergency coordinators be designated in order to
provide adequate coverage.
2) Requirement for Additional Testing as a Permit Condition
In a draft permit, a State required that all stabilized wastes
that have passed the paint filter test also be subjected to an
unconfined compressive strength test at 50 psi. While a Region
can specj fy perr.it. wdnditions for additional testing, the
w'-rsft: JVis-jrai policy and the ^-^r^ed *r-r* on cuuca^erizeH
liquids a^ less stringent than tarn orarx Ctate p*rsit
condiwic . The State is allowed, however, to be more stringent
than th« EPA. Note that under the Federal policy, the
conprecsive strength test is necessary only if the Region is
unsure that true chemical stabilization has occurred.
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OSW Directive No. 9523.00-17
-17-
AVAILABILITY OF NEW GUIDANCE
TanJc Systems
EPA guidance document, "Compilation of Persons Who Design,
Test, Inspect, and Install Storage TanJc Systems'1
(EPA/530-SW-88-019) is now available. The document
provides a list of individuals and firms who provide the
services of an independent, qualified, registered
professional engineer, corrosion expert, or qualified
installation inspector as required in the July 14, 1986
regulations for hazardous waste tank systems.
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OSW Directive No. 9523.00-17
-18-
Attachment A
Assistance Branch Staff Reviews Included in this Summary
Facility Name Region
BucJcner Barrel
Ciba-Geigy
(Glen Falls, N.Y.)
Ciba-Geigy
(Queensbury, N.Y.)
Fort Barton Industries
General Dynamics
General Electric
(Water ford, N.Y.)
Eli Lilly and Company
Envirosafe Services
(Grand View, Idaho)
Memtek Corporation
Monsanto
(Chocolate Bayou, TX)
Moore Business Forms and
National Institute of
Health (1QH)
SCA Chemical Services
SOHIO
Union Carbide Aar'evUw •-*•
U.S. Ecology
USPCI
II
II
II
I
I
II
V
X
I
VI
VI
III
II
VI
IX
VIII
Chester Oszman
Chris Rhyne
Chris Rhyne
Sonya StelmacJc
Sonya StelmacJc
Chris Rhyne
Chester Oszman
Amy Mills
Nestor Aviles
Dave Eberly
Nestor Aviles
Nestor Aviles
Chris Rhyne
Chris Rhyne
Chris Rhyne
Chris Rhyn*
Dave Eberly
May 1987
June 1987
March 1988
February
1987
June
1987
February
1988
June
1987
February
1987
January
1987
April
1987
May
1987
February
1988
December
1987
October
1987
July
February
1988
January
1988
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OSW Directive Mo. 9523.00-17
-19-
Attachment B
List of Guidances Used in Preparing the Assistance Branch
Reviews
1. "Acceptability of Thermal Relief Vents on Hazardous Waste
Incinerators", OSWER Policy Directive 19488.00-3.
2. Compilation of Persons Who Design, Test, Inspect, and
Install Storage Tank Systems, February 29, 1988,
EPA/530-SW-88-019.
3. Guidance Manual for Research, Development, and Demonstration
Permits under 40 CFR Section 270.65, July 1986, EPA/530
SW-86-008, OSWER Policy Directive 19527. 00-1A.
4. Guidance on the Implementation of the Minimum Technological
Requirements of HSWA of 1984, Respecting Liners and Leachate
Collection Systems; EPA/53 O-SW-85-012.
5. "Hazardous Waste; Codification Rule for the 1984 RCRA
Amendments" 52 FR 45788, July 15, 1985.
6. "Hazardous Waste Management System; Proposed Codification of
Statutory Provisions", 50 FR 10706.
7. "Hazardous Waste Management System; Preamble to the Final
Codification Rule", 50 FR 28706.
8. "Incinerator Eligibility for RD4D Permits" Memorandum from
Susan Bromm, Acting Director, Permits -4 States Programs
Division, March 8, 1988.
9. "Predicting Emissions from the Thermal Processing of
Hazardous Wastes", Hazardous Wastes and Hazardous Materials,
June 30, 1986.
10. Questions and Answers Regarding the July 14, 1986 Hazardous
Waste Tank System Regulatory Amendments, August 1987,
EPA/53 O-SW-87-012 .
11. "Summary of Permit Assistance Team Comments", 1988, OSWER
Policy Directive 19523.00-15.
12. "Implementation Strat-^tTj j.v.- th« Haza^^vf! Waste Tank
System Regui* >•:..•»». EFA/530-SW-87-C1? ~
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OSWER Directive No. 9523.00-18
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAR I 4 1989 °"iC£ GF
I rt •**^~ SOLID vVAS'e iNO :Me«GENCv 3 =
MEMORANDUM
SUBJECT: Summary of Assistance Branch Permitting Comments
FROM: Sylvia K. Lowrance, Director \A "V
Office of Solid Waste (OS-Bawr*^ "^
TO: Regional Waste Management Division Directors
Regions l-X
Attached is the fifth in a series of periodic reports
which summarize major issues that Assistance Branch staff
have addressed in their reviews of specific Part B applications,
permits, closure plans and in their responses to site-specific
situations . These reports cover issues that are of generic
national interest rather than strictly site-specific interest.
The attached report includes reviews conducted by the Disposal
and Remediation Section and the Alternative Technology and Support
Section during April and May, 1988. To ensure that the report
reflects current EPA policy and guidance, we obtained review
comments and concurrences from within OSW, from the Office of
Waste Programs Enforcement, and from the Office of General
Counsel .
We hope that the recommendations provided in this document
will be helpful for permit writers encountering similar situations
at other RCRA facilities. By sharing the Assistance Branch's
suggestions from a few sites, we hope that permit decision-making
will be somewhat easier and faster at many more sites nationally.
We encourage you to distribute this report to your staff and State
permit writers. To make the distribution easier, I have attached
multiple copies of the report.
(These reports were formerly entitled "PAT Summary Reports":
previous reports were issued on March 14, 1986 (OSWER Policy
Directive No. 9523.00-14), M»~eh 30 1?«7 (OSWER Policy
Directive No. 2523.81--12) , M:...i 3C, 1<»88 Jre("''ve wo. 95^3.00-15), at,-* September 2, 1333 (^Z'-***
Directive No. 9523.00-17)
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OSWER Directive No. 9523.00-18
-2-
Attachment A to the report lists the facility names,
Regions, revTew coordinators, and dates for the reviews
summarized in this report. Attachment B provides a list of
guidance documents and directives used in preparing the reviews.
If you have any questions, comments, or suggestions on the
Summary of Assistance Branch Permitting Comments, please contact
Jim Michael, Chief, Disposal and Remediation Section, OSW at FTS
382-2231.
Attachments
cc: RCRA Branch Chiefs
Regions I-X
Permit Section Chiefs
Regions I-X
Jon Cannon
Jeff Denit
Jim O'Leary
Joe Carra
Matt Hale
Ken Schuster
Suzanne Rudzinski
Elizabeth Cotsworth
Alex Wolfe
Jin Michael
DRS Staff
ATSS Staff
Art Day
Les Otte
Ken Skahn
Susan Brotnn
Steve Heare
Scott Parrish
Lisa Friedman
Tina Kaneen
Fred Chanania
Bob Dellinger
Tom Kennedy (ASTSWMO)
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OSWER Directive No. 9523.30-18
Summary of Assistance Branch Permitting Comments
Table of Contents
Toeuc
Issue Resolution
Popping Furnaces
Subpart X - Miscellaneous Units
Closure
RCRA Corrective Action
Recommendat ions
Popping Furnaces
Liner Requirements
Hazardous Waste Stabilization
Permit Issuance
Staff Reviews Included in This Summary
List of Guidances Used in This Summary
gage
1
1
2
5
7
10
10
11
13
13
Attachment A
Attachment B
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OSWER Directive No. 9523.00-18
SDMMARY OP ASSISTANCE BRANCH PERMITTING COMMENTS
April 1988 - May 1988
This report is the fifth in a series of documents
summarizing some of the comments provided to Regional per-nit
writers by OSW s Assistance Branch. The report is organized
into two sections. The first section, Issue Resolution,
provides examples of issues that have been raised at one or more
facilities. This section covers special situations where
regulations or policy decisions were applied in actual
circumstances. The second section, Recommendations, addresses
comments routinely made to answer questions on items often
overlooked or poorly understood, and to convey technical
information. This section should be generally helpful to the
permit writer. A contact person has been listed for each item
to answer additional questions.
ISSUE RESOLUTION
Popping Furnaces
1) Automatic Waste Feed Shut-off
The Army is in the process of applying for permits for
their munitions deactivation (popping) furnaces that
are located at about a dozen Army facilities around the
nation. These "popping furnaces" are hazardous
incinerators where the waste material is obsolete
munitions that must be exploded in the incineration
chamber during the incineration process. The explosive
nature of the waste poses specific problems unique to
these units in meeting Subpart 0 requirements.
Section 264.345(e) requires that "an incinerator must
be operated with a functioning system to automatically
cut off waste feed to the incinerator when operating
conditions deviate from limits . . .". Explosive
wastes in the "hot zone" near the furnace cannot be
safely stopped before the incinerator chamber due to
risk of explosion outside the unit. A design was
proposed at an Army facility that meets the requirement
foe an automatic waste feed cut-off without
compromising safety. The proposed design consists of
two conveyors. The first conveyor feeds waste
munitions onto a second conveyor which, in turn, feeds
the munitions in the "hot zone" into the feed chute.
The automatic control would stop the first system in
the event of deviations from permit operating
conditions, while the waste in the "hot zone" would
continue safely into the unit.
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OSWER Directive No. 9523.00-18
-2-
The Assistance Branch reviewed the proposed waste feed
system and concurs that this system meets the
regulatory requirements under Section 264.345(e) for an
automatic waste feed cut-off.
Contact.- Sonya Stelmack 202 or FTS-382-4500
2) Fugitive Emissions
Fugitive emissions are characteristic of popping
furnaces during the explosion of the munitions waste in
the incinerator chamber. Section 264.345(d) requires
that fugitive emissions from the combustion zone be
controlled by keeping the combustion zone totally
sealed; or by maintaining a combustion zone pressure
lower than atmospheric pressure; or by an alternate
method which can be demonstrated to provide fugitive
emissions control equivalent to the maintenance of
combustion zone pressure lower than atmospheric.
An Army facility proposed to maintain lower than
atmospheric pressure in their combustion zone; however,
they could not do so continuously. They requested that
the permit be worded so that a specific number of
positive pressure excursions would be allowed. The
Assistance Branch concluded that allowing positive
pressure excursions would not meet the regulatory
requirement for fugitive emission control. The
Assistance Branch informed the Army that their other
proposed option of providing a totally enclosed system
where the collected fugitive emissions would then be
returned to the incinerator with the air intake would
be acceptable. A more recent Army proposal to enclose
the furnace retort in a negative-pressure shroud rather
than totally enclosing the system will also be
considered, provided the Army submits adequate
supporting data.
Contact: Sonya Stelmack 202 or FTS-382-4500
Subpart X - Miscellaneous Units
1) Units Regulated under Subpart X
A facility has ten units that the owner/operator
maintains are miscellaneous units which should be
regulated under Subpart X. The owner/operator
describes these units as pits. Wastewater containing
reactive waste enters the unlined pits. The liquid is
first allowed to evaporate or percolate out of the
units. The owner/operator then ignites the remaining
residue after the liquid is removed.
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OSWER Directive No. 9523.00-18
-3-
The Region contends that these units are surface
impoundments and should be regulated under Subpart K.
The Assistance Branch was asked to evaluate the nature
of these units and identify the applicable regulations.
Surface impoundments nay be used to store, dispose or
treat hazardous waste. The process occurring in these
units is the treatment of wastewater (which does not
have the potential to detonate) by dewatering with the
subsequent open burning of the residue. Additionally,
Section 260.10 specifically includes pits as an example
of surface impoundments. Therefore, all requirements
applicable to surface impoundments, including land
disposal restrictions, November 8, 1988 retrofit
deadlines, and minimum technology requirements, apply
to these units. Subpart X is intended to cover units
not regulated elsewhere and will not replace or
supercede any restrictions or requirements contained in
another Subpart. Units that are containers, tanks,
surface impoundments, waste piles, land treatment
units, landfills, incinerators, boilers, industrial
furnaces and injection wells are specifically excluded
from Subpart X.
If the Regional Administrator feels that the Subpart K
standards do not provide adequate protection during the
burning phase of the treatment process, additional
permit conditions may be based upon the HSWA omnibus
provisions in Section 3005(c) in order to protect soil
and air.
Contact: Chet Oszman 202 or FTS-382-4499
2) Open Burning/Open Detonation (OB/OD) Unit Requirements
Non-military waste explosives can be open burned/open
detonated if the waste has the potential to detonate as
stated in Section 265.382. If the waste explosives,
including wastes consisting of part solvent, do not
have the potential to detonate, the waste cannot be
destroyed in OB/OD units. Solvents contaminated with
explosives to the extent that they have the potential
to detonate may be open burned provided that the unit
qualifies under either 264, Subpart X or 265,
Subpart Q. The open burning and detonation of waste
explosives is considered to be a treatment process
rather than waste disposal, and therefore the land
disposal deadlines and restrictions do not apply.
Treatment residues, however, may be subject to such
restrictions.
Contact: Chet Oszman 202 or FTS-382-4499
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OSWER Directive No. 9523.00-18
-5-
Even when commercial fuels are used, there is the
potential for ignitables or hazardous constituents to
be r_eleased to the surrounding soil and surface water.
The individuals responsible for conducting the exercise
should be advised to prevent any such releases. In
situations were releases do occur and these releases
may pose a threat to human health or to the
environment, a variety of Federal and/or State
enforcement/cleanup authorities may be called upon.
Contact: Chet Oszman 202 or FTS-3a2-4499
Closure
1) Use of Soil Background Levels for Clean Closure
Several Regions requested clarification on setting soil
cleanup levels at facilities that plan to achieve clean
closure. As stated in the preamble to the March 19,
1987 final regulations, verified reference doses (RfDs)
and Carcinogenic Potency Factors (now correctly called
Carcinogenic Slope Factors, or CSF) can be used to
determine cleanup levels for contaminants when they are
available. In cases where no Agency-recommended levels
exist, the soil cleanup level may be based on either
background levels or data developed by the
owner/operator to support a health-based limit.
Background levels can be determined in two ways. Soil
samples can be taken from uncontaminated areas of the
facility and at representative depths. The background
samples must be taken in areas that are not
contaminated from spills or by the operation of the
waste management unit or in some cases, by the
operation of any manufacturing processes that may be
present. The second approach uses published literature
as the source of naturally-occurring levels in similar
soils to establish background levels.
At one facility the chemicals of concern were lead and
cadmium. At that tine, the Office of Research and
Development (ORO) was evaluating data on the toxicity
of both of these substances. While the toxicological
information for lead and cadmium was undergoing current
review, the RfD for cadmium (0.0005 lag/kg/day) was
likely to be approved and could be used to set a soil
cleanup level. After applying the appropriate exposure
assumptions, the RfD translated into a cleanup level of
9 rag/kg of cadmium. The cadmium level proposed by the
owner/operator for the closure of their land disposal
unit was acceptable as it was based on the proposed
RfD. (The RfD of 0.0005 mg/kg/day was approved on May
25, 1988.)
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OSWER Directive No. 9523.00-18
-4-
3) Permit Requirements for Waste Explosives
The_Assistance Branch was asked to clarify the
circumstances under v/hich the disposal of explosives
would require a per.-nit and to define the point at which
unused explosives become a waste.
A Subpart X permit or interim status is necessary for the
non-emergency open burning/open detonation of waste
explosives. The immediate response provisions of
Sections 264.1(g)(8), 265.1(c) (11) , and 270.1(c)(3) allow
an exception to the permit requirement to be made in
situations where the threat of explosion (i.e., the
discharge or threat of discharge of a hazardous waste)
presents an emergency situation. If immediate action is
not required, but the threat to human health and the
environment persists, the Director may issue an emergency
permit under Section 270.61(a), bring an imminent hazard
action under RCRA Section 7003, or perform a removal
action pursuant to CERCLA Section 104.
When explosives are fulfilling their normal use pattern
and there is no intent to discard them, they are not
hazardous waste nor are they subject to Subpart X.
However, damaged or leaking explosives or other
undetonated explosives that, for safety reasons, cannot
be used (such as expired shelf life) are waste, and can
be hazardous waste.
Contact: Chet Oszman 202 or FTS-382-4499
4) Applicability of Subpart X Permits to Fire Training Exercises
Fire fighters routinely train by extinguishing blazes set
as part of a training exercise. Often various types of
fuel are used to ignite the training structure. The
Assistance Branch was asked to determine if these
exercises and training areas require Subpart X permits.
The burning of commercial fuel in fire training exercises
is within the normal use of that fuel product. However,
verification must first be made to establish that the
material to be burned is actually commercial fuel. Once
the material is verified as commercial fuel, burning in
fire fighter training exercises does not constitute a
RCRA regulated activity. If the material to be burned is
not a commercial fuel but any other ignitable hazardous
waste such as used oil or spent solvents, this type of
open burning is prohibited.
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OSWER Directive No. 9523.00-18
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Even when commercial fuels are used, there is the
potential for ignitables or hazardous constituents to
be -released to the surrounding soil and surface water.
The individuals responsible for conducting the exercise
should be advised to prevent any such releases. In
situations were releases do occur and these releases
may pose a threat to human'health or to the
environment, a variety of Federal and/or State
enforcement/cleanup authorities may be called upon.
Contact: Chet Oszraan 202 or FTS-382-4499
Closure
1) Use of Soil Background Levels for Clean Closure
Several Regions requested clarification on setting soil
cleanup levels at facilities that plan to achieve clean
closure. As stated in the preamble to the March 19,
1987 final regulations, verified reference doses (RfDs)
and Carcinogenic Potency Factors (now correctly-called
Carcinogenic Slope Factors, or CSF) can be used to
determine cleanup levels for contaminants when they are
available. In cases where no Agency-recommended levels
exist, the so-il cleanup level may be based on either
background levels or data developed by the
owYier/operator to support a health-based limit.
Background levels can be determined in two ways. Soil
samples can be taken from uncontaminated areas of the
facility and at representative depths. The background
samples must be taken in areas that are not
contaminated from spills or by the operation of the
waste management unit or in some cases, by the
operation of any manufacturing processes that may be
present. The second approach uses published literature
as the source of naturally-occurring levels in similar
soils to establish background levels.
At one facility the chemicals of concern were lead and
cadmium. At that tine, the Office of Research and
Development (ORO) was evaluating data on the toxicity
of both of these substances. While the toxicological
information for lead and cadmium was undergoing current
review, the RfD for cadmium (0.0005 tng/kg/day) was
likely to be approved and could be used to set a soil
cleanup level. After applying the appropriate exposure
assumptions, the RfD translated into a cleanup level of
9 mg/kg of cadmium. The cadmium level proposed by the
owner/operator for the closure of their land disposal
unit was acceptable as it was based on the proposed
RfD. (The RfD of 0.0005 mg/kg/day was approved on May
25, 1988.)
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OSWER Directive No. 9523.00-18
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The RfD for lead is undergoing revision as a result of
new information on the neuro-behaviora1 effects of
lead_. The RfD workgroup is not expected to reach a
decision on the new level in the near future. Lead is
also undergoing evaluation to determine if it acts as a
potential carcinogen via oral exposure. The
determination of a CSF is expected to take a while;
therefore, soil cleanup levels for lead should be based
on background levels.
Contact: Chris Rhyne 202 or FTS-382-4695
2) Redesignating Unit Type during Interim Status
An owner/operator wishes to redesignate a unit that has
been operating as an interim status surface impoundmen-t
as a landfill. The owners propose to stabilize the
waste, retain the stabilized waste, redesignate the
unit as a landfill and continue operations. The bottom
liner system of the unit does not meet the minimum
technology requirements. As a surface impoundment, the
owners must either retrofit or stop receiving wastes by
November 8, 1988. If the unit stops receiving waste,
it must close in order to comply with Section 3005(j)
requirements.
Under Section 270.72(c), changes in process can be made
during interim status only under the following two
ci rcumstances:
(1) It is necessary to prevent a threat to human health
or the environment because of an emergency situation,
or;
(2) It is necessary to comply with Federal regulations
or State or local laws.
The Region concluded that neither criterion could be
satisfied for this facility.
In this particular situation, however, the authorized
State regulations which are analogous to Section
270.72(c) also allow for a change if "proposed changes
are demonstrated to result in safer or environmentally
more acceptable processes." In order to comply with
the State condition, the owner would have to
demonstrate that a landfill operating with less than a
minimum technology liner is safer or environmentally
more acceptable than a closed or retrofitted surface
impoundment. The Assistance Branch did not believe
that such a demonstration is possible and that the
facility could not, therefore, meet the State
requirement. The State, however, ultimately would be
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OSWER Directive No. 9523.30-13
-7-
responsible for determining if the demonstration
satisfies the condition for a more acceptable process.
Note that if the unit conversion were allowed to take
place, the unit would be an existing landfill unit, and
not a new unit subject to MTRs.
Contact: Dave Eberly 202 or FTS-382-4691
RCRA Corrective Action
In order to set cleanup standards at a facility
undertaking corrective action to remediate releases from
their solid waste management units, a Region asked the
Assistance Branch to clarify the Agency policy on
determining cleanup levels, compliance points, timing of
corrective action and the use of institutional controls.
1) Cleanup Standards
Promulgated standards should be used as cleanup standards
when they are available. Maximum contaminant levels
(MCLs), established under the Safe Drinking Water Act
(SDWA), are available for some contaminants and should be
used for a cleanup standard for ground water that is or
potentially can be a source of drinking water. When
promulgated standards are not available, Agency
health-effects data should be used to derive the cleanup
level.
EPA's Integrated Risk Information System (IRIS) provides
current Agency health assessments and regulatory
decisions on many chemicals. When setting cleanup levels
for carcinogens based upon the Carcinogen Slope Factor
(CSF), the risk range should fall between 1 X 10" and
1 X 10 .
Standard exposure assumptions for drinking water should
be used for setting cleanup levels based upon verified
reference doses (RfDs) and CSFs in ground water used, or
potentially used, for drinking. Cleanup levels in soil
should be based upon exposure assumptions corresponding
to the potential land use. For example, if children can
play in the area after cleanup and the soil contamination
is surficial, the potential for children to ingest soil
must be considered. Guidance on specific exposure
assumptions and exposure scenarios is currently being
developed.
Contact: Reid Rosnick 202 or FTS-382-4755
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OSWER Directive No. 9523.00-18
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2) Compliance Points for Soil and Ground Water Cleanup
The objective of corrective action to ground water is
to restore beneficial use if possible. In cases where
ground water is or has the potential to be used for
drinking, cleanup should be throughout the plume.
However, there are circumstances, such as when the
waste is left in place or the unit is still operating,
that preclude cleanup throughout the whole plume. In
such situations, the compliance point is at the edge of
the waste management unit.
The compliance point for soils is any area that may be
available for direct contact with the soils. In cases
where subsurface soils are contaminated to the extent
that ground water contamination is or has the potential
to occur, soil cleanup levels should be set to protect
the ground water.
Contact: Reid Rosnick 202 or FTS-382-4755
3) Timing of Cleanup Activities and Monitoring of the Site
At this time, the proposed corrective action
regulations will not establish a time frame for
attaining cleanup levels. A number of factors should
be evaluated prior to setting a schedule for a
particular facility. These factors are: (1) the extent
and nature of contamination; (2) the practical
capability of the remedial technology to meet the
objectives; (3) the availability of treatment or
disposal capacity for wastes; (4) the use of emerging
technologies; and, (5) potential risk to human health
and the environment from exposure prior to the
attainment of cleanup levels. In general, expeditious
cleanup, particularly of off-site contamination, is the
goal.
With respect to ground water corrective action under
Subpart F (Section 264.100), the owner/operator is
required to monitor ground water during the compliance
period (resume compliance monitoring) after cleanup
activities have ended to demonstrate that the
ground-water protection standard is being achieved. If
corrective action is ongoing at the end of the
compliance period, corrective action cannot be
terminated until the ground water protection standard
is not being exceeded for three consecutive years.
While this time frame has been applied to corrective
action from SWMUs, it is often difficult to demonstrate
reliably that the standard has been achieved for three
years in all hydrogeological settings.
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OSWER Directive No. 9523.00-18
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The Agency is proposing Section 3004(u) corrective
action regulations that determine the timing for
demonstrating compliance based on a case-by-case
basrs. When selecting the length of time appropriate
to determine compliance, the Region should consider the
following: (1) the extent and concentration of the
release; (2) the behavior of the hazardous constituents
in the affected medium; (3) the accuracy of monitoring
techniques; (4) the characteristics of the contaminated
media; and, (5) any environmental, seasonal or other
pertinent factors.
Contact: Reid Rosnick 202 or FTS-382-4755
4) Use of Institutional Controls in the RCRA Program
Institutional controls may be used to limit exposure
during cleanup; however, they should not be viewed as a
substitute for cleanup. In some cases, the presence of
institutional controls may allow final cleanup to be
deferred if the owner/operator can assure that there is
no potential for exposure. Institutional controls may
also be used in situations where technical limitations
prevent compliance with cleanup standards.
Institutional controls may be engineered features that
prevent exposure such as fences or barriers. They may
also be non-engineered controls that prohibit access to
ground water or limit use, such as deed restrictions.
Contact: Reid Rosnick 202 or FTS-382-4755
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OSWER Director No. 9523.00-18
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RECOMMENDATIONS
Popping Furnaces
1) Conducting Trial Burns Prior to the HSWA Deadline for
Permitting Interim Status Incinerators
Because it usually takes one year to issue a permit
after a trial burn, interim status facilities should
schedule the trial burn prior to November 1988 in
order to meet the November 8, 1989 deadline for
permitting interim status hazardous waste
incinerators. The Army has proposed that the data
collected from the trial burns conducted at one
facility be applied to other popping furnaces. The
only circumstances where an owner/operator can use
data from one incinerator in lieu of conducting a
trial burn at another is when the two units are
similar in all significant respects including unit
type, combustion chamber size, dimensions of major
components and operating conditions. In addition, the
wastes burned in the other units must be adequately
represented by the wastes burned during the trial
burn. This means that the types and concentrations of
organic hazardous constituents and metals must be
similar. The incinerability, form, and ash content of
the waste must also be comparable.
The Assistance Branch feels that the use of data from
a trial burn at one facility in lieu of trial burns at
the other facilities will not be acceptable for all
Army popping furnaces because the units were built by
different manufacturers, are of different ages, have
worn differently over the years, and have had
different modifications made to them.
An alternate proposal by the Army is to conduct "base"
trial burns at each facility using the wastes that the
facility will most often burn after permitted. A
"large scale" trial burn would also be conducted with
a broad range of wastes at one facility to represent
the worst-case waste to be burned in any of the units.
The Assistance Branch and the Incinerator Permit
Writer's Workgroup agreed that this type of approach
could be acceptable for setting a more flexible range
of permit conditions for the popping furnaces provided
that the "large scale" trial burn is conducted at 3 or
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OSWER Directive No. 9523.00-18
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4 facilities. Furthermore, the results from each
facility that conducted a "large scale" trial burn must
be consistent to allow the ~ata to be used in lieu of
large scale trial burns at ill popping furnaces. If the
results are not consistent, permit conditions must be
based on the individual facility trial burns.
Contact: Sonya Stelmack 202 or FTS-382-4500
2) Evaluation of Part B Applications for Popping Furnaces
The adequate evaluation of a trial burn plan for a
"popping furnace" involves additional criteria beyond
that required for the evaluation of most incinerators
since the explosive nature of the waste will affect the
combustion process and ash carryover. For example, in
typical hazardous waste incinerators, the ash content of
the waste is the major variable along with the
efficiency of the air pollution control equipment that
affects the release of particulate matter from the
stack. In the case of popping furnaces, the explosive
content of the waste must also be evaluated because of
the potential effect on particulate formation and
entrainment. For popping furnaces it is possible that
there are several "worst-cases" that must be evaluated
during a trial burn. The waste burned in the trial burn
should be selected for the "worst-case" with respect to
incinerability of Appendix VIII compounds, particulate
and metals emissions.
The Assistance Branch has also been encouraging that
metal limits be set to adequately protect human health
and the environment under the authority of the omnibus
provision (Section 3005 (c)(3)).
Contact: Sonya Stelmack 202 or FTS-382-4500
Liner Requirements
1) Use of In-place Hydraulic Conductivity Testing during Liner
Installation
The requirement to perform in-place hydraulic
conductivity testing on the soil liner of a test fill
was a condition of the final permit for one facility
The owner/operator of the unit objected to the
requirement and requested clarification of current EPA
policy on the use of in-place versus laboratory
hydraulic conductivity testing.
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OSWER Directive No. 9523.00-18
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The current EPA policy was adopted in May 1985 in the
"Draft Minimum Technology Guidance on Double Liner
Systems for Landfills and Surface Impoundments --
Des-ign, Construction, and Operation" (see Reference 3,
Attachment B). The Agency maintains that in-place
hydraulic conductivity testing is "the most accurate
means of consistently determining the actual hydraulic
conductivity of a constructed soil liner." The guidance
recommends that the in-place hydraulic conductivity test
be performed on a test fill using the same equipment and
techniques that will be used during the construction of
the actual liner.
EPA policy was reinforced by OSWER Policy
Directive 19472.003 (See Reference 5, Attachment 3),
which was issued in October 1986. This document
presents further support to the Agency's position that
in-place testing is superior to laboratory testing.
This does not mean that laboratory testing is not a
significant component of a construction quality control
program. Research, however, has shown that laboratory
permeability tests often produce results that are one to
three orders of magnitude lower than the actual
hydraulic conductivity present in the field. A
satisfactory in-place hydraulic conductivity test does
not have to determine the specific hydraulic
conductivity but must document that it is less than 1 X
10" cm/sec.
An unofficial survey found that the majority of Regions
consistently implement the policy requiring in-place
hydraulic conductivity testing.
Contact: Chris Rhyne 202 or FTS-382-4695
2) Freeze-Thaw Concerns with Clay Layer in Final Cover
A facility located in a northern state proposed to
install the clay liner portion of the final cover on
their landfill only 24 inches below the surface. In
this section of the country, frost penetration was 36
inches.
The Assistance Branch was asked to evaluate the proposed
design. Based on EPA guidance (See Reference 3,
Attachment B), we recommended that the clay layer below
the flexible membrane layer (FML) be completely below
the average frost depth. It is permissible to allow for
snow cover in the frost depth calculations. At this
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OSWER Directive No. 9523.00-18
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location, 6 inches of snow cover is typical; therefore,
we recommended that the soil layer above the clay liner
need be increased by only 6 inches instead of one foot.
Contact?- Chris Rhyne 202 or FTS-382-4695
Hazardous Waste Stabilization
1) Use of Natural Material in a Waste Stabilization Process
A facility that planned to close its interim status
surface impoundment needed to develop a site-specific
process that would sufficiently stabilize its highly
organic and oily waste material. The facility engineers
proposed to use cement kiln dust as the pozzolanic
component in the process. They also proposed to use
caliche, a locally occurring form of calcium carbonate,
as an absorbent in the process.
In order to demonstrate that stabilization has occurred,
the waste must be shown to have undergone chemical
change. The engineers conducted a series of laboratory
and field tests with various proportions of the chemical
additives. They monitored soluble organic carbon (SOC)
levels in the leachate. Based upon data showing that
lower SOC levels were found in the leachate of
stabilization mixtures containing caliche as well as the
cement kiln dust, the engineers demonstrated that
caliche was a necessary component in the stabilization
process. Considering these results and the increased
strength of this stabilized material over time, the
Assistance Branch concluded that stabilization was
occurring.
Contact: Dave Eberly 202 or FTS-382-4691
Permit Issuance
1) HSWA Permit Preparation
A Region prepared a draft HSWA permit for a facility by
using the RCRA Corrective Action Plan (CAP) (See
Reference 4, Attachment B) as a guide. The Region asked
the Assistance Branch to comment on this approach and
the permit language.
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OSWER Directive No. 9523.00-18
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While the Assistance Branch agreed that the CAP was the
best currently available guide for Regions to use to
prepare HSWA permits, the CAP is more in the nature of a
checklist, from which specific permit conditions can be
developed. Incorporation of general CAP requirements
directly into a. permit is likely not to be specific
enough. (Please note that the Module for Corrective
Action for Solid Waste Management Units of the Model
Permit, distributed for review and use on November 30,
1988, is also an appropriate guide for using Sections
3004(u) and (v).)
Further, there are several points that the permit writer
must keep in mind when applying this reference. First,
the CAP was designed to cover all possible corrective
action requirements, including interim status corrective
action orders under Section 3008(h) as well as permit
requirements under Section 3004(u). The permit writer
must select the applicable Section 3004(u) requirements
from the "menu" of requirements presented in the CAP.
Certain CAP requirements related to Section 3008(h) are
not appropriate for permits.
Second, the permit writer must, for any individual
facility, identify the information already available in
the Part B application and collected during the RCRA
Facility Assessment (RFA). It is not necessary to
require information that has already been provided
elsewhere. Based upon this information,
facility-specific permit conditions can be developed
using the CAP as a checklist, but not as a model for the
actual permit condition language.
Contact: Dave Eberly 202 or FTS-382-4691
2) Authority to Implement Subpart X Standards in RCRA Authorized
States
The Agency is using the authority under Section
264.1(f)(2) to implement the regulations for
miscellaneous units in all States at the same time,
regardless of their authorization status. This authority
exists independent of HSWA. Section 264.1(f)(2) applies
specifically to the regulation of units not covered by
any Federal permit requirements at the time that an
individual state program was authorized. This authority
was created to avoid the situation that no permits (such
as Subpart X permits) could be issued in an authorized
state for several years after permit standards were
promulgated by the Agency (i.e., until the state
receives Subpart X authorization). Therefore, Subpart X
requirements will be implemented by EPA in all
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OSWER Directive No. 9523. 00-18
-15-
states at the sane time. See OSWER Policy Directive
19489.00-2 (See Reference 1, Attachment B) for further
clarification.
Contact: Chet Oszman 202 or FTS-382-4499
3) Permitting Deadlines for Subpart X Facilities
The permit application deadline of November 8, 1988 and
the permit issuance deadline of November 8, 1992
promulgated in Section 3005(c) of HSWA, are relevant to
Subpart X facilities that had interim status as of
November 8, 1984. The permit applications due in 1988
need only address those units which were listed (or
should have been listed) in a facility's Part A
application as of November 1984. Any permit issuance.
made in 1992 need address only those units subject to
the 1988 application deadline (although it can address
other units as a discretionary matter). This may mean
that permit issuances in 1992 will be partial permits
since only units with interim status before November 8,
1984 must be addressed. Regions are encouraged to
notify interim status facilities in order to give them
the opportunity to meet the November 1988 deadline.
Contact: Chet Oszman 202 or FTS-382-4499
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OSWER Directive No. 9523.00-18
Attachment A
Assistance Branch reviews included in this summary
Facility Name
Burnham Corporation
Foundry
CSSI
Hawthorne Army
Ammunition Plant
IBM
Morton Thiokol
SCA
(Model City)
R&O
Fabricating
Sinclair Oil
Tooele Army
Depot
Umatilla Army
Depot
Union Carbide
(Ponce, P.R.)
Union Carbide
(Sisterville, WVA)
Region
V
X
IX
I
VIII
II
VI
VI
VIII
Coordinator
Mark Salee
Chris Rhyne
Sonya Stelmack
Amy Mills
Chet Oszman
Chris Rhyne
Chet Oszman
Dave Eberly
Sonya Stelmack
Review Date
May 1988
May 1988
May 1988
April 1988
May 1988
April 1988
May 1988
April 1988
April 1988
II
III
Jim Michael
Sonya Stelmack
Dave Eberly
Dave Eberly
May 1988
April 1988
April 1988
May 1988
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OSWER Directive No. 9523.00-18
Attachment B
List of Guidance Documents used in Preparing the Assistance
Branch Permitting Comments
1. "Issues Relating to Miscellaneous Units," OSWER Policy
Directive 19489.00-2 (April 26, 1988).
2. "Hazardous Waste Miscellaneous Units; Standards
Applicable to Owners and Operators," Final Rule,
Federal Register, Vol. 52, No. 237. p. 46946.
3. Minimum Technology Guidance on Double Liner Systems for
Landfills and Surface Impoundments -- Design,
Construction, and Operation , DRAFT, EPA
530-SW-85-014, (May 24, 1985).
4. "RCRA Corrective Action Plan," OSWER Policy Directive
#9902, (November 14, 1986).
5. Technical Guidance Document; Construction Quality
Assurance for Hazardous Waste Disposal Facilities, EPA
530-SW-86-031, OSWER Policy Directive 19472.003,
(October 1986).
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DIVIDER PAGE
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9534 — EQUIPMENT
LEAKS AND PROCESS
VENTS
Subpart C
A.T. Kearney 1/3590/7 cr
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