., .United States       Solid Waste and     EPA/530-R-97-004K
 Environmental Protection  Emergency.Response    December 1996
 AgehCSfv        (OS-343)

 RCRA Permit Policy
	   ''"'
 Compendium
 Volume 11
 9523.1980-9528.1996

 Permitting Procedures (Parts 124 & 270)
 • Applications
 • Conditions
 • Changes
 • Interim Status
                              ATKl/3590/12 kg

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DISCLAIMER

The compilation of documents in this Compendium, as well
as the policies,  procedures  and interpretations outlined
in the documents themselves, is intended solely for the
guidance  of   employees  of  the   U.S.   Environmental
Protection Agency.  This compilation may not include all
documents discussing Agency views on particular subjects.
In addition, these documents are  not intended and cannot
be  relied upon  to create  any  rights, substantive  or
procedural,  enforceable by any party in litigation with
the  United  States.    The   views  expressed  in  these
documents do not  necessarily reflect the current position
of  the  Agency,  and  EPA reserves  the  right to  act  at
variance with these views or to change them at any time
without public notice.

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           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                      WASHINGTON. D.C. 20460



                        November 18, 1985
                                                       OFFICE OF
                                              SOLID WASTE AND EMERGENCY RESPONSE

                                   OSWER Directive #9523.50-1A
MEMORANDUM

SUBJECT:  Post-Closure Permit Part B Requirements

FROM:     Marcia E. Williams, Director \s\
          Office of Solid Waste           v

TO:       Waste Management Division Directors,
          Regions I-X


     This Office has recently received a number of inquiries
concerning information requirements for Part B post-closure
permit applications.  Outlined below is a brief discussion of
those requirements and a list of information elements which
should be included in such applications.

     40 CFR  270.14 establishes the information requirements for
RCRA permit  applications.  Because of the inherent differences
between an operating permit and a permit covering only post-
closure care activities, some of the information requirements for
an operating permit will not be applicable to a permit for the
post-closure care period.  Section 270.10(c) gives EPA and States
the authority to determine that an application is complete
whenever an  application form and supplemental information are
completed to the satisfaction of the Director.  We therefore
recommend that the Director only require information be  submitted
which is relevant to post-closure care activities.  Relevant
information  may be determined on a case-by-case basis.   At a
minimum however, it should include:

A.   Pre-HSWA Regulatory Requirements  (§270.14):

     -    A  copy of the post-closure inspection schedule
           (§270.14(b)(5))
          Floodplain information  (§270.14(11)(iii - iv))
          A  copy of the post-closure plan (§270.14(b)(13))
     -    . Documentation of the notice  in deed or an appropriate
          alternative instrument  (§270.14(b)(14))
          Cost estimate for post-closure and post-closure
          financial mechanism  (§270.14(bVC^&»
      -    A copy of the state financial, instrument ir appropriate
   ,/       (§270.14) (b) (18))

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          Groundwater data and information demonstrating
          compliance with requirements for detection monitoring,
          compliance monitoring and corrective action, as
          applicable (§270.14(c))

B.   New information required by HSWA, including at least:

     -    Information on solid waste management units and
          releases from those units (§264.101; see RSI #3)
          Financial responsibility for corrective action (if
          applicable)
          For landfills and surface impoundments, exposure
          information (§270.10(j))   (Note that lack of exposure
          information would not result in an incomplete
          application, but would be a separate violation).

     As stated above, this list represents the minimum
information that should be required.  In some cases, it may be
appropriate to require additional information depending on the
nature of the facility, waste characteristics and other factors.
For example, if a facility is expected to handle wastes (e.g.,
leachates) during the post-closure period which could potentially
cause environmental or public health damage if mismanaged or if
accidents were to occur, it may be advisable to require a
contingency plan (§270.14(b)(7)).

     If you have any further questions, please contact George
Faison at 382-2221.

cc:  RCRA Branch Chiefs
     Permit Section Chiefs

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  OATK
  • JCCT
  FROM
    TO
 OCT 22 B8J!N|TED STATES ENVIRONMENTAL PROTECTION AGENCY


Existing Incinerators and Data
in Lieu of Trial Burn
                                                                  9523.1982(01)
                 t_
          eddle, ActingiJirector
State Programs and
Resource. Recovery Divison (WH-563)

Division Directors, Regions I-X
             Having spoken with many EPA regional hazardous  waste
        program personnel  and operators  of  existing  incinerators,  it
        has become apparent that some confusion exists  concerning
        trial burn plans and data in lieu of trial burns.   The purpose
        of this memo is  to make clear that  existing  incinerators may
        submit data in accordance with the  provisions of  Section  122.25
        (b)(5)(iii) on wastes that have  been combusted  during interim
        status.   These facilities do not need to submit a trial burn
        plan for approval.

             Section 122.25(b)(5)(iii) sets out the  requirements  for
        submitting data  in lieu of a trial  burn. A  variety of
        information is required including a waste analysis plan and
        analytical results, incinerator  engineering  description,  and
        actual sampling  and analysis results demonstrating 99^99%
        destruction and  removal efficiency  of the principal organic
        hazardous constituent(s).  Also  required is  information on
        incinerator operating parameters which will  lead  to operating
        permit conditions  under §264.345.

             The clear purpose of §122.-25(b) (5 ) ( iii)  is to provide
        data to  specify  operating conditions that will  ensure compli-
        ance with the performance standards in §264.343.   Note that
        the standards in §264.343 are clear and explicit.  The
        incinerator must demonstrate 99.99% DRE as calculated by  the
        formula  given in the regulation; an incinerator producing  HC1
        emissions of more  than 1.8 kg/hr must control HC1 emissions
        to  1% of the uncontrolled amount or 1.8 kg/hr  (whichever  is
        more); and particulate emissions must be controlled to
        180 mg/dscm corrected for the amount of oxygen  in the stack
        gases.  These thre«\performance  standards provide the only
        authority under  the existing regulations for controlling
        emissions from hazardous waste incinerators.

             The standards for accepting data in lieu of a trial  burn
        are found in the regulations.  Section 122.25(b)(5)(iv)
        provides that the  Regional Administrator (."the  Director")
        must approve a permit application without a  trial burn if  he
        finds that the wastes and the incinerators are  sufficiently
        similar and the  data provided is adequate to specify operating
        conditions ensuring ... "that the performance standards in
        §264.343 of this Chapter will be met by the  incinerator."
        Clearly,  an existing incinerator that obtains data on the
        waste it has combusted under interim status  standards satisfies
€FA tmrn 1320-4 (••». 3-7«)

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the requirements for similarity of waste and incinerator design.
Similarly,' to satisfy the third requirement, the applicant
need only present the operating parameters  (as outlined in
§264.345)-used when compliance with §264.343 was demonstrated.
These operating parameters then become permit conditions.  Thus,
the Regional Administrator lacks the regulatory authority to
require the owner-or operator of an existing incinerator to
submit a trial burn plan for approval before the operator
gathers performance data.

     Of course, many operators of existing  facilities may wish
to submit trial burn plans voluntarily.  The emissions sampling
and analysis required is quite expensive and the selection of
POHCs is critical to the acceptability of data in lieu of
trial burn plans.  In order to avoid repeating the tests, an
operator may submit a proposed trial burn plan.  In this case,
the Director can review and approve an acceptable plan [see
§122.27(b)(4)].

     Finally,  while reviewing the 24 June 1982 incinerator
regulations,  one should Iceep in mind that the certification
requirement at 122.25(b)(5)(iii)(E)(3) should have been
deleted.   You received a memorandum dated 26 August 1982
that this is being  corrected.

     I hope this has resolved the confusion regarding the
submission of data  in lieu of a trial burn.  If you have any
questions, contact  Randy Chrismon at 382-4535.

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                                                    9523.1983(02)
                RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY

                                FEBRUARY 83
Question:       Does any part of a  container storage Part B permit application
     '  .        need to be certified  by a professional engineer;  and,  if  so, does
               the professional engineer need to be registered in the State the
               facility is in?

Answer:        No technical data needs to be certified for container  storage.
               Other units like tanks that do require certification are  not
               limited to State certified PE's, but the Region should be con-
               sulted.

               Source:    Dave Pagan
               Research:   Irene Homer

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                                                            9523.1933(03)
                                  | 7 1983

t4EMORANDUrt


SUBJECTi  Land Owner Signature on Part A

FROM:     John S,kinner
          Director
          Office of Solid Wastes (WH-562)

TO i       Tom Devine
          Director
          Air & Waste Management Division
          Region 4


     Pursuant to $270.10 both the owner and operator are required
to sign a permit application for a hazardous waste management
facility*  This dual signature requirement is the subject of a
recent proposal in the Federal Register (July 23, 1983) which
modifies the requirements for both signatures so that, in certain
identifiable situations, the owner's signature may be waived by
the Director.  "The preamble to the proposal summarizes the legal
basis benind the present signature requirements.  These
regulations were proposed as a result of the NRDC settlement.
They will have no effect on your questions.

     The answers to your specific questions aret

1.  Are incorrect signatures a criminal violation?  Yes, if tne
    signer knowingly signs the permit application either talsely
    or incorrectly.

2.  To what extent should we try to ascertain wno is the property
    owner (title search)?  You should generally assume the person
    claiming to be the property owner is the property owner.  A
    title search is an inappropriate use of resources unless you
    have good reason to believe the applicant is not the property
    owner.

3.  What risk and liability does EPA encounter  if we issue a
    permit to the wrong party based on the part A which is
    incorrect?  None, however a permit writer wno accepts a
    signature that he knows is false or incorrect and whose
    conduct is fraudulent under applicable state or Federal  law,
    may be guilty of fraud.

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                                                                     s:
                                                                     T

4.  Whose resources should be used to check proper title?  in  the    £
    rare case where a title search is needed, the permitting         "
    authority should conduct the  title search.                       z

5.  Should we be concerned at all or just  let the Public Notice      £*
    serve to inform and if no0 one comes forward assume the          "t
    Part A signature is correct?  EPA must assume applicants are     en
    dealiny in good faith, except in those situations where EPA      £
    has good reason to believe the applicant is not.  Public         ^
    notice should serve to inform the public as to who owns and      N>
    who operates the facility.   If members of the public know  of     J
    an error, tney should so inform EPA.                             ^

cc:  Hazardous waste Branch Chiefs Regions l-x                       \
                                                                     H^
                                                                     &
                                                                     \
                                                                     co
                                                                     u>
                                                                     r.
                                                                     Q)
                                                                     N
                                                                     Q-
                                                                     >—
                                                                     en

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                                                              9523.1983(06)

             RCRA/SUPERFUND  HOTLINE  SUMMARIES

                         SEPTEMBER  83
If a  facility is in the  process of filing Part  B  of  its permit application.
can the application include any of the changes  which were proposed
(April 4, 1983, 48FR14472) for the redefinition of solid waste?

   No  the permit application must reflect  the hazardous waste regulations
   which are in effect  at the time of filing.  If the regulations change,
   it might be necessary to modify the draft permit or the permit.

       Source:  Steve Levy

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                                                              9523.1984(01)
                              JAN I  7 .!£
 Karsten Odland  .         - •'••'.•••-~  •'=« -v  ;~i S-V " "••'  .  - ' "
 813 Forest Road                    '                              -
 La Grange Par*, Illinois 60525        •             •-.'".'

 Dear Mr. Odlandi    ;               •••..-?-•-'.'.-•     .'>,.•>•'•       "*"
                 •                                      » •    *
      "The Office of General Counsel sent your letter of  October  3,
 1983, to this Office  for a reply  to your questions  concerning  the ,
 requirement* for obtaining a  hazardous vaste aanageaent facility'.^
 perait under the Resource Conservation and,  Recover/ Act (RCRA). --,
 The Office of Solid waste Is  responsible for both the technical-~a
 'standards and perait  regulations  under RCRA.   This  letter coofinas
 tb«» tel'Jphon* conversation you had with a aenbor of cy  staff on
 this subject and summarize* his discussion  of  CPA's position. ".,.--.
 . ,.";  •-•  : •   •••'• •     :   • -   :•••'   •'••- 'l~f  "• '  -.-' - '  '- •-..  .>>"•-''> ••=•",'•'-'
. .;' '  In your letter you  discussed .to* problems caused by ^requiring
 an estiaata of tha expected date  of closure in the  permit applica-
 tion for a hazardous  waste tianag^nent facility.  Aa you pointed
 out/ it is difficult  to  determine the expected closure  date  of .rV
 a aanufacturing'facility since there is often..no intention  to  '"*'.'.
 close.  Tou 'also expressed your reluctance  to  certify in the !'/•"'
 perait application that  all the information is true and accurate
 if the facility does,  not intend  to close."..-./•^^..j;...-:1.  . .-  :••:•'''

      SPA does not require a specific date  of closure.   Our  regula-
 tions only require an estioate of the) expected date of  closure. ••--.
•This expected date, then  allows EPA to .determine  if  the  financial
^assurance nechanisos  for. closure  aro adequate, <; You can .note in J^
 the application that'the date provided is, only JRA estimate. since_:'
.there aro no current  plans to close the facility. *-TSis nay "*  •'••*•'"-
 .alleviate your concerns  about the certification.  Additionally, -~
 the estinated date of closure can be changed as  new information
 becomes available or  facility plans change. •.•.;.V:~-;V•'->-. ;;-^L  '•'•-.-
, . .. .   '  ..." '•'*. . •  •   ••   •  • .•         •"•   .    JV "•-'•""•'*".'.• •''.*'.'•''• • '-. •'•'
V  •' • X appreciate your bringing this 'natter tpjbur  attentlo'n.  v-.v-y
 If you have any further  questions, please~do "not hesitate* to ..;: '.
 call upon Mr. Chai Miller of  the Permits  Branch.   He  nay be."- /
 reached at U.8. EPA,  Off i'ee> oC Solid Waste/Penaits Branch/ -'.-.'  *

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    TO
                              Branch  Chiefs,
                                                                  9523.1984(02)
       APR   3 iSdiJNITED STATES ENVIRONMENTAL PROTECTION AGENCY
 DATE

     Guidance  on Petroleum Refinery Waste Analyses  for Land
9JECT Treatment Permit Applications

     John Skinnejr,__Directorft
     Office of Solid Waste

     Hazardous Waste PermitL
     Regions  I-X


     Introduction

          The  purpose of this memo is to  provide permit writers
     guidance  on evaluating petroleum refinery waste analyses  submitted
     in land  treatment permit applications.  A list  of Appendix
     VIII hazardous constituents suspected to be present  in petroleum
     refinery  wastes and a special analytical method for  refinery
     wastes are provided.

     Background

          The  general Part B information  requirements specified
     under 5270.14(b) require the submittal of (1)  chemical and
     physical  analysis data on the hazardous wastes  to be  handled
     at the facility including all data that must be known to  treat,
     store, or dispose of wastes properly in accordance with Part
     264, and  (2) a copy of the waste analysis plan.  In  addition,
     the specific information requirements under §270.20  require  an
     owner/operator of any facility that  includes a  land  treatment
     unit to  submit "a list of hazardous  constituents reasonably
     expected  to be in, or derived from,  the wastes  to be  land
     treated  based on waste analyses performed pursuant to §264.13."
     Also, §270.20(a) stipulates that the description of  the treatment
     demonstration plan must include a list of potential  hazardous
     constituents in the waste.

          Because the design and management of a land treatment
     unit is  based on the goal of attaining treatment of  hazardous
     constituents (i.e., constituents listed in Appendix  VIII),  it  is
     very important that the presence of  these constituents in the
     land treated wastes be accurately identified and quantified.
     This is  best achieved through a comprehensive  waste  analysis
     for all Appendix VIII constituents.  However,  due to  the  cost
     and analytical difficulties associated with these analyses,
     many applicants have submitted requests to conduct analyses
     for some  subset of Appendix VIII, which are "reasonably expected
     to be in  or derived from the wastes  to be land  treated."   To
     date, the majority of wastes proposed for land  treatment  have
     been petroleum refinery wastes, specifically the listed wastes
     K048-K052.
EPA Form 1320-4 
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     The evaluation of these Appendix VIII subsets for each land
treatment Application has been difficult due to the lack of
published information on specific organic compounds in refinery
wastes, and also due to the variability of waste characteristics
within the refinery industry.  However, OSW has gathered sufficient
information from EPA research studies, in-house waste studies
and analyses, and refinery process evaluations to develop a
conservative list of hazardous constituents that are suspected
to be present in petroleum refinery wastes.  This list is
provided in Attachment 1.  This list should be used by permit
.writers as a guide in determining which constituents may and
may not be eliminated from consideration when completing waste
analyses for a land treatment permit application.  Additional
explanation of the derivation and use of this list is provided
below.

Derivation and Use of List

     The list of hazardous constituents suspected to be present
in refinery wastes was derived from a review of data on petroleum
refinery wastewater and sludge characteristics from the following
sources:  (1) literature, particularly EPA research reports;
(2) in-house waste analyses completed by EPA research laboratories;
(3) preliminary data from the OSW refinery waste study; and
(4) an evaluation of petroleum refinery processes.  Although
these four sources were used, the data base on specific hazardous
organic constituents in sludges was still limited.  Considerable
weight was placed on wastewater data as indicators of sludge
characteristics (e.g., API separator sludge).

     Also, the list in Attachment 1 is a generic list developed by
combining waste analysis data on all five listed refinery wastes
(K048-K052).  Due to the lack of extensive data, no attempt
was made to differentiate between the characteristics of these
five refinery wastes.  Until sufficient information is available
to allow development of separate lists for each waste, the
attached list should be considered applicable to dissolved air
flotation float (K048), slop oil emulsion solids (K049), heat
exchanger bundle cleaning sludge (K050), API separator sludge
(K051), and leaded tank bottoms (K052).

     To compensate for the limited data base and variability among
refineries, the attached list is purposely comprehensive.
It includes a total of 89 hazardous constituents or groups
of constituents (e.g., trichlorobenzenes).  All of these con-
stituents have been identified as possibly being present in
the above referenced wastes.  Many of the compounds on the
list may be present at low concentrations and others may not
be present at all in certain wastes at some refineries.

     The permit writer should use the attached list as a guide
to the Appendix VIII constituents that should be addressed  in

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the up-front waste analyses and waste analysis plans for Part B
applications, that propose land treatment of petroleum refinery
wastes.  A permit applicant may further refine this list by
providing derailed evidence that certain hazardous constituents
cannot be present in the listed wastes at that particular
refinery.  In most cases, however,  waste analysis data on the
constituents listed in Attachment 1 will be necessary to make this
showing .

Analytical Methods

     To assist in the analysis for  specific organic constituents
in petroleum refinery wastes, OSW has developed a column cleanup
procedure which is provided in Attachment 2.  This draft method
is used specifically to separate semivolatile aliphatic, aromatic,
and polar compounds in the waste matrix.  The method should be
used only by experienced residue analysts.  Volatile compounds
are determined using method 8240 with PEG (tetraglyme) Extraction.
Test method 3050 should be used for all metal analyses.  These
methods are described in SW-846.

Relationship to Delisting and Listing Efforts

     Finally, the attached list is  consistent with the waste
analysis information that EPA has requested from delisting
petitioners.  Many petroleum refinery operators who are preparing
Part B applications for land treatment facilities also have
submitted delisting petitions to the Agency for one or more of
their wastes.  It is important that the waste analysis data
requested by the Agency for permitting and delisting be consistent,
although there may be differences in the extent of data necessary
in certain cases.  Therefore, the list of Appendix VIII constituents
provided in Attachment 1 is also being used in refinery delisting
actions.  Additional information on non-Appendix VIII constituents,
however, is being collected as part of OSW1s new waste assessment
and listing efforts for petroleum refineries.  These compounds,
which are listed at the end of Attachment 1 for your information,
may be added to Appendix VIII in the future.  Although it is
not required at this time, permit applicants should be encouraged
to provide information on these waste constituents.

     If you have any questions on the listing of specific
hazardous constituents in Attachment 1 or on the recommended
test methods, please contact Ben Smith (382-4791) of the Waste
Identification Branch.  Other questions pertaining to the use
of the above guidance in permitting land treatment facilities
should be directed to Mike Flynn (382-4489) of the Land Disposal
Branch.

Attachments

cc:   Jack Lehman                   Matt Straus
       Fred Lindsey                  Bruce  Weddle
      Ken Shuster                  ^eter  Guerrero
      Eileen Claussen

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                                  ATTACHMENT 1

  Appendix VIII  Hazardous Constituents  Suspected to be  Present  in  Refinery Wastes
**
*•*
**
  AcetonitM le (TtTTaneni trile)
  Acrolein (2-Propenal)
  Acrylonitri le (2-Propenenitrile)
  Aniline (Benzenamine)
  Antimony
  Arsenic
  Barium
  Benz (c) acridine (3,4-Benzacridine)
  Benz (a) anthracene (1,2-Benzanthracene)
**Benzene (Cyclohexatriene)
  Benzenethiol  (Thiophenol)
  Benzidine (1,1-Biphenyl-4,4"di ami ne)
  3enzo(b)fluoranthene (2,3-Benzofluoranthene)
  Benzo(j)fluoranthene (7,8-Benzofluoranthene)
  Benzo(a)pyrene (3,4-Benzopyrene)
**Benzyl chloride (Benzene, (chloromethyl)-)
  Beryl 1ium
  Bis (2-chloroethyl) ether (Ethane,  l.l'-oxybis (2-chloro-))
  Bis*(2-chloroisopropyl)  ether (Propane,  2,2"-oxybis (2-chloro-))
**Bis (chloromethyl)  ether (Methane,  oxybis (chloro))
  Bis (2-ethylhexyl)  phthalate  (1,2-Benzenedicarboxylic acid,  bis (2-ethylhexyl)  ester)
  Butyl  benzyl  phthalate  (1,2-Benzenedicarboxylic acid, butyl  phenylmethyl  ester)
  Cadmium
  Carbon disulfide (Carbon bisulfide)
  p-Chloro-m-cresol
**Chlorobenzene (Benzene,  chloro-)
**Chloroform  (Methane, trichloro-)
**Chloromethane (Methyl  chloride)
  2- Chloronapthalene (Naphthalene,  beta-chloro-)
  2-Chlorophenol  (Phenol,  o-chloro-)
  Chromium
  Chrysene (1,2-8enzphenanthrene)
  Cresols (Cresylic acid)  (Phenol,  methyl-)
**Crotonaldehyde (2-Butenal)
  Cyanide
  Dibenz(a,h)acridine (1,2,5,6-Oibenzacridine)
  Oibenz(a,j)acridine (1,2,7,8-Dibenzacridine)
  Oibenz(a,h)anthracene (1,2,5,6-Olbenzanthracene)
  7H-Oibenzo(c,g)carbazole (3,4,5,6-Oibenzcarbazole)
  Dibenzo(a,e)pyrene (1,2,4,5-Dibenzpyrene)
  Dibenzo(a,h)pyrene (1,2,5,6-Oibenzpyrene)
  Oibenzo(a,i)pyrene (1,2,7,8-01benzpyrene)
**l,2-0ibromoethane (Ethylene dibromide)
  Oi-n-butyl  phthalate (!,2-Benzened1carboxy1ic acid, dibutyl  ester)
 *0ichlorobenzenes
**l,2-Dichloroethane (Ethylene dlchloride)
**trans-l,2-Dichloroethene (1,2-01chlorethylene)
**l,l-0ichloroethylene (Ethene, 1,1-dichloro-)
  Oichloromethane (Methylene chloride)
*•»

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 **Dichloropropane•
   Di chloropropanol
   Diethytl  phthaJate  (1,2-Benzenedicarboxylic acid, diethyl ester)
   7,12-Dimethyl-benz(a)anthracene
   2,4-Dimethylphenol  (Phenol,  2,4-dimethyl-)
   Dimethyl  pnthalate  (1,2-Benzenedicarboxylic acid, dimethyl ester)
   4,6-Dinitro-o-cresol
   2,4-Dinitrophenol  (phenol,  2,4-nitro-)
   2,4-Dinitrotoluene  (Benzene, l-methyl-2,4-dinitro-)
   Di-n-octyl  phthalate  (1,2-Benzenedicarboxylic acid, dioctyl ester)
 **1,4-Dioxane (1,4-Oiethylene  oxide)
   1,2-Diphenylhydrazine  (Hydrazine,  1,2-diphenyl-)
 **Ethyleneimine (Azridine)
 **Ethylene  oxide  (Oxirane)
   Fluoranthene (Benzo (j,k)  fluorene)
 **Forma1dehyde
   Hydrogen  sulfide  (Sulfur  hydride)
   Indeno (1,2,3-cd)pyrene  (1  10(1,2-pheny1ene)pyrene)
   Lead
   Mercury
   Methanethiol  (Thiomethanol)
   3-Methylchlolanthrene  (Benz(j)aceanthrylene, 1,2-dihydro-3-methyl-)
 **Methyl  ethyl  ketone (MEK)  (2-Butanone)
   Naphthalene
   Nickel
   p-Nitroaniline  (Benzenamine, 4-nitro-)
   Nitrobenzene (Benzene, nitro-)
   4-Nitrophenol  (Phenol.pentachloro-)
   Pentachlorophenol  (Phenol,  pentachloro-)
   Phenol  (Benzene,  hydroxy-)
   Pyri di ne
   Selenium
,**Tetrachloroethanes
 **Tetracnloroethylene (Ethene, 1,1,2,2-tetra chloro-)
 **Toluene (Benzene, methyl-)
  *Trichlorobenzenes
,**Trich1oroethanes
 **Trich1oroethene (Trichloroethylene)
  *Trichlorophenols
   Vanadium
        * If any of these groups of compounds  are  found, the specific
          isomers listed in Appendix VIII  should be  identified.

       ** Use Test Method 8240 for these volatile  compounds.

      *** Use Test Method 3050 in SW-846 for all metals; see
          Attachment 2 for semi volatile organic compounds.

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Non-Appendix VIII  Constituents of Concern (may be added to App. VIII)

Cobalt                               Indene
1-Methylnapthalene                   5-Nitro acenaphthene
Styrene                              Quinoline
Hydroquinone                         Phenanthrene
Anthracene                           Pyrene

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                         ATTACHMENT 2


              Column Cleanuo of Petroleum Wastes
Introduction
   The following procedure  is intended for application to the
analysis of semivolatile organic compounds in oily waste
samples.  Its application is necessary in those cases where
the conventional cleanup procedures (Methods 3510, 3520,
3540, 3550) fail to provide suitable detection limits (approx-
imately lOppm) for the semivolatile compounds specified in
Attachment 1.  Analysis of  the cleaned-up extracts should be
performed according to Method 8270, a capillary GC/MS technique.

   It should be noted that  this procedure is in draft form.  It
may be modified as more experience is gained.

Cleanup Techniques

   It is anticipated that after a sample is subjected to
conventional extraction procedures (Methods 3510,3520, 3540,
and 3550) or after dilution, a cleanup step may be required
to remove matrix interferences and yield acceptable detection
limits for compounds of interest.  Determination as to whether
an extract needs to be cleaned can usually be provided by either
examination of the sample itself or by knowledge of the
particular waste stream that was sampled.  It is also possible
to estimate whether or not  the extract is suitably clean for
GC/MS analysis.  An aliquot of the methylene chloride extract
can be evaporated to dryness and the total amount of material
in the aliquot weighed.  In general, if the extract contains
less than a few milligrams  of material per millilitre of
solvent, it is probably clean enough for capillary CG/MS.  If
it contains more materials, it will likely require additional
preparation.

   In most instances, some  type of cleanup technique will be
necessary in order to achieve suitably low detection limits
for the target compounds.   If much aliphatic material exists
in the sample it will mask  the compounds of interest.  Mere
dilution will not remedy the situation as detection limits
are raised by the dilution.

   If acidic compounds such as phenols are suspected of
being present in the sample, a separate fraction containing
these acids can be created  using the organic extract obtained
above.  Methods 3530, a base/neutral acid cleanup extraction
technique, may be applicable to the cleanup of certain sample
types.  Modifications to Methods 3530 are as follows:

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   a.)  In Section 7.6, the organic and aqueous phases are both
       treated as containing compounds;  and

   b)  Section 7.15 will not be necessary.

The aqueous phase, when transferred to organic solvent after
Section 7.13, will contain acidic compounds.  The organic
phase contains basic and neutral compounds.  In most instances,
the acidic fraction will be clean enough for GC/MS analysis.
The base/neutral extract, however, may require further cleanup.
Thus, a cleanup procedure has been devised for base/neutral
extracts that minimizes the interferences caused by high
concentrations of aliphatic and polymeric materials.

   Although the cleanup procedure is thoroughly described in
the next section, one generally proceeds as follows.  The sample
is subjected to cleanup by placing a representative aliquot
of the sample on an alumina column and successively eluting
with hexane, methylene chloride, and diethyl ether to yield
3 fractions containing the aliphatic (hexane fraction), aromatic
(methylene chloride fraction) and polar compounds (ether
fraction).  The methylene cloride fraction is then concentrated
to about 1 ml. and then is analyzed by GC/MS for the compounds
of interest.  The hexane concentrate can be screened by
GC/MS to determine if compounds were eluted into the hexane
fraction.   However, this usually will not be required.  If
polar compounds are of interest, the ether fraction is also
analyzed.

   Quantitation of the semivolatile constituents in Attachment 1
is to be performed using the reverse search technique.
Additionally, tentative identification should be attempted
for the ten organic compounds detected at the highest concen-
trations.   Identifications should be made via a forward
search of  the EPA/NIH mass spectral library.  Concentrations
should be  approximated by comparison of the compound response
to that of the closest eluted internal standard.  A procedural
blank, matrix spike, and duplicate should be analyzed for
every batch of samples.

   Accuracy and precision control charts should be maintained
for indicator constituents.  The percent recoveries of spiked
surrogate  standards for a given sample'type should be plotted
versus sample identification number.  Table 1 contains a list
of the surrogate compounds to be employed for the analysis of
semivolatile organic compounds, and recovery limits.  Recovery
limits are based upon obtaining a final extract sufficiently
clean, such that the surrogate compounds should be present at
50 ppm or  higher in the extract.  If dilution of the sample is
still required, detection of the surrogates may be difficult
and the associated recoveries imprecise or non-existant.
Such samples should be spiked with higher surrogate levels
and resubjected to the cleanup procedure.

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Table 1.  Surrogate Standards for Semivolatile Organic
          Compound Analysis
                                          Recovery Limits

          Acid surrogates
               phenol-ds      •>            40-115%
               2-fluorophenol
               2,4,6-tribromophenol

          Base/neutral surrogates
               nitrobenzene-ds
               5-fluorobiphenyl             50-120%
               terphenyl-di4
               acridine-dg
               pyrene-d10
   The precision control chart should consist of the percent
difference for indicator constituent concentration determined
in duplicate samples of a given sample type versus sample
identification numbers.

Column Clean Up of Petroleum Wastes

Scope and Application

   This method is used to cleanup samples containing high
levels of aliphatic hydrocarbons, such as wastes from petroleum
refining.  It is used specifically to separate aliphatics,
aromatics/ and polar compounds in the waste matrix.  This
method is applicable to API separator sludges, rag oils, slop
oil emulsion, and other oily wastes derived from petroleum
refining.  This method is recommended for use only by or
under close supervision of experienced analysts.

Summary of Method

   Take a 200 mg aliquot of the waste/methylene chloride
concentrate from step 7.13 of Method 3530.  Dissolve the
aliquot in hexane and spike with lOmg each of dg-acridine,
d5~nitrobenzene, ds-phenol, 2-fluorobiphenyl, tribromophenol,
d].4-terphenyl, 2-f luorophenol, and dio-pyrene.  Apply the mixture
directly to the alumina column.

   The column is eluted sequentially with hexane, methylene
chloride, and diethyl either and the corresponding three
fractions are collected.  An aliquot of the CH2C12 fraction
is evaporated under a gentle stream of nitrogen and weighed to
determine the appropriate concentration factors prior to

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GC/MS.  If- pyrene or terphenyl is recovered at less than 50%,
the procedure should be repeated.

Interferences
   Matrix interferences will likely be coextracted from the
sample.  The extent of these interferences will vary considerably
from waste to waste depending on the nature and diversity of
the particular waste being analyzed.  The use of additional
cleanup extractions can be used as necessary for specific
compound identification and quantitation.

Apparatus

Glass Column:  30 cm long x 1 cm I.D.  with glass frit or
               glass wool and stop clock.

Aluminum weighing boats:   Approximately 2 in. in diameter.

Analytical Balance:  Capable of weighing to + Q.5 mg.

Concentrator Tube, KD, 10 ml

Evaporative Flask, KD, 250 ml

Snyder Column, KD, three-ball micro

Snyder Column, KD, two-ball micro

Steam Bath

Boiling Chips:  10-40 mesh carbarundum.  Heat to 450°C for 5-
                10 hours.

Syringe:  1 ml glass

50 ml beaker

250 ml beaker

Reagents

Hexane:  Distilled in glass  (B&J) or equivalent

Methylene Chloride:  Distilled in glass  (B&J) or equivalent

Diethyl Ether:  Distilled in glass  (B&J) or equivalent

Alumina:  Dried overnight at 130°C, neutral 80-325 MCB
          chromatographic grade

Sodium Sulfate:  Washed with CH2C12 and  heated  to  150°C  for  4
                 hours

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Procedure '  -

Weigh  outi.LQ-0 gm of alumina and add to the chromatographic column
that is filled to about 20 mL with hexane.

Allow the alumina to settle and then add 0.5 gm sodium sulfate.

Let the solvent flow such that the head of liquid in the column
is about 1 cm above the sodium sulfate layer.  Stop the flow.

Add the aliquot equivalent to 100-200 mg of material.

Start the flow and elute with 13 ml of hexane.  Collect the
effluent in a 50 beaker.  Label this fraction "aliphatics".

Slute the column with 100 ml of methylene chloride and collect
the effluent in a 250 ml beaker.  Label "aromatics".

Elute the column with 100 ml of diethyl ether and collect the
effluent in a 250 ml beaker.  Label "polars".

Weigh three sample boats to the nearest 0.5 mg.  Reduce the
volume of each fraction using the KDs to between 1 and 5 ml.
Record the volume of each and place 1/2 of each sample in the
respective boat.

Evaporate the liquid in each boat under a gentle stream of
nitrogen.  Reweigh each boat and record the weight of each fraction

Calculate the weight of each fraction as a proportion of the
total sample.  For example, fraction 1 is 56.3 mg, fraction 2
is 25.4 mg, and fraction 3 is 85.0 mg.

Calculate the amount of sample in the fractions and adjust
the volumes so injection will permit determination of various
components on scale

                 12.7 mg/2500 ul = 5.1 ug/ul

Dilute each of the three fractions obtained by a ratio so
that the sample entering the capillary column does not exceed
2.5 ug.  For example, if the calculated weight of the fraction
as a proportion of the total sample is 12.7, and the amount of
sample in the fractions is 5.1 ug/ul as in the above example,
dilute the sample 1:1 with methylene chloride.

Quality Control

Before processing any samples, the analyst should demonstrate
through the analysis of a distilled water method blank that
all glassware and reagents are interference-free.  Each time a
set of samples is extracted or there is a change in reagents,
a method blank should be processed as a safeguard against

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chronic laboratory contamination.   The blank sample should be
carried through all stages of the  sample preparation and measure-
ment.  Standard quality assurance  practices should be used
with this method.   Laboratory replicates should be analyzed
to validate the precision of the analysis.  Fortified samples
should be carried through all stages of sample preparation
and measurement; they should be anlayzed to validate the
sensitivity and accuracy of the analysis.

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                                                                          9523.1984(03}
                          RCRA/SUPERFUND HOTLINE  SUMMARY

                                        APRIL  84
4.  Must a company's Part B permit  application submission include a  closure date if
    the coirpany has no plans for closure  in the near future?

         Yes;  270.14(b)(13) requires  a  closure plan to be submitted  with the Part B
         application, and the estimated closure date is part of that  closure plan
         (264.112(a)(4)).  Later, if  the  estimated closure date changes, the closure
         plan  must be amended as a  minor  modification to the permit  (270.42(g)).

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                                                 9523.1984(04)




                     RCRA/SUPERFUND HOTLINE SUMHARY

                                   MAY  84
The "Permit  Applicants Guidance Manual  for Harj.-aous Waste Land
Starjge,  and Disposal Facilities" (final  draft, SH-970), provides check  lists
of all  tne information requirements and associated permitting standards
tnat  an appj'cant for a land treatment,  storage, or disposal facility may  neea
to address.  Are these check lists to be be used as a  format for preparing
a Part  B  application?

     The checi  lists can be used as an  application format.  The check
     lists are  provided as a tool for both the applicant and permit reviewer
     to use  as  a reference to ensure that all  information required Is
     included in the application.  The  check lists should be included in tne
     application to aid the reviewer.  The check lists allow an applicant  to
     indicate the location in the application  of information responding  to
     each requirement.  There are no formal application format requirements.

     Source:    Art Day
     Research:  Gordon Davidson

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                                                               9523.1984(06;
                     PERMIT POLICY Q & A  REPORT

                             TRIAL BURN

                         SEPTEMBER 10,  1984
Trial
1.  Question!  Has ^he Agency issued  any RCRA  peraita -for incinera-
tion on th« basis o"5 data sutnitted  in lieu  of a  trial burn?  40
CPR 270.19(c) and (d).

Answer:  The Ajency has net yet issued any P.CRA incineration
peraits on t.*ie basis of data obtained fron other  incinerators  in
lieu of a trial burn.  In order for data subnitted  in lieu of -a
trial burn to be acceptable, the incinerators  and the wastes cust
be sufficiently similar ao that the perait writer can confidently
          incinerator  o^er-atir;; confition*  for th^  second incinerator
       tn^ Benefit,  of a  trial trurr\.

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                                                                9523.1984(07)
                     PERMIT POLICY Q & A REPORT

                            DEFINITION

                        SEPTEMBER  10,  1984
2.  Question:  Can EPA declare a Part B application conplete
even thoutjh  the applicant has not submitted ground-water moni-
toring  (GWM) data? 40 Cri} 264 Subpart ? and 40 CPR 270.14(c)
                               •          '     ^
Answer:  No.  The Agency cannot declare a permit application .
cc:".pleto without ground water recnitoring data.  The Agency can
use enforcement to secure facilities' compliance with Part 265
ground water nonitorinc; requirac«nts, J3013 orders if a substan-
tial hazard  ic suspected, and the authority of 40 CFR. 27Q.14(c.)
to obtain the nocessary ground water r.onitorin^; information.
r.ore detailed guidance on this issue will be issued shortly.

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                                                               9523.1984(08)
                     PERMIT POLICY Q & A REPORT

    PART B INFORMATION REGARDING FUTURE POTENTIAL EXPANSIONS

                        SEPTEMBER  10,  1984
5.  Question:  Can an applicant submit information along with
his Part B, for potential expansions to his facility and obtain
• porr.it for those expansions when h« has no definite expansion
date.  40 CFR 270.10(f).
                •
Answer:  Yos.  Tnc applicant, however. Bust submit information
at tne sane level of detail as if construction were to begin
inxiediately upon receipt of a RCSA permit or «t a later date,
consistent with a schedule of conpllance specified in the permit.
The Part B application oust be in such detail that the perait
writer can draft an enforceable perait ar.d so that there can b«
Roaningful public* participation and re-view of the proposed facility
and pernit conditions.  In other words, ho nust fully satisfy
all the information requirements of a Part B application and
the Part 264 standards for a new facility.  This is.difficult to
do in the absence of specific plans.  In addition, when the
applicant does finally decide to undertake the expansion, he
aust conform exactly to the plans and specification* contained
in the perait.  Applicants without firm expansion plan* should
be encouraged to restrict their pemit application to the existing
facility and to request a najor notification when the expansion
plans and schedule are definite.  The applicant, however, should
ZM warned that a major modification of this nature could, in
effect, constitute a new application.  The applicant should also
be advised of any relevant regulations regarding the.procedures
for expanding the capacity of a pernitted facility."

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             UNITED 57ATZ5 ENVIRONMENTAL PROTECTION AGENCY         9523.1984(10}

                        WASHINGTON. D.C. 20460

MEMORANDUM
SUBJECT:  Recent Clarifications of RCRA Authorities
                             ^^
FROM:     Peter Guerrero
          Branch Chief
          Permits Branch  (WH-563)

TO:       Section Chiefs
          Regions I-X


     The attached documents clarifys your authority in two important
aspects of the RCRA permit program.  First, you will find a decision
issued by the Chief Judicial Officer in the case of City Industries,
Inc.  That decision reversed the ALJ's holding that EPA lacks the
authority to assess penalties under Section 3008 of RCRA for failure
to submit a complete RCRA permit application.

     The second attachment is a technical change, announced in the
Federal Register, which clarifies our authority to apply Part 265
standards until closure and post closure responsiblities are ful-
filled.  Previously, the wording of $265.1 implied that once a
facility's interim status was terminated the facility would no
longer have to meet $265 interim status standards, i.e. closure,
post closure, and financial responsibility.  However, EPA has the
statutory authority under Section 3004 to enforce the Part 265
standards at facilities which no longer have interim status.  The
revisions to $265.1 makes it clear that Part 265 requirements apply
to RCRA facilities until either a permit is issued or until all
applicable Part 265 closure and post closure responsibilities are
fulfilled.

Attachments

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          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                               REGION iv
                           343 COUdTLANO
                           ATLANTA. CCO*CIA 3O383
MEMORANDUM

   DATE:  November 29,  1984

SUBJECT:  Administrator's Decision Regarding Authority Under RCRA
          Section 3008  to Assess Penalties for Failure to Submit
          a Complete and Adequate^Part B Application

   FROM:  James H. Sargent
          Regional Counsel,

     TO:^Lee Thomas  (WH-562A)
          Courtney Price  (LE-133)
          Lisa Friedman  (LE-132S)
          Regional Counsels
            Regions I-III and V-X


     Attached is a copy of the decision issued by the Chief

Judicial Officer on November 21, 1984 in the case of City

Industries, Inc., Docket No. 83-160-R-KMC.  That decision reversed

the ALJ's holding that EPA lacks the authority to assess penalties

under Section 3008 of RCRA for failure to submit a complete and

adequate Part B RCRA permit application.  This affects many pending

enforcement cases in the regions and reaffirms our authority to

seek penalties for deficiencies in Part B RCRA permit applications.


Attachment

cc:  RCRA/CERCLA Team Leaders

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                     BEFORE THE ADMINISTRATOR
               U.S. ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C.
In the Matter of:

City Industries, Inc.,

  Respondent

RCRA 83-160-R-KMC
)
)
)
)
);
)'
RCRA (3008)
Appeal No.  83-4
                             ORDER
     This appeal, is from an order of an Administrative Law

Judge (presiding officer) dismissing an administrative complaint
                                                    i/
brought against City Industries, Inc. (respondent).     In

that order the presiding officer held that it vas inappropriate

to assess a civil penalty against respondent for its alleged
                                                           21
failure to submit "Part B" of its RCRA permit application. ~~

For the reasons stated belov, the initial decision is reversed

and this proceeding is remanded to the presiding officer for

further proceedings consistent with  this order.
I/ 40 CFR $22.20(b) provides  that  such an order constitutes an
initial decision.  An initial decision is appealable to the
Administrator or his delegatee  pursuant  to 40 CFR 122.30.

2/ The Resource Conservation  and Recovery Act of 1976 (RCRA),
7s amended, 42 O.S.C. S6928(a)(l)  et seq., requires any person
who owns or operates a  hazardous waste management (HWM) facility
to obtain a RCRA permit  from  the Agency.  Pursuant to Agency
regulations, owners or  operators of  facilities in existence on
November 19, 1980, are  allowed  to  continue in operation, pending
the Agency's final permit  determination, if, among other things,
they submitted Part A,  and  subsequently, Part B of the RCRA permit
application.  See notes  4  and 5, infra,  for  descriptions of
"Part A" and "Part B" of the  RCRA  permit application.

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                              -2-


Background

     Respondent owns and operates a hazardous waste storage

facility which was doing business In Orlando, Florida on November
          2/
19, 1980.     RCRA regulations provide for a bifurcated permit

application procedure for facilities In  existence on that date,

i.e., so called "existing facilities."  An owner of an existing

facility la required to submit Part A of its permit application
       i/
first.     Subsequently, at che Agency's request, the owner of

such a facility is required to submit Part B of Its permit
             5/
application.

     Respondent timely submitted Part A of its permit application
                                             i/
and, accordingly, attained "Interim status." ~~   However, when
3/ Although respondent is no longer receiving hazardous waste at
chis facility, it continued to store hazardous waste for some
period of time thereafter and accordingly was required Co have
a permit.  See 40 CFR §270.1 (1983).  See EOF v. Lamphier, 714
F.2d 331, 335 (4th Cir. 1983).  The record does not show whether
respondent is currently scoring hazardous waace.

4/ Part A must contain che information listed in 40 CFR 1270.13
Tl983).  This includes a description of the hazardous vase*
activities which are conducted at che facility, the name and
location of th« facility, certain information ideneifying che
facility's operator and owner, a scale drawing of the facility,
a description of what processes will take place et the facility,
e.g.,  treatment, storage, disposal, the design capacity, of
these  Items, identification of che hazardous waste co be handled
at che facility, the quantity of hazardous waste to be handled  at
che facilicy, and a topographic aap.

5/ Part B must set forth information relating to a  facility's
operational procedures, such as security arrangeaents, closure
plan,  flood plan, detailed plans for ground water monitoring,
etc. 40 CFR SS270.14-29 (1983).  The information required to be
submitted as Part B of che peralc application is more extensive
and detailed Chan that required for Part A.

6/ When a Part A application  for a  facility  is  submitted  to
The Agency (together with preliminary notification  of hazardous
waste  activity required by RCRA 13010), the  facility  is  authorized
to operate on an interim status basis, i.e.,  pending  the  Agency's
final  decision on the  facility's permit application.
        -• -r—

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                              -3-


EPA Region IV subsequently requested Part B of the application,

the materials which respondent submitted were unacceptable  to

the Region.     Consequently, the Region filed an administrative

complaint against respondent charging that it violated 40 CFR

$270.lO(e) which requires an existing facility to submit Part  B

of its permit application when so requested by the Agency.   A

civil penalty of $5,000 was sought in the complaint for this

alleged violation.

     In Its answer to the complaint, respondent contended that

its Part B application was adequate and the Region should have

accepted 1C.  Alternatively, respondent contended that "failure

Co submit [an adequate] Part B application is not an action

cognizable under the Resource Conservation and Recovery Act for

purposes of assessment of civil penalties." (Emphasis added.)

The presiding officer agreed with this latter contention and

dismissed the administrative complaint with prejudice.  This

appeal followed.

Discussion                                  		

     The sole issue on appeal Is whether a civil  penalty can

be assessed against an owner of an existing HWM facility who,

despite the Agency's request to do  so, fails  to submit  an
II The Region gave  respondent  a  number of  opportunities to
correct deficiencies which it  had identified  in respondent's
Part B application.  Although  respondent made  attempts at
correcting them, It failed to  submit a Part B  application which
was acceptable  to  the Region.  Whether respondent's  Part B
application was In  fact adequate (and therefore was  erroneously
found unacceptable  by the Region) Is an issue  to  be  determined
on remand.

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                              -4-


adequate Pare B RCRA permit  application.   General  Co  Che  reso-

lution of chis Issue is RCRA !3008(g)  which  states that  the

Agency is authorized to assess  civil  penalties  only  for  viola-

tions of RCRA requirements;

          Civil Penalties -  Any person who violates  any
          requirement of chis subchapter  [Subchapter  III  -
          Hazardous Waste Management]  shall  be  liable Co
          Che United States  for a  civil penalty in an
          amount not Co exceed  $25,000 for each such
          violation.  Each day  of  such violation shall,
          for purposes of Chis  subsection, constitute
          a separate violation.  8/   (Emphasis  added.)

     The presiding officer held that  RCRA contains no requirement

Chac an owner or operator of aa HWM facility apply for a RCRA

permit or submit aa adequace permit  applicacioa.  Accordingly,

Che presiding officer held Chac respondent's failure Co submit

an adequace Pare B applicacioa Is  noc a violation of  any require-

mene contained in RCRA.  I disagree.

     40 CFR S270.10(e)(4)(1983) clearly requires submission of
                                                          9/
a Pare B permit application afcer  Che Agency requescs ic: ~~
8/ See also RCRA S53008(a)(l) 6 (a)(3).

9/ Implicit in 1270.I0(e)(4)*s requireaenc Co subaic a pare B
"permic Applicacioa Is the requiremenc to submit an adequace (or
coaplece) Pare B applicacioa.  Of course, no regulatory require-
menc is violated where an ovaer or operacor initially submits an
inadequate or incoaplece Pare B application but subsequently
corrects it before expiration of Che six month deadline referenced
in S270-. 10(e)(4).  However,  If the owner or operacor fails  or
refuses to correct such deficiencies within the six nonth
period, $124.3(4) allows the Agency  to deny the peraic and
assess aa appropriate civil  penalty:

     (d)  If an applicane falls or refuses to correct defi-
          ciencies in the application, the perait aay be
          denied and appropriate enforceaent accions aay be

(nexc page)

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                              -5-
          At 107 clae  after promulgation of phase II [opera-
     ting standards]  the owner and  operator of an existing  HWM
     facility may be  requi red to submit Part B of their  permit
     application.  The State Director may require submission  of
     Part B ... if  the State . .  .  has received interim
     authorization for Phase II or  final authorization;  if  not,
     the Regional Administrator may require submission of Part  B.
     Any ovner or operator shall be allowed at least six months
     from the date of  request to submit Part B of the application,
     (Emphasis added.)

40 CFR (270. I0(e) (4)  was promulgated  pursuant to the statutory

authority found in RCRA S3005 which directs the Agency to

promulgate regulations requiring RCRA permits for owners and
                             107
operators of HWM facilities.
Accordingly, violating any
requirement contained In 40 CFR $270.10(e)(4) is tantamount to
                                                  117
violating a requirement contained in RCRA Itself.
                     Therefore,
(Footnote No. 9 cont'd)

          taken under Che applicable statutory provision
          including RCRA section 3008. SDVA sections 1423
          and 1424, CAA section 167, and CVA sections 308,
          309, 402U), and 402(k).  (40 CFR 1124.3(d).)

(The presiding officer interprets 1124.3(d) as allowing assess-
ment of a civil penalty If, and only if, • facility continues
to operate after notification by the Agency that its interim
status has been terminated for failure (or refusal) to correct
deficiencies in its Part B permit application.  However, there
is no support for the view that 1124.3(d) was meant to envision
such a sequential approach, and it  ia hereby rejected.)

107 The text of 1CRA  13005 r«ad« in relevant part  as follows:
                    •
     (a)  Permit requirements. — Rot later than eighteen
          months after October 21,  1976, the Administrator
          •hall promulgate regulations requiring each  person
          owning or operating a facility for the treatment,
          storage, or disposal of hazardous vast*  identified
          or listed under  this subchapter  to have  a  permit
          Issued pursuant  to this section.

117 Agency regulations promulgated  pursuant  to  statutory  authority
have the  force and effect  of lav.   Service v. Dulles,  354 U.S.
363 (1959);  Rodrigues v. Dunn,  128  F.  Supp.  604  (1955),  aff'd

(next page)

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                              -6-
ic is clear that failing Co  submit  an  adequate  Part  B  applicati
on
is a violation of a RCRA requirement,  and  the  presiding  officer's
                                    I!7
holding to the contrary is  reversed.

     This case is remanded  to the presiding officer for  further
                                        _1_37
proceedings  consistent with this  order.

     So orde red .
                                    Ronald L.  McCallua
                                  Chief Judicial Officer
Dated:  ^  2  I I9S«
(Footnote No. 11 eoac'd)

249 P.2d 958 (1957).  See alio Farver v.  Philadtlphia Elee.
Co., 329 P.2d 3 (1964); Atwood't Transport Liner, Inc. v. U.S.,
211 F. Supp. 168 (1962), aff'd 373 U.S. 377 (1963); 3 Mezines,
Steia & Gruff, Administrative Lav. §13.03 (1977).

     It should be aoced that laterprtcive rules, i.t., rules
promulgtttd by aa Agency which Inctrprec a statutory provision
may not, la certain circumstances, have the force and effect  of
law.  40 CFR 1270.10 is not aa lacerprecive rule; racher ic falls
into Che category of a  legislative rule, i.e. , a rule which Con-
gress has specifically  authorized the Agency  to promulgate and as
such has the force and  effect of  law.

127 It is not necessary for purposes of this  decisioa to consider
whether the failure of  an existing facility to submit a Part  A
application is also a violation of a RCRA requirement.  Therefore,
that issue la neither addressed nor resolved  here.

137 See noce 7, supra.

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                     CERTIFICATE OF SERVICE
     I certify chat copies of Che foregoing Order la the Matter
of City Industries, Inc., RCRA (3008) Appeal No. 83-4 were
delivered to each of the following persona, in the aanner
indicated:
By 1st Class Mail,
postage prepaid:
87 Hand Delivery:
Arthur Greer
Presidenc,
City Industries, Inc.
3920 Forsythe Road
Orlando, PL  32807

Keith M. Casco
Assistant Regional Counsel
U.S. EPA, Region IV
345 Courcland Street, N.E.
Atlanta, CA  30365

Sandra A. Beck
Regional Hearing Clerk,
U.S. EPA, Region IV
345 Courcland Street, N.E.
Atlanta, CA  30365

Thomas B. Yost
Administrative  Law Judge
U.S. EPA, Region IV
345 Courcland Screet, N.E.
Atlanta, GA  30365

Bessie Haaalel
Hearing  Clerk
U.S. EPA Headquarters
401 M  Street. S.V.
Washington,  DC  20460
 Dated:   NQV 2 I  1984
                                  M. Gall Vingo
                                  Secretary to the Chief
                                   Judicial Officer
                                                            "

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                                                               9523.1984(11)
                 RCRA/SUPERFUND  HOTLINE  SUMMARY

                               MARCH 84
Must the owner cr operator of a container storage facility in a dcwntcwn
area check- all nearby  businesses for the possibility of injection cr
withdrawal wells in accordance with the 270.14(b) (19)(ix)  topographic
aiap requirsraent?

     No, the owner  cr  operator of the container storage facility does
     not have to check with the individual businesses in the city.  He
     cou Id, however, check with the city water department for potential
     •wells.  The State or city may also have a -well drillers licensing
     beard which could provide that intonation.

     Source:  Any Mills and Burnell Vincent

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                                                            9523.1985(01)
                             FEB 25  1985                                g?

                                                                       O UJ

                                                                       z w
                                                                       O rr

                                                                       O a"
                                                                       M H-
                                                                       s «
Hr. John R. Knight                                                     i -
Manager of Refining    '                                                *-«
Plying J, Inc.                                                         "^
P. 0. Box 2328                                                          w
Williston, North Dakota  58801                                          £
                                                                        Ul
Dear Mr. Knighti                                                        £>
                                                                        03
                                                                        K>
     In your letter of February 1, 1985, you asked  for EPA's            i,
position concerning a situation where the property  owner                ^
refuses to co-sign a Part B application made by the operator            o
of a hazardous waste facility.      •            •                        £,

     Zn your case, X understand that the 0*8. Corps of Engineers        to
is the owner of property on which you are operating a RCRA regu-        ^
lated surface impoundment.  The Corps of Engineers  apparently           if
prefers not to co-sign the Part B application you submitted.            c
Our regulations require that "the owner must also sign the permit       £"
application* made by an operator of a facility  [40  CFR 270.10(b)J.      x
If the owner chooses not to sign the application then a RCRA            *o
permit cannot be issued*   EPA would then deny the permit.  Opon         «
denial of the permit, the owner or operator must submit a closure       ^
plan and close in accordance with S265.112(c) and 5265.228.             n

     EPA encourages Plying J, Inc. and the Corps of Engineers to
work together to develop a cooperative course of action concerning
the future of the unit.

                                      Sincerely yours,
                                      John H.  Skinner
                                      Director
                                      Office of  Solid  Waste

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                                                                             9523.1985(02)
                   RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                                      MARCH  85
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 1n the Part B permit application?

          Since -..-» new final  rule 1s  not  effective when the initial  Part B
          applic:r.-on 1s due/the  permit applicant is not required to address
          the new final  rule  provisions  in 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  in 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 1n  the Part B application rather than go through a permit
          modification at  a later date.

          Source:    Terry Grogan  (202)  382-2224

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                                                     9523.1985(05)
                  RCRA/SUPERFUND HOTLINE  MONTHLY SUMMARY

                                   OCTOBER 85
5. Personnel •Draining  EXrinq Post-Closure

   The owner/operator  of an interim status surface impoundment is conpleting closure.
   All standing hazardous waste  liquids have been removed; however, sons hazardous
   waste residues and  contaminants will remain in place.  Therefore, the owner/operator,
   par 5265.228 (c), will provide post-closure care as for a landfill.  There will be no
   active management of hazardous waste or hazardous waste leachate during the post-
   closure period.  In the post-closure permit application which the owner/operator
   must submit, is he  required to neat the "personnel training" requirement listed
   in $264.16?

        The owner/operator of an inter in status surface impoundment must address
        all the information requirements in $270.14 and $270.17.  if the pout-
        closure permit application does not include the information covering training
        programs as required by $270.14(b)(12), the owner/operator must include a
        justification  for not meeting this requirement.

        The personnel  training requirement of $264.16 is designed primarily to ensure
        the facility's compliance with the requirements of Part 264.   If the owner/
        operator at the closed surface impoundment is no longer actively managing
        hazardous waste, then personnel training may not be required during the post-
        closure operating period.  Post-closure permit guidance, being prepared by
        the Permits and State Programs Division of the Office of Solid Waste, will
        address technical and administrative requirements for the post-closure care
        period.  The permit writer continues to have authority to ask  for more infor-
        mation fron the owner/operator as the situation may require.

        Source)    Lillian Bagus (202) 382-4691

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                                                              9523.1986(01)
           RCRA/SUPERFUND HOTLINE  MONTHLY SUMMARY

                             MARCH 86




1.  RCRA Permits for Mobile Treatment Units

   A company would like to build a mobile hazardous waste  incinerator.  The
   company submitted a Part B permit application.  Under the preconstruction
   ban of §270.10(f), a company must have a permit before  beginning construction
   on a unit.  Is there any way to begin construction earlier?

      RCRA. §3005(a), as amended by the  Hazardous and Solid Waste Amendments
      of 1984,  requires owners and operators of all hazardous waste treatment,
      storage,  and disposal facilities  to obtain a RCRA permit prior to
      constructing a RCRA facility. A   mobile treatment unit  (^) can be
      prefabricated and transported to  the proposed treatment site, but
      construction of the site itself,  such as pouring  concrete foundations
      and connecting the ^T^U to physical structures on-site cannot occur
      until the RCRA permit .s issued  (RCRA §1004(2)).

      EPA is developing a policy to streamline the permitting process for
      ffTU's and is considering the concept of statewide permits.  A draft
      policy is expected on March 30,  1986.

      Source:    Nancy Pcmerleau (202)  382-4500
      Research:  Jennifer Brock

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                                                    9523.1986(02)
July 31, 1986

Dr. Barry L. Johnson
Associate Administrator
ATSDR
Chamblee 28-South
1600 Clifton Road, NE
Atlanta, Georgia  30333

Dear Dr. Johnson:

     I am responding to your letter of May 28,  1986,  which raised
several important issues regarding the procedures EPA has
developed for interacting with ATSDR in conjunction with reviews
of exposure information under RCRA §3019.   We discussed these
issues in our meeting on July 7,  1986, with Mr.  Porter.

     Before responding to your letter, let me briefly explain how
I view the process we use for reviewing Exposure Information
Reports (EIR) .   The review of an EIR follows the same basic steps
we use in reviewing a RCRA Part B Permit application, i.e., a
general completeness review followed by a technical evaluation.
The purpose of the EIR completeness review is to determine if the
applicant has submitted all the necessary pieces of information.
Because the EIR is based in large part on information from the
Part B application, the EIR and Part B for a facility are
generally reviewed concurrently.   Once the EIR is determined to
be complete, the permit writer will conduct a technical review
and look for evidence of significant prior or continuing releases
from the facility.

     If the writer determines there is no evidence of a
significant release, he will consider any impact of potential
future releases and will consider the addition of special permit
conditions to mitigate potential exposure.  If significant
releases are known  (or suspected) to have already occurred, a
more detailed examination of the exposure potential will be
conducted and a health assessment may be initiated.  If the EIR
and Part B information submitted to date does not clearly show
whether there is exposure from a release,  the permit writer will
request additional information from the applicant so a firm
decision can be made.
        This document has been retyped from the original.

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                               -2-

     In response to your concern about ATSDR's role in this
process, there are specific areas where EPA (and authorized
states) will need ATSDR expertise and assistance.  The prime
areas is, of course, to conduct health assessments where there is
known or probable exposure to the public from releases.  In
addition, we will ask ATSDR to provide technical assistance in
defining what additional information to request from applicants
where the level of public exposure is not clear from the
information submitted to date.

     In many cases, the Regions will turn to EPA Headquarters for
assistance in defining and reviewing this additional information.
As you know, within my office we have created Permit Assistance
Teams  (PATs) which are groups that draw on a variety of expertise
as needed for the particular facility under review.  Ralph Touch
is one of the people we intend to include in the resource pool
for these PATs.  We will also continue to ask for Ralph's
participation in PATs or workgroups that are developing general
procedures and guidance to implement §3019.

     We are asking the Regional Offices to provide us with a list
of facilities where they expect to need ATSDR either to initiate
a health assessment over the next six months, or to provide
technical assistance for further defining and reviewing
information from applicants where the level of exposure is not
clear.  We will share this information with you so that we can
work together in defining the specific areas where we will need
your help for these facilities.

     As I understand your request, you believe ATSDR's role
should be broader than I have outlined above.  Specifically, you
suggest ATSDR should also review all EIR's, and that EPA (and
authorized States) should routinely consult with ATSDR in all
cases where there is evidence of release, even if it is clear
there is no public exposure.  At this time, I do not believe
ATSDR assistance in these activities is necessary  (for example,
ATSDR expertise would not be required in cases where there is a
remote landfill which shows no evidence of release of hazardous
wastes).  If experience dictates otherwise, we will, of course,
request the involvement of ATSDR in the EIR reviews.  We will be
happy to make all EIR's and other supporting information
available to ATSDR.  However, we would consider these reviews to
be outside the scope of our Interagency Agreement and the
Proposed Draft Memorandum of Understanding, except in cases where
we request your assistance.
        This document has been retyped from the original.

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                               -3-

     Your letter also raised a question about the estimated cost
range for ATSDR's services.  There seems to be some confusion
over the substance of the April 16,  1986,  letter from Bruce
Weddle to Ralph Touch.  The purpose of that letter was to request
ATSDR to review monitoring data compiled for the BKK landfill,
rather than to request a health assessment.  The questions to be
addressed by ATSDR related to the adequacy and quality of the
existing data, and the appropriateness of the procedures to be
used by EPA contractors in evaluating the data.   Ralph Touch
estimated that this limited review of the BKK data would cost
about $3,000 and require three weeks to complete, therefore, we
chose to use these specific numbers in our response.  However, we
recognize the potentially wide-range of costs for health
assessments and provided for it in the Interagency Agreement
between EPA and ATSDR for RCRA §3019.  The Agreement indicates a
range of $2,000 to $5,000.  Although this range is lower than the
$3,000 to $10,000 you suggest, the range in the Agreement is only
an estimate and the higher range may be more accurate for some
cases.

     Please contact me if you have any further comments or
questions.

                                   Sincerely yours,
                                   Marcia Williams,  Director
                                   Office of Solid Waste
cc:  Bruce Weddle
     Eileen Claussen

bcc: Ken Shuster
     Art Glazer
     Terry Grogan
     Bob Kayser
     Ralph Touch
Peter Guerrero
Reva Rubenstein
Jack Lehman
Art Day
Jon Perry
        This document has been retyped from the original.

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                                                                  9523.1986(03!
               RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY

                                AUGUST 86
7.   RCRA Compliance Orders

    Is a RCRA conpLiance order issued to the owner of a facility or its
    operator?  Who is  responsible  for complying with the order?

         EPA has  always held that both the owner and the operator are
         equally  responsible for compliance with the permit issued to
         a facility.   Section 3005(a) of RCRA requires "each person
         owning or operating" a treatment, storage, or disposal facility
         to obtain a permit.  The permit regulations require both owner
         and operator  to sign the permit application according to 40
         CFR 270.10(b).  The permit will be issued to both the owner
         and operator.

         Preamble discussions in the May 19, 1980 Federal Register
         confirm  this  concept of dual responsibility at 45 FR 33169
         and 45 Fj* 33295.  Both discussions specifically reference
         situations where the operator may be different fron the
         landowner or  facility owner.  EPA considers both the owner
         (or owners) and operator of a facility to be responsible for
         regulatory compliance.  For this reason, EPA may initiate an
         enforcement action against either the -Twner, the operator, or
         both.  Normally, the compliance order is issued to the person

         responsible for the daily operations at the facility because
         this person is most likely to be in the position to correct
         the problems.  If the operator is unable or unwilling to
         rectify  the problems then EPA may issue a separate compliance
         order  to the owner.

         Sources:   Tony Baney     (202) 382-4460
                   Carrie Vfehling (202) 475-8O67
         Research:  Kim B. Gorwals

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                                                  9523.1986(35)
     NOV 21 B86

l">r. Darry L. Johnson
Associate Administrator
Agency for Toxic Substances and Disease Peglstry
Chambl***? 2R South
1600 Clifton Po«d, NF
Atlanta, Georgia  30333

Oar Dr. Johnson:
     Thank you for your recent letter of October 30.  I aoreo
that we should meet to discuss ATSDR health assessments under
RCPA 53019.  I would also  like to follow-up on several issues
that you rained*
                                            •

     The "Procedural Guidance for Reviewlnn Exposure Information
under RCRA Section 3019" Alluded to in your letter was issued in
finaj form and distributed to the Regions on September 26, 19P6.
This document alerts the Regions to the possibility of the publir
submitting release and/or  exposure information to ATSDR, as well
as to EPA or the State.  The outdance (paqe 9) goes on to state
that ATSDR should forward  copies of these submissions to the TPA
Region, and encourages the Regions to coordinate any response
with ATfiDR's activities.   1 believe that we still need to work
out the details of this process in future meetings.

     While 53019 allows public submissions, the statute doe* not
explicitly provide for public petitions to ATSDR for health
assessments.  However, we  recognize that public petitions for
assessments at RCRA sites  fay be forthcoming under  the new
Superfund provisions.  For this reason, we agree that published
procedures for responding  to petition*! should cover RCRA facilities,
as well as Superfund Kite*.  I look forward to working with
OERR and ATSDR to develop  these procedures*

     In your letter you also sought clarification o* the role
of Mr. Ralph Touch as part of the Permit Assistance Team  (PAT).
Let me assure you that Mr. Touch will h*> involved in all phases of
the PAT decision-making process, including workload planning and
preliminary technical assistance, as well as formal referrals to
ATSDR for a health assessment.  To date, no formal  PAT Meetings
have been convened to recomm-nd referrals, and Regional requests
for site-specific assistance have been  fairly limited.

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                              - 2 -
     On October 28, we forwarded the attached letter to Mr. Touct
which summarizes the results of our survey of the Regions for
sites likely to need ATSDR assistance in the near future.  Sincp
then, we also sent to Mr.  Touch the data for one site in Reqion
IV (B.F. Goodrich, Kentucky) for ATSDR review.  In this case we
are seeking technical assistance in performing a preliminary
evaluation of the potential impact of apparent exposure to the
public, caused by releases into the Tennessee River, in ord«»r to
determine the need and extent of further evaluation.  We will
continue to keep Mr. Touch informed hy phone of the status of
other §3019 sites and will send him the necessary data as our
Reoions aenerate it.

     I look forward to meeting with you soon to discuss these and
other issues.  Ralph Touch will be meeting with my staff to
discuss the status of funds for ATSDR activities, the list of
candidate facilities for ATSDR assistance, and procedural issues.
I suggest that we meet shortly after this so that we can take
advantage of our staff's discussions.  Please have your secretary
contact my office to arrange our meeting.

                                Sincerely Yours,
                                Marcia Williams
                                Director
                                Office of Solid Waste
Attachment

'cc: Ralph Touch

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                                                        9523.1987(02)
            UNITED STATES ENVIRONMENTAL PROTECTION AGENcr

                        WASHINGTON. O.C. 20410
                                14(987
                                                             Of
                                               • OLIO WAJTI AND IMIdCf MC" «IS»ON
LETTER TO STATE ENVIRONMENTAL COMMISSIONERS

                         *
     In recent months  I've  noted a number of actions by State
legislatures aimed at  preventing the siting of new hazardous
waste management facilities, or otherwise limiting new capacity
to deal with these wastes.   In addition, some States have set
moratoria on completing permit decisions, or on approving changes
to permits needed for  expanded waste management capacity.  Another
potential action being considered is limiting the amount of waste
coming into a State  from  other States.

     I'm sure you share my  concern that  if this trend continues,
it will become increasingly difficult  to site or permit new waste
management facilities.  The irony is that these new facilities
are often safer and  better  designed than older, existing facilities.
Also, the resulting  capacity shortfalls  in some areas could mean
that wastes would be shipped longer distances for handling.  Such
transportation of hazardous wastes increases, of course, the risk
of spills and leaks.

     I'm particularly  concerned about  actions designed to limit
much needed treatment  capacity.  Sound,  permanent treatment is
usually preferable to  continuing the storage or disposal of
wastes in or on the  land.   Also, there is already a nationwide
shortage of commercial hazardous waste incineration capacity.

     The Comprehensive Environmental Response, Compensation, and
Liability Act, as amended by the Superfund -Nmendments and Reauthori-
zation Act  (SARA) requires  States to certify by October 1989 that
adequate capacity to handle hazardous  wastes is available  in their
States, or through arrangements with other States.  This certifica-
tion is a requirement  for continued Superfund funding  in a State
after October 1989.  Erecting  statutory barriers  to hazardous
waste management  in  a  State may not be consistent with  the required
capacity certification.

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                               -2-
     Most States are authorized by EPA to manage their own Resource
Conservation and Recovery Act (RCRA) program.  Although RCRA
requires an authorized State program to be "consistent," it also
allows States to be more stringent. "EPA took both of these pro-
visions into account when developing rules that required authorized
States to avoid unreasonable restrictions and prohibitions on
waste movement and management.  We may be compelled to initiate
withdrawal of RCRA authorization from a State which takes an
action in violation of these requirements.

     We recognize* however, that States must balance public health
and environmental concerns with the need for adequate waste manage-
ment capacity.  CPA has not opposed, for example, legitimate
State measures to protect areas with vulnerable hyrogeology from
the effects of waste disposal.  Nor has EPA discouraged States
from providing greater public involvement in permit decisions. We
are concerned, however, that States not use their authorities
arbitrarily to prohibit environmentally sound waste management
practices.

     I hope I can count on your support in this vital matter.
Please let me know if you have any questions or comments on this
letter.

                            Sincerely,
                            J. Winston Porter
                            Assistant Administrator

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                                                  9523.1987(03)
       RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                     NOVEMBER 87
Exposure Information Reguirenents

Section 270.10(j>  requires that  exposure  information
Part B applications for landfills or  surface  impoundment, s.   [ •-,
submission  of  exposure   information  a  condition  for permit
issuance?  What should the exposure  information  include?

     No. Section   270.10 states   that  an   api-1 icat ion  for  a
     Part B  permit is  not considered  incomplete  if  thr-  own-.-
     or operator   fails   to   submit   the  exposure  inforn.it. ion
     described  in  Section   270.10(j).    Failure   t<.>  submit
     exposure information  is  a   separate  violation   of  S^-ct iun
     3019 of RCRA.

     At a minimum, the exposure  information  should  address  .>[\
     potential pathways of human exposure to   hazardous w.ist^*
     or constituents  resulting  from releases durincj  arc itient b
     and normal operations, includiny releases assoc late.J u 11 h
     transportation  to   or   from   the   unit.   These pathways
     include ground-water, surface  water, air emissions,  foc-«i
     chain contamination,  and multi-media contaminjt: i >->n .  Tht-
     potential magnitude   and nature  of the  human exi'osury
     which  may   result   from the   releases   should   also  bt
     addressed.

Source:   Bob Kayser      (202) 382-4536
Research: Tish Zimnerman

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           RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY        9523.1988(01)

                           NOVEMBER 88


5. Contents of Part B Permit Application: General Requirements

The  Part B  of  the  permit application must contain  general  information
requirements.  One of these requirements is information on the traffic pattern,
estimated volume and control of traffic, descriptions  of access road surfacing, and
load bearing capacity of roads (Section 270.14(b)(10)).

Why is this information required?

 Is the information  limited  to  on-site traffic, or must the traffic patterns
 surrounding the facility also be described?

   The  intent of requiring  submittal  of the traffic related information is to
   ensure  that  movement of hazardous  waste will be conducted safely to
   minimize the risk  of  accidents.  The  traffic related information  is only
   required for that area inside and immediately surrounding the hazardous
   waste management facility.

   There are no standards in Part 264 with which traffic related items must
   comply.  However, the  overriding concern is safety.  Permit applicants should
   ensure that the  movement of waste into, out of, and within the facility will be
   conducted in a manner  that minimizes accident potential.   Additionally,
   general traffic movement should not be such that hazardous waste managed
   at the facility will be disturbed by the traffic. In order to present traffic related
   items effectively, the  Agency  recommends that both a discussion and a
   drawing be provided with the Part B permit.

   Permit applicants should  provide a  thorough description of both the pattern
   of general traffic and the pattern of traffic moving hazardous waste within the
   facility.  The applicant should also provide a description of traffic on roadways
   traveled by the public which intersect with access roadways to the facility. The
   following items should be considered for inclusion in the discussion of traffic
   patterns and volumes:  routes  traveled; distances  traveled; number of
   vehicles; types of  vehicles;  waste movement; sampling and unloading
   locations; and amount of pedestrian traffic.

   Permit applicants are  also required to submit a description of roadway
   surfaces and load bearing capacity. The intent here is  to  insure that  the
   roadways  are appropriate for the type and number of vehicles that will be
   using them.   If  the road surface is  such that it will  require periodic
   maintenance, the frequency and  type of maintenance could also be described.
   Finally, the reviewing agency may also be concerned with the amount of dust
   that will be generated by vehicular traffic in and around the facility.

Source:        Permit Applicant's Guidance Manual for the General Facility
               Standards of Part 264
Research:      Chris Bryant

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                                                    9523.1991(01)
%
              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C. 20460
                        •'IAR  I 3 1991
                                                       OFPICE OF
                                             SOLID WASTE AND EMERGENCY RESPONSE
 Honorable Glenn English
 House of Representatives
 Washington,  D.C. 20515

 Dear Mr. English:

      Thank you for your letter of February 4, 1991, regarding the
 Environmental Protection Agency's (EPA's)  authority to consider a
 permit applicant's history of compliance with the Resource
 Conservation and Recovery Act (RCRA).

      As Mr.  Robert Layton stated in his January 15, 1991, letter
 to you, RCRA section 3005(c)  requires that EPA (or the state)
 shall issue a permit to a hazardous waste treatment, storage, or
 disposal facility once the EPA determines that the facility is in
 compliance with the requirements of sections 3004 and 3005 of
 RCRA.  Neither section 3004 nor 3005 explicitly requires a permit
 applicant to have complied with RCRA in the past, or requires EPA
 to deny a permit if past noncompliance has occurred.  However,
 the statute provides a broad "omnibus" authority that the EPA may
 use to address a facility's compliance history when developing
 permit conditions or making permit decisions.  The scope of this
 omnibus authority and our implementation of this provision are
 described below.

      Section 3005(c)(3) provides that permits issued under that
 section shall contain whatever terms and conditions EPA
 determines are necessary to protect human health and the
 environment.  When issuing a permit,  EPA may invoke this omnibus
 authority to address past noncompliance in two ways.  First, EPA
 may include permit conditions that specifically address areas in
 which the facility has a history of noncompliance if EPA
 determines that such conditions are necessary to protect human
 health and the environment.  In addition,  in perhaps a more
 extreme and unusual case, some instances of serious past
 noncompliance could conceivably lead EPA to conclude that
 noncompliance in the future is inevitable. If EPA cannot draft
 conditions to ensure protection of human health and the
 environment in this type of case, then EPA may invoke its omnibus
 authority to deny the permit (see the enclosed page from the
 Federal Register notice).   It is important to note that the
 omnibus provision is invoked on a case by case basis, and only
 where EPA believes that the usual permitting conditions will not
 provide adequate human health and environmental protection.
                                                           Printed on Recycled Paper

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     Furthermore, EPA need not rely completely on the potential
for permit denial to encourage compliance with RCRA prior to
permit issuance..  Section 3008 of RCRA authorizes EPA to take
enforcement actions against facilities prior to permit issuance,
including those already operating under interim status.   Thus,
even though previous violations of the interim status standards
of Part 265 may not ultimately prevent the issuance of a permit,
a facility owner or operator is still subject to civil and
criminal penalties for those violations (including penalties for
each day of non-compliance).

     After issuing a permit, EPA has several mechanisms  in place
to address noncompliance.  The regulations at 40 CFR 270.43(a)
allow EPA either to terminate a permit or to deny its renewal
if the owner or operator fails to comply with any term of the
permit or if the facility's operation endangers human health or
the environment.  In addition, EPA may invoke enforcement
authority under RCRA section 3008 to remedy noncompliance at a
permitted facility.

     In light of the above statutory and regulatory authorities,
it does not appear necessary to modify the regulations at this
time.  If you have any further questions on this matter, please
have your staff contact Devereaux Barnes at (202)  475-7267.

     We appreciate your interest in the safe and effective
management of hazardous waste.

                                   Sincerely yours,
                                     /*/
                                   Don R.  Clay
                                   Assistant Administrator
Enclosure

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C. 20460

 ^-^°
                           OCT -7 1993                 9523.1993(01)
                                                       OFFICE OF
                                              SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM

SUBJECT:  Clarification  of  "Definition of Facility" and Part A
          Mapping  Requirements
          .-• /'.^-
FROM:    <:Jeffery  D.  Denit,  Acting  Director
           Office of Solid  Waste   (OS-300)
TO:    (/  Hazardous  Waste  Division  Directors
          Regions  I  -  X
                                     . V
     The purpose of  this memo  is  to clarify two items that
surfaced during a  review of  five  RCRA Information Collection
Requests  (ICRs) related to hazardous waste permitting.  The first
issue pertains to  the  definition  of "facility"; the second
pertains to mapping  requirements  on the Part A form.

1.   Definition of Facility

     It was brought  to the attention of the Office of Solid Waste
(OSW) that the use of  "facility"  in the different contexts of 40
CFR sections 270. 14 (c) (7) (i) and  270.14(d)  may cause confusion,
which we would like  to clarify for  permit writers and inspectors.

     Section 270. 14 (c) (7) (i). requires "a description of wastes
previously handled at  the  facility, " if releases of hazardous
constituents have  been detected at  a land disposal unit subject
to Subpart F requirements.   "Facility"  in this context should be
understood in its  narrower sense  as referring to the regulated
facility for permitting purposes, as defined in 40 CFR section
260.10  (i.e., solid  waste  management units (SWMUs) brought in
through section 3004 (u) are  not subject to this requirement).
"Facility" in the  context  of section 270. 14 (d) should be
understood as it is  for section 3004 (u)  corrective action (that
is, all contiguous property  under the control of the facility
owner/ operator) .

2 .   Part A Mapping  Requirements

     The Part A map  does not have to be a topographic map; the
regulations specifically allow other maps "if a topographic map
is unavailable" [see 270.13(1)].  Also,  facilities may use a USGS
or other readily available map in order to meet the Part A
requirements.  It  is not required to have surveyors come in to
develop a topographic  map  specifically for this purpose.
                                                           Printed on Recycled Paper

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                               -2-
     If you have any questions on this memorandum, please contact
Patricia Buzzell of my staff at (703)  308-8632.

cc:  Margaret Schneider
     Ken Gigliello, OWPE
     Evi Buffer, OPPE

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1 I i

HOTLINE QUESTIONS AND ANSWERS
September 1994 9523.1994(01)
                 RCRA
1.  Permit Application and Renewal

    In order to treat, store, or dispose of
hazardous waste, a facility owner or operator
must apply for and receive a RCRA permit.
Once a RCRA permit has been approved, it is
valid for a period of up to ten years (40 CFR
§270 JO).  If an ownerl operator wishes to
continue an activity regulated by the permit
after its expiration date, the owner I operator
must apply for and obtain a new permit
(§27030(b)).  What are the application
requirements for obtaining or renewing a
hazardous waste permit?

    To obtain  the original hazardous waste
permit, the owner/operator must submit a two
pan application, consisting of part A and pan
B.  The pan A (form 8700-23) requires
owners/operators to supply basic information
such as facility name and address, description
of hazardous waste processes, and
topographical maps.  For the part B, owners/
operators must fulfill the information
requirements of §§270.14-29. These sections
require an owner/operator to detail, in a
narrative format, how they will demonstrate
compliance with the general TSDF  standards,
as well as the  unit-specific requirements
(§270.
parts A and B, revised as necessary to reflect
changed conditions since the previous
application.  The revised pan B should: fulfill
all the requirements of a new permit
application; incorporate any new regulations
that were promulgated or came into effect
since the issuance of the permit; and include
any approved permit modifications.

   The owner/operator  may continue
operation under the existing permit beyond the
permit's expiration date  while the renewal
application is being considered if the owner/
operator submits the revised pan B at least
180 days before the expiration date of the
existing permit (§270.lO(h)) and the Regional
Administrator, through no fault of the
permittee, does not issue a permit with an
effective date on or before the expiration date
of the existing permit (§270.51 (a)). Failure to
file a timely application  would require the
owner/operator to cease  operations under the
expired permit and apply, as a new applicant,
for a new hazardous waste permit
    When an owner/operator reapplies for a
hazardous waste permit, the owner/operator
must submit an permit application, including

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This Page Intentionally Left Blank

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9524 - PERMIT
CONDITIONS
Part 270 Subpart C
                     ATKl/l 104/58 kp

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                                                                      9524.1983(01)
       Recurring Permit Issues:   Interpreting Regulatory
               Authority  for RCRA  Permit Conditions
Other Federal Authorities

     A related issue  that has arisen in sane of the first permit
reviews is whether RCRA permit •writers should insert permit conditions
which would require permittees to meet requirements established
under- other Federal laws and regulations.  Permit writers should
realize that the RCRA regulations have been specifically written
to avoid duplication  of coverage with other Federal authorities.
The supporting information behind the Part 264 regulations points
out that the Agency has excluded from the regulations many proposed
Part 264 standards that would have required permittees  to meet
other Federal lavs and regulations (see 45 Fad.Reg.  33171; Hay
19, 1980.)  Therefore, as a general matter, permit writers should
not include in RCRA permits conditions based on other Federal
authorities merely for repetition or emphasis.  Such conditions
should only be used if the permit writer decides they are needed
to meet RCRA regulatory requirements.

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                            OCT   5  £84
 SUPJSCTi  Use of Conpliance Schedules  in PCPA  Perr.its

 FROf«:     Bruce P.. Hertdlo
          Division Director
          Permits and State Proqraws Division

 TOi       Hazardous Waste Directors, Region  I-X
.•»
      Many Regions have requested guidance  on the appropriate
 use  of  compliance schedules in  RCRA permits.  In response  to
 those requests, the Permits Hranch has developed the  attached
 guidance.

      To surnarize the nain points, compliance schedules  in RCRA
 pernits cannot be used to satisfy, after the permit has  been
 issued, the information  requirenents of Part 270,  Compliance
 schedules can be used to allow  facilities  to cone into compli-
 ance with Part 264 standards  that are  not  required under Part
 265.

      Please distribute thin guidance to your respective  staffs.
 Any  questions regarding  when  compliance schedules can be used
 in RCRA permits should be referred to  Elizabeth Cotsvorth at
 FTS  3*2-4751.

 Attachment
 WH-563:RChrisnon:sm:S243:24691:8/12/04:Pandy's disk •Menos"

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                   USB Of COMPLIANCE SCHEDULES
                         IN RCPA
     A nunber of Pegions have flaked a.'xjut tne appropriate use of
co-vlianco schedules In RCRA permits.  The following explains
••••joncy policy on this issue.


Cr.r-ini ianc* Scnedules in Per7»it«

     In general* compliance schedules in pemits should be us«»d to
allow the construction or Installation of *»r,utpnent that Is not
required under Part 265 but that  is required to ccnply with Part
2*>4 standards.  To be acceptable, corpliance schedules nust be
specific, enforceable, allow for  public notice and conrent on
the detailed pernit condition, and allow the applicant additional
tioe only where that tine is legitinately needed.

  ..... Specificity reans that the corpliance schedule mist set forth,
in, detail, what the applicant is  supposed to do, when tr-e applicant
is supposed to do it, and when the work i« to be completed.  Thus,
the schedule should include the design and construction specifi-
cations* interin milestones for construction* and a specific date
for con^letion*  The schedule nunt also require the applicant  to
notify the Director within  14 days of each intorin date and the
final completion date.
  •»
     Enforceability means that the requiren««nts inposert by the
conplisnce schedule on the  owner/operator can be achieved and
that the Agency can confirn that  the owner/operator has suc-
cessfully r»et his responsibilities.  It also neans the schndulrd
activities nust conply with the  technical standards of Part  254.
The perr.it writer r»ust have an opportunity to evaluate the detail?
of design* construction, and operation  to assure  their adequacy  in
      of Part 264 requirements.
     The complete  compliance  schedule punt be included in the
draft pernit  so  the  public  will have an opportunity to coment
on its content.  The compliance schedule rauiit no conplote as to
the details of what  is  to be  done* when, an
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     No.  A facility should be  in compliance with  Part  265 stan-
dards at the time a RCRA permit is issued.   In  situations where
«•*" facility is not in compliance with  the  requirements of Part
265, especially when compliance problems  will prevent development
of a draft permit, the permit writer should refer  the case to  the
enforcement staff.  The enforcement staff will  make decisions  as'
to the appropriate enforcement  action to  pursue.   When  enforcement
actions result in administrative orders,  a  compliance schedule
may be included in the order.

2.   Can a compliance schedule  be used  to allow a  facility
additional time to provide Part B application  information after
the permit is issued?

     No.  Use of a compliance schedule  for  this purpose is unac-
ceptable and may be illegal.  For example,  the  RCRA regulations
provide that the Director must  specify detailed ground-water
monitoring conditions in the facility permit.   To  develop these
permit conditions, information  on ground-water  monitoring at the
facility is necessary and, generally, should be drawn from the
Part B permit application.  Without adequate ground-water moni-
toring data, it is impossible to know whether a facility should
be conducting detection or compliance monitoring or corrective
action.  In addition, there may be no information  that  would
support the details of a ground-water monitoring plan,  such  as
number, location and design of  wells.  Without  this information,
the Agency cannot develop a permit that complies with the Subtitle
C regulations.  Additionally, the public is not given adequate
notice or opportunity to comment on the ground-water monitoring
program.  Because the Agency does not have  adequate information
on these items, it cannot issue a permit.

3.   Can compliance schedules be used to bring  a facility into
compliance with Part 264 standards not required under Part 265?

     Yes.  Where a facility, which is in compliance with Part
265, must undertake new construction or installation of equipment
in order to comply with Part 264, a RCRA permit should be issued
with an attached compliance schedule.

     For example, although an  interim status storage facility
does not require secondary containment, secondary  containment is
required under Part 264.  Accordingly, the permit  applicant must
submit design, construction  and operating specifications for  a
secondary containment system in his  application.   The  permit
writer may  then approve those  specifications and nake  them part
of  the draft RCRA permit.  A compliance  schedule would  be include.-!
in  the draft permit,  setting forth milestones  for  various tasks,
a  final completion date for  construction and a requirement  for
the  permitee to notify the Director  within  14  days of  complying
with each  interim date and the final date.  See $270.33.
Incorporation  of  the  compliance  schedule in the draft  permit
would  provide  the public  with  notice of  the details of the  proposed
design,  construction,  and operation  of the  secondary containment

                                -2-

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 system,  and  also  the  proposed schedule  for completion of the
 work.  After addressing  the public comments, the pernit writer
 can issue  the final pernit and attached  compliance schedule.

      Note  the important  factors of this  scenario:

      A.  All information requirements of Part 270 are satisfied
 before the draft  pernit  is written.

    •  B.  The permit writer has an opportunity to assess the
 adequacy of  the design,  construction, and operation details.
                 *
      C.  The compliance  schedule is  specific as to what is  to be
 done, who  is responsible for seeing  that activities are cor.pleted,
 and when those activities are to be  completed.

      D.  The public has  a full opportunity for notice and connent.

 4.    Should  a compliance schedule be used to issue a pemit and
 allow modifications to an existing incinerator that has failed
 the trial  burn?                              -          , •-...-

  -..' No.  The Agency  should  not  issue a permit to a facility which
 has failed to demonstrate,  in accordance with Part 270, conpllance
 with the Part 264 perfocnance standards.
  *C  '         . ..  ^-                                •«. - - •
*r>.~  This  scenario appears  to be similar to  the  secondary contain-
 ment situation described previously. There  is,  however, a  fund-
 amental  difference between  the  two situations.   With respect  to
 secondary  containment, it can be ascertained froa the applicant's
 proposed designs  and  specifications  that the containment structure
 will comply  with  the  Part 264 technical standards.  With respect
 to  an incinerator, however,  there-is a  much  higher  level of
 uncertainty  that  proposed modifications will result  in  the
 incinerator  achieving compliance with the performance standards
 in  Part  264, Subpart  O.   The Agency  cannot  issue a  permit  to  an
 incinerator  that  cannot  demonstrate  ita ability  to  comply  with
 the regulations.

      Generally,  tho permit  writer  has several  options.   The Agency
 can delay  any final action,  send a  letter to the applicant saying
 that we  will deny the permit unless  we get trial burn results
 demonstrating compliance with  the  Part  264 performance  standards
 within a specified tine period.  The Director could also issue an
 administrative order to achieve the  same results.   Tho  applicant,
 of  course, can subnit a new trial burn  plan using different
 operating  parameters or modify  the facility and submit a new
 trial burn plan incorporating the new modifications.   This order
 likely would contain a compliance schedule.  Finally, In a ore
 circumstances, it aay be appropriate to deny the permit.
                                -3-

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         ••».          •-•                .
     *    For incinerator*,  should a RCRA pernit b«. issued with an          '
    attached conpliance schedule to bring an existing incinerator      '   . 7-->
    into 'coippliance.with Part 264 monitoring requirements necessary        •^V''
    for an  adequate trial burn?            .                                 ',-•.'«
         -  *                  *  ' '    '••.---.-••   •'.-  '•'-     '•••.'      -    ^.&
         No.   All continuous monitoring instrumentation should be         - - .--"*>
    installed for the trial burn.  Under SS270.19(d) or 270.62(b)(5),     •••'*&
    the Director mist find that the trial burn will allow hin to set   ' •    "~*V
    operating conditions for the unit before he can approve the trial  '     -''-•••
    burn plan.  If the continuous monitoring equipment is not installed      -.V
    during  the trial  burn,  the Director cannot set operating conditions.    "***
    Therefore, under  the authority of Part 270, the Director can            •'•: .
    require continuous nonitors to be installed before the trial burn  _:   . ,-•• •<
    is  conducted and  the permit issued.  .              .  .      •              •"•
    6.    Should "permits with compliance schedules be used* to "correct   ..  .- ^'-'-r*
    deficiencies in interia status ground-water monitoring data?    .   '      '-  •
         Where the ground-water monitoring data are lacking or question-
    able due to poor .sampling and analytical techniques, improper well  -.'~. •  .•<•'••••
    placenent, or lack of monitoring, the Agency cannot issue  a  RCRA  .„
    permit with an attached compliance schedule to develop adequate     *    '**""
    data.  Rather, the pernit writer should refer the case to  the :'•"   •
    enforcement office for action. .Close coordination between the .   v;.
    permits and enforcenent staffs will, of course, be necessary to     .
    ensure that the relief sought through enforcement action will be  V.i
    consistent and compatible with the Part B information requirements.' "
                         r        '   ~~ • -".'"*  "*"-_•*           -•     ^_
    7.    Hay the permit writer develop permit conditions in areas ;'.    .
    where the Part B is deficient?  For example, if an applicant     :  ~.
    fails to specify information regarding fire prevention and control
    can the parait writer still draft.pernit conditions in that area?
                                   -" ..-•»-•  '. -            .     • .:     _.
         Yes.  It should be kept in wind that the applicant  is not'     '.-•
•"-£•. ._the sole source of infornation available to the pernit writer.
v~:~Por example, the permit writer's knowledge of safety codes,  such
V.v'as the National Fire Protection Association Code, can provide
* ..'the basis for pernit conditions.  The permit writer can  impose
  ; 'draft pernit conditions on necessary fire prevention and control    .:"
    measures based on the NFPA code, even though the applicant has :_>..-
   .failed to specify this information in the Part B application.
 • •   The pernit writer, in essence, is conpleting the application for v..
    the applicant by drawing on his own knowledge and best engineering"
    judgment.  ".-     .              ..  ."      .;.-     V      '•'.'-.  -  '

    For Mere Infornation    --.v,   •-..-..•-  ".  .     -.  ..-  .-  . ,-j:}'•'•.'.....<  ..-.,"

         .The above examples cover  the situations where  use of conpli- J,=
    ance schedules has been suggested.  Headquarters j»i 11  be working **%.  -^f^-^
    with the Regions  to establish  a  national clearing house Cor sharing  ;/?'^t^
 :•'.  "model" permits, pernit conditions, KODa, and  conpliance achedules.^- 'i'^f^i
   . In the meantime,  any questions regarding when  conpliance schedules ;£--<~i--:-3ti.
  '"' can be used  should be referred to Elizabeth Cotsworth at FTS-8r  " -
    .382-4751.  '   ,-..-.  ,-. ..  ..•   --..   ••     ••:'   <••  \    ••-•••x-'-

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                                                             9524.1984(02)
          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                     WASHINGTON. O.C. 20460


                         OCT  I I 1984
                                                     O'nct o*
                                             SOLID WASTI AND IMtHCtNCV *IS»ONSC
SUBJECT:  Recurring Permit Issues: Extent of Permit Conditions
          and the Velsicol Decision
                              <"
FROM:     Bruce Weddle, Dires^oj-
          Permits and State Programs Division (WH-563)
TO:       Hazardous Waste Division Directors,
          Regions I-X


     Attached to this memo is a copy of the Administrator's
Decision in the Velsicol Appeal.  Velsicol challenged its RCRA
permit on the grounds that EPA lacked the authority to incorporate
parts of the permit application into the permit as enforceable
conditions and on the grounds that this incorporation would lead
to an inflexible permit with conditions that exceed RCRA's
requirements.  Velsicol had submitted a permit application that
described both RCRA and non-RCRA activities at a chemical plant.
The application led 'to a permit that was not limited to the RCRA
storage facility at this plant.

     The Administrator, citing the need for flexibility in writing
permit conditions, declared that a permit writer can restate
the requirements of the regulations, incorporate parts of the
permit aplication directly into the permit, or write a completely
original permit condition.  The latter two approaches are
permissible as long as "the permit conditions are  'based' on the
appropriate substantive provisions of the regulations and are
'necessary to achieve compliance with the Act and  regulations."
This ruling upholds the approach used in the Model Permit.

     The Administrator also found that both Velsicol and the
Region had failed to take full advantage of the permit process
to work together in preparing the permit conditions.  As a result,
permit conditions were written that, as the Region conceded, were
too broad.  For this reason, he remanded the permit to Region IV
for additional public comment and potential revision of the
permit after public comment.  In the new public comment period,
Velsicol can submit the information necessary to limit the permit
to the regulations.

     In summary, this decision allows permit writers to continue
using the Model Permit as the basis for RCRA permits, and to

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                               -2-
continue to incorporate parts of the permit application  in  the
draft permit or to, when necessary,  write completely original
permit conditions.  Permit writers must also ensure that appli-
cants are aware that parts of the permit application can be put
into the permit as enforceable permit conditions.  Accordingly,
the applicant should be encouraged,  through NODs and requests for
additional information, to identify and remove information  that
is not needed to demonstrate compliance with RCRA.  The  permit
writers are also free to excise extraneous information from
those parts of the application that are incorporated into the
permit.

     This guidance replaces our earlier guidance of January 20,
1984, entitled 'Recurring Permit Issues: Extent of Permit
Conditions."

Attachment

cc:  RCRA Branch Chiefs, Regions I-X
     RCRA Permit Section Chiefs, Regions I-X
     OSW Permits Branch

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                     BEFORE THE ADMINISTRATOR
                D.S. ENVIRONMENTAL PROTECTION AGENCY
            •••'• *"'          WASHINGTON, D.C.
 In  the Matter of:                  )
                                   )
 Velsicol  Chemical Corporation,     )     RCRA Appeal No. 83-6
                                   )
    Applicant                       )
                                   )
 Permit No.  TND-061-314-803         )
          REMAND  AND  PARTIAL  DENIAL OF  PETITION  FOR  REVIEW

                                                           I/
      In a petition filed pursuant to 40 CFR  $124.19 (1983),~

 Velsicol  Chemical Corporation  (Applicant)  requested review of

 a  Resource Conservation and  Recovery Act  (RCRA)  permit  issued

.to it for operation  of a hazardous waste  management (HWM)

 facility  at  its  chemical manufacturing plant in Chattanooga,
           2/
 Tennessee. ~~  The contested permit was  issued  on September 28,

 1983*  by  the Director, Air and Waste Management Division, Re-

 gion  IV,  U.S.  Environmental  Protection Agency.   According to

    Applicant, the permit is inflexible due  to  "Region  IVs
 I/  40  CPR 5124.19 provides  in pertinent part:

         (a)  Within 30  days  after a RCRA .  .  .  final permit
    decision  has  been issued . .  ., any person  who filed
    comments  on  the draft  permit  .  .  .  may  petition the Ad-
    ministrator  to review  any condition of  the  permit decision.

 2/  The Applicant is currently operating its  facility under the
 authority of "Interim  Status," a provision in  RCRA which allows
 persons who  own  facilities  which were  in existence on or before
 November 19, 1980, to  continue in operation  until final action
 is  taken on  their permit  applications.

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      extensive incorporation of Velsicol's  [permit] application

      into the permit itself . . .  ."   The Applicant's  specific

      objections to the permit fall into  two  broad  categories:

      (1) the Region lacks the authority  to  incorporate substantial

  (C.  portions of the permit application  in  the  permit  as enforceable

      conditions; and (2)  such incorporation  led to a permit  which

      is inflexible and contains conditions  that are "stricter than
                                         3/
      required by the RCRA regulations."  ~

           As explained below, insofar as the Applicant questions  the

      Regional Administrator's authority  to  incorporate portions of

      the permit application in the final permit, the Applicant has
     r~
   S^not carried its burden of showing,  in  accordance  with 5124.19(a)
  **•
      (1) and (2), that the permit determination is clearly erroneous
C-
      or involves an exercise of discretion  or policy which is  impor-
                                                                  !/
      tant and which should be reviewed as  a  discretionary  matter. ~"

      Therefore, review of that aspect of the permit is denied.
      3/ See "Velsicol Chemical Corporation's Reply to Region IV s Re-
      ?ponse in Opposition to Velsicol's Petition" dated January 20,
      1984.  In its petition, the Applicant requests review of eighteen
      conditions in the permit.  In some instances, it is not possible
      to discern the precise basis for the Applicant's challenge to
      a specific condition.

      4/ The preamble to the regulations containing this standard for
      accepting review states that "this power of review should be
      only sparingly exercised [and] . . . most permit conditions
      should be finally determined at the Regional level .
      45 Fed. Reg. 33412 (May 19, 1980).

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       •, with respect to the challenges to specific permit
conditions on grounds that they are inflexible and too strict,  c°"
the permit determination is remanded to the Region for the
purposes of reopening the comment period and revising the
permit conditions where.appropriate.
                               A.
     There is n£ compelling reason to question the Region's
authority to incorporate portions of the permit application in
the Applicant's permit.   The regulations confer broad discretion
on the Regional Administrator to either: (1) restate the require-
ments of the regulations as permit conditions (which he did in
some instances); or (2)  to "establish other permit conditions"
which meet the regulatory standards.  40 CFR §270.32(b) ("Es-
tablishing Permit Conditions").  The text reads as follows:
          (b) Each RCRA permit shall include permit
     conditions necessary to achieve compliance with the
     Act and regulations, including each of the applicable
     requirements specified in 40 CFR Parts 264, 266, and
     267.  in satisfying this provision, the Director
     [Regional Administrator or authorized representative]
     may incorporate applicable requirements of 40 CFR Parts
     264, 266, and 267 directly into the permit or establish
     other permit conditions that are based on these parts.
When the Regional Administrator elects to "establish other per-
mit conditions," instead of simply restating the requirements of
the regulations, he can choose between incorporating parts of
the permit application directly in the permit or crafting a com-
pletely original permit condition in his own words.  No  legal
significance attaches to his choice, however, for  in either

-------
instance th«'sole test of legal sufficiency is whether the
     *•
requirements of 5270.32(b) are satisfied, i.e., whether the
permit conditions are "based* on the appropriate substantive
provisions of the regulations and are "necessary to achieve
compliance with the Act and regulations.'  Therefore,  the con-
tention that the Regional Administrator is without authority
                                                        I/
to incorporate portions of the application is rejected.
     Similarly, there is no basis for contending, as Velsicol
does, that restating the requirements of the regulations should
be preferred over incorporation of the permit application.  The
permit issuer needs to have broad discretionary powers in de-
ciding which of the several approaches to writing permit con-
ditions under $270.32(3) is most appropriate: permits are
issued for many different kinds of hazardous waste facilities,
ranging from those which only store small amounts of hazardous
waste on a temporary basis, to those which are  in the business
of disposing of large quantities of hazardous waste on a contin-
5/ In some cases, the regulations actually direct the Regional
Administrator to incorporate approved plans from the application,
thus depriving the Regional Administrator of discretion to do
otherwise.  For example, 40 CFR $264.112 (Closure Plan)
provides:
          (a) The owner or operator of a hazardous waste
     management facility must have a written closure plan.
     The plan must be submitted with the permit application,
     in accordance with $270.14(b)(13) of this chapter, and
     approved by the Regional Administrator as part of the
     permit issuance proceeding under Part 124 of this chapter.
     In accordance with $122.29 of this chapter, the approved
     closure plan will become a condition of any RCRA permit.

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        uous basis.  In sone cases,  a restatement of the regulation
        will be sufficient to insure the safe handling of the waste;
        in others it will not.   Similarly,  in some cases incorporation
        of the permit application will be sufficient; in others it
        will not.  finally,  in  some  cases it may be necessary to devise
        new language that is tailor-made for the specific circumstances.
        Therefore,  any suggestion that any single approach to writing
 Y<- * ^S-"permit conditions is preferable in all circumstances is cate-
_£^ ^  gorically rejected.
 ^^*~       The Applicant argues, however, that even if incorporation
 y*3     is authorized by the regulations, it is bad policy.  According
        to the Applicant, it results in inflexible permits which will
        have to be  modified  in  the future, thus wasting valuable Agency
        and applicant resources.  This argument also fails to persuade
        me that the permit should be reviewed.  There is no reason to
        assume, as  the Applicant evidently does, that incorporation will
        inevitably  produce an inflexible permit needing modification.
        On the contrary, the outcome depends in large part on what the
 j^ ^   Applicant has submitted and on whether th« procedures  for de-
 *  ^        "      "    "                 	          	"
 v       velop ing permits are used effectively, so that  unnecessary con-
        flicts over the terms and conditions of the permit are  minimized,
        Based on the record before me, I am convinced that the  Applicant
        and the Region have not taken advantage of the  permit  procedures

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                                       I/
     to avo^d the present controversy.
                                      B.
          The applicable procedures for permit issuance contemplate
     that the permit  issuer and the permit applicant will work to-
                                    y
     gether in developing a permit.     To that end, the regulations
     provide that if  the permit application does not contain the in-
     formation required to write a permit, the Regional Administrator
  ^  may issue a "notice of deficiency," requesting the information
     necessary to complete the application.  40 CFR $124.3(c).  After
     the application  is officially "complete," the Regional Adminis-
     trator may still request additional information to clarify what
_f>-   has already been submitted, 40 CFR $124.3(c); and still later,
     after the draft  permit determination  is issued for public comment,
  /'  the Regional Administrator may modify the permit  (and reopen the
c~^~  comment period)  if the Region receives comments from the Appli-
  (
     cant (or the public) that appear to raise substantial new ques-
     tions concerning the permit, 40  CFR $124.14.  Naturally, if the
     comments indicate  that the permit would be contrary to the Act
     6/  For much the  same reason  I  do not believe  that  it  is  necessary
     to  address the Applicant's contention that  incorporation of major
     portions of its  application  leads to the inclusion of permit  con-
     ditions that, under $270.32(b),  allegedly are  not  "necessary  to
     achieve compliance with the  Act  and regulations."  (Emphasis added.)
     There is no reason to assume that incorporation  inevitably leads
     to  inclusion of  unnecessary  conditions.   In any  event, whether or
     not a particular condition  is  necessary  can be judged on a case-
     by-case basis and corrected  as appropriate.
     7/  See generally, 40 CFR Part  124 (1983).

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  or the regulations," the  Regional  Administrator can  always

  deny the permit application )(after  proper notice, including

  circulation of  a revised statement  of  basis)  if  the Region

  lacks the information  necessary to  make  the permit  conform to

  the law, 40 CFR SS124.3(d) and 124.6{b).  In  other  words, the

  regulations provide an opportunity  for an exchange  of  informa-

  tion between the Region, the Applicant,  and the  public  in

  developing the  terms of  the permit.   In  the present case,

  however, it appears that neither  the  Region nor  the Applicant

  took full advantage of this opportunity  and the  result, as the

/ Region concedes, is a  permit that contains provisions  which  are

  too detailed or that cover portions of the facility which are
                           ~~               "           !/
  not directly, related to  hazardous waste  operations.
I
  £/ The Region nevertheless  justifies issuing  the permit in its
  present form on the  grounds  that  it is the  Applicant's responsi-
  bility to provide the permit issuer with the  information needed
  to prepare the permit,  and  if the resulting permit is too in-
  flexible or embraces matters not  properly within the scope of the
  regulations, the permit Applicant is at fault,  for the permit
  merely reflects the  information supplied by the Applicant.  And
  if that information  produces an inflexible  or overly broad permit,
  then the permit Applicant has no  one to blame other than itself.
  The Applicant's remedy, according to the Region, is to seek a
  modification of the  permit.

       The Applicant,  on the  other  hand, responds by pointing out
  that it gave the Region the information it  requested; that the
  Region is under a duty to prepare an adequate permit; and that,
  regardless of the over or underabundance of the information sup-
  plied by the Applicant, the Region is not authorized to put
  conditions in the permit that are beyond its  authority.

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     For reasons which are not apparent from the record,
                                                   V
the Region did not request clarifying information,     or
issue a notice of deficiency, or reopen the public comment
period for the purpose of considering modification of the pro-
posed permit or denial of the permit application.  The record
does show, on the other hand, that the Applicant did raise  its
concerns about inflexibility and overbroadness in its comments
on the draft permit.  However, the record also shows that the
Applicant's comments were not accompanied by the  information
which the Region would have needed to^change the  permit so
              	                     10/
that it would conform to the regulations.
     Since the Region concedes that some of the conditions  in
the permit are too broad, it is my conclusion that the Region
erred when it issued the permit.  Given the Region's stated
willingness to entertain proposals to amend certain permit con-
ditions, the Applicant should be given an opportunity  to submit
the information that will enable a permit to be prepared that
is narrower and distinguishes between the Applicant's  hazardous
9/ The Region did  request other  information  from  the Applicant
to clarify some of the submitted material/ but  that request did
not address the matters  in question  here.
1_0/ See, for example, 40 CFR  $124.13 ("Obligation to raise  issues
and provide information during the public comment period").  Of
course,  it is a settled principle of law that the party  who is in
possession of information has the burden of  producing  it.   See
McConnick on Evidence (2d ed. 1972)  ("A doctrine  often repeated  by
the courts is that where the  factsrvith regard  to an issue  lie
peculiarly in the  knowledge of a party, that party has the  burden
of proving the issue.").

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and nc^ihazardous waste operations,  and otherwise  conforms  to
the regulations.  Therefore,  I am remanding the permit to  the
Region so that the comment period can be reopened under $124.14,
thus giving the Applicant another opportunity to submit that
information.
Conclusion
     Accordingly, for the reasons stated above, it is my con-
clusion that review of the RCRA permit is not warranted at this
time.  The petition for review is denied insofar as it chal-
lenges the Regional Administrator's authority to incorporate
portions of the permit application in the final permit.  However,
regarding Applicant's objection to specific conditions in the
permit, the permit determination is remanded for the purposes
of reopening the comment period to provide an opportunity to
obtain the additional information needed to revise those permit
            ii/
conditions.      If the information is not forthcoming and the'
Region is, therefore, unable to write a permit that complies
with the Act and the regulations, the Region is instructed to
issue an appropriate notice of its intent to deny the permit.
ll/ Of course, only the permit condition* contested  in  the
Applicant's petition for review will be the subject  of  the
reopened comment period.

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                               10
Any final parait determination shall reflect the Region's
response to all comments.  Thereafter, the Region's permit
determination may be appealed in accordance with $124.19. —
     So ordered.
                                 William 0. Ruckelshaus
                                      Administrator
Dated:  $EP 14 1984
127 For purposes of judicial  review,  final  Agency  action  occurs
atter a final RCRA permit  is  issued by  the  Regional  Administrator
and Agency review procedures  are exhausted.  See 40  CPR $124.19

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                                                    9524.1985(01)
Mr. Thomas M. Hellman, Ph.D.
Manager
Health, Safety and Environmental Protection
General Electric
Fairfield, Connecticut  06431

Dear Dr. Hellman:

     Thank you for your letter of June 13 regarding RCRA
incinerator permits.  Specifically,  you inquired as to whether an
incineration facility which is intended to burn non-hazardous
waste and/or hazardous wastes banned from land disposal, but is
overdesigned to meet RCRA requirements, can secure a RCRA permit
at a future time.

     RCRA Section 3005(a)  and 40 CFR 270.10 prohibit physical
construction of a hazardous waste management facility without a
RCRA permit.  When applying this requirement,  the intent of the
owner in constructing the facility is the primary factor of
consideration.  A permit is required prior to construction if the
owner intends for the facility to handle non-hazardous waste for
a period of time, and them apply for a permit to handle hazardous
waste  (including hazardous waste banned from land disposal) at a
later date.  If the facility is intended to burn only solid non-
hazardous wastes, a permit prior to construction is not required.

     If an incinerator is constructed with the intention of
burning only solid waste and those wastes are listed as hazardous
wastes sometime in the future, the facility would be eligible to
receive a permit provided that all permitting requirements are
met.  Such a facility would have to comply with any additional
standards applicable to that treatment process which have been
adopted subsequent to the construction of the incinerator.

     RCRA allows an exemption from the requirement to have a
permit prior to construction for facilities constructed pursuant
to an approval issued under section 6(e) of the Toxic Substances
Control Act for the incineration of polychlorinated biphenyls.
any person owning or operating such a facility may file an
application for a RCRA permit to incinerate hazardous wastes
after construction or operation of that facility.
        This document has been retyped from the original.

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                               -2-

     We endorse your decision to seek environmentally sound
alternatives to land disposal in your hazardous waste management
strategies.  In regard to this issue, I also recommend that you
contact the State RCRA permitting agency since Connecticut is
authorized to issue RCRA incinerator permit.  For further
information, please contact:

          Stephen Hitchcock
          Hazardous Material  Management Unit
          Department of Environmental Protection
          State Office Building
          165 Capitol Building
          Hartford, Connecticut  16106

     If we can be of further  assistance, please contact Art
Glazer of my staff at (202) 382-4692.

                              Sincerely,
                              John Skinner
                              Director
                              Office of Solid Waste

cc:  Stephen Hitchcock, Connecticut
     Dennis Huebner, Region I
        This document has been retyped from the original.

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                                                                  9524.1986(01)
         RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION
                                 JANUARY 1986
4.   Obtaining  Interim Status

    A hazardous waste management facility has received a final permit, pursuant to
    Section 3005 of RCRA to store and treat hazardous wastes.  The  facility also
    has solid  waste management units (SVtfU) on-site.   If the solid  wastes in the
    SVMJs become RCRA hazardous waste because EPA lists them as hazardous wastes,
    can the facility obtain interim status for these  newly-regulated units?

         Interim status, under Section 3005(e) of RCRA, is granted  to facilities.
         Interim status is not granted on a unit-by-unit basis.  Therefore, fully
         permitted facilities may not receive interim status for newly regulated
         units.

         Fully permitted facilities will be allowed to treat, store, or dispose of
         wastes covered by new hazardous waste listings if the owner/operator
         submits an amended permit application pursuant to 40 CFR 124.5 and the
         permit has been modified pursuant to 40 CFR  270.41 or 270.42.

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                                       9524.1988(01)
        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                   WASHINGTON. O.C. 20460
FEB 23
Ms. M. Therese Yasdick
Environmental Counsel
Chemical Waste Management, Inc.
3303 Butterfield Road
Oak Brook, Illinois 60521

Dear Ms. Yasdick:

     This is in response to your letter of November 24, 1987 in
which you requested clarification of the reporting requirements
of section 270.30(1)(10) of the RCRA regulations.   As you know,
that section, on its face, requires permittees to report all
instances of non-compliance not reported under other paragraphs
of section 270.30.

     In your letter, you raised the concern that this
requirement, read literally, would require owners and operators
to notify EPA of every instance of non-compliance, however
trivial.  You suggested, instead, that the Agency adopt three
specific criteria for when reporting would be required under
section 270.30(1) (10).  You expressed concern that, if the
Agency failed to adopt those criteria, the result would be an
unnecessary burden on industry and a chilling effect on internal
environmental audit programs.  After careful review of your
suggestions and concerns, we agree that there are certain
instances of non-compliance with permit conditions that do not
warrant reporting under section 270.30(1)(10).  However, we
believe these are limited to minor facility recordkeeping,
reporting, and similar oversights that are immediately corrected
once discovered.  We further agree that the reporting
requirements of this section are limited  to non-compliance only
with permit conditions and not to other Federal, State, or local
requirements.  We have addressed individually below the criteria
you suggested and the concerns you raised about application of
the reporting requirements of section 270.30(1)(10).

     First, you suggested that reportable instances of
non-compliance should be  limited to violations of  40 CFR Part
264.  We do not believe, however, that reporting requirements
should be limited in thio wav.— RCRA permitc may contain

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provisions that do not extend from the regulations of Part  264
yet are extremely significant.  For example, the omnibus
provision of section 3005(0(3) of RCRA allows the Agency to
impose such permit conditions as it determines are necessary  to
protect human health and the environment.  Conditions imposed
under this provision might fall outside of the scope of Part  264
but would also, by definition, be significant.  Violations  of
those provisions would likely be significant as well and would
require reporting under section 270.30(1)(10).  Similarly,
violations of air emissions standards, which have been proposed
under 40 CFR Part 269, also may be significant.  On a related
point, you asked whether section 270.30(1)(10) requires
reporting of any non-compliance with any other Federal or state
requirements that are not part of the RCRA permit.  We do not
believe that is the intent of section 270.30(1)(10).  Other
subsections of section 270.30(1) refer to reporting of
non-compliance with permit requirements.  For example, section
270.30(1)(2) requires reporting of anticipated activities that
might result in "non-compliance with permit requirements."   The
reference to "non-compliance" in section 270.30(1)(10) is
intended to be the same; that is, it refers to non-compliance
with the permit requirements.

     Second, you suggested that instances of non-compliance
reportable under section 270.30(1)(10) should be limited to
instances that "significantly and adversely affect the sound
environmental operation of the facility."  We disagree with this
suggestion on the grounds that the standard is overly
subjective.  Furthermore, the purpose of the  reporting
requirement is not simply to identify specific instances of
non-compliance leading to actual harm, but rather to indicate
overall records of compliance and patterns of non-compliance.
This end would not be served if reporting were limited to
instances of non-compliance that met the suggested standard.

     Finally, you suggested that all reportable instances of
other non-compliance should exclude matters discovered and
addressed by an internal environmental audit  program.  You
expressed concern that a literal interpretation of section
270.30(1X10) would have a chilling effect on internal
environmental audit programs and pointed  out  that the Agency's
policy on environmental audits acknowledges industry's need to
•self-evaluate environmental performance  with some measure of
privacy"  (51 FR 25004).  However, that policy also states that
"audit reports may not shield monitoring, compliance, or other
information that would otherwise be reportable and/or accessible
to EPA"  (id).  Further, it explicitly states  that the policy
"does not alter regulated entities'...obligations to monitor,
record, or report  information required under  environmental

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statutes, regulations, or permits..." (id).   Therefore,  while
the Agency encourages and supports environmental auditing,  it
does not support the use of environmental audits to shield
otherwise reportable violations.  At the same time, the  Agency
believes that  its enforcement policies do in fact provide a
strong incentive for environmental audits by facility owners  or
operators.  In the  Federal Register notice announcing its policy
on environmental auditing, the Agency noted that while
environmental  auditing cannot substitute for regulatory
oversight, it  can help facilities become subject to less
regulatory action by helping them improve their performance.
For this reason, we do not believe that the reporting
requirements of section 270.30(1)(10) will have a chilling
effect on environmental auditing.

     Although  the Agency believes that the specific criteria
that you suggest are inappropriate, we acknowledge that
requiring notification fcr every instance of permit
non-compliance, however trivial, could be extremely burdensome,
both to the facility owner or operator and to EPA, without
providing significant benefits.  The Agency did not intend  such
a result in section 270.30(1)(10).  Instead, we believe  that
this reporting requirement should not apply to minor
recordkeeping, reporting, and similar oversights that are
immediately corrected once discovered.  Under this
interpretation, violations such as the example you cited in your
letter, that  is, failure to put the time of an inspection on  an
inspection form, need not be reported.  Also fitting into this
category would be failure to maintain all aspects of personnel
training plans up to date and minor deviations from time
deadlines, such as  time for submission of biennial reports.  The
Agency believes, however, that even seemingly insignificant
violations become significant if repeated.  Therefore, it should
be noted, that if a violation meeting the above criteria is part
of a repeating pattern, reporting is required.

     I hope this clarification of the reporting requirements  of
section 270.30(1)(10) answers your questions about its
application and alleviates your concerns about unnecessary
burden to industry  imposed by that section.  If you have any
questions on  this  issue, please contact Frank McAlister of the
Office of Solid Haste  (202) 382-2223.
                               Sincerely,
                               Jeffery/p.
                              Act irtg/i)i rector
                            i  Of fie/ of  Solid Waste
                                  V

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                UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                             WASHINGTON. O.C.  20460

MEMORANDUM

SUBJECT:   Use of Omnibus Authority to Control Emissions of Metals, HC1,
             and PICs from Hazardous Waste Incinerators

FROM:      Sylvia K. Lowrance, DirectorA  \^
             Office of Solid Waste     -21>^ v~

TO:          Hazardous Waste Division Directors, Regions I-X

       Questions have recurred regarding the implementation under omnibus'authority of
the forthcoming proposed amendments to the hazardous waste incinerator standards, and
the relationship between implementing the controls and meeting the November 8,1989,
permitting deadline.  This memorandum provides OSWs policy on these issues.

       We are concerned that the existing standards for hazardous waste incinerators under
40 CFR 264.340 may not be fully protective for all facilities with respect to emissions of
toxic metals, hydrogen chloride (HC1) and products of incomplete combustion (PICs). We
have developed proposed amendments to the standards to better address the hazards posed
by these emissions.  The proposed rules have completed the internal Agency review
process and are under review by the Office of Management and Budget We anticipate that
the proposed rules will be published for public comment in the spring of 1989.

       In the interim, until the rules are promulgated, EPA permit writers should use the
authority provided under Section 3005(c)(3) of the Resource Conservation and Recovery
Act (RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984
(HSWA), to apply additional permit conditions as necessary to adequately control these
emissions. This provision, often called the "omnibus" authority, gives permit writers the
authority to apply additional permit conditions as necessary to adequately protect human
health and the environment Thus, EPA permit writers have the authority and the
responsibility to consider, on a case-by-case basis during the permit process, whether
controls based on the current regulations are fully protective, and, if not, to establish
additional permit conditions as necessary to protect human health and the environment

       The use of the omnibus authority is clearly within the initial intent of Congress in
including the omnibus provision in the statute, as evidenced by the legislative history  at S.
Rep No. 284, 98th Cong., 1st Sess. 31 (1983), which states:

             "[the omnibus authority] can  also be used to incorporate new or better
             technologies or other new requirements in permits, where  EPA intends to
             add such technologies or requirements to the regulations but has  not yet
             issued a final regulatory amendment."

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Guidance Documents

       To assist permit writers, we have developed two guidance documents: Qaidance on
Metals and Hvdrogen Chloride Controls for Hazardous Waste Incinerators. December 29,
1988 (Draft final report); and Guidance on PIC Controls for Hazardous Waste Incinerators.
December 30, 1988 (Draft final report). These guidance documents recommend a step-by-
step approach to develop permit conditions consistent with the regulatory requirements the
Agency plans to propose.  We recommend that permit writers use the guidance documents
to develop appropriate permit conditions. However, in using the guidance documents or
other information to establish permit conditions under the omnibus authority, the permit
writer must provide the applicant and other interested parties due process. The permit writer
must explain  and document what the concern is, and thoroughly discuss why the additional
permit conditions are needed  to ensure protection of the public health and the environment.
Through the permit process, he must provide the time and opportunity for comment, he
must fully respond to those comments, and he must include the responses in the
administrative record of the permit. In short, the permit writer must provide a sound
technical basis for inclusion of the permit conditions under  the omnibus authority.

       Permit writers need not wait to use OSWs guidance documents until the documents
have been issued in final form. Like the proposed rules, the guidance documents have
completed the internal Agency review process. We anticipate that the documents will be
published in the spring of 1989, and made available through the National Technical
Information Service.  Permit writers should use the guidance notwithstanding its draft status
because, as indicated above, the permit writer must justify thoroughly and, in writing, any
requirements  applied under the omnibus authority.

       The permit  writer cannot simply refer to the guidance document to support the
conditions included in the permit.  Moreover, we anticipate that the guidance may change
over time as permit writers and applicants gain experience dealing with the  issues and as
additional information becomes available (e.g., health effects data; improvements in
dispersion models). We plan to revise the documents as needed after publication and to
provide notice in the Federal Register of the availability of subsequent editions.

       By considering the need for additional controls under the omnibus authority on a
case-by-case  basis, permit writers can avoid petitions from  interested parties asserting that
the permit is not adequately protective. The Administrator has already ruled in favor of a
petition for review  of a RCRA incineration permit that argued, in part, that adequate controls
on metals and PIC  emissions were not provided in the permit. The Administrator
subsequently  directed the Region to consider adding permit conditions addressing PICs and
metals.

State Permit Writers

       We encourage State permit writers to implement the guidance if the State has an
omnibus authority in its statute. EPA permit writers should review the draft State permit to
determine if it adequately protects human health and the environment, particularly with
respect to emissions of metals, hydrogen chloride, and PICs. If the State permit does not
provide adequate controls, the EPA permit writer should provide these controls in the
HSWA portion of the permit, given that the omnibus authority is a HSWA provision.
HSWA provisions  must be implemented by EPA in authorized States until the State obtains
authorization for HSWA provisions as well. To date, only one State, Georgia, has been
authorized under HSWA.

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Impact pn Permitting Deadline

       We do not believe that considering the need for additional controls for metals, HC1.
and PIC emissions during the permit process will cause the Regions or States to miss the
November 8,  1989, permitting deadline established by HSWA. We developed the guidance
documents to enable the permit writer to apply appropriate controls on a site-specific basis
and to explain to interested parties the need for those controls. In Addition, we have
conducted four training workshops for Regional and  State permit writers on how to use the
guidance documents.  Finally, Headquarters staff in the Combustion Section, WMD, and
the Alternate Technology and Support Section, PSPD, are available to assist permit writers
as necessary.  Limited contractor funds arc also available to handle special problems that
may arise.

       Some permits, however, may have already progressed to a stage where issuance of
ihe penrut would be substantially delayed if a trial bum was required to demonstrate
conformance with  the metals and PIC controls recommended by the guidance documents.
Examples are when the trial bum has already been conducted or where the trial bum plan
has been approved. In these cases, the guidance documents recommend that permit writers
establish conservative, but reasonable, interim controls until the owner or operator conducts
a trial bum to demonstrate that the  interim requirements (or less stringent requirements) will
not result in an exceedance of the limits recommended by the guidance documents.  Methods
for determining these interim limits are presented in the guidance documents.  In applying
these interim controls, however, the permit writer must still  thoroughly explain in writing
the basis for imposing such conditions and provide interested parties due process through
the RCRA permit procedures.

       Nonetheless, if a State believes that it may not be able to meet the November 8,
1989, permitting deadline because of the policy on implementing controls on metals, HC1,
and PIC emissions, the State should discuss the situation with the Regional Office. If site-
specific guidance is needed, the Regional Office may discuss the situation further with
Joseph Carra, Director, Permits and State Programs Division.


cc:  State Hazardous Waste Division  Directors
   Incinerator Permit Writers' Workgroup
   Jeffery H. Denit
   David Bussard
   Robert Tonetri
   Joseph Carra
   Steven Silvennan
   James Berlow
   Bob Holloway

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                                         9524.1989(02)
                          MAR*  669
MEMORANDUM

SUBJECT: Ecolotec Permit Remand Order and Use of the Omnibus
         Provision

FROM:    Joseph S. Carra, Director
         Permits and State Programs Division

TO:      B. G. Constantelos, Director
         Waste Management Division, Region V

    This memorandum is in response to your request of January 9,
1989 for guidance on the use of the Agency's omnibus authority
under section 3005(c)(3) of RCRA and 40 CFR 270.32(b)(2).   As
you stated in your memorandum, the Administrator signed a Remand
Order on the Ecolotec RCRA permit appeal that directs the Region
to reconsider its decision in light of the Agency's omnibus
authority.  You expressed concern that the Remand Order could
have significant implications for the RCRA permitting process by
broadening substantially what the Agency must consider in
connection with permit issuance.  You then posed several
questions about use of the omnibus authority in light of the
Ecolotec appeal decision.

    We understand your concerns about the uncertainty that
omnibus authority creates in the permit process.  However, we
believe that the Remand Order of the Ecolotec permit appeal
should not have any substantial impact on what the Agency must
consider in connection with permit issuance.  The Remand Order
instructs the Region to reconsider the Ecolotec permit because
the Region failed, in making the original permit decision, to
recognize the Agency's authority under the omnibus provision to
deny a permit.  As stated in the decision, n[t]he Region is
simply directed to reconsider the facility and the permit under
the proper legal perspective, i.e.. one that includes denial of
the permit...."  We do not believe that the Order should be
interpreted to criticize the manner in which the Region used the
omnibus authority to impose permit conditions.  In fact, the
Order specifically states that Region V recognized and properly
exercised its discretion under the omnibus provision to impose
permit terms on Ecolotec beyond those required by EPA
regulations.  Nor does this Order reduce the ability of the

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                               -2-
Region to rely on the Federal  regulations  as  establishing  the
appropriate level of human health and  environmental  protection,
as long as there are no site-specific  circumstances  that
indicate otherwise.

    We address below the questions that your  memorandum raises
about the omnibus authority.

1.  How broad is the Agency's  authority to gather information
not required by the regulations?

    Under §270.10(k) of the RCRA regulations, the Agency has
broad authority to require information from permit applicants
concerning permit conditions issued under  §270.32(b)(2) (the
omnibus provision) when necessary to protect  human health and
the environment.  The Agency discussed the extent of this
authority in the preamble of the Final Codification Rule
published on December 1, 1987  (53 FR 45788).   That preamble
states that, while the authority to collect information under
§270.10(k) should be used sparingly and not for random and
unjustified fishing expeditions or for conditions unrelated to
hazardous waste activities, it can otherwise  be used in specific
circumstances where existing regulatory requirements may require
supplementation to ensure that human health and the environment
are adequately protected.

2.  Will we be required to conduct risk assessments at every
site prior to permit issuance?

    The omnibus provision does not impose  an obligation on the
Agency to conduct risk assessments at  every site.  Further, as
discussed above, we do not believe that the Remand Order on the
Ecolotec appeal requires the Agency to routinely gather
additional information when issuing a  permit or to routinely go
beyond the regulatory standards.  The  Agency continues to be
required to examine all relevant data  and  information that are
available when issuing a permit.  If,  based on this normal
quantum of data, the Agency determines that site-specific
circumstances exist that require further investigation, then
additional information may be gathered from the applicant under
the authority of §270.10(k).

3.  When is use of the omnibus provision appropriate?

    As a rule, the Agency's position is that EPA's  regulations
are protective of human health and the environment  and that
permits implementing these regulatory standards will also be
protective.  As you know, however, there may be site-specific
environmental circumstances in which regulatory requirements  may
need supplementation and use of the omnibus provision  may be
appropriate.  The decision to invoke omnibus authority must be
made on a case-by-case basis and only when the Agency, after

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                               -3-
examining all relevant data supplied during the permitting
process, determines that such circumstances exist.  The most
obvious use of the omnibus authority is to impose additional
permit conditions reflecting standards that have been proposed
but are not yet in effect.  Another use of the omnibus might be
to impose permit conditions not required by the regulations but
detailed in guidance documents issued by the Agency.  This
latter example is not, however, a broad directive to turn
guidance into regulatory requirements.  Rather, it would be most
appropriate when guidance specifically identifies particular
situations where current generic regulations might need to be
supplemented.  In any case, while there will be other
circumstances in which the omnibus authority can and should be
used to impose permit conditions or deny permits, such
situations should be uncommon.

4.  What are the legal limits of the omnibus provision i.e.. do
we have authority to deny a permit even though the facility has
submitted a complete and technically adequate application?

    In the preamble of the July 15, 1985 Codification rule, the
Agency clearly stated that in order for the omnibus authority to
accomplish its intended effect, the authority to issue permits
containing conditions deemed necessary to protect human health
and the environment must encompass the authority to deny permits
as well.  The Agency further discussed the legal limitations of
our omnibus authority in the preamble of the December 1, 1987
Second Codification rule.  There, the Agency pointed out that
the intent of the provision includes authorization to impose
permit conditions beyond those mandated by the regulations.
Thus, even if a facility submits a permit application that is
complete and technically adequate as defined by EPA regulations,
if due to environmental circumstances at the facility,
compliance with the regulations will not assure protection of
human health and the environment, and the Agency cannot impose
additional conditions that will provide adequate protection,
then the Agency can and should invoke omnibus authority to deny
the permit.

    I hope this answers any questions you might have about the
effect of the Ecolotec Remand Order on use of the omnibus
provision.  If you have any further questions, please contact
Barbara Foster at FTS 382-4751.

cc:  Tina Kaneen
     Lisa Pierard
     Waste Management Division Directors, Regions I-IV, VI-X
     Barbara Foster

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                                                       9524.1989(03)
MEMORANDUM

SUBJECT:  Postponement of a Land Treatment  Demonstration for
          Navajo Refining Company,  Artesia,  New Mexico
          Authorized by the New Mexico  Environmental
          Improvement Board

FROM:     Joseph S. Carra, Director
          Permits and State Programs Division (OS-300)

TO:       Allyn M.  Davis, Director
          Hazardous Waste Management Division (6H)

     This memorandum is in response to  your request of  December
29, 1988 for guidance on certain permitting issues  related to
land treatment facilities.  You mentioned that the  questions
arose because the New Mexico Environmental  Improvement  Board
delayed the start date of a land treatment  demonstration for  an
interim status land treatment unit  owned by Navajo  Refining
Company.  As you explained in your  memorandum, the  postponement
occurred as follows:

1.   On January 22, 1988, the State of  New Mexico issued a
     two-phased permit to the facility  in which it  required
     that the land treatment demonstration phase (Phase I) be
     effective for a period of one  year from the effective date
     of the permit unless terminated, revoked, or reissued.

2.   On March 22, 1988, Navajo Refining Company appealed the
     state-issued permit and requested  a de novo hearing, which
     was held on May 31, 1988.  In  its  appeal, Navajo Refining
     submitted Proposed Findings and Reasons which alleged that
     the Board has the authority to reverse a decisions of a
     Director under various circumstances.   Navajo suggested
     that the Board change the start date of the treatment
     demonstration Phase I period to a later date.

3.   On August 12, 1988, the Board  considered the appeal and
     tentatively decided to postpone the start date of the land
     treatment demonstration until  August 8, 1990.   EPA stated
     its opposition to delaying the demonstration, but the
     Board nevertheless rendered its final decision to postpone
     the start date of the Phase I  land treatment demonstration
     until August, 1990.

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                               -2-


You asked several questions about the status of the facility
and the state appeal.  Because New Mexico is an authorized
State, your questions are governed by New Mexico law,  and we
have no reason to comment on state law matters.  In addition,
most of your questions appear to be of a generic nature about
land treatment demonstrations and permitting.  We have answered
your questions in a similarly non-facility-specific vein,
assuming that federal law is applicable.  We emphasize that our
comments do not analyze the Navajo Refining situation as a
matter of applicable state law.

1. Can a permit be appealed based on reasons other than those
received during the public comment period?

Yes.  Section 124.19 of the RCRA regulations governs who may
appeal a RCRA permit under federal law.  That section provides
that any person who filed comments on a draft permit or
participated in the public hearing may petition the
Administrator to review any condition of the permit decision.
Section 124.19 does not limit the subject matter of the appeal
unless the person failed to file comments or participate during
the public hearing on the draft permit, in which case the
person may only petition for review to the extent of the
changes from the draft to the final permit decision.  Note,
however, that New Mexico state law could differ significantly
from §124.19.

2.  Is the permit a legally enforceable document if it does not
require the land treatment demonstration until a future date?

Under federal regulations at §270.63, the Agency may issue a
two-phase facility permit, such as the permit  issued to Navajo
Refining, to a facility with a land treatment unit.  Such a
permit becomes effective, thus enforceable, according to the
procedures in §124.15, that is, 30 days after  issuance unless a
later date is provided in the permit or the permit  is
appealed.  Under federal law, the effective date of a treatment
demonstration phase would not affect the effective  date of the
facility permit.

3.  Can a permit be issued for Phase II without Phase I being
implemented first?

Yes.  As discussed above, the federal  regulations  at  §270.63
provide for issuance of a two-phase permit  to  a facility with  a
land treatment unit.  Such a permit normally contains general
facility standards and two portions related to the land
treatment standards of Subpart M.  The  first portion, Phase I,
provides for the treatment demonstration; the  second, Phase II,
contains conditions to attempt to meet  all  SuJbpart M
requirements based on substantial, yet  incomplete  or

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                               -3-
inconclusive information submitted in Part  B of the permit
application (see §270.63(b)) .   As is disscussed above,  all
portions of the permit are issued at once,  and the "facility"
permit becomes effective per §124.15.  The  Phase I portion
becomes effective as provided in the permit.  The Phase II
portion becomes effective only after the Phase I treatment
demonstration is completed and, based on the results of the
Phase I treatment demonstration, all necessary permit
modifications are made per §270.63.

4.  What is the regulatory status of a facility when a
two-phase permit is issued under §270.63?

Under federal law, a facility is "permitted" once the permit
goes into effect.  At that time, the facility becomes subject
to general facility standards under  Part 264 as well as
corrective action provisions of the  permit.  The land treatment
unit is subject to the standards of  Part 264 insofar as it  is
used for the treatment demonstration, the remainder of the  unit
complies with interim status standards until Phase II of the
permit goes into effect pursuant to  §270.63(d).

5.  Can EPA require a treatment demonstration through the HSWA
omnibus provision?

At the time that the HSWA portion of the permit was issued, the
Agency could have required a treatment demonstration using
omnibus authority if such a requirement were necessary to
protect human health and the environment.  However, whether the
omnibus authority is appropriate for use after initial permit
issuance, such as when a permit is renoticed as a result of
changes made in response to an appeal, is an issue still under
consideration by EPA at this time.

6.  Is a State's administrative process for changing a permit
to reflect a different start date for the land treatment
demonstration subject to major modification requirements
including public notice and opportunity for comment?

The State's administrative process is a matter of state law.
Under federal law, any change made as the result of an appeal
decision need not be made as a permit modification because the
contested portion of the permit has not yet become a final
permit decision under $124.15.  However, if the change is
substantial, then public notice and opportunity for comment may
be advisable.  Once the permit becomes effective, any change to
it must be made as a permit modification.   If the State has
procedures similar to the previous federal  major/minor
modification system, a change of the start  date for a  land
treatment demonstration would  likely be a major modification
and subject to public notice and comment.

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                               -4-
7.  Can EPA prompt a State to require the land treatment
demonstration by providing comments pursuant to §271.19 if and
when the State opens the permit for a major modification that
proposes a delayed start date?

Comments under §271.19 are intended to assure that a state
permit meets authorized state law permitting standards.  We
should comment pursuant to §271.19 if the state modification
does not comport with authorized state law.  On the issue of
delaying treatment demonstrations at interim status land
treatment units, as a matter of federal policy we do not favor
delayed start dates, particularly since Congress clearly
indicated that land disposal units should be under permitting
standards by November of 1988.  Therefore, it is appropriate
for us to file comments urging the State not to allow the
delay.  However, if the delay is permissible under authorized
state law, and the State chooses to exercise its discretion
under authorized state law and allow the delay, our comment
cannot by itself support enforcement action under §271.19 as
there will be no violation of law to enforce.  It is the law
that our comment identifies, not the comment itself, that
imposes obligations with which facilities must comply.  It
should be noted that unwarranted delays in implementing
permitting standards could result in a state program that is
less stringent than the federal program.

     I hope this information about federal law related to land
treatment facilities helps to answer your questions about the
Navajo facility.  If you have any further questions, please
call Barbara Foster at FTS 382-4751.

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I t^Mfc? g        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
VVKfy                   WASHINGTON. O.C. 20460
 ^>   c

                                                   9524.1994(01)


                              I! II  I 9 1994
                              JJL  I 3 I3W                OFFICE OH
                                               SOLID WASTE AND EMERGENCY RESPONSE

  Mr.  Keith E. Coltrain
  Ogletree, Deakins, Nash, Smoak & Stewart
  4101 Lake Boone Trail
  P.O.  Box 31608
  Raleigh, NC  27622

  Dear Mr. Coltrain:

       This is in response to your letter of June 21, 1994
  addressing EPA's current interpretation of the reporting
  requirements of 40 CFR §270.30(1)(10), as discussed in Jeffery
  Denit's February 23, 1988 letter to Chemical Waste Management,
  Inc.   Your letter also presents five scenarios,  and asks whether
  these situations involve reportable non-compliance pursuant to
  §270.30(1)(10).

       Mr. Denit's letter remains- as the current Agency
  interpretation regarding a permittee's obligation to report
  non-compliance with RCRA permit conditions as specified in
  §270.30(1)(10), which requires the permittee to "report all
  instances of non-compliance not reported under paragraphs (l),
  (4),  (5), and (6) of this section".   We believe that this
  regulation generally does not apply to minor recordkeeping,
  reporting, and similar oversights that are immediately corrected
  once  discovered.  The Agency believes, however,  that even
  seemingly insignificant violations become significant if
  repeated.  Therefore, it should be noted that if a violation
  meeting the above criteria is part of a repeating pattern,
  reporting is required.  The non-compliance reports under this
  provision do not have to be submitted immediately, but are to be
  included the next time the facility submits monitoring reports to
  the  regulatory agency.

       We have reviewed the five scenarios presented in your letter
  (see  attachment).  Because each instance of non-compliance must
  be addressed on a case-by-case basis in view of all the facts, a
  final decision as to whether these situations constitute
  reportable non-compliance cannot be made without additional
  information.  With the information you provided, it is difficult
  to tell if the described incidents are one-time occurrences of
  minor significance, or if they are a part of a larger pattern of
  non-compliance.  In addition,  such site-specific issues are more
  appropriately made by the State or EPA Regional  permitting
  authorities.  However, based on-the limited information provided,

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our judgment is that the scenarios 1, 2, 4, and 5 probably
involve reportable non-compliance.

     The situations presented in scenarios 1, 2, and 5 appear to
directly involve hazardous waste management activities.  These
situations might indicate potential flaws in waste handling
procedures.  The requirement to report non-compliance assures
that the Agency is notified of and can assess compliance problems
at a particular facility.  In addition, reporting non-compliance
creates a strong incentive on the part of the permittee to
institute mechanisms to prevent recurrence of non-compliance.  It
is important that these mechanisms be developed, especially for
substantive waste management requirements.  The scenarios
presented do not appear to fit within the narrow exception for
"minor recordkeeping, reporting, and similar oversights."

     Scenario 4 raises questions regarding on-site safety.  No
information is provided about the identity of missing items, but
if items identified in a contingency plan are missing, it may not
be possible to implement the contingency plan fully.  The failure
to have on-site all equipment required in a permittee's
contingency plan does not appear to be a minor recordkeeping or
reporting oversight.  Note that contingency plans are often
written to allow replacement and maintenance of emergency
equipment,  and such routine maintenance would not trigger
reporting requirements.

     Scenario 3 involving a fallen sign appears to be a general
facility maintenance concern.  Unless this is a recurring
situation,  and assuming this problem was immediately corrected,
this probably would not be reportable non-compliance.

     I would like to reemphasize that additional information
would be necessary to make a complete evaluation.   Overall, we
believe that the exception from the requirement to report all
non-compliance is a narrow one for rare individual instances-of
non-substantive violations.  When in doubt, a facility should
report any non-compliance.

     Thank you for the opportunity to respond to your requests
concerning reportable non-compliance.  If you have any questions,
please contact Jeffrey Gaines at (703)  308-8655.

                                   Sincerely,
                               
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                                     LAW OFFIC ES
            OGLETREE,  DEAKINS, NASH,  SMOAK &  STEWART
                                     LAKE BOONE TRAIL

                                 POST OFFICE BOX 3I6O8

                             RALEIGH, NORTH CAROLINA 27622

                                TELEPHONE (919) 787-97OO

                                    FAX (919)
                                     June 21, 1994
OTHER OFFICES:
GREENVILLE. SOUTH CAROLINA
WASHINGTON. O. C.
ATLANTA. GEORGIA
COLUMBIA. SOUTH CAROLINA
NASHVILLE. TENNESSEE
ALBANY. NEW YORK
Michael Shapiro
Director, Office of Solid Waste
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington,  DC 20460
                                        RE:   Scope of Duty to Report Noncompliance
                                               Under 40 CFR §270.30(l)(10)
Dear Mr. Shapiro:
       I am writing to request EPA's current interpretation of the reporting requirements of 40
CFR §270.30(1)(10).  That regulation requires permitted facilities "to  report all instances of
noncompliance not reported under other paragraphs."

       To date, I have found only a 1988 letter (copy attached) from Jeffery D. Denit, Acting
Director, Office of Solid Waste, addressing the scope of 40 CFR §270.30(1)(10). In that letter,
Mr.  Denit states that  Section 270.30(1)(10)  should  not apply  to minor oversights  that are
immediately corrected once discovered.

       I  am seeking your  confirmation that  the  1988 letter still reflects EPA's current
interpretation of 40 CFR §270.30(1)(10).  I would also appreciate copies of any more recent EPA
guidance  documents or  letters  interpreting  the  requirement to  report other instances of
noncompliance. Specifically, has EPA defined in any way what instances of noncompliance are
not reportable because they were "immediately corrected once discovered?"  Has EPA defined
what constitutes "immediate correction?"

       In order to put this request in more concrete terms, I have drafted five (5) questions for
you to consider.  We request the Agency's position on whether any of these situations would be
reportable noncompliance pursuant to 40 CFR §270.30(1)(10):

-------
 Michael Shapiro
 Director, Office of Solid Waste
 U.S. Environmental Protection Agency
 June 21,  1994
 Page 2 of 2	
       Thank you for your attention to this matter. I look forward to hearing from you.

                                      Yours truly,

                                      OGLETREE, DEAK1NS, NASH,
                                       SMOAK AND STEWART
                                       teith E. Coltrain
Enclosure
jlg\wp5 l\*4Metters\epainter.ltr

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                                     QUESTIONS

 1.     40 CFR §264.315  requires that  containers must  be crushed, shredded or similarly
       reduced in volume  to the maximum practical  extent before burial in a landfill.  The
       landfill operator deposits a bulk load of waste directly into the landfill and then discovers
       several containers entrained in the load.- Those containers were empty and had not been
       crushed or shredded.  The operator removes the containers, crushes them or fills them
       with inert material and returns them to the landfill.  If this reportable noncompliance?

2.     40 CFR §264.314 requires that placement of bulk liquids containing free liquids in a
       landfill is prohibited.  The landfill operator deposits a  bulk  shipment directly into the
       landfill and observes a small amount of liquids. The operator immediately absorbs the
       liquids.  Is this reportable noncompliance?

3.     40 CFR §264.14 requires a warning sign to be posted at various locations.  The facility
       operator posts such  signs but later discovers that one sign  is not visible because it has
       fallen to the ground. The operator replaces the sign.  Is this reportable noncompliance?

4.     40 CFR §264, Subpart D requires the owner or operator of a hazardous waste facility
       to have a contingency plan for his facility.  In reviewing  the contingency plan, the
       operator discovers that certain items listed in the plan have been used and are not on-site.
       The  owner orders  and  obtains  replacement  items before the contingency plan is
       implemented.   Is this reportable noncompliance?

5.     40 CFR  §264.173 requires  that containers holding hazardous  waste must always be
       closed during  storage,  except when it is necessary .to add or remove waste.  The owner
       inspects the container storage area daily.  On Monday he notes all containers are closed.
       On Tuesday,  he discovered a partially opened container and immediately closes  it. Is
       this reportable noncompliance under 40 CFR §270.30(1)(10)?

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This Page Intentionally Left Blank

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9525 - CHANGES
TO PERMITS
Part 270 Subpart D
                    ATKl/l 104/59 kp

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                                                    9525.1982(01)


January 29, 1982


MEMORANDUM


SUBJECT:  Proposed Mechanism for Handling Mobile Treatment Units

FROM:     John H. Skinner
          Director, State Programs
            and Resource Recovery Division (WH-563)

TO:       Howard Zeller
          Acting Director
          Enforcement Division, Region IV


     This is in response to your memorandum of September 25,
1981, requesting concurrence with your proposed mechanism to
handle mobile treatment facilities.

     We agree with Region IV's interpretation of the regulations,
that interim status and RCRA permits are site specific and
therefore, mobile treatment units alone cannot receive permits
(or interim status) but must be permitted (or receive interim
status) for use at a particular location.  We have written at
least one letter to that effect.  (See letter from John Skinner
to Timothy Vanderver of Chemfix Technologies, Inc. dated June 2,
1981, sent to the Regions on that date).

     The following approach, which is somewhat similar to the one
suggested in your memorandum,  will enable mobile treatment units
to operate within the scope of the RCRA program.  This approach
has been developed after meeting with several mobile treatment
companies.  We have divided the approach into the following four
situations:

          (1)   Non-emergency situations at a site which has
               interim status;

          (2)   Non-emergency situations at a site which has a
               RCRA permit  (e.g., periodic use of mobile
               treatment units during the operating life of the
               facility, use at closure);
        This document has been retyped from the original.

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                               -2-

          (3)  Non-emergency situations at a site which does not
               have interim status or a RCRA permit (e.g.,
               remedial actions at inactive sites);

          (4)  Emergency situations  (e.g., spills, emergency
               response).

(1)  Non-emergency situations at a site which has interim status

     This approach would enable a mobile treatment unit to
operate during interim status under one of three alternatives.
(Alternative  (c) will be proposed soon as an amendment to 40
C.F.R. §122.23, Changes during interim status).

     (a)  An  interim status facility which intended to use mobile
treatment equipment, but did not include it in the original Part
A permit application, may amend its Part A application to include
the mobile treatment process.  The Agency would treat these
facilities as it would any facility which submitted an incomplete
Part A permit application.  The only requirement is that the
equipment must have been in existence on or before November 19,
1980,1  and the facility must have qualified  for interim status.

     (b)  Mobile treatment may be added to a facility as a new
process or an increase in the design capacity of an existing
process under the allowable changes during interim status, 40
C.F.R. §122.23(c)(2) or (c)(3).  Under these sections, a mobile
treatment unit may be added to a facility if it is necessary
either to prevent a threat to human health and the environment
because of an emergency situation;  to comply with Federal
regulations or state and local laws; or because of a lack of
available treatment, storage, or disposal capacity at other
facilities.    It should be noted, however, that these sections
will change with the amendment to §122.23.
I/    Because mobile  treatment units are unique in  that  they are
used intermittently at different sites,  they will be considered in
existence if they were operating at any site on or about November
19, 1980.  Normally,  a unit would have to be operating on or about
November 19, 1980, at a site which qualified for interim status to
be considered in existence.
        This document has been retyped from the original.

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                               -3-

     (c)  The proposed amendments to 122.23(c)  will include a
section which will allow interim status facilities to add tanks
and containers used for the treatment or storage of hazardous
waste.   Such tanks and containers may be added for any reason,
whether or not the facility previously had tanks or containers,
or any treatment or storage process.  The facility must have
qualified for interim status,  however.  This amendment, if
promulgated as proposed, will  enable most interim status
facilities to add mobile treatment done in tanks or containers to
their facilities.

(2)  Non-emergency situations  at a site which has a RCRA permit

     A mobile treatment unit may be added to a permitted facility
under §122.15 as a permit modification.  Section 122.15(a)(l)
allows a permit to be modified,  or revoked and reissued when
substantial alterations or additions to the permitted facility or
activity occur.

     We will be proposing amendments to §122.17 which, in some
limited circumstances, may allow the addition of mobile treatment
units to be considered minor modifications to a facility.

(3)  Non-Emergency situations  at a site which does not have
     interim status or a RCRA  permit

     Our approach is to require  a permit before a mobile
treatment operator may begin operation at a non-emergency site
which does not have interim status or a RCRA permit.  In most
situations where the mobile treatment company is handling the
clean-up, it will be considered  both owner (of the equipment)  and
operator, and must apply for a permit.  If there is another owner
involved as well, e.g., owner  of the land, that owner may also
have to sign the permit application.

(4)  Emergency Situations

     There are two emergency mechanisms already in place in the
RCRA regulations.  First, storage or treatment done in immediate
response to a spill of hazardous waste may occur without first
obtaining a RCRA permit.  (See 40 CFR §264.1(g)(8),  45 FR 76630,
November 19, 1980).

     Second, there is a provision for an emergency permit in 40
CFR §122.27.  This is a temporary permit to be used in the event
that treatment, storage, or disposal of hazardous waste must take
place due to an emergency situation.
        This document has been retyped from the original.

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                               -4-

     Your concept of a generic permit would allow the mobile
treatment operation itself to obtain a permit, and then require
public notice before the mobile treatment operation is used at
each individual site.  The concept is obviously a departure from
the present RCRA scheme of site specific permits.  We will look
into this suggestion further.  In the meantime, the approach
described in this memorandum must be used.

     We would appreciate any comments you have on our approach to
handling mobile treatment units.  If you have further questions
or comments, please contact Deborah Wolpe at  (202) 755-9107.

cc:  Directors, Air & Hazardous Materials Division, Regions I,
     III-X
     Director, Water Division, Region II
     James Bunting
     Martha Prothro
     Dotz Darrah
        This document has been retyped from the original.

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                                             9525.1984(01)





              RCRA/SUPERFUND  HOTLINE  SUMMARIES

                            AUGUST 84
3.   An Interim status facility undergoes a transfer of stock while
     the name of the owner/operator remains the sane and the facility
     operations do  not change.  Does this change require a modified
     Part A permit  application unoer §270.72(d)?
                                                                •
          If stock  is transferred from an Interim status facility.
          the transaction oust be scrutinized by the Agency.  In
          situations where a majority of the company's stock 1s
          transferred to another company, operational control and
          the financial status of the company nay change.  In
          these situations. It 1s appropriate to require a modified
          Part A.  If, however, only a minority Interest 1s transferred,
          operational control and financial status «ay not change.

          In these  cases a modified Part A 1s not necessary
          (assuming no name change).

          Source:   Susan Schinedes .
          Research: Tom Gainer

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                                                     9525.1985(01)
                  RCRA/SUPERFUND HOTLINE  MONTHLY SUMMARY

                                   OCTOBER 85
4. Permit Modification

   An owner/operator has a  RCRA permit  to store  hazardous waste  in containers and tanks.
   The owner/operator  also  generates hazardous waste on-site.  The owner/operator intend:
   to construct an additional storage area for the purposes of storing hazardous wastes

   for 90 days  or  less.  Would  the construction of this new storage area  5e  considered
   an action  that  would require modification to the  facility's RCRA permit  !$27Q.4i  -r
   5270.42)?

       Construction of the 90-day storage area would not require modification of  t.*.e
       facility's storage permit.  A generator may  accumulate hazardous  waste on-site
       for 90  days or less without a permit or interun status provided that all $262.34
       requirements are met. The 90-day  storage area provision only applies to hazardr.s
       waste generated on-site.

       In order to avoid potential confusion regarding construction, modification,  art
       permitting, the following suggestions are reconnended:

       (a) the owner/operator  should contact in writing the appropriate  U.S. EPA
           Regional office or  State office, if authorized, and inform both  the Director
           and the appropriate enforcement personnel regarding the construction of  the
           90-day storage area and the owner/operator's intent to comply with $262.34
           requirements in that area; and

       (b) post a sign or notice in a visible place  to identify the 90-<3ay  storage
           area to distinguish it from the permitted container area and  storage tanks.

         Source:    Nancy Pcmerleau (202) 382-4500

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                   STATES 5£VIRONME>y>L PROTj|£TK)N
                           MAR 24B86
                                                 9525.1986(01;
Geraldine Cox
Chemical Manufacturer's Assoc.
250T1 M Street, N.W.
Washington, D.C.   20037

Dear Jrs. Coxi

     I apologize for the delay  in  responding to your letter of
February 10, 1986, concernlno the  final  rule to list solvent
mixtures (50 PR 53315, December 31,  1985).

     Facilities that were permitted  to manage EPA Hazardous
Waste Mos. F001-F005 before  December 31,  1985, may handle
the newly listed solvent mixtures  wthout  major permit
modifications*  Thus, you are correct in  stating that major
permit modifications are required  when a  facility is not
already permitted  to manage  the applicable  P001-F005 waste.

     If you have additional  questions, please call Jacqueline
Sales of my staff, at 382-4770.
                          Sincerely,
                          Alan  S.  Corson
                          Chief
                          Studies  and Methods Branch (VTH-562B)
                                                                   1914-416-816

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 *i
  I
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

            WASHINGTON. D.C. 20460
                               ,,«..,
                                 "\
                                                           OP
                                              SOLID WASTE AND EMERGENCY RESPONSE
Robert T. Stewart
Jones, Day, Reavis and Pogue
2300 LTV Center
2001 Ross Avenue
Dallas, Texas  75201

Dear Mr. Roberts:

     Thank you for your letter of February 10 concerning RCRA
permit modifications.  In that letter, you requested advice as
to whether a facility with a RCRA permit would need to have
its permit modified because of the amended definition of solid
waste.  Your letter described two separate scenarios, each of
which is addressed below.

     In the first case, a facility had received a RCRA .permit
and a unit at that facility was handling an unregulated material
described in the Part B application.  Through the redefinition
of solid waste, the material is now defined as a hazardous waste.
In this instance, the need for a permit modification would have
to be determined on a case-by-case basis.  If the handling of
the previously unregulated material was not detailed in the
draft permit that received public comment, or if conditions
contained in the permit specifically exempted that unit from
RCRA standards, then a permit modification would be required.
If the unit and the waste was fully detailed in the draft permit
and was subject to full RCRA standards, then a permit modification
would not be required.

     In the second case, a facility had received a RCRA permit
which included a unit that was handling an unregulated material,
however, the material was not described in the Part B application.
The applicable law in this case is Section 3005(e)(l) of RCRA
which provides that any facility in existence on the effective
date of RCRA statutory or regulatory changes that render the
facility subject to the requirement to have a permit or interim
status may qualify for interim status.  Section 3005(e)(l),
however, is limited to facilities which become subject to the
requirement to have a permit.  Units at facilities described
above are not eligible for interim status since interim status
terminated upon issuance of the permit.   In order for  these
units to handle a newly regulated waste,  a facility must apply
for a permit modification before the effective date of the
statutory or regulatory amendment mandating such change.

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                                - 2 -
      Your letter also stated that allowing newly regulated  units
to obtain interim status would be consistent with 40 CFR 270.1(c)(4)
which allows partial permitting of a facility.   We disagree  with
your interpretation, however, that the section  also extends  to
eligibility for interim status.  Finally,  your  letter stated that
requiring permit modifications would put permitted facilities at
an unfair disadvantage with interim status facilities.   We agree
that the procedures for adding new wastes  are less burdensome 'for
interim status facilities.  However, newly regulated units at
such facilities are not automatically eligible  for interim status.
Under 40 CFR 270.72, a revised Part A permit application must be
submitted prior to any change during interim status.  If the
change results in an increase in the design capacity of the facility,
approval may only be granted because of a  lack  of available treatment,
storage, or disposal capacity at other hazardous waste management
facilities.  In no event can a change during interim status exceed
fifty percent of the capital cost of a comparable new facility.

      We recognize that current requirements for adding new
hazardous wastes at permitted facilities place  a difficult burden
on both the owner/operator and the permitting authority to submit .
and process modification applications in a timely manner.  We are
currently exploring regulatory alternatives that would provide
some relief in this area.

      If you have any further questions on this subject, please
contact Peter Guerrero, Chief Permits Branch, at 382-4470.

                                 Sincerely,
                                 Marcia- C. Williams
                                 Director
                                 Office of Solid Waste

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                                   9525.1986(04)
                                     f ?
Mr.  Craig  A.  Barney
Roan and Haas
Research Laboratories
727  Norristown Road
Spring House, Pa.  19477

Dear Mr. Barney:

      Thank you for your letter of July  16, regarding  the aanagraenc
of acincillation viala containing D001  wastes.   I will  reapond to
your questions in order.

      1.  If a RCRA facility (either peraitted or with interim
      status)  intends to aanage waste other than  those identified
      in its Part A permit application (whether as a result of
      handling nixed waste or otherwise).  It »ust subtait a reviaed
      Part  A permit application to apply for a pern it  Modification
      or a  change during interia status, whichever is  applicable
      (see  40 CFR 270.41 and 270.72).  The sane is true  if the units
      or processes in which those wastes are aanaged will change as
      a result of accepting wastes previously not Included on the
      Part  A.  Only where none of the intonation on che existing
      Part  A changes aay a facility aanage radioactive aixed
      wastes without any notification to EPA or the authorized
      State.

      2.  If the facility is not changing  the hazardous  wastes it
      is handling or the units or processes in which the wastes
      are handled, then the RCRA perait  need not be aaended.
      However, the facility aust coaply  with any  applicable NRC
      licensing requlreaents , as well, if  it wishes to begin
      storing radioactive aixed waste.

      3.  The waste Bust be aanifested In  accordance with both
      RCRA  and AEA requir events.

      However, radioactive aixed waste la  not subject  to AEA
requirements if the Nuclear Regulatory  Coosiisslon has designated
the  radioactive components of Chat waaCa  as "below regulatory
concern".  This haa been done for liquid  scintillation  aedla with
0.05  aicrocuries or less of hydrogen-3  or carbon-14,  per graa of
•edlua uaed for liquid scintillation counting (tee attached
Federal Register notice).

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This Page Intentionally Left Blank

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                                                                   9525.1986(35)
                RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                                OCTOBER  86
Termination of Permits

A permitted facility closes all its tanks and container storage areas,
its only RCRA-regulated units.  The region now wishes Co terminate
the permit because the facility no longer has any active units and is
not subject to the post-closure care requirements of 40 CFR 264.117.
The facility has complied with all the permit conditions and has
disclosed all relevant facts  for the permit.  On what basis may EPA
terminate the facility's permit?

     40 CFR 270.43(a) presents the reasons  for which EPA may terminate
     a facility's permit or deny a permit renewal application.  EPA
     may terminate a permit if the facility fails to comply with any
     condition of the permit, or if the  permittee fails to fully disclose
     relevant information during the permit application or issuance process.

     EPA may also terminate a permit if  the permittee misrepre sents any
     relevant  facts, or  if the  permitted activity endangers human health
     or the environment.  A different type  of permit termination occurs
     when a  permit is revoked and reissued  during transfer of a permit
     to a new owner/operator, per §270.30(1)(3) and §270.41 (b)(2) or
     the Regional Administrator and the  permittee agree to termination
     in the course of transferring permit responsibility to an authorized
     state under §271.8(b)(6).  Nothing  in  the regulations allows for
     permit  termination  because permit conditions no longer apply to a
     facility.  Normally the  owner/operator of a facility that has
     closed all  its  RCRA units  and has no post-closure care requirements
     would allow the permit  to expire.   Although the owner/operator is
     still subject to Part 264  standards, there are no hazardous waste
     management activities to regulate.  The owner/operator's financial
     responsibilities should  end after the  region receives certification
     of closure  (§S264.143(i),  264.147(e)).  According to §124.5(a) the
     permittee may request termination,  but EPA may still only terminate
     a permit  for the reasons given in §270.43.

     Nevertheless, EPA does  have authority  to modify a permit if  the  Director
     receives  new  information,  or there  are material and substantial  alterations
     to the  permitted activity,  that  justify  permit conditions different  from
     those in  the existing  permit  (§270.41(a)(l)(2)).  According  to §270.50, the
     maximum permit  duration is ten years,  but a  permit may cover a shorter time
     period.   In  this situation, EPA  could  modify the  permit  so that  it would
     expire  shortly  after  the earlier closure date.

     Source:    Matt Hale  (202) 382-4740
     Research:  Jennifer Brock

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                                                  9525.1986(06)
               RCRA/SUPERFUND HOTLINE  MONTHLY  SUMMARY

                               NOVEMBER 86
4.  Termination of Permits

    A permitted facility closes all its tanks and container storage areas,
    its only RCRA-regulated units.   The region now wishes to terminate the
    permit because the facility no longer has any active units and is not
    subject to the post-closure care requirements of 40 CFR 264.117.   The
    facility has complied with all the permit conditions and has disclosed
    all relevant facts for the permit.  On what basis may EPA terminate the
    facility's permit?

    40 CFR 270.43(a) presents the reasons for which EPA may
    terminate a facility's permit or deny a permit renewal
    application.  EPA may terminate a permit if the facility
    fails to comply with any condition of the permit, or if
    the permittee fails to provide complete information
    relevant to the permit application or issuance process.
    EPA may also terminate a permit if the permittee mis-
    represents any relevant facts, or if the permitted
    activity endangers human health or the environment.
    A permit may also be revoked and reissued during transfer
    of a permit to a new owner/operator, per 5270.30(1)(3) and
    S270.41(b)(2).  Nothing in the regulations allows for
    permit termination because permit conditions no longer apply
    to a facility.  Normally the owner/operator of a facility
    that has closed all its RCRA units and has no post-closure
    care requirements would allow the permit to expire.  Although
    the owner/operator is still subject to Part 264 standards,
    there are no hazardous waste management activities to
    regulate.  The owner/operator's financial responsibilities
    should end after the region receives certification of
    closure  (SS264.143(i), 264.147(e)).

    If a facility owner/operator wishes to terminate its permit
    before the termination date in the permit, it should request
    a major permit modification under 5270.41.  According to
    §270.50, the maximum permit duration is ten years, but a
    permit may cover a shorter time period.  In this situation,
    EPA could modify the permit so that it would expire shortly
    after the earlier closure date.
    Source:   Matt Hale (202) 382-4740
    Research: Jennifer Brock

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                                                9525.1986(07)
             RCRA/SUPERFUND HOTLINE  MONTHLY  SUMMARY

                              DECEMBER 86
17.   Treatment Capacity

     In .in effort to supply greater treatment capacity  for restricted
     wastes,  hew may an owner/operator incorporate  new  waste streams into
     •iis existing permitted treatment operation?

          To increase the availability of treatment facilities  for
          restricted wastes,  the Agency has  added a provision to the
          permitting standards,  §270.42 [51  FR  40653],  which allows for
          the addition of new waste streams  to  an existing permitted
          facility as a minor permit modification.   The conditions under
          which a permittee may incorporate  such  a  minor modification are
          (1) the hazardous waste oust have  been  prohibited from land
          disposal under Subpart C of Part 268, (2) the treatment is in
          accordance with the standards established under §268.41, or a
          variance  pursuant  to  §268.44,  (3) handling and treatment of the
          restricted waste will not present risXs substantially .different
          from those of wastes  listed in the permit and (4)  the minor
          permit  .TDdification is  Federally or State approved and  the
          changes will not require modification of treatment procssses or
          physical  equipment.

          Source:       Jacqueline Sales  (202) 382-4770

          Research:     Dave ?.iillips
                        Kris Andersen

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                                                            1988(01)

2.    Corrective Action  and  Permits

     If  a  release   of  hazardous waste or  hazardous constituents
     from a solid waste management unit  (SWMD)  is identified  after
     the  issuance   of   a  permit,  can  EPA reopen the permit  and
     modify  it  to   include    additional    investigation and/or
     corrective measures?  Does  the "permit  as  a shield" provision
     in 40 CFR 270.4(a)   protect the  facility  from  such action
     until the permit comes up for reissue?

          Permits issued prior  to  November 8,  1984,  the date of
          enactment  of  the  Hazardous  and Solid  Waste Amendments,
          cannot  be reopened   to  establish  a  Section 3004(u)
          corrective action program  until   reissuance.  Permits
          issued after  November  8, 1984, address releases from  all
          solid waste management units   (SWMOs)  at  the facility.
          During  the  permitting  process   EPA  conducts a  RCRA
          Facility Assessment (RFA) to determine whether there  has
          been  a    release from  any  SWMD located  within  the
          facility's boundaries.  The RFA  also determines whether
          any  further   investigations  or corrective measures  are
          necessary.     EPA will   then  develop   a  custom-made
          corrective action  program  which will be incorporated
          into the   permit.   Most permits   currently being issued
          contain a   reopener clause for newly  identified releases
          after permit  issuance.   Absent such   a reopener clause,
          if  the    Director  receives  information  about a  new
          release, then   the authority  under Section 270.41(a)(2)
          could  be   employed.    Section 270.41(a)(2)  states that
          when the Director has  received new information that "was
          not available  at  the time of permit issuance  (other than
          revised    regulations    [see   Section   270.41(a)(3)1,
          guidance,  or   test methods) and would have justified  the
  S       application of  different permit  conditions at  the time
          of  issuance"     the   permit  may  be  modified during  its
  «       tern.
  D
  *       The "permit as  a  shield" provision in Section 270.4 does
  §       not  provide   a   shield  when  new information such  as
  fe       mentioned  above is obtained after  permit  issuance.   The
          "permit as a  shield" provision applies to standards that
          are  established  in   the   permit   which   cannot   be
          arbitrarily changed  by the  Director during  the term  of
          the permit.   Section 270.41(a)(3)  allows a permit   to  be
          modified   during  its  term  due to amended standards  or
          regulations at  the request of the   permittee  (see   52  FR
          45793).  Section  270.41(a)(3) also allows the Director
                             -2-

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        RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                     FEBRUARY  88
Corrective Action and Permits (Cont'd)

to "modify  the permit  when the standards and regulations on
which the permit was  based have  been changed  by statute or
amended standards  or regulations"  such as the land disposal
restrictions in 40 CFR Part 268.

Source:    Matt Bale     (202) 382-4740
           Dave Pagan    (202) 382-4497
Research:  Deborah McKie

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                                            9525.1988(02)
              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON. O.C. 20460

                             JUL   '  '988           SOLID WASTE AND EMERGENCY
MEMORANDUM

SUBJECT:  Guidance on Permitting Issues Related to the Dupont
          Edgemore Facility
                               -
FROM:     Bruce R. Weddle, Director
          Permits and State Programs Division

TO:       Robert E. Greaves, Chief
          Waste Management Branch
          Region III

     This is in response to your memo of June 6, 1988,  in which
you requested guidance from Headquarters on several permitting
issues related to the Dupont Edgemoor facility in Delaware.
You explained in your memo that the facility was granted a
construction and operation storage permit by the State  and a
HSWA permit by EPA.  The State permit expires on September 30,
1989; the HSWA permit on March 1, 1989.  You also explained
that the facility never built the storage unit for which the
permit was requested and no longer wishes to do so.  You raised
several issues about the status of the permit in light  of the
above.  Each issue you asked is addressed individually  below.
Please note that, for clarity, we have reframed a few of the
issues.

1.  As the unit was never built, is the State portion of the
permit effective?

     The question of whether construction is necessary  for the
State portion of the permit to become effective is one  of State
law.  Under the Federal regulations, construction is not
required for the permit to become effective.  A final permit
decision becomes effective 30 days after the Regional
Administrator issues notice of the decision unless:   (1) a
later effective date is specified in the decision;  (2)  review
is requested; or  (3) no comments requested a change  in  the
draft permit, in which case the permit shall become  immediately
effective (see §  124.15(b)).  Thus, if the State law is similar
to the Federal, construction is not required for the permit  to
become effective.

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                               -2-
2 .   If the State portion of the permit has not been
effectuated, (that is. construction of the unit has not taken
place). can the corrective action portion of the permit be
enforced?

     Section 3004(u) of HSWA specifically states that "permits
issued under section 3005 shall contain schedules of compliance
for ...corrective action ...."  Since the full RCRA permit
(State and Federal portions) in this case has been issued, the
statutory requirement for corrective action has been
triggered.  Therefore, the corrective action portion of the
permit can and should be enforced even if construction under
the State portion has not occurred.

3.   Is revocation of the permit a State. Federal, or combined
action?

     Revocation and reissuance of the full RCRA permit is a
combined action because issuance is a combined action.  To
revoke and reissue the State portion, State procedures must be
followed; to revoke and reissue the Federal portion, the
procedures of Part 124 must be followed.  It should be noted
that this does not preclude a joint proceeding; however, two
separate decisions must be made.  Most important, the State has
no authority to revoke and reissue the Federal portion or vice
versa.

4.   If it is possible to separate the State portion from the
corrective action portion during revocation of the permit, can
the corrective action portion of the permit be enforced
separately if the State portion is revoked?

     Yes.  If the State portion is revoked or terminated, or if
it expires, there is no effect on the HSWA portion of the
permit.  Once the permit is issued, the HSWA portion can
continue on its own.

5.   What can be dona, if anything, to extend the terms of tfre
corrective action portion of the permit beyond March 1. 1989?

     We believe there are three ways to extend the terms  of the
corrective action portion of the permit beyond March 1, 1989.

     A.  Permit Modification.  Under section 270.41, the  Agency
can modify a permit if cause exists under paragraph  (a) or  (b)
of that section.  The Agency could use this authority  to  extend
the expiration date of the corrective action portion of the
permit by means of a permit modification.  There is no

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                               -3-


requirement under the regulations that the  permittee agree to
the extension.  Using this approach the permit  life could be
extended until September 29,  1995 since section 270.50(b)
limits such an extension of the original permit life to  a total
of 10 years.

     Modification of the permit under section 270.41(a)(2) to
increase the permit term is allowed if the  Agency receives
information that was (1) not available at the time of  permit
issuance and (2) would have justified the application  of
different permit conditions at the  time. To determine whether
these grounds can be satisfied, we  suggest  that you investigate
(1) whether the facility RFA, when  completed, will result in
new information about releases at the facility  that would have
justified a longer term for corrective action;  and (2) whether
Dupont's subsequent decision not to operate is  new information
that would have justified a different term  for  the corrective
action portion of the permit because of the change in  the
expected duration of Dupont's active interest in the site.

     B.  Revocation and Reissuance.  Section 270.41 provides
for revocation and reissuance of permits.  Under section
270.41(a)(2) , the causes for revocation and reissuance are the
same as those for permit modification discussed above; however,
the permittee must agree to the revocation  and  reissuance.
Section 270.41 also provides that if a permit is revoked and
reissued, it is reissued for a new  term. Thus, the permit term
could be extended for a period of up to 10  years from  the date
of reissuance.

     C.  Continuation of Permit.  If the Agency does  not take
action under A or B above, the permit will  expire. There are
two ways to continue the HSWA permit at expiration.   First, if
the facility submits a timely application for a new HSWA
permit, the existing permit conditions continue in force under
section 270.51(a) until a new permit is issued.  Second,  if, at
the time of expiration, the facility is not in compliance with
the terms of the permit, then the Agency can invoke section
270.51(c)(3) of the regulations, which allows the Regional
Administrator to issue a new permit under Part 124 with
appropriate-conditions.  Of course, this procedure requires the
Agency to demonstrate that the facility is  out of compliance
with its permit.  In this case, the Agency could demonstrate
non-compliance if, for example, the facility failed to complete
the RFA required by the HSWA portion of the permit.

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                               -4-
6.  Tf the Mrmit expires and the Region ia therefore unable to
enforce the corrective action portion of the permit, is Section
3013 the proper enforcement vehicle to address corrective
action?

     Section 3013 allows the Agency to require monitoring,
testing, analysis, and reporting, and therefore this section
can be used to require such activities to investigate the need
for corrective action.  However, the Agency cannot compel
corrective action under that section.  Either section 3008(a)
or 7003 would be an appropriate enforcement authority to carry
out corrective action.  Note that under section 7003, the
Region would have to demonstrate that there is imminent and
substantial endangerment.  In summary, the most effective
response is to pursue permit modification, revocation and
reissuance, or continuation as discussed above, prior to the
time that the HSWA permit expires.  Otherwise, EPA's ability to
pursue any needed corrective action at the facility is a
potentially more complex process.

     I hope this answers your questions regarding the Dupont
Edgemoor facility.  If you have any questions, please contact
Frank McAlister at 382-2223.

cc:  Matt Hale
     Frank McAlister
     Barbara Foster
     Fred Chanania
     Jackie Tenusak
     RCRA Branch Chiefs, Regions I-X

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           RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY        9525.1989(01)

                              MAY 89


2. Interim Status v?. Permit Modification for \ewlv Regulated Units

An owner or  operator  of a fully  permitted facility  manages RCRA non-
hazardous  waste in several surface impoundments.   This waste will  become
subject  to Subtitle C regulation if the Toxic Characteristic Leaching Procedure
(TCLP)  for  waste identification becomes final and effective.

a) Will the surface impoundments  qualify for interim status?   If a  permit
   modification is required, what modification class would be applicable?

   N'ewly regulated units at fully permitted  facilities do not qualify for interim
   status.  Interim status is granted to facilities and not to individual units per
   Section  3005(e) of RCRA.  Instead, the permittee would follow the permit
   modification  procedures in Section 270.42(g).  First, as of the time the TCLP
   rule becomes effective, the Class 1  permit modification process must be
   followed for  the permittee to continue managing the  newly identified  waste.
   Under these procedures,  the  permittee notifies EPA and the public.  Six
   months  after  the TCLP rule's effective date, the permittee must then apply for
   a Class 2 or 3 permit modification, depending on the modifications necessary,
   and  follow the appropriate procedures.  Permittees that have not previously
   managed  the newly identified waste  may not use  the  process  in  Section
   270.42(g) and must complete  the applicable permit  modification procedure
   prior to  treating, storing, or disposing of the waste.  (See 53 £R 37912, 37922.)

b) Section  3005(p(6)(A) of RCRA states that surface impoundments that become
   subject to Subtitle C due to the promulgation of a new listing or characteristic
   for identifying a waste as hazardous  will have four years from the date of
   such promulgation  to meet  the  retrofitting  requirements  under  Section
   3004(o)  of  RCRA.   Does  this provision  apply  to  existing  surface
   impoundments  which become newly  regulated but are  not  authorized to
   operate  under interim status?

   Yes. EPA currently interprets Section 3005(j)(6)(A) as being applicable to units
   at facilities requiring permit modification due to a new listing or characteristic
   for identifying a waste as hazardous.  Therefore, newly regulated units  at fully
   permitted facilities will have four years from  the date of promulgation of a
   new listing or characteristic to comply with the retrofitting requirements.

Source:        Wayne Roepe           (202) 382-4740
Resource:      Debbie Doherty          (202)382-3112

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               RCRA/SUPERFUND HOTLINE SUMM

                          AUGUST 1990
                     9525.1990(01
I.  SIGNIFICANT QUESTIONS AND RESOLVED ISSUES—AUGUST 1990

   RCRA

   1.   Public Comment Periods for Permit Modifications

   When submitting a Class III permit modification request, the permittee,
   per 40 CFR Section 270.42(c)(2), must hold a public meeting and provide
   the public with at least 60 days to comment on the request. According to
   Section 270.42(c)(6), "after the conclusion  of the 60-day comment period,
   the Director must grant or deny the permit modification request according
   to the permit modification procedures of 40 CFR Part 124." According to
   Section 124.10(b)(l), the public must be provided with a 45-day comment
   period.  Do these comment periods serve  the same function?  If so, could
   just one comment period  suffice in lieu  of the other?

       The 60-day comment period in Section 270.42(c) and the comment
       period in Section 124.10(b) are separate and  distinct because they are
       designed for  two different purposes. The 60-day period allows
       comment on  the  permitee's request  and  assists  the  Director  in
       deciding whether to prepare a draft modification or a tentative denial;
       the 45-day period allows comment  on the Director's proposed action.
       The review periods must occur separately.   The differences are
       summarized in the table below:

60-DAY PERIOD
45-DAY PERIOD
INITIATED BY:
The permittee
The Director
WRITTEN
COMMENTS ON:
The permittee's
request
The draft
modification
or tentative denial.
ORAL COMMENT
FORUM:
A public'meeting'
conducted by the
permittee
A public'hearing'
conducted by the
Director *
       * Not mandatory

       The 60-day comment period is the first to occur and is initiated by the
       permittee.  The permittee must hold a public meeting no fewer than
       15 days after the meeting notice or no fewer than 15 days before the
       end  of  the comment period.  After the conclusion of the 60-day
       comment period, the Director will issue a draft permit modification
       and  allow the public 45 days to comment on the draft.  The Director
       will  hold a public hearing if requested.
   Source:        Wayne Roepe, OSW
   Research:      Kevin Dunn
(202) 475-7245

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                                                 9525.1990(02)
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C. 20460
                           OCT I T  1990
                                                      OFFICE OF
                                             SO LID WASTE AND EMERGENCY RESPONSE
Mr. James T. McVey
Executive Vice President
Diversified Scientific Services, Inc.
P. 0. Box 863
Kingston/ Tennessee 37763
Dear Mr. McVey:

     This is in response to your letter of August  8,  1990,  in
which you request the Environmental Protection Agency's  (EPA)
consideration and advice on your proposal to treat some
radioactive mixed waste prior to disposal.  Currently, your
permit, which was issued under the authority of the Resource
Conservation and Recovery Act (RCRA) for treatment, storage,  and
disposal (TSD) of hazardous waste, does not include provisions
for the management of the specific type of mixed waste you
propose to treat.  I understand that my staff has  discussed this
issue and the delay in our response in earlier telephone
conversations with you.

     Specifically, you propose to stabilize 825 drums of  barium
chloride salts (D005 wastes) containing low concentrations  of
uranimum prior to disposal of the waste in a licensed nuclear
waste burial facility.  This waste would be shipped from  its
present location at Westinghouse Materials Company of Ohio  in
Fernald, Ohio, to Diversified Scientific Services, Incorporated's
ROSSI'S) TSD facility in Kingston, Tennessee for treatment.   The
State of Tennessee, which is authorized for both the radioactive
mixed waste program and radioactive materials licensing
activities, has denied your request to treat the D005 waste under
the existing conditions of your RCRA permit.  The  State has
determined that your RCRA permit must be modified  to  include
specific provisions for the management of D005 waste, prior to
treating the waste for land disposal.  .EPA concurs with the
State's assessment that this waste may not be treated at  the  DSSI
facility without first obtaining the necessary modification to
DSSI's RCRA permit.

     Before addressing the permit modification procedures,  please
be advised that D005 waste is subject to the land  disposal
restrictions which are provisions of the Hazardous and Solid
Waste Amendments (HSWA) to RCRA.  Among other things, HSWA
                                                          Printed on Recycled Paper

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prohibits restricted wastes from land disposal unless the wastes
meet the treatment standards established by EPA.   For D005 waste,
EPA has prescribed a treatment level of 100 mg/1  as the
characteristic level for barium.  In your letter, you indicated
that the D005 mixed waste would be disposed at a  licensed nuclear
waste burial site after treatment.  Therefore, the waste must be
treated to meet the land disposal restriction program's
prescribed ti^atment level prior to such disposal.

     In regard to RCRA permit modification procedures, there are
two procedural avenues available for obtaining the necessary
modification: through State procedures or through Federal
procedures.  Since Tennessee is authorized to control D005 mixed
waste, you could apply to the State for appropriate changes to
your RCRA permit.  In this case, you would follow the State's
permit modification process.  Alternatively, since Tennessee does
not have authorization for the land disposal restrictions, EPA
administers and enforces this program, as mandated by HSWA, until
the State is specifically authorized to do so.  Pursuant to this
Federal authority, EPA may add conditions to your RCRA permit to
allow treatment of the D005 wastes so that the land disposal
restrictions will be met.  In this case, the Federal modification
procedures in 40 CFR 270.42 would be used.  Please note that on
March 7, 1989, EPA created expedited modification procedures to
allow facilities to add new waste codes and/or treatment
processes to comply with the land disposal restrictions, if the
specified conditions are met (54 FR 9596; see enclosure).
However, you should also note that a Federal change to the RCRA
permit will not override more stringent state requirements.  In
this regard, you should confirm with the State that such Federal
approval will also satisfy the State program.

     I encourage you to work closely with the EPA Region and
State authorities to obtain the permit modification required to
treat the D005 waste.  Mr. Wayne Garfinkel in the RCRA program
office, USEPA Region IV, in Atlanta, Georgia may  be contacted at
(404) 347-3433 for further assistance on this matter.  In
Addition, Mr. Dale Ozier of the Solid Waste Management Division,
Department of Health and Environment in Nashville, Tennessee may
be contacted at (615) 741-3424, for assistance from the State.

     Also, we have a strong interest in following the development
of s?fe and environmentally sound treatment and disposal methods
for mixed waste, particularly in view of the current shortfall in
treatment and disposal capacity.  As part of our  effort to
maintain current information in this area, I invite you to work
closely with my staff to exchange information on  technology
development, as well as existing permitted facilities involved in
the management and disposal of radioactive mixed  waste.

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     If you have general questions regarding the Federal permit
modification procedures, please contact Wayne Roepe of my staff
at (202) 475-7245.  Please contact Jared Flood of my staff at
(202) 475-7066, if you have any questions concerning our
activities on radioactive mixed waste.
                                    Si
                                              jowremce
                                    Director
                                    Office of Solid Waste
Enclosure

cc: Wayne Garfinkel
    USEPA, Region IV

    Dale Ozier
    Solid Waste Management Division
    Dept. of Health and Environment

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                       HOTLINE QUESTIONS AND ANSWERS

                                      January 1996
                             9525.1996(01)

3.  Conversion of Permitted or Interim
    Status Units to Generator
    Accumulation Units V;
    A treatment, storage., or disposal facility
(TSDF) stores hazardous waste in permitted
storage units. The owner or operator wishes
to convert some of the permitted storage units
into generator 90-day accumulation units used
to manage wastes that are generated on site.
What requirements must the owner or operator
comply with before a permitted unit may
operate as a generator 90-day accumulation..
unit?    •'-.'•"

    Generally, an owner or operator removing
a unit from the jurisdiction of a RCRA permit
must first close .the unit in accordance with all
of the applicable closure provisions for
permitted units. In this case, since the
converted units will continue to store
hazardous waste, conversion will not trigger
closure requirements because the unit will not
have received its final volume of hazardous
waste (40 CFR Pan 264.113(a)). Once the unit
receives waste for the last time, the owner or
operator must comply with the more stringent
permitted closure provisions in 40 CFR Pan
264 (Subpart G and the unit specific closure
provisions), rather than the closure provisions
for  generator accumulation units referenced in
§262.34(a). In addition, the owner or operator
mast maintain financial assurance pursuant to
Part 264, Subpart H, until closure of the unit is
complete (57 EE 37254; August 18,1992). To
 indicate that hazardous waste management
 activities in the converted unit are no longer
 covered by the facility's permit, the facility
 must submit the appropriate permit
 modification!.        . .

    Owners or operators converting interim
 status units to 90-day accumulation units also
 need not begin final closure until .after the final
 receipt of hazardous waste (40 CFR Pan
 265.113(a)).  Upon final closure, the owner or
 operator must comply with  the interim status
 closure  provisions in Part 265 (Subpart G and
 the unit specific closure provisions).  As with
 permitted TSDFs, the owner or operator of
 interim status facilities must maintain financial
assurance pursuant'to Part 264, Subpart H,
until final closure is completed.

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9527 - SPECIAL FORMS
OF PERMITS	
Part 270 Subpart F
                    ATKl/l 104/60 kp

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                                                        9527-1985(01)
                          ::GV  i g


.' r. Lewis u. ;..alker
•"•ef-uty tor Unvironrent, 5-atety and
  i..ccupa ticnal :;ealtti
( fiC>,\ ( LLL)
rOOJ'l 2L613
L'entaqcn
'..ashingtcn, U.C. 2031u-0103

[ ear iir. '.alker :

     !y stdtf and I have  reviewed the Technical  Locurent

27 June 198b, which was subnitted by the  U.S.  Arny  Chenical
Aiient/Munitions System (CAMDS) Directorate,  to consider  the
CA.'iDS site at Tooele Amy repot in Tooele,  ijtah as  a  "totally
enclosed treatnent facility" and thereby  exenpted t'ror, PCRA
.k.uDtitlo C requirements.  The substance of  this docuner.t was
presented to technical, policy, and leqal  FPA'statf at a noetino
on September 5, 1985, by several Uepartrent  of Detense  (ToD)
personnel .

     A "totally enclosed treatrent facility*  under  .>
-------
     v.e realize that DoD ^ay soon be nandated to completely
Destroy 90 percent of the nilitary stockpile of lethal chemical
-jcjents and nunitions by September 30,  1994 (H.F.  1872, 131
Ccnc . Kec ., i^o. £7, June 26, 1985).  Consequently, HoD intends
co use the CA/iDS facility to develop and demonstrate the incin-
eration technology to acconplish this  proposed statutory objective.
in view cr the structural modifications and/or operating chances
necessary to provide DoD and Congress  with infcreation about t;>e
effectiveness of incineration to demilitarize chemical agents
and munitions at the CAMDS facility, we recommend that the f.;.s.
Army apply tor a research, development, and demonstration (PP&r.)
permit under 40 C.f.H. 5270.65; a full PCRA incinerator oerrit
issued under 40 C.F.R. Part 264, Subpart O would not provide
rlexibility in modifying the design and operation of the facilit'
:v,
     All intended modifications to the facility must he identified
in the RD&D permit.  However, unlike a Subpart 0 permit, a trial
burn for each modification is not required to demonstrate compliance
with §264 requirements since this would be counter to the intent
ot an HD&D permit.  You should note, however, that before the
facility may be operated outside the conditions specified in the
KD&D permit (i.e., structural or operational modifications) the
F.D&D permit must be re-drafted to reflect the modifications
required and must be made available for public notice and connent
for 45 days (§270.41).  Therefore, I recommend that attention be
given to planning the project so that it is not delayed for this
reason.

     RD&D permits are limited to one year of operation  (365 days
of actual operation treating hazardous wastes), nay be  renewed
three tinea, and must specify the type and quantities of hazardous
waste intended for treatment (S270.65(a)(1) and (2)).   The Congress
and EPA intend to limit these quantities of hazardous waste to
che minimum necessary to demonstrate the feasibility of the
incinerators.  In order to expedite the review and issuance of
the RD&D permit, the EPA Regional Office can tailor the RCRA
permit application and procedural requirements of 40 C.F.P.
Farts 124 and 270 (except for the public participation  procedures
and financial assurance requirements) to the research objectives
of the CANDS facility (5270.65(b)).

     Until the RDtD permit is  issued, the CAHDS facility can
continue to operate under interim status, providing it  continues
to operate according to the  requirements of  $270.71.  During the
i-'C&D testing, CAMDS could apply  tor a full RCRA incinerator
permit if you intend to continue  using the incinerators to demil-
itarize stockpiles of chemical agents and munitions following
the term of the  RDAD permit; in  this case, data from the  PD&D
activity nay be  submitted in lieu of a trial burn  (see  enclosure
1, Research Plan "B").

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     Vo  eissiat tfie :'er;icn<2i  '.fticc, we reviewed t.k.e 1 nfor-at io
i r.  r.i.e. Technical rr.curgnc  <*nr  -ac.'e a :.r*l i ri nary ^etpr^inflc ior
'•.;,~::t  the  adcHticnal tyre  of inf.orrat ion ncc*?3S«rv to rr^rarc  ,
'.•••w-iete r:C&L/ application  (net) enclosure 1).   ;.e nce_ ''.jrual tor i-.6searcny  rr»ve }or ^c-nt ,  anou In rrcPari-'1^ *stes.

      ^:ou  &noulc contact Mr.  Larry v.;arensky at  ( 3O3 ) 29?-1662,
(.r.icfr  j~C;>'A Perrits Section, t.?A-Fc:.'ion VIII  ^I-.out rrcceasinq
r.r.u  rl-fcL'  application.

                                    sincerely,
                                    harcia  t,  Villiars
                                    Ciroctor
                                    Office  of  Solid v.aste
i ncloaures
cc:   Jruce  '..ecidle
      Peter  C ut»rrero
      Vruott r«C««ro
      Art (;l«zer
      vancy  Poa«rl«au
      ; ofcin  Anderson
      LVOV W«l titan  (LE-132S)
      r.en Cray (LE-132S)
      jack Lvnean
      t-arren Hull  (A- 104)
      Larry  vvaponaky,  Region VI 1 1
      '     C. Parker,  Ph.D., State ot  Utah
               razardoue  Was to Pranch  Chiefs, Pefjions  I-X

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        UNITED STATES ENVIRONMENTAL PW'                9527.1986(01)
                    WASHINGTON. O.C. 204*0
                                 T>C~
                                                         Of
                                            «OUO WATT! AND iMtBGiNCY *ISJ>OMCI
Mr. Philip E. Hoffman
House of Representatives
State Capitol
Lansing/ Michigan' 48909

Dear Mr. Hoffman:

     Thank you  for sharing  your  concerns  about  the  detonation
of a hazardous  explosive within  Waterloo  Township in your
May 15, 1986, letter.   Lee  Thomas,  the present  Administrator
of the Environmental Protection  Agency (EPA), has asked me to
respond.

     In accordance with our regulations (40 CFR $270.61),
EPA's Region V  office issued an  "Emergency Permit*  to-the
Drug and Laboratory Disposal Inc.  facility to detonate 50
pounds of hazardous explosives.  The  permit was effective
from April 14 to May 14, 1986.   This  permit was issued only
after the facility had  conducted an extensive search for
alternative methods of  disposal.   Because there was no feasible
alternative, and due to the unstable  nature of  the material,
EPA decided that this permit procedure was the  proper course
of action.  Our regulations do not  require us to provide a
45-day public notice when issuing  emergency permits.  However,
we are required to provide  public  notice.  Region V provided
this notice by making public announcements through the local
newspaper and radio station.

     In addition, you raised a concern about BPA's possible
violation of Waterloo Township's ordinance 15.   In issuing
any permit, EPA includes a  clause  requiring that the permittee
obtain all State and local  approvals.   If the permittee failed
to do so* EPA could take an enforcement action  to address the
violation.  It  is my understanding that Region  V will discuss
this matter with the State  to determine if an enforcement
action is warranted.

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Ir  /ou shoul-l  -.av,
                                          o^ conc«rnin-
                                                        '

                              re Ly ,
                         •J.  '.-'listen P
                         Assistant Administrator
bccrKRich^d Tra,
   •— ) Aex artier
                  l,  OVJPE
                   ion V

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                                                                9527.1986(02)
          RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION
                                   APRIL  1986
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 FR
         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 requirements
         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.

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                                                           9527.1988(03)
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON. D.C. 20460
AUG !  I 198^
                                                          •*.fr;~.i -y-
                                                 SOLO '.ViS'c i.'JO tM-^GENCv i:
Mr. Phillip C. McGuire
Associate Director, Law 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 is  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  BATF secured lockers  for
analysis and possible use in  law enforcement  proceedings.

    The guidance given below  for these two 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 waste program to the
States pursuant  to statutory  provisions in RCRA.   Although  each
authorized State program must be consistent with  and at least as
stringent as the Federal program,  a  State  is  free to be more
stringent.  Hence, any guidance given  below must  be  followed up
by a BATF analysis of any different  provisions that  an authorized
State may have chosen to enact.

1.  Explosives That Present an Immediate  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 from the
original  location  to a safe area  (often a  local  law enforcement
agency's bomb  disposal site or a nearby military  installation),
and immediate  destruction, normally  by detonation or open
burning.

    Under current  RCRA  regulations (40 CFR Sections 264.Kg)(8),
265.1(e)(1)(i) ,  and  270.1(c)(3)) ,  all  activities  taken  in

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                               - 2 -
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 taken 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 BATF 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 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 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.  Explosives Material Storage During 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 waste and therefore subject to  RCRA.  Although  the
situation may vary, we believe that explosives and explosive
material become waste when the court  (or  BATF) no longer  has any
use for them (i.e., when no  longer needed for evidence, referred
to 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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    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 the 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 ID number for each site at
which hazardous waste is generated in excess of 100 kilograms per
calendar month.   This is a simple process involving the submittal
of one short form for each generator site.   These forms  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 manifest requirements  (40 CFR Section 262.20).  The
generator must designate on the manifest a facility  that has the
proper RCRA permit or interim status to receive the  waste.

    In general, destruction of explosive waste by open
detonation/open burning  is thermal treatment that must be
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 order or under directions
from the U.S. Attorney's office,  RCRA is not automatically
waived.  The Bureau should therefore locate facilities nearest to
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 BATF 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 BATF 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  Petruska
(475-9888) .
                                  Sincerely,
                                          ..
                                   Sylvia/Ki Lowrance, Director
                                   Office  of Solid Waste

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                                         9527.1992(01)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
           WASHINGTON, D.C. 20460
              NOV -3 1992
         QfflCE OF
SOLID WASTf: AND EMEBCcNCV 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 materials.  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 270.1(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 would 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 r:ipor.d to the immediate threat.  Hence, we expect
the transportation would normally cover » r^l^tlvely  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 pern it
regulations (40 CFR 270.61) can be used for destruction
activities.  As these regulations provide, an emergency RCRA
permit 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
;70.6l.  This permit can address both treatment  and storage o!
hazardous waste.  If necessary, transportation can be authori;«-i
at the same time the emergency permit is authorized by obtaini- j
a provisional identification number.  To reiterate, however, r
permit is necessary when the safety official determines that  «•
immediate safety threat exists.
                                           Printed on Rectcfa Paper

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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,
                                'ivia K. Lowfa^hce, Director
                              Office of Solid Waste
cc:  Chester Oszman, OSW
     Ken Gigliello, OWPE
     RCRA Permit Section Chiefs, Regions I-X
                               -2-

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bcc:  Sonya Sasseville
      Jim Michael
      Jeff Gaines
      Karen Randolph
                               -3-

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                                                        9527.1993(01)
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C. 20460
                            FEB  9  1993
                                                          OFFICE OF
                                                 SOLID WASTE AND CMEROCNCY RESPONSE
Mr. Willia* J. Vore
USPCI
515 West GJeens Road, Suite  500
Houston, T:|  77067
Dear Mr. Vdhre,
     Thank
for a claril
40 CFR 270.;
authorizati)
permit modi;
40 CFR 270.
criteria.
             u for your  letter  of  December  22,  1992,  which asks
            'icaticr.  of the  temporary authorization provision in
            12 (n requesc that  would be  classified  as a Class 3
            fication1must meet all  of the criteria for approval in
            ,2(e)(3)(ii)(C)  through (E),  or  just one of these
     A temporary auihorization request need  not meet all of the
criteria foil approval  in  40  CFR  270.42(e) (3) (ii) (C)  through (E) .
             ns at  40  CFR 270.42(e)(2)(i)(B)  establish the
             for a  temporary authorization for any Class 3
               According  to  that section, a  temporary
              request  must meet  the  criteria in 40 CFR
             ii)(A) pr (B) or, if the temporary authorization
             vide improved management of  a hazardous waste
             d in thjs  facility permit, the request must meet any
             iteria In 40 CFR 270.42(e)(3)(ii)(C)  through (E).
             ments  are discussed in  the preamble to the final
Permit Modification rule  published on September 26,  1988  (see 53
£B 37912, at|37920). j
The regulat
requirement
modificatio
authorizati
270.42(e)
will also p
already list!
one of the el
These requir
(3)
     I hope
If you have
staff at  (70.'
              at this reply adequately clarifies  this provision.
              iy further questions, please  call  Wayne Roepe of my
             j) 308-8630.
                                    Sincerely
                                                     ;,  Director
                                       Lee  of  Solid  Waste

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9528 - INTE
STATUS
Part 270 Subpart G
                     ATKl/l 104/61 kp

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                               OSWER POLICY DIRECTIVE $9528.00-1
           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                      WASHINGTON. O.C. 20460
   25 NOV 87
                                                      OFFICE OP
                                              SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM

SUBJECT:  Interim Status Expansion to Add an Incinerator
                                        \ 1        ^
FROM:     Marcia Williams, Director
          Office of Solid Waste  (WH-562)

TO:       Allyn M. Davis, Director
          Hazardous Waste Management Division (6H)

     This is in response to your memo of October 22, 1987
regarding a request from U.S. Pollution Control Incorporated
(USPCI) to the State of Oklahoma for approval of an interim
status expansion to add an incinerator at its Lone Mountain,
Oklahoma facility.  You requested an opinion on the question of
whether an incinerator may be added to a facility as a change in
interim status under the authority of 40 CFR 270.72(c).

     Section 270.72(c) allows EPA or an authorized State to
approve the addition of a new unit at an  interim status facility
if the change is determined to be necessary to comply with a
Federal, State, or local requirement.  On its face, this
provision authorizes the addition of an incinerator as a change
in interim status; however, section 270.72 allows the Director
to exercise discretion in approving or disapproving changes
under that section.  Generally, we have significant concerns
about new incinerators being added as changes in interim status
without the benefits of a trial burn and public participation.
While we do not believe that the Director may be arbitrary in
deciding to approve or disapprove a change in interim status, we
believe that it is important to consider protection of human
health and the environment and the rights of the public, and
that it is generally unwise to allow operation of a new
incinerator witiiout a trial burn and opportunity for public
comment.

     As an authorized State, Oklahoma may implement its own
hazardous waste program and interpret its own regulations.
While the State of Oklahoma has  the authority under section
270.72(c) to allow addition of this incinerator as a change  in
interim status, we believe that  the preferable approach would be
to include the proposed incinerator in  the ongoing permit
process for USPCI.  Since the facility's  permit is scheduled for
issuance in 1988, the incinerator activity could  be pursued  as

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                                 OSWER POLICY DIRECTIVE  S9528.00-1
a subsequent "permit modification.   Although the proposed
incinerator would not be subject to the 1989 permitting
deadline for incinerators, I would recommend that the
Regional Office work closely with the State to establish a
priority for developing the incinerator portion of the
permit.

     If you have any questions about this issue, please
contact Frank McAlister (FTS 382-2223) or Barbara Foster
(FTS 382-4751) of the Permits Branch.

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                                        OSWER POLICY  DIRECTIVE  S9528.00-1
       I    UNITED  STATES  ENVIRONMENTAL  PROTECTION AGENCY
                                     REGION VI
'•> •BO'*0'                     ALLIED BANK TOWER AT FOUNTAIN PLACE
                                  1445 ROSS AVENUE
                                 DALLAS. TEXAS 75202
                                  OCTOBER 22, L987



   MEMORANDUM


   SUBJECT:  Interim  Status  Expansion  to Add an Incinerator
   FROM:     Allyn M. Davis,  Director
             Hazardous Waste  Management  Division (6H)

   TO:       Marcia Williams,  Director
             Office of Solid  Waste (WH-562)

        Attached  is a recent  request from U.S.  Pollution Control  Incorporated
   (USPCI)  to the State of Oklahoma for  approval of an interim status  expansion
   to add an incinerator at  its  Lone Mountain,  Oklahoma facility.   The Oklahoma
   State Department of Health (OSDH)  requested  EPA's opinion on this  issue.
   Since this appears to be an issue of  national importance and precedence,
   Region VT requests your opinion on  USPCI's request, as well as  the  issue
   in general.

        OSPCI wishes to add an incinerator to its Lone Mountain facility as an
   expansion under interim status.  As stated in the attached argument, USPCI
   claims this expansion is necessary to satisfy requirements of the  land
   disposal restrictions.  The August  14, 1987, preamble to the proposed
   changes  to 40  CFR 270 appears,  to some extent, to support this  position.

        However,  such a change would be  a drastic departure from USPCI's historical
   waste disposal practices at the Lone  Mountain facility.  USPCI  has  never had
   an incinerator at the facility, and has not  included a planned incinerator in
   its Part B application.  Allowing such an expansion under interim  status
   would allow USPCI to construct  and to operate a hazardous waste incinerator
   with no permit, no public  participation,  and no trial burn.  In fact, such
   an incinerator would not appear to be subject to the 1989 permitting deadline.
   (The land disposal permit  for USPCI  is expected to be public noticed in
   July 1988 with final determination in the fall of 1988.)

        The Region views this as a vitally important issue/ since there are
   other ccmnercial disposal  facilities  which would like to avoid the permitting
   process by adding interim  status incinerators.  The Region is not  aware of
   any cases in which such an expansion  at a commercial facility has  been approved
   in the past.

        Your immediate attention to this issue is requested since OSDH must
   respond  to USPCI soon.  If you need further information, please contact me,
   or have your staff contact Bill Honker at FTS-255-6785.

   Attachment

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                                       OSWER  POLICY  DIRECTIVE  #9528.00-1
join K. L««vttt. M.O.
Ooird Ot
                   - 3 C
Seocember 22,  1987
Mr. Sam Becker, P.E., Chief
EPA Region VI
1445 Ross Avenue
Dallas, TX 75202-2733

Dear Sam:
Attached is an application  for a proposed modification at  the USPCI  Lone
!!ountain facility.  I need  your assistance  in evaluating this proposal.

In reading the cover letter, the argument offered  sounds reasonable.
Please advise me of EPA's position.

In the interest of responding promptly to this  issue,  I have taken the
liberty of prescheduling a  conference call  for  Thursday, September 24 at
2:00 o.m., at which time I  will initiate the call  to  your  office.   If the
cime is inconvenient, please let me know.

Thank you for your assistance.
Sincerely,
Robert A. Rabatine
Programs Manager
Waste Management Service

RAR/lp

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                                          OSWER POLICY DIRECTIVE  #9528.00-1

                   U.S.                                 K k l t I V t D
                   POLLUTION
                   CONTROL, INC.                    SFP  :'?  /S5?
                                   Septaober 21, 1987
     Dr. Dwain Farley
     Chief of Waste Management Services
     Oklahoma State Department of Health
     P. 0. Box 53551
     Oklahoma City, Oklahoma 73152

     Subject:  Changes Under Interim Status
               Incinerator at Lone Mountain Facility

     Dear Dr. Farley:

     U. S.  Pollution Control,  Inc.  requests that  the  Oklahoma  State
     Department  of  Health  approve   the  revision  to  the  Part  A
     application for the  Lone Mountain Facility which would allow the
     installation  of an  incinerator.   Authority for this  action  is
     found under 40 CFR 270.72(c):

          "...additional  processes  may be  added if  the  owner or
          operator submits  a revised  Part  A application  prior to
          such change  (along with a  justification  explaining the
          need  for  the  change)  and  the  Director  approves  the
          change because:

          (2)  It  is necessary  to comply with Federal regulations
               (including interim status  standards  at 40  CFR Part
               265) or State or Local  laws."

     The land  disposal restrictions  (40  CFR 268)  for solvent wastes
     published  in  the  November  7,  1986  Federal  Register  (pages
     40572-40654)  require the  incineration of  F001-5  solvent wastes
     prior to  landfill disposal.  Lone Mountain Facility received in
     excess of 2000 tons  of F001 through F005 wastes in calendar year
     1986.   Allowing the  adjustment  of  1986 volumes  to reflect the
     land  restriction  applicability  in  November  and  December,
     maintenance,  startup,  debugging,  and waste volume  variability,
     U.  S.   Pollution  Control,  Inc.  has  chosen a  small  2-ton per
     hour incinerator  as the necessary unit for compliance with the
     land disposal restriction for solvent wastes F001-F005.

     The State's authority  to  approve  this change  was  confirmed by
     telephone with Mr.  Matt  Hale  who  is  the Chief  of the Permits
     Branch, Office  of Solid Waste,  U.S. EPA Headquarters  (telephone
     202-382-4740).   The approach  was also discussed at length with
2000 Classen Center • Suite 400 South • Oklahoma City, OK 73106-6078 • 405/528-8371

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                                     OSWER POLICY  DIRECTIVE  #9528.00-1
 Letter to  Dr.  jwain  Farley
 Septfcsnber  21,  1967
 Page  2
and confirmed  by Mr.  Lee Haze  cf L'.S.  EPA Regie- '.1
204-655-6750).
                                                        te.ecror.e
Attached" to  this  letter  is  a booklet  titled,  "Questions  and
Answers   on   Land   Disposal   Restrictions   for   Solvents   and
Dioxins"    (EPA/530-SW-87-020   May,   1987) .      The   following
rhetorical question is raised and answered on page 31.

Q:   Can a  new treatment process be  employed under interim
     status?
A:   Yes,  a new  treatment  process can be  introduced  at an
     interim  status facility as  long as the  conditions of
     Section  270.72 are  met.   Prior  to such  change,  the
     facility  must submit a  revised  Part A application and
     a  justification for  the change  to  EPA  for approval.
     EPA   may   approve   the  change  if  the  facility  has
     demonstrated  that  it   is  necessary  to  comply  with
     Federal,  State, or  local  requirements.   However,  the
     extent  of  changes  to  an interim status  facility is
     limited  in  that  capital expenditures may  not exceed
     50% of the cost of a new facility.

The cost of this  small  incinerator will not exceed three million
dollars  ($3,000,000).   The book value  of Lone Mountain facility
including   depreciation   is  over   thirteen   million   dollars
($13,000,0000).   Replacement value for Lone Mountain considering
minimum technology requirements  for units 1 through 8 is far in
excess of original cost.

USPCI does not anticipate  that the  final  Part  B  permitting of
this incinerator will interfere  with permitting of the rest of
the facility.   The permitting of  individual units  of a facility
is allowed under  40  CFR 270.l(c) (4), which states:

     (4)  Permits for less  than  an  entire facility.   EPA
          may  issue or  deny a permit  for one  or more units
          at  a facility  without  simultaneously issuing or
          denying a permit  to all  of  the  units at the
           facility.   The interim status  of  any  unit for
          which a permit  has not been issued or denied is
          not  affected  by  the  issuance  or  denial of  a
          permit  to any other unit at the facility.

Accordingly,   USPCI  anticipates  that    the  Part   B   permit
application  will  be called  for  shortly after  the approval  for
the change in  interim status.  Allowing  180 days for  preparation
of  the  application would  leave  more  than eighteen  (18)  months
for  permit review  prior  to the  statutory deadline  for  permit
issuance of incinerators by November  1989.

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                                       OSWER POLICY  DIRECTIVE 19528.00-L
 Letter  to Dr. Owair. Farley
 September 21, 1987
 Page  3
Seme  confusion ray have  beer, raised  by a rreposed  rule chance
published  in  the  Federal  Register or.  August  14,  1987.   That
article  proposed   eiirxLnating  tr.e  currently  effective  fifty
percent  (50%)  reconstruction rule for  interim  status  changes
involving  tanks and  containers.   That  proposal should  not 'be
confused   with   eliminating   interim   status   changes   for
incinerators   which   is   not   proposed.     The   fifty  (501)
reconstruction  rule  governing  treannent  processes  other  than
tanks will retrain intact under the  proposal.
In  way of  further buttressing  of our  request,  the  August 14,
1987  Federal Register  article observed  on page  30572  that the
current regulations

     "provide  important flexibility  in allowing  changes in
     or  additions  to  processes  necessary  to conply  with
     Federal  or  other  requirements,  such  as   	  land
     disposal restrictions	"

A copy of that article is attached for your reference.

We  need  to make  the  decision to  proceed  on this  project by
September  30,  1987  in  order to  secure equipment  and adequate
professional staffing.   Your expeditious handling of this natter
is appreciated.

                              Sincerely,
                              U. S. POLLOTION CONTROL,  INC.
                                  Jackson
                                 sident
KJ/cam

Attachment

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                                                                   9528.1982(01)
       SUBJECT:  Changes  to  Uaxardous  Waste  :ianaseuent  Facilitieb  During
                    Interim Status; Current and Proposed Peculations

       FROM:     John h. Skinner
                 Director, State Programs and
                    Resource Recovery Division (Wd-563)
       To:        Sta-piien A. Wassersug
                 Director, Air, Toxic, and
                    iiazardous haterialtt Division
                 Region III


           At our meeting  on  May  19, 1*82 you asked  fur a status  report  o c
       chu  regulations  tjovernlnjj  change*  to  hazardous  waste   uana^euent
       (timS) facilities during  interim  status.   lu response,  I au  outlining
       wiiat the  regulations  currently  require;  what  changes  we  agreed  to
       propose under the  settlement  agreement in  the NRDC lawsuit,  (NK0C  v.
-3      EFA. ;
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                    (1) of  a  lack  of  available  treatment,  storage,
or disposal capacity ac ocn^r uv»'a facilic'es;

                    (11) 1C  la   necessary  Co   prevent  a  cl-.reac  Co
Uuuaa healch  or  cue envlronmenc  because  of an  eaer^eacy  situation;
o r

                    (ill) 1C  Is  necessary  co   c o u p 1 /  «i I L i:  reuetui
regulations (Including Fare 2(o) or Scace or local lows.

     3,   AddlClons  of  new  processes  or  changes  In  procuisea  _iay
occur only 1f:

          (a) Che owner  or oparaCor subolcs a  revised  Fare  A ^cr=ic
application prior co  Che change  and  a  jusc 1 f Icac loa ex^la i .1 i r,-  c.ie
need for the change; and

          (b) Che Director approves Che change because:
         ' -s
               (i) Ic  is  necessary  Co   prevent  a  chreac  co  huaan
healch and  che  environaenc  because  of   an  emergency  situation;  or

               (11)  1C  is  accessary co  cooply   with  Federal regula-
cions (Including Pare 265) or Scace or local laws.

     4.   Changes  In  Che  ownership  or  operational   control  of   a
facility na-y b« made if:

          (a) a  revised  Pare   A   is  subnicted  VU  days   before  che
change ;  and

          (b) che new  owner or operator  can  denonstraca coapliaace
with che financial responsibllicy  raqulreoenCd.

     In  addicion, chere  is an  overriding reconstruction  cose lialc.
Section  I22.23(c)(5)  scates  Chat  no  change  shall be  oad« Co an UWM
xacilicy which  anouncs  Co  reconscruction  of   che   facility,  i.e.,
when che  capical iavascaent  in  che  changes  exceeds  zlfcy percent
of che  capical  cosC  of  a  comparable  encirely  new  HUM  facility.

Changes  to M22.23 agreed  to under  che iettlenent asreeuenc

     Secclon 122.23  was ciallenged  by Ch«  licigaacs in  NRUC v. EPA
as being  coo  rescrictive.   The   Agency ne^odated  and  signed   a
secclene-.t agreeaenc in  Novenber,  1981, which requires  EPA co
propose  auendmencs  Co  chls  section,  among  others*  --it.-is  important
to noca .chac  we have  not  yec  propos*^  tK««^  cuanges.  Furcheroore,
any actual  change  in  Che  regal--*""   would   have   co follow   such
proDos»] and'a 7--bi«- —•"»••»•• period.

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i'ne aaendnentfl  we agreed  Co  propose  Co  3122.23  would  allow  sore
changes during  iacerlo  scacus  Chan  Cne  current  regulation**  allow.
As i!22.23 appears la Che settleaenc  agreement:

     1.  New  hazardous  wastes uay De  aaded  oy  submitting a  revised
Fare A pernlc application  prior  C">  adding che new wast*. (MO  change
co chis section is proposed*)

     2.  The design capacity of processes nay be increased:

          (a) up  to  102  if the owner  or  operator  subaics a  revised
l'*rc A pernit application prior Co caking che change;

          (b) iroo 10-OOi if  the  owner or  operator  submits a  revised
r'art A permit application  at least  180  days before  Increasing  the
capacit y;

          (c) any  aoount  if  the  process  increased   is  otorage  or
treataent  in  container*  or  tanks,   if  a  revised  fart  A  permit
application is  subaitted  at  least  bO  days before   increasing  the
capacity*

          (d) any  amount  if  it  isnecessary  co  comply  with  Federal,
State, or  local  laws or regulations  (including Parts  264 and 2o5).

     3.  New  processes may be added if:

          (a) the  owner  or operator submits  a  revised Part  A prior
to the changa; and

          (b) (i)  ebe  Director approves  the  addition  Dccausc  it  is
necessary to  comply  with  Federal,  State,  or local laws or  regula-
tions (including  Parts 264 and 265);  or

              (ii) the  addition  or  change  is  storage  or  treatment
in containers or  tanks.

     4.  Units oay be replaced if:

          (a) 1C  is  replacement  of  tanks  >r containers  for  storage
or treatment, or  units  replaced at exactly tue  sane  location, with-
out submitting a  revised Part A;

          (b) for any other  process, or units replaced  at a
different location,  a  revised  Part  A  is  •ub-tcr-d   60  days  b«fort
".onstruction  begins.

     "••  The  seciijn  on  changes in  the  ownership   or  operational
control of a  facility has not been changed.


                                  -3-

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     o.   The •overriding  r eeonst r uc t ion  cose  liait has  been  eiinina-
c eu;  and

     7.   A provision has been  added chat all advance  nocice periods

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                                                    9528.1982(02)


July 20, 1982


Honorable Barbara A. Mikulski
House of Representatives
Washington, D.C.   20515


Dear Ms. Mikulski:

     Administrator Anne Gorsuch appreciates your June 22 letter
requesting clarification of the requirements under the Resource
Conservation and Recovery Act  (RCRA) for expansion of existing
hazardous waste management facilities.  The Administrator has
asked me to reply.

     Specifically, you asked for an interpretation of the
provisions of 40 CFR §122.23(c)(5).  That section provides that
"In no event shall changes be made to an HWM facility during
interim status which amount to reconstruction of the facility.
Reconstruction occurs when the capital investment in the changes
exceeds fifty percent of the capital cost of a comparable
entirely new HWM facility" (emphasis added).

     Your questions and our responses are:

1.   Question;  If a State-owned site is expanding, would the
     cost computations for a comparable new facility assume no
     land-purchase cost since a comparable new facility would
     also presumably be built on a State-owned site?

     Response;  The cost computations for a comparable entirely
     new HWM facility would include the fair market value of the
     land necessary for such a facility, whether or not the
     expanding site is State-owned.  Land has value whether or
     not it is State-owned.  Therefore, EPA would use the fair
     market value of necessary land in its cost computations.

2.   Question:  If a site is expanded, would construction of off-
     site access to a freeway concurrent with the expansion be
     included in the capital costs of expansion?

     Response:  No.  Off-site access to a freeway is not part of
     the hazardous waste management  (HWM) facility, as defined in
     40 CFR §122.3 of the regulations.  A HWM facility means all
     contiguous land, and structures, other appurtenances, and
     improvements on the land, used for treating, storing, or
     disposing of "hazardous waste  ..."  (emphasis added).  Off-
     site access roads would not be included, therefore, in the
     capital cost of the changes to the facility.
        This has been retyped from  the original document.

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                               -2-
3.    Question;   If a site is expanded more than once,  would the
     cumulative costs of expansions since November 19, 1981, be
     used for a determination of what constitutes a
     reconstruction under 40 CFR §122.23(c)(5)?

     Response:   Yes.  The cumulative costs of capital investments
     in the changes since November 19,  1981,  are used to
     determine what constitutes a reconstruction.  Any other
     interpretation would allow facilities to spread out the
     costs of expansion over several different changes at
     different times, defeating the purpose of this regulation.

4.    Question:   If a site is to be considered for expansion, what
     criteria will be applied by EPA in determining the
     relationship of the capital costs of a comparable facility
     on the following matters:   acquisition of land, acquisition
     of construction materials, transportation of materials and
     structuring of the site, construction of groundwater
     monitoring and control features, and construction of access
     to the site?

     Response;   The capital cost of a "comparable entirely new
     HWM facility" is the cost in today's dollars of building a
     hypothetical facility comparable to  the facility which
     qualified for interim status in both area and capacity, but
     using current state-of-the-art technology.

          Acquisition of land:   The fair  market value of
          necessary land would be included in the cost of a
          comparable entirely new facility.

          Acquisition of construction materials:  The fair market
          value would be included.

          Transportation of materials:  These costs would be
          included in the cost of acquiring construction
          materials.

          Structuring of the site;   The construction costs would
          be included.

          Construction of groundwater monitoring and control
          features;  The costs of such features would be
          included.

          Construction of access to the site:  These costs would
          not be included in the cost of  a comparable facility,
          for the reasons stated in the Response to Question 2.
        This has Jbeen retyped from the original document.

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                               -3-

5.   Question;  If a site is to be considered for expansion,  what
     criteria will be applied by EPA in determining the
     relationship of the capital costs of a comparable facility
     in the relocation of adjacent communities including selling
     of homes and adjacent properties; moving expenses for both
     residents and community institutions, and repurchase of new
     homes?

     Response:  The calculation of costs for a comparable,
     entirely new facility would not include the cost of
     relocating the residents of adjacent communities.  As
     explained before, "facility" means the land, etc., used for
     treating, storing, or disposing of hazardous waste.
     Adjacent communities are not part of an HWM facility.

6.   Question;  Under the provisions of 40 CFR §122.23(c)(5),
     what alternatives must be considered for purposes of
     establishing that no alternatives to the proposed expansion
     exist?  Must any of the following be considered:
     incineration; shipment to other facilities in the region or
     the nation; recycling programs to promote at-source
     recovery; some combination of these or other alternatives?

     Response;  EPA may approve requests for increasing the
     design capacity of existing facilities because of a lack of
     available treatment, storage, or disposal capacity at other
     hazardous waste management facilities.  This determination
     is made by the EPA Regions on a case-by-case basis.  The
     Agency would consider all of the above-mentioned factors in
     evaluating the technical feasibility and cost constraints of
     the alternatives available within the time that the capacity
     is needed.  EPA would explore issues such as:  How far are
     similar volumes of waste shipped?  Would the additional cost
     of shipment to an alternative facility be so great that it
     would not be practical or reasonable to do so?  Does the
     waste require specially designed vehicles, e.g.. is the
     waste extremely flammable or dangerous?  Would at-source
     recovery be feasible and practical within the time that the
     additional capacity is needed?  Is incineration or alternate
     treatment at other facilities technically or economically
     feasible?

     You have also requested information on any applications for
the expansion of existing hazardous waste sites which are
pending, or have been approved or rejected by EPA, under the
provisions of 40 CFR §122.23(c).  As mentioned earlier, these
decisions are made at the Regional level.  We are collecting this
information from our Regional Offices and will forward the
results to you.
        This has been retyped from the original document.

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                               -4-

     In addition,  you have requested information on any lawsuits
brought under the provisions of §122.23(c).   There have been no
lawsuits challenging the use of §122.23(c)  in specific
circumstances.  There has been a generic challenge to the
provisions of §122.23(c).  In NRDC v.  EPA.  No.  80-1607 and
consolidated cases (D.C. Cir.,  filed June 2,  1980), several
industry associations and other groups challenged this provision
as too restrictive.  EPA entered into a  settlement agreement in
which the Agency promised to propose some changes to §122.23.
EPA recently reopened settlement discussions  on §122.23(c) with
the petitioners and,  to date, has not issued  a  proposal.

     We appreciate your interest in these matters, and I hope
this information will be helpful to you.


                                   Sincerely  yours,
                                   Rita M.  Lavelle
                                   Assistant Administrator
        This has been retyped from the original document.

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                                                        9528.1983(01)





                     RCRA/SUPERFUND  HOTLINE MONTHLY SUMMARY

                                        MARCH 83
2,.  Ouestioni      An interim status facility wishes to arid a new hatardcvis waste
                   management unit.  !• tM« raw unit Rtoject to the 264.18 seismic
                   standards if  the unit can be added according to 122.23(c)
                   (3) and (5)7  Is the new unit mAject to 2*4.1* if the owner/
                   operator has  exceeded reconstruction costs and has to sufcmit a
                   full pewit application for the wit?

                   (1) If the change can be made during interim status,  the unit i*
                   not subject to the seismic standards.  The definition of existing
                   facility is satisfied, and a facility can have several unit*.
                   (2) Part 264.18 applies to n«* facilities, and this wit is still
                   part of an existing facility.

                   Sourcet    David Pagan and David Sussnan
                   Research!   Irene Homer

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                                                                9528.1983(03)


             RCRA/SUPERFUND HOTLINE SUMMARIES

                          SEPTEMBER 83
    company  leases a site and has  Interim status to store hazardous
waste in  containers at that site.   The operator has submitted  a
closure plan to the Regional Administrator but the plan has not
been approved.  Can the owner of the site lease the property to
someone else for their use prior to certification of closure?

    Yes,  the site can be used by the second leasee prior to certification
    of closure as long as the owner, current operator, or original
    operator assumes responsibility for carrying-out closure.

        Source:  Carole Ansheles and Oov Weitman

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                                                    1984(01)
                     PERMIT POLICY Q & A  REPORT

     IMPROVEMENTS TO SURFACE  IMPOUNDMENTS  UNDER INTERIM STATUS

                        SEPTEMBER 10,  1984
4.  Ouesticni  At the tine an ISS facility has its Part R applica-
tion called, storage surface impoundnerts are being rebuilt with
clay liners.  Dees this constitute an increase in design capacity
or a change in process under 270.72(b) and (c)? If so, can the
?A refuse to allow the change under ISS and require the surface
impoundments to neet -tho Part 264 standards? 40 CFP. 27C.72.

Ar.sver:  No. If -the capacity of th»» surface inpounrinents is not
enlorgod and no new units are being adder*, inpreverents to the
surface irpoundnents are a permissible change under ISS as long
as the reconstruction provision of 270.?2(e) is net violated.
This is not a change in process.  Ro-built surface inpcun
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                                                                  9528.1985(01)
            RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                             DECEMBER  8«5
An interim status facility has  a surface  impoundment for storing a hazardous
waste.  This facility wants to  build  another storage surface impoundment for
a new product line which will produce a hazardous waste that was not designated
on the facility's Part A application.  Mould building such a storage surface
impoundment for accepting a generated hazardous waste new to the facility be
considered an increase in design capacity (5270.72(b)) or a process change
(S270.72(c))7

    Adding a new storage surface impoundment would be an increase in design
    capacity.  This would.not be considered a process change since the process
    is not changing; the new unit is  also a storage surface impoundment
    (designated SO4 on a Part A).  An increase in design capacity requires the
    owner/operator to submit a  revised Part A application, which includes a
    justification for the change, and to  obtain approval from the Regional
    Administrator or State Director ($270.72(b)).  Also, the owner/operator
    must comply with $270.72{e)  concerning reconstruction of the facility.

    Source:    Debbie Wolpe (202) 382-47S4
    Research:  Tom Gainer

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                                                           9528.1985(02)
   RCRA/SUPERFUND/OUST  HOTLINE MONTHLY REPORT QUESTION
                           JANUARY  1985
Reconstruction during Interim Status


An owner/operator of a hazardous waste management facility operating under
interim status is considering expanding the facility to incorporate new
technologies.  Section 270.72(e) states that changes to such a facility
cannot occur if the changes amount to reconstruction of the facility.
Section 270.72(e) further states that "Reconstruction occurs when the
capital investment in the changes to the facility exceeds fifty percent
of the capital cost of a comparable entirely new hazardous waste management
facility." Does this fifty percent apply to each expansion at the facility
or to total expansion costs over the interim status period?

     The fifty percent of capital cost pertains to the total expansion
     costs over the interim status period, not to each individual expansion,
     Expansion costs would include the cost of the land and construction,
     but not design and engineering costs.  Further information on this
     topic is contained in RIL 198 (Regulatory Interpretive Letter)
     available through the Hotline.

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                                                                    9528.1985(03)
               RCRA/SUPERFUND  HOTLINE MONTHLY  SUMMARY

                               SEPTEMBER 85
Loss of Interim Status

4.   The 1984  HSWA Anenoments require  that  interim status  Land disposal facilities tha-
    wish to continue operation after  November 8, 1985, must submit Part B applicav
    and certify compliance with grcundwater raonitoring and financial responsibilir.,
    requirements Dy Novemoer 8, 1985.  Wuch types of facilities are required to cer:..
    that they are in compliance with  all applicable groundwater monitoring and financial
    responsility requirements?  Is  there a specific focn  foe certifying compliance?

       In the September 25, 1985 Federal Register (50 nt  38947), the Agency interprets
       the term "land disposal facility* to encompasss  landfills; land treacnent
       units; surface impoundments  for disposal, treaownt or storage; waste storage;
       waste  piles; and Class I hazardous waste underground injection wells.

       On July  15, 1985, $270.73 was changed to reflect the certification requirements
       of the HSH& /tenements.  The certification should  be submitted in addition to
       and not  as part of the Part  B application.  The certification statement was
       published in the September 25, 1985 Federal Register (SO PR 38949).  The certi-
       fication requires that the facility be in compliance with all groundwatar
       monitoring and financial responsibility requirements of 40 CFR Parts 265 Subparts
       F and  H  or all State ground-water raonitoring and financial responsiblity require-
       ments  which are analagous to Part 265 as part of the State's authorized hazardous
       waste  program under section  3006 of RCBA.  Copies  of a facility's certification
       and Part B or State final operating permit application must be submitted to bocn
       the EPA  Regional office and  the State in which the facility is located.  Facilitie
       in a State with a federally  run RCRA prgram need only submit these documents to
       the Region.

       Source:    JacXie Tenusak  (202) 475-8729

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                                                    9528.1985(04)
              RCRA/SUPERFUND  HOTLINE MONTHLY SUMMARY

                           OCTOBER 85
7.    Changes During Interim Status

     A hazardous waste storage facility operating under RCRA
     interim status standards (40 CFR 265)  undergoes a corporate
     reorganization in which the original company becomes a
     parent holding company with five subsidiaries.  There is no
     change in ownership or operation of the facility.  In
     effect, the company changes in name only.   Must the
     owner/operator notify the U.S. EPA of the change?  If so,
     what procedures should the owner/operator follow?

          40 CFR 270.72 and 270.10 address the changes during
          interim status which require the submission of a
          revised Part A permit application.  Because name
          changes are not included under these sections, the
          facility would not need to submit a revised Part A in
          this situation.  Rather, the facility should notify the
          Administrator or Director of the clerical change in the
          permit application using any reasonable method.  For
          example, the owner/operator could send a letter to the
          Regional Administrator to make the appropriate
          correction on the Part A application.  Note that if the
          owner/operator name change involves a facility located
          in a State that has interim or final authorization to
          manage the hazardous waste program in lieu of the
          Federal RCRA program, the owner/operator should contact
          the State on this issue.  The State program authorized
          by U.S. EPA may include additional requirements that
          are stricter or broader than those of the Federal
          program (e.g., the State may require submission of a
          revised Part A application).

          Source:  Carrie Wehling  (202) 475-8070
        This has been retyped from the original document.

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                                                                     9528.1985(05)
             RCRA/SUPERFUND/OUST HOTLINE MONTHLY  REPORT QUESTION
                                      OCTOBER 1985
2.  Loss of Interim Status

    Owners  or operators of land disposal facilities which have interim status prior to
    November 8f  1984, will have their  interim status terminated on November 8, 1985,
    unless  a Part B permit application is submitted prior to that date and the owners/
    operators certify that the facilities are in compliance with all applicable ground-
    water monitoring and financial responsibility requirements per $270.73(c), of the
    July 15, 1985,  Federal Register  (50 FR 28753).  The notice of implementation and
    enforcement policy for this provision in the September 25, 1985, Federal Register
    (50 FR  38946),  states that to certify compliance a facility must be in "physical
    compliance" with the Federal or State ground-water monitoring and financial responsi-
    bility  requirements.  What is "physical compliance" for the Federal ground-water
    monitoring requirements?

        Owners or operators must certify "physical compliance" with applicable ground-water
        monitoring  requirements defined in 40 CFR Part 265, Subpart F (see Appendix A, 50
        FR  38949).   "Physical compliance* for purposes of certification under $3005(6") means
        that unless  the owner/operator meets the waiver requirements under $265.90, the
        facility must have a ground-water monitoring system which meets all of the specifica
        tions of $265.91.  This system must be physically in place at the unit for which
        certification is required and sampling and analysis under $265.92 must be underway.

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                                          9528.1985(09)
Mr. Robert D. Cheeler
Lovenstein, Sandier/ Brochin, Kohl,
  Pisher, BoyIan & Meaner
65 Livingston Avenue
Roseland, New Jersey  07068

Dear Mr. Chesler:

     Thank you for your letter of November IS, 1985 regarding
storage and treatment facilities and the Loss of Interim Status
Provision.  While the essence of your letter is correct, there
are a few misunderstandings I would like to clarify.

     Your letter states that storage and treatment facilities
would not lose their Part A interim status if they lost their
sudden and accidental coverage and if those facilities could
demonstrate that they were making and continued to make good
faith efforts to purchase such insurance coverage.  It is correct
that the Loss of Interim Status provision in $3005(e)(2) of the
Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act, as amended, applies only to land disposal
facilities.  Generally, it does not apply to storage and treatment
facilities.  However, EPA published a notice of implementation
and enforcement policy regarding this provision on September 25,
1985.  The notice states:

     For the purpose of section 3005(e), the Agency interprets
     the term "land disposal facilities* to encompass the
     following types of facilities: landfills, land treatment
     units, surface impoundments for disposal, treatment, or
     storage; waste piles» and Class I haiardous waste
     underground injection wells.

All such facilities which did not certify compliance on November 8,
1985, with financial responsibility requirements (among other
aspects) haws* lost interim status.

     A distinct issue from loss of interim status is the continuing
obligation of all interim status treatment, storage, and disposal
facilities to comply with the RCRA insurance requirements.  BPA's
enforcement Guidance for a Constrained Insurance Market, issued

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on April 12, 1985, stated that EPA would not enforce against
those who made good faith efforts to comply with the insurance
requirements..  However, that notice, by its terms, was in effect
only until November 8, 1985.

     Your letter also states that loss of sudden and accidental
insurance would not prevent a treatment and storage facility fron
being granted "final authorisation".   It goes on to say that in
such a situation, EPA can approve "final authorization' and
place the facility on a schedule of compliance for the insurance
requirements.  I am assuming that when you use the term "final
authorization" you mean the issuance of a Part B permit.
Compliance with the financial regulations is required before a
Part B permit can be issued.  The Agency has not yet developed
its policy on implementing these requirements for facilities
seeking a permit.  For information regarding the status of this
policy, you may wish to contact David  Pagan of the Permits Branch
on 382-4457.

     I hope this clarifies your understanding of the Loss of
Interim Status Provision regarding storage and treatment facilities

                                    Sincerely,
                                     Carole J. Ansheles
                                     Manager,  Financial Responsibility
                                       Program (WH-S62B)
cc: Dave Pagan (OSW)
    Jackie Tenusak  (OWPE)
    Joe Preedman (OGC)

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                                                                       9528.1985(11)
                RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY

                                 DECEMBER  85


Burning and Blending and interim Status

7.   A conpany blends listed  hazardous  wastes (40  CFR Susparts C  anc DJ  anc  rvarxecs
    the Dlends -as- hazarcous  waste £uel.   The company is  neither  tne generator  nor
    the burner of the nazaraous  waste  derived fuel.  The operator of a  cerent  kiln
    currently uses virgin oil  as fuel  but plans to switch and use the hazardous  waste
    fuel blends to power the kiln.   Tanks which previously held  virgin  oil  are
    being converted to store hazardous waste fuels.  The cement  kiln operator  has
    asked if ne must "physically" have the hazardous waste fuel  in his  storage tanks
    prior to the effective deadlines set in the November 29,  1985, Federal  Register
    (50 FR 49164) for Part 266,  Subpart  D burning/blending,  in order for the facility
    to obtain interim status for storage.

         Currently, the hazardous waste  fuel to be burned is  exempt from any RCRA
         regulations because the fuel  was obtained from  a blender who neither
         generated nor burned  the fuel (50 FR 667, $266.30 (a)).  This  exemption is
         pursuant to the redefinition  of solid waste (-50 FR 614).  Per  the
         November 29, 1985,  final burning and blending regulations, which were
         promulgated pursuant  to the Hazardous and Solid Waste Amendments of 1984
         (HSWA), hazardous waste fuel  will be regulated  when  blended by the
         (50 FR 49204, 5266.30(a) and  §266.34 as amended) and when the  fuel is
         burned by the cement  kiln operation (50 FR 49204, $266.30(a) as amended,
         50 FR 49205, $266.35  as amended).  Hence, the cement kiln operator needs
         interim status or a permit  to store tne hazardous waste fuel prior to
         burning.

         To qualify for interim  status,  a facility owner/operator must meet the three
         criteria set out in Section 3005(e)(l) of RCRA  as amended.  First, the owner/
         operator must nave  an "existing Hazardous Waste Management (HVtt) facility,"
         defined as a facility which was in operation  or for  which construction
         cammencea on or before  November 19, 1980, (40 CFR 260.10), or a facility
         "in existence" on the effective date of statutory or regulatory amendments
         under the Act that  render the facility subject  to having a RCRA permit.

         Second, the owner/operator  must file a notification  of hazardous waste
         activity per Section  3010 of  RCRA; and third, submit a Part A application
         (50 FR 28753, $270.70).  In order for the cement kiln operator to be "in
         existence" for the  purpose  of obtaining interim status for converted tank
         storage* he should  be storing hazardous waste fuel in his tanks on the
         effective date of the burning and blending regulations under Part 266,
         Subpart D (50 FR 49164).  However, a facility at which tanks are empty on
         the effective date  but  which are intended to store hazardous waste fuel may
         also qualify for interim status under certain conditions.  To be  in  interim
         status such a facility  must,  by the effective date,  have obtained all
         Federal, State, and local approvals or permits  necessary to begin storage
         of hazardous waste  fuel in the  tanks ana have objective evidence, such as
         contractual obligations which cannot be cancelled or modified without
         substantial loss, which clearly  indicate the intent to begin storage of  this
         waste  in the tanks  within a reasonable time.

         Source:    Carrie Wehling    (202)  475-8U67

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                                                    9528.1986(01)
Susan Lubick
Room 2419
Rayburn House Office Building
Washington, D.C.  20515

Dear Ms. Lubick:

     On October 28, 1985, you met with Clem Rastatter of my staff
to discuss the CECOS International site in Niagara Falls, New
York.  As a result of the meeting, you requested the following
additional information concerning:   (1) administrative
requirements and location standards applicable to the
construction of the new Cell #6 at the CECOS facility; and (2)
applicability of the "omnibus provision" of the Hazardous and
Solid Waste Amendments of 1984  (HSWA) to the expansion of the
facility.

     As you know, the  CECOS facility is currently operating
under interim status standards.  Facilities operating under
interim status are normally required to submit a revised Part A
application and meet the requirements of 40 CFR 270.72 for any
change during interim status.  Part 270.72 requires EPA's
approval for:   (1) any increase in design capacity not previously
identified in the Part A of the permit application, and  (2) any
process change or the addition of processes not currently
identified in the Part A.  However, the construction of Cell #6
was detailed in CECOS1 original Part A application.  Therefore,
the construction of Cell #6 is not considered to be a change
under §270.72, and the facility can proceed with the construction
of Cell #6 without any permitting action by EPA.  The facility
must also install in Cell #6 at least two liners and a leachate
collection system above and between the liners as required by
Section 3004(o) of RCRA.  The design and installation of this
liner system is not required to be reviewed or approved by EPA
(or the State) before construction has begun.  However, design
specifications and other information on this system have been
voluntarily submitted to EPA and the State of New York and are
currently under review.

     EPA Region II and the State of New York are jointly
reviewing CECOS1 Part B permit application for the entire
landfill facility.  In their review, EPA and the State will apply
draft criteria EPA has developed for evaluating acceptable
locations for hazardous waste land treatment storage and disposal
facilities.  Those criteria include:

     (1)  the inherent geologic, hydrologic, and pedologic
          features of the site;
        This has been retyped from  the original document.

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                               -2-

     (2)   ability of the site to provide a  stable foundation for
          the engineered containment structure;

     (3)   ability of the site to produce adequate ground-water
          monitoring data;

     (4)   site compliance with Federal statutes  and standards
          regarding protected lands.

     These criteria are based on current regulations under 40 CFR
Part 264,  which specify design and operating requirements for
hazardous waste facilities and establish ground-water monitoring
and corrective action requirements.   While  Part  264 does not
contain explicit location standards based on hydrogeologic
considerations, the ground-water monitoring,  corrective action
and design and operating regulations contain performance
standards that implicitly involve hydrologic and geologic
factors.

     Guidance on application of the four criteria has been issued
in draft form.  Guidance on a fifth topic (definition of areas of
vulnerable hydrology) is currently being developed and will be
issued in May 1986.  In 1988, EPA intends to propose regulatory
standards for the location of new and existing hazardous waste
facilities.  These last two activities are  mandated by the HSWA.

     You also inquired as to the applicability of Section
3005(c)(3) of RCRA to the construction of Cell #6.  Section
3005(c)(3) (also called the "omnibus" provision) provides that
individual RCRA permits "shall contain such terms and conditions
as the Administrator (or State) determines  necessary to protect
human health and the environment."  Given that CECOS does not
require any EPA approvals before proceeding to construct Cell #6
while operating under interim status, the question you raised was
whether the omnibus provision gives EPA the right, and thus the
responsibility, to impose conditions (including  denial of the
right to construct) during interim status.   The  answer is that
the omnibus provision applies only to permit conditions, and EPA
has the legal basis under this provision to impose additional
requirements  (beyond the minimum technology requirements outlined
in the statute) on the construction of Cell #6 during the interim
status period.

     At this time, we expect New York to receive authorization to
issue RCRA permits in March 1986.  As the processing of the CECOS
permit application is not expected to be completed before that
date, the final decision regarding issuance of the permit will
rest with the State.  We suggest, therefore, that you also
contact the State agency regarding the status of the CECOS
application.  The appropriate contact in New York is:
        This has been retyped from the original document.

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                               -3-

                    Norman H. Nosenchuck, Director
                    Division of Solid and Hazardous Waste
                    Department of Environmental Conservation
                    50 Wolf Rd. Room 209
                    Albany, New York  12233
                    (518)  457-6603

          If I can be of further assistance, please let me know.


                    Sincerely,
                    Marcia Williams, Director
                    Office of Solid Waste
cc:  Norman Nosenchuck
        This has been retyped from the original document.

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                                                            9528.1986(04)
             RCRA/SUPERFUND HOTLINE  MONTHLY  SUMMARY

                              JANUARY 86
4.  Obtaining Interim Status

    A hazardous waste management facility has received a final permit, pursuant to
    Section 3005 of RCRA to store and  treat hazardous wastes.  The facility also
    has solid waste management units  (SVMU) on-site.  If the solid wastes in tne
    SVMUs become RCRA hazardous waste  because EPA lists them as hazardous wastes,
    can the facility obtain interim status for these newly-regulated units?

         Interim status, under Section 3005(e) of RCRA, is granted to facilities.
         Interim status is not granted on a unit-by-unit basis,  therefore, fully
         permitted facilities may not  receive interim status for newly regulated
         units.

         Fully permitted facilities will be allowed to treat, store, or dispose of
         wastes covered by new hazardous waste listings if the owner/operator
         submits an amended permit application pursuant to 40 CFR 124.5 and the
         psmit has been modified pursuant to 40 CFR 270.41 or 270.42.

         Source:    Game We hi ing   (202) 475-8067

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                                                                    9528.1986(06)
               RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                                 JULY 86

A.  RCRA  .

 1.   interim Status for Receiving SOG Waste

     A facility owner/operator (o/o) would like  to  obtain  interim status
     to receive wastes from small ouantitv Generators  (SOGs)  that Generate
     between 100-1000  kq.  of hazardous waste  per month.  These SOGs will
     he subject to new requirements effective September 22,  1986.  finder
     the new regulations,  these SOGs are subject to notification, manifest
     requirements, recordkeeoina and special  generator accumulation
     requirements (see the March 24, 1986  Federal Register,  51 FR 10146).
     In addition, 100-1000 kg/month generators will no longer be allowed
     the disposal options  of 40 CFR §261.5(g)(3), but must send their
     wastes destined for disposal to permitted or  interim  status RCRA
     facilities.

     (a)  If a facility is  currently permitted under TSCA to  manage °C3 waste,
         but intends to receive hazardous  wastes from SOGs,  can it be
         considered an "existing facility" on September 22,  1986 for  inter H
         status purposes?

         Yes.  A facility  that is "in existence" on the date of regulator/
         changes which first subject it to the RCRA permit requirement
         may gualify for interim status under Section  3005(e).  A facility
         is "in existence" if it is  in operation or "under construction"
         as defined in 40  CFR 260.10.  Thus a facility which is managing
         SOG wastes on or  before September 22, 1986 may gualify for
         interim status because it will be newly subject to  the requirement
         to obtain a RCRA  permit on  that date (40. CFR 270.70(a), 50 FR
         28753).  The  fact that this facility is also managing PCBs has
         no bearing on the RCRA interim status of  this facility.  The DCT
         wastes must continue to be managed at the  facility  according to
         the terms of  the  TSCA permit.

     (b)  If a facility receives interim status to manage SOG waste, may
         it then begin to  accept full-generator  hazardous  waste also?

         A facility which  is "in existence" on the  effective date of
         regulation subjecting it to the RCRA permit requirement must
         also submit a Part A permit application and file  a  RCRA Section
         3010 notification (if applicable)  in order to obtain interim
         status.  The  type and amount of waste for  which the facility
         obtains interim status depends on the Part A  application.  An
         interim status facility must submit  a revised Part  A application
         and comply with the requirements  of  40  CFR 270.72 in order  to
         manage wastes not identified by the  Part  A or to  increase  the
         capacity of the facility.   Therefore, if  the  facility was  not
         accepting full-generator waste before September 22, 1986,  it is
         not automatically covered by  its  newly-acquired  interim  status
         to handle waste from SOGs,  but must  submit a  revised Part  A and
         comply with 40 CFR 270.72.

         Source:    Nancy Bomerleau   (202) 382-4500
                    Bob Axelrad      (202) 382-5218
         Research:  Jennifer Brock

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY       9528.1986(07)
                        SBH9
MEMORANDUM

SUBJECT:  Interim Status of the Freeman Chemical Incinerator

FROM;     Arthur Glater, Chief
          Incineration/Storage PAT Section

TO:       Vladimir Gulevlch, Director
          Virginia Bureau of Hazardous waste Management


     This aenorandup  Is  in response to your request for aasistanc<
in determining whether the incinerator constructed by Freeman
Cheirical Corporation  in Chat haw, Virginia has interim status.
As our staffs have discussed* this determination was complicated
by two facts,  first was Preenan Chemical's reference to the
regulatory amendment  to chance? durlno interim status which EPA
was considering as a  result of the settlement of NRDC v. EFA,
but which has not Men proposed.  Secondly, Freeman Chemical
would like to resume  incineration of reaction water which was
previously mistakenly classified (initially by freeman Chewica)
and subsequently by EPA) as nonhacardous.

     The NRDC vs. EPA case cited by freeman Chemical was concluded
by a settlement agreement under which EPA would propose certain
amendments to the regulations coverino changes during interim
status.  The proposal was to contain specific provisions on
replacement units.  Bowever, since no such chances to the regula-
tions have been made  to date, the HRDC v. EPA case has no bearing
on this issue*

     Under ffjdtral regulations at 40 CPR 270.73, inter!* status
terviastS'S vhe)n final adxinistrative disposition of a peroit
application 1* »ade,  when action is takan to tervinata interim
status du» to late or ineostplete subaittal of Fart B  Information,
or when a facility loses  inter!* status under the new Loas of
Interla Status  (LOIS) provisions.  Because none of these situations
has occurred, the facility has  Interim status.  Thus, because
replacement is a chance  during  interim status,  the construction
of a now unit must comply with  the State's analogy to  {270.72.

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                              - 2 -


     The question of whether construction of the new waste/fun*
incineration unit is allowable as a change during Interim status
depends on whether or not the reconstruction cost limit of f270.72
is exceeded.  This subsection prohibit* changes amounting to
reconstruction of a hasardous waste management facility during
interisi status.  "Reconstruction" oecurs when the capital invest-
ment in the changes to the facility exceeds fifty percent of the
capital cost of a comparable entirely new facility.  As no financial
information has been supplied to us/ we have made no attearpt to
make such an evaluation.  Tour office should apply the "50%
rule" to determine whether the construction of the new incin-
erator is allowable as a change during interim status.

     If you have any questions on our response or on application
of the 50% rule, fee] free to contact Sonya Stelmack of ay staff
at (202) 3I2-4SOO.

cct  Ken Shuster
     Gary Gross
     Sonya Stelaack

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                                                    9528.1986(09)



October 27, 1986
Mr. Frank L. Deaver
Corp. Environmental Services Mgr.
Tektronix, Inc.
Tektronix Industrial Park
P.O. Box 500
Beaverton, Oregon  97077
Dear Mr. Deaver:

     Thank you for your letter of October 1 bringing to my
attention the problems you have encountered in trying to comply
with the RCRA interim status standards (40 CFR Part 265) while
simultaneously developing a permit application to address the
permit requirements of 40 CFR Part 264.   Mr. Ken Feigner in EPA's
Regional Office in Seattle, Washington is responding to your
questions regarding the particular circumstances of the
permitting efforts at your facility and the inspection conducted
last February by EPA and the State of Oregon.

     As you are aware, interim status facilities must comply with
the Part 265 standards (or State counterparts, in authorized
States) until final disposition of the RCRA permit.  If some of
the common elements of Parts 264 and 265 are improved in the
process of developing a permit application  (e.g., waste analysis
plan) , then it may benefit the facility to replace or append the
interim status document with the newer version.  I agree with you
that the problem of trying to meet both sets of standards is
probably shared by other existing facilities that are pursuing
RCRA permits.  I will relate your experience to others in the
Agency who are involved in enforcing the RCRA program.  My office
will also continue to ensure that enforcement activities are
coordinated with any concurrent permitting work at a facility.
        This has been retyped from the original document,

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                               -2-

     If I can be of further assistance you,  please let me know.

                    Sincerely,
                    Marcia E. Williams
                    Director
                    Office of Solid Waste

cc:  Ken Feigner, EPA Region 10
     Fred Hansen, Oregon DEQ
     Gene Lucero, EPA OWPE w/copy of incoming
     Lloyd Guerci, EPA OWPE w/copy of incoming

     Regional H.W. Branch Chiefs w/copy of incoming
        This has been retyped from the original document.

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                                                         9528.1986(10
       i
       3     UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
       * .                 WASHINGTON 0 C 20460
                            NOV  13 1966
Richard G. Stoll
Karen K. Wardzinski
Freedman, Levy, Kroll 6 Simonds
Washington Square - 1050 Connecticut Ave., N.W.
Washington, O.C.  20036

Dear Karen and Dick:

     This letter is in response to your request of September 25,
1986 for a written interpretation of the interim status qualifi-
cation requirements as they apply to hazardous waste fuel (HWF)
storage facilities.  Specifically, you have asked whether in
order to qualify for interim status an HWF storage facility must.
1) submit a 3010(a) notification by January 29, 1986 even where
the facility does not begin hazardous waste activities until
after that date or 2) begin actual storage of hazardou-s waste
fuels by May 29, 1986, the effective date of the HWF regulations.
As discussed below, we believe that the answers to both questions
is "no".

     Under RCRA Section 3005(e)(l), a facility may qualify for
interim status if it 1) is in existence on November 19, 1980 or
on the effective date of regulatory changes which render the
facility subject to the requirement to have a RCRA permit, 2)  is
in compliance with applicable 3010(a) notification requirements,
ar.d 3) submits Part A of the two-part RCRA permit application.
Section 3010(a) of RCRA, as amended in 1984, requires the owner
or operator of any facility which produces, burns, or markets
hazardous waste fuel to file a notification of hazardous waste
activity by February 8, 1986.  On November 29, 1985, EPA issued
final rules regulating hazardous waste fuels.  The requirements
for HWP storage facilities became effective on May 29,  1986.

     Your first question concerns the application of the 3010(a)
notification requirement to facilities which begin hazardous  waste
fuel storage activity after January 29,  1986, which is  60 days
after the promulgation of the HWF regulations.  The November  29,

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                              - 2 -


1985 HWF rule did not discinguish between the statutory  30lQ(a)
notification requirement and regulatory notice requirements.
Nor did the rule explicitly address HWF storage facilities which
begin operation after the promulgation of the HWF regulations.
Both of these issues require clarification in order  to answer
your question.

     First, the November 29 HWF rule implies  that the applicable
date for HWF storage notification under the statute  is January 29,
1986.  This is incorrect.  The applicable date for HWF storage
notification under 3010 is February 8,  1986,  and  this date is
unaffected by the November 29 rule.  The notification requirement
under Section 3010(a)  of RCRA for HWF facilities  is  self-imple-
menting.  Sec H.R.  Rep. No. 198,  98th Cong.,  1st  Sess. 40  (1983).
Under that provision,  all facilities which produce,  burn or
market hazardous waste fuel must submit a notification of  their
hazardous  waste activity by the date 15 months after the enactment
of HSWA, i.e. February 8, 1986.  Although the HWF regulations
promulgated in November, 1985 contain several notification
requirements, those notices are in addition to, not  in replacement
of, the February 8  notification requirement under Section 3010(a).
However, a notification under the rule, by January 29, would satisfy
the 3010(a) requirement to -notify by February 8.

     Second, under Section 3010(a), the February  3 notification
requirement is not applicable to any facility for which  the
Administrator waives this requirement.   The November 29, 1985
HWF rule does not require 3010(a) notification from  any  facility
not in existence on that date and was intended to waive  the
statutory notification requirement for all such facilities.

     Because HWF storage facilities not in existence on  November 29,
1985 were exanpted  from the 3010(a) notification  under the November
29, 1985  HWF rule, no 3010(a) notification requirement  is applicable
to facilities which cane into existence after November 29, 1985.
Thus, to answer your specific question, an HW? storage facility
which begins storage of hazardous waste fuel  after January 29,
1986 was not required to submit a notification of hazardous waste
activity in order to qualify for interim status on May 29, 1986.

     Your second question concerns the interpretation of the
requirenent that a facility be "in existence" on  the date  of a
regulatory change subjecting it to the RCRA permit requirement
in order to qualify for interim status.  This question was not
addressed in the November 29, 1985 HWF rule,  and  in  fact,  is not
directly addressed in any of the RCRA regulations.  The  federal
RCRA regulations do define "existing facility", but  only with
respect to facilities "in existence" on November 19, 1980.
See 40 CFR 260.10.  Moreover, the "existing facility"  definition
does not specifically address the situation of a facility  which

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                              - 3 -


 intends*  Co handle hazardous waste buc for which  no  physical
 construction !• necessary.

     However, as we indicated to you in our  earlier conversations.
 we believe that the question of whether storage  facilities  intending
 to convert to hazardous waste fuel storage are "in  existence" on
 May 29.  1986 should be resolved by analogy to  the "existing
 facility" regulations.  In order to be an "existing facility" for
 the purposes of qualifying for interim status prior to  1984, a
 facility had to be "in operation" or under construction on
November 19. 1980.  A facility is "in operation" if it  is actually
managing hazardous waste.  Thus by analogy,  a  facility  is "in
 existence" on the effective date of a regulatory change which
 subjects it to the RCRA permit requirement if  it is actually
managing hazardous waste on the effective date of  the regulations.

     A facility could also qualify for interim status as an
"existing facility" if it "commenced construction"  by November
19,  1980.  Under 40 CFR 260.10, "commenced construction" is further
defined  to mean a facility which has obtained  all  necessary
preconstruction permits and either 1) has begun  continuous onsice
construction or 2) has entered into construction contracts  that
cannot be cancelled without substantial loss.  Although not
directly addressed by the regulation, EPA has  interpreted "commenced
construction" to also include facilities which have obtained all
necessary preconstruction permits and completed  construction
prior to November 19, 1980.  46 FR 2344 (Jan.  9, 1981). Thus a
facility converting to hazardous waste storage would be "in
existence" on November 19, 1980 if by that date  the owner or
operator has obtained any necessary preconstruction permits
required for modification of the facility and  can objectively
demonstrate an intent to handle hazardous waste  within  a reasonable
 time.  Id.  We believe that this interpretation  is  equally  appli-
cable to facilities intending to convert to  hazardous waste
management on the effective dace of regulatory changes  which
would subject it Co Che permlc requirement.  Thus a storage
facility may be "in existence" for the purposes  of  qualifying  for
 interim  status if by May 29, 1<»86 it was actually  storing hazardous
waste fuel, under physical construction as a HWF storage  facility,
or is converting Co hazardous waste fuel storage.

     If  I can be of further assistance to you  on these  issues,
 please do not hesitate to call.

                              Sincerely,

                               /'• *•*-•"

                              Mark A. Greenwood
                              Assistant General  Counsel for RCRA
                              Solid Waste &  Emergency  Response
                                Division

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                                           9528.1986(11)
 OK  10866
ABMORANDU*
SUBJECT:  Permitting Units or Facilitiee That Rave Lost
          Interim Status

PFOM-     Gene A. Lucero, Director
          Office of Wast* Programs Enforcement (WH-527)

          Marcia E. willlans. Director
          Office of Solid Waste (WP-S62)

TOr        Allyn «. Davis, Director
          Hazardous Waste Management Division (6H)
          Region VI


     Your letter of October 15, 1986, raise* several issues —
some generic and some specific to the Eagle Pichar Electro-Optic
Materials (BOM) Loss of Interim Status (LOIS) case.

     The first specific issue is whether the BOM surface impound-
ment has lost interim status.  Tour letter indicates that an
enforceeent action asserting that the tQ» unit loat interim
status way not be resolved for »any months.  If the result of the
enforcement action is that the BOH surface impoundment has lost
interim status, then the appropriate injunctive relief and penalties
will be imposed through the enforcement action.

     A second, broader issue is what actions should N» taken, and
in what priority, for land disposal units or facilities that are
seeking operating permits and are closing under the "SWA LOI.C
provision.  In the case of EOH, the unit's loss of interim
status has not finally been determined.  Therefore, review of
the permit application should proceed in a manner similar to
other land disposal oermit applications.  In cases where loss
of interim status has been determined, an owner or operator
still has th« right to pursue a permit*  Where that option is
pursued, the Agency is obligated to review the permit application.
These cases present a special challenge, however, since the
facility is also required to have submitted an interim status
closure plan IS days after the loss of interim status.  The
Agency may be) in the position of coficwrrsntly evaluating a closure
plan (submitted as a result of the facility or unit's loss of
interim status) and permit application for the same facility or
unit.

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     Review, approval, and implementation of the closure plan
should proceed without regard for any pending permit application,
according to priorities outlined in the RCRA Implementation Plan
and Regional or State Strategies and facility management plans.
The Agency considers it good practice to close hazardous waste
land disposal units or facilities after they lose interim status
in order to minimize the likelihood of environmental and human
health damage.  Therefore, units that are reouired to close
should be closed expeditiously.  In like manner, permit appli-
cations for LOIS facilities or units should he reviewed in
accordance with established land disposal permitting priorities.
within the overall priority scheme, several considerations should
be kept in mind during the closure plan/permit application
review process:

     (1)  The statutory loss of interim status provision
          reguires that the affected unit or facility stop
          receipt of hazardous waste.  Resumption of waste
          receipt cannot occur unless and until a final RCRA
          permit is issued.

     (2)  The LOIS unit or facility must begin closure activ-
          ities according to the schedule provided in Part .265
          Subpart G.  Extensions to the tine allowed for closure
          at LOIS units or facilities under 5265.113(a)(1)(ii)
          and (b)(l)(ii) should not be oranted solely on the
          basis of a pending permit application, or on the
          basis of future capacity to receive hazardous waste
          since the loss of interim status abroaates the legal
          authority to continue to receive waste.

     (3)  In some cases, final closure activities may need to
          be delayed for physical reasons or to increase the
          effectiveness of closure (e.g., delay of final cover
          placement to allow for waste settlement).  Other
          closure activities (e.g., control of run-on/run-off,
          treatment of waste, freeboard maintenance, etc.)
          will still need to be implemented, according to the
          routine closure schedule.

     (4)  If a final RCRA permit is issued before completion
          of all closure activities, the terms of that permit
          (including the permit's closure plan under Part 264)
          may supercede the interim status closure plan.   (See
          $265.l(b).)  In reviewing the proposed Part  264
          closure plan, permit writers should attempt  to ensure
          technical consistency between  it and the  interim status
          closure plan.

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                               -  3 -


      (5)  After a facility or  unit loses interim status future-
          TictUitie. .ay be governed by new HSWA requirements*
          Closure activities conducted at units subsequent to
          loes of interim status may, in some cases, reouire
          implementation of the HSWA minimum technoloqical
          recuirements if a permit is subsequently issued for
          reuse of that unit,  since closure activities could,
          in some cases, cause the unit to be defined as a
           replacement' unit under S3004(o)(l)(A) (e.g., where
          all or substantially all of the waste in the unit is
          ISSn*'   ??"e:?r' !°r th* PU^°"» of section
          3004(o), units that have lost interim status will
          not be considered new units unless they first receiv-d
          hazardous  waste after November 8,  1984.

cc:   Hazardous Waste Division Directors'-"^
     Regions I-V and VII-X (with incoming)
     Hazardous Waste Permit Section  Chiefs ^^
     Regions I-X (with  incoming)
     Bruce Weddle
     Lloyd Guerci

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                                                            9528.1987(01)
            RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY

                             JANUARY 87
4.   Does the authority granted under RCRA section 3008 (h) extend to
     facilities that have lost interim status (RCRA §3005(e))?

         EPA has interpreted section 3008(h)  to apply to the  following:
         1) facilities that have applied for and are now operating under
         interim status; 2) facilities that treat,  store, or  dispose of
         hazardous waste but have not obtained interim status because
         they did not fully comply with section 3010 notification
         requirements or submit a timely Part A; and 3) units or
         facilities at which active operations have ceased and interim
         status has been terminated pursuant to 40 CFR 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.  Accordingly,
         Section 3008(h) can be used to conpel responses to releases at
         facilities that lost interim status prior to a  section 3008(h)
         action.  EPA believes this approach to be consistent with
         Congressional intent to assure that significant environmental
         problems are addressed at facilities that treat, store, or
         dispose of hazardous wastes but do not have a final  RCRA
         operating or post-closure permit.  H. Rep. $o.  1133, 98th
         Congress, 2d.  Sess.  110-112  (1984).  (from "Interpretation of
         Section 3008(h) of the Solid Waste Disposal Act", J. Winston
         Porter, December 16th, 1985.)

         Source:   Susan O'Keefe     (202) 475-9320
                   Ginny Steiner     (202) 475-9329

         Research:  Deborah McKie    (202) 382-3112

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*° **«>!
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY     9528.1987(02)
                         WASHINGTON, D.C. 204CO
                                                         OFFICE OF
                                                SOLID WASTE AND EMERGENCY *ESPQNSE


                               MAR \\ 1987
  MEMORANDUM


  SUBJECT:   Regulatory  Status  of  Contaminated Ground Water
           /?/ Jkofc r. licGra*
  FROM:      Jack McGraw, Deputy Assistant  Adni.nl st rat or
             Office  of Solid Waste and Emergency Response

  TO:        Robert  Duprey, Director
             Waste Management Division
             Region  VIII

       Thank you for your February 17,  1987,  memorandum regarding
  applicable requirements for  units  in  which  ground water  con-
  taminated  with hazardous waste  is  to  be  treated as part  of a
  corrective action program.

      Your first question centered on whether a treatment  system
  at an  interim status  facility can  operate without a permit
  if §270.14 and Part 264 standards  are incorporated into  a
  §3008(h) order.   Since the facility in question is operating
  under  interim status, the treatment system  should be handled
  as a change during interim status  under  §270.72(c) in conjunc-
  tion with  issuance of the §3008Ch)  order.   The  Part 264  standards
  for permitted facilities or  §270.14 permit  application infor-
  mation requirements are not  applicable unless the changes at
  the facility amount to reconstruction under §270.72(e).   If
  the changes would amount to  reconstruction, a permit would be
  required for the  treatment system.

       Your  second  question concerned the  leakage of hazardous
  waste  compounds from  process areas, and  whether such leakage
  met the definition of "discarded"  in  §261.33 and  §261.34.
  Such activity does meet the  "discarded"  definition of §261.33,
  as long as the leaked material  was not being beneficially
  used or reused, or legitimately recycled or reclaimed (§261.2,
  §261.3).

       The last question focused  on  whether a hazardous waste
  treatment  unit which  is to be constructed for the purpose of
  treating contaminated ground water at a  facility  without
  interim status would  be required to obtain  a permit.  Sections
  264.Kg)(8) and 265.1(c)(ll) provide  a regulatory exemption
  from interim status and permitting standards  for  "treatment

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and containment activities during immediate response" to
hazardou-s waste discharges and imminent and substantial
threats of discharges.  The effect of this exemption is to
promote hazardous waste discharge prevention and control by
relieving persons engaged in immediate response to discharges
and serious threats of discharges from time consuming
requirements•

     If the activity  in question could be considered an
"immediate response," the exemption from permitting and
interim status standards for the treatment units would be
appropriate.  Once the immediate response is over, however,
the units would have  to comply with permit requirements
under Parts 270 and 264.  It should also be noted that if
the treatment system  in question were to meet the definition
of a "wastewater treatment unit" in §260.10, the system
would not require a permit nor be required to meet Part 264
standards (§270.1 (g)(6)).  Please note that, in any case,
Part 264 standards would not be imposed under a Section
3008(h) order.  Rather, as described in our response to your
first question, interim status standards would apply.

     If you have any  further questions regarding these issues,
please contact George Faison at FTS 382-4422.

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                                                         9528.1987(03)
           RCRA/SUPERFUND  HOTLINE MONTHLY  SUMMARY

                             MARCH 87
7.  Constructico During Interim Status

    A facility ^btained interim status  for  container storage.   It  later
    completely ^Josed all  storage units.  Can the owner/operator now
    build a treatment unit under interim  status or  is a full permit
    required?

         Cnce a  facility has  been granted interim status, the  facility
         will retain its interim status until either 1) the final
         disposition of a  permit application  by that facility  has  been
         made, 2) the interim status  is terminatecl  per 40 CFR  270.10(e)(5)
         or under Section  3008(h), or 3)  the  facility loses interim
         status  under 40 CFR  270.73(c]-(f).   (see 40 CFR 270.73).  If
         the owner/opera tor of the facility in question wanted to  build
         and operate a treatment unit after all of^ the container storage
         units had been closed,  the owner/operator  would have  to comply
         with the following RCRA regulations. First, the coat of  the
         construction of the  treatment  unit could not exceed 50% of the
         cost of building  a container storage area  similiar to the one
         for which interim status was originally granted according to
         40 CFR  270.72(e). Second, the owner/operator would have  to
         submit  a modified Part A and have  the activity approved by the
         Director (40 CFR  270.72(c)).  If the cost  to build a  new
         treatment unit exceeds the 50% reconstruction threshold,  then
         the owner/operator would need  a  RCRA permit prior to  starting
         construction of the  new treatment  unit.

         Source:    Matthew Hale  382-4740
         Research:  Deborah McKie 382-3112

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                                                             9528.1987(04)
              RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                               MARCH  87
6.  Construction During Interim Status

    A facility owner/operator obtained interim status for several different
    units.   Sane of the units were later closed.   The owner/operator now
    wants to build another unit.  40 CFR 270.72(e),  prohibits any
    construction during interim status that would cost more than 50% of
    the cost of building the existing facility.  Do these provisions
    apply to the facility as it originally was when it was granted
    interim status and all units were open, or does it apply to the
    facility as it is now,  with only a portion of the original units
    open?

         The provisions governing construction activities at a facility
         operating under interim status (40 CFR 270.72(e)) apply to the
         facility as it was when its Part A was first submitted and
         interim status was granted.  Also any construction costs are
         additive.  Par example, if there is some reconstruction at the
         facility which coats the equivalent of building 25% of the
         existing facility, any additional construction could cost no
         mor* than 25% of rebuilding a new facility.  Construction costs
         art based on current estimates in current dollars.

         Source:    tetthew Hale   382-4740
         Research:  Deborah McKie

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                                                    9528.1987(09)
          RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY

                        AUGUST 87
   1•   Changes at Interim Status  Tank  Facilities

        According to  40  CFR  270.72,  an owner/operator who
   wishes to make  changes  in  an interim status  facility
   must  submit  a  revised Part  A  permit application  and a
   justification  for  the  change  to  the  Regional
   Administrator  (or  State  Director).   The revised Part A
   application is required for management  of new hazardous
   vaste  at  the  facility,  increases  in design  capacity,
   changes in the facility's  process  for treatment, storage
   or  disposal,  and  changes  in  ownership or  operational
   control at the facility.

        An  interim status  tank  storage facility plans to
   upgrade its tanks  to  meet the  new  secondary containment
   standards of  Section 265.193  (see  51  FJR  25422).    Does
   upgrading  a  tank  to  meet  secondary  containment
   requirements constitute  a  "change  during interim status"
   under  Section 270.72?

     Yes.  Upgrading  a tank  to  meet  the hazardous  waste
     tank secondary  containment  requirements  does
     constitute  a  change subject  to  Section 270.72.
     According  to Section  270.72(c),  an owner/operat o r
     who wishes  to  make a  change at  an  interim status
     facility must submit the revised Part  A  application
     and  the  justification for  the  change  prior   to
     making  the  change.

     In  general,  Section 270.72(e)  does  not allow  a
     change under  interim  status  where  costs  exceed
     fifty  percent  (50?) of   the  capital  cost   of
     construction  of  a  comparable  new  facility.
     Nevertheless,  Section  270.72(e)  contains   an
     exception  to this  prohibition  for tanks  that must
     be  retrofitted  to comply  with  Section 265.193  (see
     51  Fj? 25436).   Therefore,  the  cost of retrofitting
     a  tank to  comply  with Section  265.193  would  be
     allowed  to exceed  fifty percent  (502)  of the  cost
     of constructing  a new  tank facility.   Retrofitting
     to meet the  secondary containment  standards  of Part
     265 Subpart J  is  still considered to  be a change
     requiring  subroittal of  a revised Part A application
     and justification.

Source:   Carrie  Wehling (202) 332-7706
Research: Jennifer B.  Planert

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                                              9528.1987(10)

                           SB>
*ir. Grant Trigger
Clark, Klein & Peaumont
1600 First Federal Building
1001 Woodward Avenue
Detroit, MI 48226-1962

Pear Mr. Trigger:

     This is in response to the April  1, 1987 request on behalf
of the St. Mary's Peerless Cement Company of Detroit, Michigan
(St. Mary's) for an opinion on whether  the St. Mary's cement kiln
Qualifies for interir. status to burn hazardous waste fuels under
section 3005(e) of the Resource Conservation and Recovery Act,
(RCRA) as amended.  This letter also responds to the arguments
raised on behalf of Retro-Chew Processing, Inc.  (Petro-Chem),
opposing any interpretation of section 3005(e) that would allow
St. Mary's to begin operation prior to receiving a RCRA permit.

Conclusion

     On the basis of the information submitted by St. Mary's,
we believe that St. Mary's nay qualify for interim status under
section 3005(e).  The remainder of this letter discusses our
interpretation of the section 3005(e)  requirements as they pertain
to the St. Mary's facility and the conditions under which St. Mary's
may obtain interim statuo.

Background

     Under section 3005(a) of RCRA, no facility may treat, store,
or dispose of hazardous wast* witnout  a permit after November 19,
1980.  However, under section 3005(e), a facility may be treated
as if it had a permit Cor the interim  period pending review of
its permit application.  To operate under this "interim status,*
a  facility must meet three conditionst  (1) the  facility Bust
be "in existence* either on November 19, 1980 or on the effective
date of statutory or regulatory changes under RCRA that subject
it to the permit requirement, (2) the  facility Bust comply with
applicable notification requirements under section 3010(a)
of RCRA,  and (3) the facility must submit a Part A permit appli-
cation.  Section 3004(q)(2)(C) requires that any cement kiln
located within a municipality of greater than 500,000 population
that burns fuel containing any hazardous waste after November 8,

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                               - 2 -
 1984  must  be treated as  a hazardous waste incinerator.  Such
 kilns were not  subject to RCRA pernit requirements prior to
 November 8, 1984.

      St. Mary's  is  a cement kiln located within the boundaries of
 the city of Detroit, Michigan, a city of greater than 500,000
 population.  In  1982, St. Mary's conducted a trial burn of waste-
 derived fuels as part of its developing secondary fuels program.
 Between 1982 and 1986, St. Mary's and the fuel supplier who had
 provided fuels  for  the 1982 test burn continued to discuss the
 prospect of future  burning of hazardous waste fuels.  In early
 1987, St.  Mary's contracted for waste-derived fuels from that
 waste fuel supplier.  To burn hazardous waste fuels, St. Mary's
 does  not need to process or store the fuels on-site, and no
 modification of  the facility is necessary.  St. Mary's has not
 submitted  a Part A  permit application or a 3010(a) notification.

 Discussion

      1.  Interim Status  under Section 3004(q)(2)(C)

      The basis  for  St. Mary's argument that it qualifies for
 interim status  for  its fuel-burning operations is that it was
 "in existence" on November 8, 1984, the date of the statutory
amendment  adding section 3004(q) to RCRA, which was the statutpry
change subjecting the cement kiln to RCRA permit requirements
as a  hazardous waste incinerator.                             t

      Although the language of section 3004(q) (2) (C) appears   .._,_.
only  to require big city cement kilns to comply with incinerator"*
standards, whether  as an interim status or permitted facility,   ..
comments by the author of this amendment on the floor of the
House indicate that the  intent of this paragraph was to prevent
cement kiln operation in big cities until permitted as a hazardous)
waste incinerator.  129  Cong. Rec. H 8154 (daily ed. October 6,
1983)  (statement of Congressman Frost).  Petro-Chem thus argues
that  under section  3004(q)(2)(C), St. Mary's may not operate
under interim status.

      However, on its face, section 3004(q)(2)(C) only requires
that  big city cement kilns burning hazardous waste fuels "fully.
complCy] with regulations... .which are applicable to incinerators'-
 Incinerators may operate under interim status standards.  Nothrng;
in the statutory language suggests any limitation on the ability
of big city cement  kilns to operate pursuant to interim status,
as would any other  existing hazardous waste incinerator.

      Because the statutory langage is unambiguous with respect
to this issue, we believe that it is inappropriate in this context
to imply limitations solely on the basis of legislative history.

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Therefore, section 3004(q)(2)(C) does not prevent St. .Mary's
fror* operation pursuant to section 3005(e).

     2.   Interim Status Reauirements -  'In Existence"

     The  first of three interim status  recuirements is that
St. Mary's «ust have been in existence  on the date of a statutory
or reaulatory chance that subjects it to RCRA permit requirements.
St. Mary's argues that the change that  rendered St. Mary's subject
to RCRA permitting anJ thus eligible for interim status, was tne
enactment of section 3004(q)(2)(C) on November 8, 1984 which made
certain kilns hazardous waste incinerators.

     LJnder 40 C.F.R. 260.1C, EPA defines "in existence" to
mean that either the facility is "in operation" (i.e., actually
"treatinc, storing, or disposing of hazardous waste") or a
facility  "for which construction has commenced" on the relevant
date.  W  Because St. Mary's was not burning hazardous wast* on
November 8, 1934, it .rust be a  facility for which construction
had commenced on that date in order to  Qualify as an existing     •
facility.

     'Jnder section ?<50.1C, a facility is "under construction"
if it has received all hazardous waste  control approvals necessary
for physical construction and either a  continuous, on-site
construction program has begun or the facility has accepted
substantial contractual obligations for such construction, to be
completed within a reasonable time.  St. Mary's did not need to
undertake any modification of its facility to convert to hazardous
waste fuels.  Although not directly addressee by the regulations,
EP* has int«»rrret«d "under construction" also to include facilities
that have completed construction on the relevant date.  See
46 Fed. Peo"I 2344 TJanuary 9, 1931).  Under this interpretation,
since no rodification of the facility was necessary, St. Mary's
_!/   Section 260.10 only define? "existing facility*  in  terms
     of facilities in existence on November  19,  1980,  the only
relevant date for interim status prior to the  Hazardous  and
Solid Waste Amendments of 1984 (HSWA).  HSWA amended  section
3005(e) to allow facilities also to obtain interim  status if
they were in existence on the date of statutory  or  regulatory
chanoes which subject therr to PCRA permitting.   Although the
Ar;encv has not yet made the conforming change  to its  regula-
tions dofinina "existing facility* to reflect  the HSWA change
to section 30C5(e), EPA interprets the sane  definitions  to
apply to all facilities "in existence" under section

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may qualify as an  'existing facility" if it can objectively
demonstrate an intent to handle hazardous waste within a reason-
able time after November 8, 1984.  Sea id.

     St. Gary's demonstration of intent primarily includes a
1982 test burn of  hazardous waste fuels as part of a secondary
fuels prooracn at the facility and verbal agreements with the
fuel supplier, beginning prior to the test burn and continuing
through 1986 when  they were reduced to a written contract,
signed in early 1987.  Eased on this information, St.  Mary's
has objectively demonstrated an intent to handle hazardous
waste within a reasonable time after November 6, 1984, and thus
was an "existing facility* on that date.

     3.  Interim Status Requirements - Submission of
         3010(a) Notice

     The second condition for interim status is that a facility
nust comply with any applicable notification requirements under
ROPA section 3010(a).  Because there are no 3010(a) notifica-
tion requirements  applicable to St. Mary's, the facility has
conplied with this requirement.

     Petro-Chem argues that St. Mary's was required to file a
notification under the 1984 amendment to section 3010(a).
Section 3010(a) requires notification by February 8, 1986 for
any facility that  produces, burns, or distributes hazardous
waste fuel.  However, this requirement applies only to facilities
actually handling  hazardous waste fuel on November 8,  1984 (and
continuinn to handle sucn wastes on February 8, 1986;  see 52
Fed. Reg."11,819 (April 13, 1987)).

     This section  3010(a) notification is intended to be a
"snapshot* of current hazardous waste fuel production, distri-
bution, and burning.  H.R. Rep. Mo. 198, 98th Cong., 1st Sess
40 (1983).  Contrary to Petro-Chem's suggestion, EPA did not
intend to iiroly in the Aoril 13, 1987 notice clarifying this
requirement that 'under construction" facilities must provide
such notices.  Rather, the purpose of this notice was to clarify
that the hazardous waste fuel notification requirement should be
interpreted consistent with earlier section 3010(a) notifications,
and thus that the)  requirement applied only to facilities actually
handling the hazardous waste on the relevant date.  See 45
Fed. Peg.  76,631 (November 19, 1980).

     4.  Interim status Requirements - Submission of Part A

     The final condition for interim status is  that the
facility submit a  Fart A permit application.  Under 40 C.F.R.

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                              - 5 -


section 270.10(e),  existing facilities  Bust submit the Part  A
no later than six months after the publication of  regulations
requiring compliance with technical standards, or  thirty day*
after they first become subject to the  technical standards.
whichever is first.

     Because St. Mary's has not filed a Part A permit application,
the facility does not now qualify for interim status.  However,
the regulations under section 270.10(e) are unclear about when
the submission of the Part A should have been made.  In fact,
a possible reading  of the regulations suggests that the Part A
would not be due until 30 days after St. Mary's actually begins
burning hazardous waste fuels.  Although we believe that the
permit application  was due within 30 days after St. Mary's
became subject to RCRA requirements on  November 8, 1984, we
acknowledge that there could be substantial confusion for
cement kilns subject to RCRA under section 3004(q)(2)(C) and
that the confusion  may be attributable  to serious  ambiguities
in the interim status and hazardous waste fuels regulations
with respect to these facilities.

     As a result, EPA has decided to exercise its  discretion under
section 270.10(e)(2) of its regulations to extend  the date for
Part A submission by Federal Register notice for cement kilns
subject to section  3004(q)(2)(C).Because St. Mary's has met all
of the other requirements for interim status, the  facility will
be able to operate  pursuant to section  3005(e) if  it complies
with the Part A submission requirements in the Federal Register
notice, to be published in the next few days.

     As a matter separate from the ability of St.  Mary's to
obtain interim status, the Agency believes that recycling,
reuse, recovery, and treatment of hazardous wastes are the
preferred management alternatives.  Cement kilns have demonstrated
that they can effectively recover energy from certain hazardous
wastes and fuels containing hazardous waste while, at the same
time, greatly reducing the quantity of  waste materials.  Therefore,
the Agency believes that if St. Mary's  obtains interim status,
environmental benefits will result from the energy recovery
and waste treatment that will be performed, and the  operation
of the facility will be held to the relevant  interim status
and state standards for incinerators.

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                               -  6 -
any further quest ions or  counts  on  thl^ Usue  oi " Y°" h*VC
Frank Blister of  the  Office  of Solid iasJe^Io2- |"1223)   '
Caroline inline,  of the Office of  General Counsel U02-332--

                                      Sincerely,
                                      Marcia E. Williams
                                      Director
                                      Office of Solid Waste

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                      en * iKun/DicM.i AL. r'KGfcCf'ON AGENCY
                      •>,
                                                      9528.1987(12)



                            SEP  18..-::
Honorable Martin Frost
House of Representatives
rfaohington,  D.C.  20515

0«ar Mr. Frostt

     The Environmental Protection Agency (EPA) has made a
final decision regarding St. Mary's Peerless Cenent Company.
The company requested an opinion on its qualification for
interim status to burn hazardous wastes as a secondary fuel
source in its cement kiln located in Detroit, Michigan^  In
your April 20, 1987, letter you expressed interest in the
Agency's decision and offered important background information
regarding the "Frost" amendment to the Resource Conservation
and Recovery Act (RCRA).

     The Agency has decided to extend the date for submission
of RCRA Part A permit applications for cement kilns subject
to Section 3004(q)(2)(C) of RCRA (i.e., those kilns burning
hazardous waste fuels in municipalities of greater than
500,000 population).  As a result of this extension, cement
kilns subject to Section 3004(q)(2)(C) will be able to file
Part A permit applications and, if they comply with the
other requirements of Section 3005(e), will qualify for
interim status.  Based on the information we have received,
we believe that St. Mary's will qualify for interim status
if the company files a Part A permit application before the
new submission date.

     The Agency is taking this action pursuant to its authority
under 40 CFR 270.10(e)(2) because of confusion under EPA
regulations concerning whether and when the affected cement
kilns were required to file Part A applications.  In about
ono week, EPA will announce its decision in a Federal Register
notice  (copy enclosed).  The new Part A submission deadline
will be six months from the date of publication of the notice.

-------
     In your letter, you raise the issue of whether, based
on legislative history, Section 3004(q)(2)(C) should be
interpreted to prohibit cement kiln operations in large
cities until they receive a final par nit as hazardous waste
incinerators.  However, on its face, Section 3004(q)(2)(C)  ;
only requires that large city cement kilns burning hazardous
waste fuels "fully complCy] with regulations.. •which are
applicable to incinerators." The EPA regulations provide
that incinerators may operate under interim status standards.
Nothing in the statutory language suggests any limitation on
the ability of these cement kilns to operate pursuant to
interim status, as is provided for any  other existing hazardous
waste incinerator.

     Because the statutory language is  unambiguous with
respect to this issue, we believe that  it is inappropriate
in this context to imply limitations solely on the basis of
legislative history.  Therefore, we do  not interpret Section
3004(q)(2)(C) as preventing St. Mary's  from operating pursuant
to Section 3005(e).

     As a matter separate from the ability of St. Mary's to
qualify for interim status, the Agency  believes that recycling,
reuse, recovery, and treatment of hazardous wastes are the
preferred management alternatives.  This preference was
embodied in the 1984 amendments to RCRA.  Cement kilns have
demonstrated that they can effectively  recover energy from
certain hazardous wastes and fuels containing hazardous
waste while, at the same time, greatly  reducing the quantity
of waste materials.

     I appreciate the background information that you provided
regarding the "Frost" amendment.  I assure you that the Agency
carefully considered your information when it reviewed St. Mary's
request.  If I can be of further assistance, please let me
know.

                              Sincerely,
                              J. Winston Porter
                              Assistant Administrator

Enclosure

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                                        9528.1987(14)
MEMORANDUM
SUBJECT: Regulation of Radioactive Mixed Waste at Department of
         Energy Facilities

FROM:    J. Winston Porter
         Assistant Administrator

TO:      Lee A. DeHihns, III
         Acting Regional Administrator, Region IV

    I received your memorandum of October 23,  1987, in which you
requested Headquarters' assistance on two issues pertinent to
the regulation of mixed waste.

    You have requested Headquarters'  opinion on whether or not
interim status will be made available to owners and operators of
facilities handling mixed waste.  Currently, we are developing a
notice for publication in the Federal Register which will
outline the applicability of interim status for owners or
operators of treatment, storage and disposal facilities (TSD's)
that manage mixed waste because they are now subject to the
Resource Conservation and Recovery Act.  This Notice will give
owners and operators of TSD's in authorized states six months
from the date of the state's authorization for mixed waste to
submit a Part A in order to qualify for interim status.
Similarly, owners and operators of TSD's in unauthorized states
will have six months from the date of publication of the Notice
to submit Part A permit applications and qualify for interim
status.

    You also questioned the applicability of the totally
enclosed treatment unit and the wastewater treatment exemptions
to the Department of Energy's Savannah River Plant radioactive
mixed waste operations.  Headquarters staff are currently
reviewing the intent and applicability of these two exemptions.
I anticipate the assessment will not be completed by
November 15, 1987.  However, it is our objective to provide you
with a final Headquarters opinion by November 30, 1987.  If you
need further details, please contact Betty ShacXleford, of my
Staff, on FTS 382-2221.

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                                                    9528.1987(16)
             RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                           NOVEMBER 87
1.    Section 270.72 Changes in Interim Status

     A container storage facility has interim status.   The owner
     wishes to sell one-half of the container storage  facility to
     a person who wishes to set up a solvent recovery  operation
     on the site.  The solvent recovery operator wishes to gain
     interim status for storage by doing this.   The old owner
     will have no operational control or interest in the half of
     the facility that is sold.  The area will  now be  two
     facilities under completely separate ownership and
     operational control.  Is this allowed under Section 270.72,
     changes during interim status?

          Yes.  There is nothing in the regulations to preclude
          an existing facility with interim status from selling
          off part of the facility and transferring interim
          status for that part of the facility.   The new owner
          operator will have to come into compliance with Part
          265, and among other things develop its own  closure
          plan, meet all of the financial responsibility
          requirements and submit a new Part A  for his part of
          the facility.  Any changes the new owner/operator
          wishes to make at the interim status  facility will have
          to satisfy Section 270.72, which restricts both the
          types of changes that can be made and the dollar
          amounts of such changes (i.e., the 50% reconstruction
          limit).

     Source:    Fred Chanania   (202) 382-7706
     Research:  Randy Eicher
        This has been retyped from the original document.

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              U>  .D STATES ENVIRONMENTAL PROTEC.  
-------
                              - 2 -
We agree with the previous evaluation of the Union  Carbide
proposal (Humphries letter of February 5,  1988 to  Robert Jelacic
of the West Virginia DNR), that neither change in  interim status
criterion is satisfied.  As you point out, however, West
Virginia's authorized regulations [West Virginia Administrative
regulations, section 11.3.3.c] allow a change in a  process
during interim status if either of the two Federal  criteria are
met or if "proposed changes are demonstrated to result in safer
or environmentally more acceptable processes."  Because West
Virginia is an authorized  state, Union Carbide could
theoretically change the process in the affected unit if such a
demonstration is made to the satisfaction of the authorized
State agency.

    In order to comply with the requirement of section 11.3.3.C,
Union Carbide would have to demonstrate that a hazardous waste
landfill operating with a  liner system that does not meet
minimum technology requirements is safer or more environmentally
acceptable than a closed or retrofitted surface impoundment.  We
do not believe that such a demonstration is possible, and that
the facility could not therefore meet the State requirements.

    If you should have any further questions, please call Dave
Eberly of my staff on (FTS) 382-4691.


cc:  Suzanne Rudzinski, PSPD
     Matt Hale, PSPD
     Frank McAlister, PSPD
     Alex Wolfe, PSPD
     Les Otte, WMD
     Fred Chanania, OGC
     Dave Eberly, PSPD
     Mike Freiheiter, Region III

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                                                                  9528.1988(03)
              RCRA/SUPERFUND  HOTLINE MONTHLY  SUMMARY

                                 MAY 88

5. Retrofitting Interim Status Surface Impoundments

 Section 3005(j) requires surface impoundments  that  were in existence on
 November 8, 1984 and eligible for the authorization to operate under interim
 status to meet the minimum technological requirements of Section 3004(o)(l)(A)
 by November  8, 1988.  The minimum  technological requirements consist of the
 installation of double liners and leachate collection systems.  These requirements

 must be met unless an exemption was requested and  approved under Section
 3005(j) or Section 3004(o)(2).

 The owners or operators of interim status surface impoundments  without
 approved  exemptions  who  do  not retrofit   per  Section  3005(j)  by
 November  8, 1988 must cease  the receipt of hazardous wastes into  those
 impoundments by November 8, 1988.  The closure of these impoundments must
 then proceed in accordance with 40 CFR Part 264/265 Subpart G.

 An owner  of three interim status surface  impoundments does  not  wish to
 retrofit  the units.   He  therefore  plans to cease  receiving  wastes on
 November 8, 1988 and proceed with the closure. As  part of closure activity, the
 owner proposes to remove the  liquid waste from  two of the  impoundments,
 stabilize the waste, and dispose of it in the third impoundment. This third
 impoundment would then be closed as a  landfill and provided with post-closure
 care while  the other two impoundments will be  "clean-closed" per Section
 265.228.

 Can the owner change the facility process and convert the impoundment to  a
 landfill?

  ... the process can be changed, would the landfill be considered an existing unit,
 replacement unit, or a new unit?

    The owner of the facility may  change the facility process and convert the third
    impoundment to a landfill under limited  circumstances. However in order to
    do so, the requirements in Section 270.72(c) must be met.  Under Section
    270.72(0, an owner of an interim status facility may change the treatment,
    storage or disposal processes of the facility if he submits a revised Part A
    application, along with the justification explaining the need for the change.
    The change may be approved  under only  two limited circumstances: (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.

    Furthermore,  if this  "conversion"  amounts  to reconstruction,  Section
    270.72(e) would prohibit the  change.  Reconstruction is defined in Section
    270.72(e) as occurring when the capital investment in the changes exceeds fifty
    percent (50%) of the capital cost of a comparable entirely new hazardous waste
    management facility.

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5.  Retrofitting Interim Starus Surface Impoundments (Cont'd)
    For circumstances that allow a  process change under  this very restrictive
    requirement, Reauthorization Statutory Interpretation  #5D states  that the
    impoundment/landfill would be  considered an existing unit.

    However, if the owner of the unit removes the waste that is already in the
    impoundment  stabilizes  the   waste,   and  places   it back  into  the
    impoundment/landfill  along  with  the  waste  from  the  other two
    impoundments, the unit would be considered  a replacement unit.  As such,
    the landfill would need to be in compliance with  the minimum technology
    standards of Section 3004(o) (RCRA/Superfund Hotline Monthly Report,
    December 1985). Also if the  addition of waste into the unit exceeds the level
    designated  in the facility's  Part  A  application,  that  portion  of  the
    impoundment/landfill would be  considered an expansion of an existing unit
    and  would  be  subject  to the   requirements of Section  3004(o)  (Section
    265.301(a)>.
 Source:
 Research:
Pamela Savage
Dave Eberly
Alex Wolfe
Chris Bryant
(202) 382-7700
(202) 382-4691
(202) 382-2227
                    Hazardous Waste
                                           Filter Medium
   Primary Liner
          ^
   Secondary Liner
                           Primary and Secondary
                           Leachate Collection and
                             Removal Systems
                                                             Drainage
                                                             Pipe*
                                             Leachate Collection
                                                 System Sump

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                                                 9528.1988(05)
              RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                               OCTOBER 88

  1. Changes During Interim Status  (Revised Question/Answer from September 1988
                                   Report)
  An interim status facility owner or operator wants to retrofit his hazardous waste
  tank system in order to comply with the secondary containment requirements in
  40 CFR Section 265.193.  Is this retrofitting activity considered a change during
  interim status and thus prohibited if the cost exceeds 50 percent of what a  new
  facility would cost (under the 50% reconstruction limit in Section 270.72)?

    According to 40 CFR Section 270.72(e) (as amended in the July 14, 1986 Federal
    Register. 51 FR 25486) changes made solely for the purpose of complying with
    the requirements of Section 265.193 for tanks and ancillary equipment are not
    subject to the  reconstruction limit in Section  270.72(e).  However, Section
    270.72(e) was also amended in the July 8,1987 final rule (see 52 FR 25792, July
    8,1987 Federal Register) to include changes  solely for purposes of complying
    with the land disposal restrictions in 40 CFR Part 268 or RCRA Section 3004.
    When  Section  270.72(e) was amended,  the original language regarding
    changes made in order to comply with Section 265.193, was inadvertently left
    out. The Agency will correct this inadvertent omission in the near future.

Source:    Chester Oszman   (202) 382-4499
Research:  Joe Nixon

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                  UNITED STATES ENVIRONMENTAL PROTECTION AGENC1  9528'1988(°6
                             WASHINGTON, D.C. 20460
                                                               OFFICE OF
 /•CO '  C  C ": •                                            SOLID WASTE AND EMERGENCY RESPONSE


MEMORANDUM


SUBJECT:  Call-in of Storage and Treatment  Applications

FROM:     Sylvia K. Lowrance,  Director \  ,    .    \
          Office of Solid Waste      ^.'.••.''>  N.   •—•s--	

TO:       Waste Management Division  Directors
          Regions I-X


    Section 3005(c)(2)(C) of RCRA provides  a statutory deadline by
which  interim status treatment and storage  facilities  must submit their
Part B permit applications or  their  interim status  will terminate on
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 them that they should  submit a Part B
application if the facility (or unit) intends to  continue  operating
after November 8, 1992.  If the facility (or unit)  plans to close prior
to November 8, 1992, you should consider requesting a  written confirma-
tion of intent to close in lieu of a Part B application.   For closing
facilities, it would be useful to remind them that  they must submit
their closure plan for 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 requests
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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                                                                 9528.1989(11)
             RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                               JULY  89
4.  Changes to Interim Status Facilities

 An interim status disposal facility with an existing incinerator wants to build a
 new incinerator.  Can this be done  and if so what changes would have  to be
 made to the Part A  permit application?

     Amendments  to the RCRA regulations  governing changes during interim
     status were promulgated in the March 7,1989 Federal Register (54 FR 9596).
     An increase in design  capacity of processes, which includes the addition of
     new units of the same type  that are already present at the facility, is possible if
     the  owner or operator of the facility complies  with the requirements  of
     Section 270.72(a)(2) and  the change is not otherwise  prohibited by  the
     reconstruction limit of  Section 270.72(b).  The owner or operator must submit
     a revised Part A permit application along with a justification explaining the
     need for the change and receive the Director's approval.   The Director can
     approve the change if there is a lack of available treatment, storage or disposal
     capacity at other hazardous waste management  facilities  or  the  change is
     necessary  to comply  with a  Federal, State or local  requirement. (Section
     270.72(a)(2))

     The changes described above may not  be  made  if prohibited  by the 50%
     reconstruction limit. (40 CFR Section 270.72(b))   EPA anticipates that the
     construction of most incinerators will be prohibited by the  reconstruction
     limit and  facilities will have to obtain permits in order to  make  these
     changes.   Additionally, the  Agency has significant concerns about new
     incinerators being added as changes in interim status without the benefits of a
     trial burn and public participation.  Therefore, EPA prefers  that such units be
     subject to public hearings and comply with  the incinerator standards of Part
     264 Subpart 0.

 Source:        Barbara Foster    (202) 382-4751
 Research:      Renee LaValle    (202)382-3112

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5S2;
                                                                          9528.1989(13)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
              WASHINGTON, D.C. 20460
                                                                     OFFICE OF
                                                           SOLID WASTE AND EMERGENCY RESPONSE
     OCT 15,  1989
    Subject:  Clarification of Interim Status Qualification Requirements  for NRC
              Licensees Managing Radioactive Mixed Waste

    Dear NRC Licensee:
         I am writing this letter to you because as a NRC licensee it is possible
    that your facility generates or otherwise handles radioactive mixed wastes
    (i.e., wastes that are both radioactive and chemically hazardous).   Facilities
    that handle mixed wastes are subject to regulation by both the NRC  (or the
    Department of Energy) and the U.S. Environmental Protection Agency  (EPA).
    Consequently, your facility may need to comply with EPA standards and
    requirements, including obtaining a permit granted by EPA.

         The permit process can be quite lengthy.  As a result, EPA has created
    provisions and requirements for facilities awaiting final decision on their
    permit application.  The main provision is one of qualifying for iaterim
    status.   Under interim status, you may continue your hazardous waste (i.e.,
    mixed waste) activity until a final decision is made on the permit.  Applying
    for a permit and gaining interim status is an important step in complying with
    EPA regulations regarding mixed waste.

         Below, I describe the requirements for obtaining interim status in
    unauthorized States.  Please read this material to determine if and how your
    facility may need to comply with interim status requirements.
    Background

         On July 3, 1986, EPA issued a notice  in  the  Federal Register  (51 £R.
    24504) clarifying the applicability of  the Resource Conservation and Recovery
    Act  (RCRA) to  the management of radioactive mixed waste.   (Mixed waste is
    defined as waste that satisfies the definition of radioactive waste subject to
    the  Atomic Energy Act (AEA) and contains hazardous waste that either (1) is
    listed as a hazardous waste in Subpart  D of 40 CFR Part 261 or  (2) exhibits
    any  of the hazardous waste characteristics identified in Subpart C of 40 CFR
    Part 261.  The hazardous component of mixed waste is  regulated  under RCRA.)

         Since that time, EPA has become  aware that many  handlers of radioactive
    mixed waste have been substantially confused  about  the regulatory  status of

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                                     -2-
their facilities_, because EPA's Federal Register notice addressed only RCRA's
applicability to treatment, storage,  or disposal facilities  (TSDF's)  handling
radioactive mixed waste, and not the  issue of interim status.   Consequently,
many owners and operators of these facilities are uncertain  about how to
qualify for interim status if they are handling radioactive  mixed waste.

     Therefore,  EPA issued another notice in the Federal Register on  September
23, 1988, (53 FR 37045) that clarified the requirements for  facilities that
treat, store, or dispose of radioactive mixed waste to obtain interim status
pursuant to Subtitle C of RCRA.  I have enclosed a copy of that notice with
this letter and summarized below its  key points.
EPA Identification Number

     All treatment, storage, and disposal facilities and persons generating or
transporting radioactive mixed wastes must obtain an EPA Identification
Number.  This number is obtained by completing an EPA Notification Form 8700-
12 and forwarding it to the Regional EPA Office serving the area in which the
relevant hazardous waste activity is located (see enclosed map and list).
TSDF's, in addition, muse obtain interim status to continue handling mixed
waste until a final permit is received.
Interim Status

     Section 3005(a) of RCRA prohibits treatment, storage, or disposal of
hazardous waste without a RCRA permit after November 19, 1980.  This same
section of RCRA, however, allows a facility to continue treatment, storage, or
disposal under interim status pending a final decision on its permit
application.
State Authorization

     The RCRA program is designed to be implemented by the States, and EPA has
established an authorization process by which individual State agencies may
take responsibility for the RCRA program in their State.  Currently, 44 States
and Territories are authorized for EPA's base RCRA Program.^  Authorized State
regulations oust be at least equivalent to the Federal RCRA regulations, and
may be more stringent.  For States that are not authorized to implement the
     1   The-authorized States and Territories are:  AL, AZ, AR, CO,  DC,  DE,
FL, GA, Guam, IL,  IN, KS, KY, LA, MA, MD, ME, MI, MO, MN, MS, MT, NC,  ND,  NE,
NH, NJ, NM, NV, NY, OK, OR, PA, RI, SC, SD, TN, TX, UT, VA, VT. WA, WI,  and
WV.  Also, four of these States, CO, SC, TN, and WA, have authorization  for
their mixed waste  programs.

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                                     -3-
RCRA program,  EPA implements the  Federal RCRA program directly.^
Consequently,  requirements may be different for facilities in authorized and
non-authorized States.

     NRC licensees in RCRA authorized States need to check wich their  State
authorities to determine the exact requirements they must comply  with  in order
to initiate a  permit application  and obtain interim status.   The  interim
status requirements facing NRC licensees in non-authorized States are
summarized below.
Interim Status Requirements for Facilities in Non-Authorized States  and Trust
Territories
          Facilities must be in existence as of July 3,  1986.  (EPA considers
          any facility in operation or under construction to be in existence.)

          Owners and operators of treatment, storage, and disposal facilities
          must submit Part A of their permit applications (as described in the
          Code of Federal Regulations, Title 40, Part 270, Sections 270.10 to
          270.73) or a modification to an existing Part A permit application
          no later than March 24, 1989, in order to obtain interim status.

          Owners and operators of land disposal facilities handling
          radioactive mixed waste must submit Part B of their permit
          applications as well as a certificate of compliance with applicable
          RCRA ground-water monitoring and financial assurance requirements by
          September 24,  1989.

          Facilities other than land disposal facilities must comply with
          their Regional EPA Office's deadline  to submit Part B of their
          permit applications.
     2   Currently, 12 States and Territories  do  not  have  authorization by EPA
for their hazardous waste program:  AK,  American  Samoa,  CA,  CT,  HI,  IA,  ID,
Marianna Islands, OH, PR, VI, and VY.

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                                      -4-
      I  hope  this  letter  eliminates much of the confusion regarding interim
status  requirements  for  TSDFs handling radioactive mixed waste.  I encourage
each  of you  to  read  the  enclosed Federal Register notice carefully, as it
explains  each of  the above  requirements in detail.  Please do not hesitate to
contact EPA  with  any questions regarding this matter.  Questions should be
addressed to your EPA Regional Office or Ms. Betty Shackleford, Office of
Solid Waste  (OS-342), U.S.  Environmental Protection Agency, 401 M Street
S.W., Washington,  D.C.   20460, (202) 382-2210.
                                          Sincerely yours,


                                          Joseph Carra, Director
                                          Permits and State Programs Division


Enclosures

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                                                      9528.1990(01)

              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
     ?                  WASHINGTON, D.C. 20460
     f

                            APR 2   1990
                                                          OFFICE OF
                                                  SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM

TO:       Patrick M. Tobin, Director
          Waste Management Di
FROM:    /Joe Carra, Director
          Permits And State Programs Division

SUBJECT:  Changes During Interim Status

     In your memorandum of March 2, 1990, you recommend that
§270.42.72 (a) (1) , which addresses the addition of new  waste
streams at interim status facilities, should be amended to
require a justification of need and approval by the  Director
because of a lack of available capacity or the change  is
necessary to comply with a federal, state, or local  requirement.
We appreciate your concern regarding this matter in  light of  the
recent waste listings and the new Toxicity Characteristic.

     Frank McAlister in my Division recently spoke with Betty
Willis of your staff regarding the specific concerns of Region  4.
The Region has been receiving inquiries from consultants and
facilities who are investigating the possibility of  constructing
units that would manage nonhazardous waste that shortly
thereafter would be listed or characterized as hazardous. Those
facilities then would be able to gain interim status as an
"existing facility".  Under the current regulations
(§270.42 (a) (1) ), the facility could then amend its Part A permit
application to treat any other hazardous waste without first
gaining approval from the Agency as long as no additional
capacity or a change in process is involved.  Betty  Willis
expressed concern over this particular situation and the lack of
an Agency role in approving such requests.
          • c
     We appreciate the concern you have expressed regarding this
situation.  OSW~vill be considering amendments, such as the one
you have recommended, to the permitting regulations, and will
contact you for additional information at that time.  In any
case, it should be noted that authorized states have the
discretion to amend their hazardous waste management regulations
to make them more stringent if they believe there  is a
programmatic need to do so.

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                              - 2 -

     Thank you for bringing this matter to our attention.   If you
have additional questions or observations on this  subject,  please
have your staff contact Wayne Roepe (FTS-475-7245)  or  Frank
McAlister (FTS-382-2223).

cc:  Denise Keehner
     Frank McAlister*/^
     Wayne Roepe
     Betty Willis, Region 4

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                                                       9528.1990(02)
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON. D.C. 20460
                            JUL I  I 1990
                                                      OFFICE OF
                                             SOLID WASTE AND EMERGENCY RESPONSE
Richard E. Hill, Director
Operations, Planning and Development
USPCI
515 West Greens Road
Suite 500
Houston, Texas  77067

Dear Mr. Hill:

     In your May 11, 1990, letter concerning the Toxicity
Characteristic  (TC) you requested clarification on  certain issues
raised in the March 29, 1990, Federal Register notice.   The
following is a response to those issues and I hope  it will assist
you in resolving some of USPCI's concerns.

     .Your first question asks whether facilities  (exclusive of
incinerator and land disposal facilities) managing  newly
identified TC hazardous wastes would lose interim status unless
they have been granted a permit by November 8, 1992.  EPA
believes that these facilities are not subject to the
November 8, 1992, loss of interim status deadline.  As  you point
out, this deadline applies only to facilities that  had  interim
status on November 8, 1984.  Thus, such facilities  managing newly
identified hazardous waste as a result of the TC will not
automatically lose interim status on November 8, 1992.

     The only facilities that are potentially subject to loss of
interim status are newly regulated interim status land  disposal
facilities or interim status land disposal facilities with units
that become newly regulated because of the Toxicity
Characteristic.  These land disposal facilities must comply with
the certification and Part B submission deadlines in 40 CFR
270.73(d) and 270.73(e) or interim status will terminate twelve
months after the TC effective date.  This documentation must be
received by the appropriate EPA Regional Office no  later than
September 29, 1991.  In addition, under 40 CFR 270.42(g)(1)(v),
newly regulated land disposal units at permitted  facilities will
lose authority to operate if the facility fails to  comply with
the appropriate certification requirements.
                                                           fruited en Rtcycltd Paper

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     Second, you inquire about whether Federal or State interim
status standards apply to newly regulated facilities.  A facility
which has gained interim status for the new TC waste is subject
to the Federal requirements under 40 CFR Part 265 until such time
as the State is authorized for the TC.  (See table V-2 at 55 EE
11848, March 29, 1990.)  If the facility wants to modify its
operations during interim status, then it must follow the
procedures in 40 CFR 270.72, and submit all Part A revisions to
EPA.  If prior approval is required for a particular change, then
EPA would be the approving agency.

     In authorized States, EPA directly implements only those
aspects of the Federal RCRA program that, by statute or
regulation, take effect in all States.  Such Federally-
implemented provisions are generally limited to HSWA requirements
and prohibitions such as land disposal restrictions, minimum
technology requirements, and HSWA waste identifications.  For
example, an interim status facility regulated by EPA because of
the TC rule could apply to EPA for: 1) additional TC waste codes
not on the original Part A; 2) other HSWA waste codes that the
State is not authorized for; 3) capacity increases or process
changes for TC or other HSWA wastes; or 4) other HSWA-related
facility change (e.g., new process needed to provide BOAT
treatment).

     Of course the addition of a new, non-HSWA waste code would
be subject to regulation by the authorized State and not by EPA.
Note that if the State has not yet adopted the TC rule and a
facility with Federal interim status due only to TC wastes wants
to make changes to add non-HSWA wastes regulated under the
authorized State program, this may be viewed as a "new" hazardous
waste operation since the facility would not have interim status
under State law.  In this case, the State might require a RCRA
permit prior to receipt of the waste.

     Finally, if a facility commences treatment, storage, or
disposal activity after June 27, 1990, but before September 25,
1990, that facility is not prohibited from qualifying for interim
status because it did not or could not notify prior to
June 27, 1990.  In such a case, a Section 3010 notification is
not required for obtaining interim status, see 40 CFR
270.70(a)(l) and the preamble discussion provided at 45 FR 76631,
November 19, 1980.  However, the facility would be required to
submit a Part A permit application in accordance with the
deadline specified in 40 CFR 270.10(e).

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     If you have any questions or would like to discuss these
issues further, please contact Steve Cochran at (202) 475-8551,
or Frank McAlister at (202)  382-2223 of my staff.
                               Sincerely,

                                        u
K.i—,
                               Sylvia K. Lowrance
                               Director
                               Office of Solid Waste

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                                                      9528.1990(03)
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C. 20460
                             JUL  I I  1990
                                                      OFFICE OF
                                             SOLID WASTE AND EMERGENCY RESPONSE
Richard E. Hill, Director
Operations, Planning and Development
USPCI
515 West Greens Road
Suite 500
Houston, Texas  77067

Dear Mr. Hill:

     In your May 11, 1990,  letter  concerning the  Toxicity
Characteristic  (TC) you requested  clarification on certain  issues
raised in the March 29, 1990,  federal  Register notice.   The
following is a  response to  those issues  and  I hope it will  assist
you in resolving some  of USPCI's concerns.

     Your first question asks  whether  facilities  (exclusive of
incinerator and land disposal  facilities) managing newly
identified TC hazardous wastes would lose interim status unless
they have been  granted a permit by November  8, 1992.  EPA
believes that these facilities are not subject to the
November 8, 1992,  loss of  interim  status deadline. As  you  point
out, this deadline applies  only to facilities that had  interim
status on November 8,  1984.  Thus,  such  facilities managing newly
identified hazardous waste  as  a result of the TC  will not
automatically lose interim  status  on November 8,  1992.

     The only facilities that  are  potentially subject to loss of
interim status  are newly regulated interim  status land  disposal
facilities or interim  status land  disposal  facilities with  units
that become newly  regulated because- of the  Toxicity
Characteristic.  These land disposal  facilities must  comply with
the certification  and  Part  B submission deadlines in  40 CFR
270.73(d) and 270.73(e) or  interim status will terminate twelve
months after the TC effective  date. This documentation must be
received by the appropriate EPA Regional Office no later than
September 29, 1991.  In addition,  under 40  CFR 270.42(g)(1) (v) ,
newly regulated land disposal  units at permitted  facilities will
lose authority  to  operate  if the  facility  fails to comply  with
the appropriate certification  requirements.
                                                           PriMtd tm RteycUd Paper

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     Second, you inquire about whether Federal or State interim
status standards apply to newly regulated facilities.  A facility
which has gained interim status for the new TC waste is subject
to the Federal requirements under 40 CFR Part 265 until such time
as the State is authorized for the TC.  (See table V-2 at 55 FR
11848, March 29, 1990.)  If the facility wants to modify its
operations during interim status, then it must follow the
procedures in 40 CFR 270.72, and submit all Part A revisions to
EPA.  If prior approval is required for a particular change, then
EPA would be the approving agency.

     In authorized States, EPA directly implements only these
aspects of the Federal RCRA program that, by statute or
regulation, take effect in all States.  Such Federally-
implemented provisions are generally limited to HSWA requirements
and prohibitions such as land disposal restrictions, minimum
technology requirements, and HSWA waste identifications.  For
example, an interim status facility regulated by EPA because of
the TC rule could apply to EPA for: 1) additional TC waste codes
not on the original Part A; 2) other HSWA waste codes that the
State is not authorized for; 3) capacity increases or process
changes for TC or other HSWA wastes; or 4) other HSWA-related
facility change  (e.g., new process needed to provide BOAT
treatment).

     Of course the addition of a new, non-HSWA waste code would
be subject to regulation by the authorized State and not by EPA.
Note that  if the State has not yet adopted the TC rule and a
facility with Federal  interim status due only to TC wastes wants
to make changes to add non-HSWA wastes regulated under the
authorized State program, this may be viewed as a "new" hazardous
waste operation since  the facility would not have interim status
under State law.  In this case, the State might require a RCRA
permit prior to receipt of the waste.

     Finally, if a facility commences treatment, storage, or
disposal activity after June 27, 1990, but before September 25,
1990, that facility is not prohibited from qualifying for interim
status because  it did  not or could not notify prior to
June 27, 1990.  In such a case, a Section 3010. notification is
not required for obtaining interim status, see 40 CFR
270.70(a)(l) and the preamble discussion provided at 45 FR 76631,
November 19, 1980.  However, the facility would be required to
submit a Part A permit application in accordance with the
deadline specified in  40 CFR 270.10(e).

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     If you have any questions or would like to discuss these
issues further,  please contact Steve Cochran at (202) 475-8551,
or Frank McAlister at (202) 382-2223 of my staff.


                                   Sincerely,
                                   Sylvia K. Lowrance
                                   Director
                                   Office of Solid Waste

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                                                          9528.1991(01)
                UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                           WASHINGTON, D.C. 20460
                                     7 1991
                                                             OFFICE OF
                                                    SOLID WASTE AND EMERGENCY RESPONSE
 Samuel I. Gutter
 Sidley & Austin
 1722 Eye Street, N.W.
 Washington, D.C.  20006

 Dear Mr. Gutter,

      This letter is in response to your letter of June  27,  1991
 to Sylvia Lowrance, in which you seek clarification of  the
 application of the Boiler and Industrial Furnace  (BIF)  rule to
 newly regulated units at interim status facilities.   In your
 letter, you ask questions regarding the criteria a unit must meet
 to gain interim status as a newly regulated unit.  First, you  ask
 what constitutes a "newly regulated" unit under §270.72(a)(6).
 Then you ask what requirements a unit must meet to qualify  for
 interim status as a newly regulated unit.  Finally, you ask if
 construction may commence after the effective date of the rule.

      The criteria for a unit to gain interim status are the same
 for an interim status facility and a newly regulated  facility.  A
 "newly regulated" unit under §270.72(a)(6) is one which is
 subject to the RCRA permitting requirements for the first time as
 a result of a rulemaking.  An example of a newly regulated  unit
 is a boiler or industrial furnace that will become subject  to  the
 RCRA permitting requirements on the effective date of the BIF
 rule.

      To obtain interim status under §270.72(a)(6), a  newly
 regulated unit such as a BIF must meet the definition of an
^existing hazardous waste management facility" as defined under
' §260.10.  This definition does not necessarily require  that
 physical construction of a unit be underway before the  effective
 date of the BIF rule.  However, if construction of a  BIF unit  has
 not begun by August 21, 1991, the facility must meet  the criteria
 in the definition of "existing facility," including (1) have
 obtained the Federal, State and local approvals or permits
 necessary to commence construction and (2) have entered into
 contractual obligations — which cannot be canceled or  modified
 without substantial loss — for physical construction of the
 facility (or unit) within a reasonable time.

      For the BIF rule, EPA Regional offices will be making  the
 determinations regarding interim status.  These decisions are
 necessarily made on a case-by-case basis, considering the

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                              - 2 -


specific facts of a particular site.  Therefore, I recommend that
you contact the appropriate EPA Regional office to discuss
specific facilities that may be subject to the BIF rule.

     I hope that this response answers your questions.  If you
require further clarification, please call Wayne Roepe (202) 475-
7245 of my staff.

                              Sincerely,
                              Frank McAlister, Chief
                              Permits Branch

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                                                    9528.1991(02)
               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                          WASHINGTON, D.C. 20460
                            FPB 2 7 IQQI                     OFFICE OF
                            1 ^^ fc • '^"             SOLID WASTE AND EMERGENCY RESPONSl
Mr. George Sullivan
Chairman, Recycling Sciences
  International, Inc.
30 South Wacker Drive
Suite 1420
Chicago, Illinois  60606


Dear Mr. Sullivan:

     This letter responds to the inquiry made by you and  your
company's legal counsel whether several hazardous waste treatment
facilities that employ a single mobile treatment unit may qualify
for interim status.  Your firm, Recycling Sciences International,
Inc. (RSI) owns several waste storage and treatment facilities at
different locations, but employs only one mobile treatment unit .
among these various facilities, transporting the treatment unit "*".
from one facility to another.  You also indicated that RSI's
mobile treatment unit accepts only organic-contaminated soils
that are newly regulated as hazardous waste under the revised
toxicity characteristic (TC) rule (55 IB 11798, March 29,  1990),
and that RSI has applied for interim status to EPA for facilities
in Arizona, Pennsylvania, Michigan, and Mississippi.

     As you are aware,. the TC rule was promulgated by EPA under
the authority of the Hazardous and Solid Waste Amendments (HSWA)
and therefore is implemented by EPA in all states  (until  the
states become authorized for the TC rule).  I have addressed your
specific questions below:

1.   How does a facility qualify for interim status under the TC
     rule?

     There are three basic prerequisites for obtaining interim
status pursuant to § 3005 of RCRA:

     (a)  The facility must be in existence on the effective date
          of statutory or regulatory amendments that render the
          facility subject to the requirement to have a RCRA
          permit (§ 270.70(a));

     (b)  The facility must have complied with the notification
          requirements of S 3010(a) of RCRA  (§ 270.70(a)(1)); and

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                              - 2 -

      (c)  The facility must comply with the requirements in 40
          CFR 270.10 for the submission of the Part A permit
          application (§ 270.70(a)(2)).

     A facility must meet all of the above criteria to qualify
 for interim status.  Note that for a facility to be "in
 existence", it may either be in operation or under construction.
 See § 270.2 for the definition of "existing hazardous waste
 facility".

 2.   Can a mobile treatment unit qualify for interim status at
     each facility where it is operated?

     Yes, a single MTU may qualify for interim status at more
 than one location.  At each site the MTU must meet the three
 interim status criteria described in question one above.  The
 fact that the treatment unit is a mobile unit instead of a
 stationary unit does not diminish the opportunity to gain interim
 status.  After the effective date of the TC rule (September 25,
 1990), the unit must meet all applicable interim status
 standards.

 3.   Does routine movement of the MTU from site to site
     constitute a change in interim status- that has to be    ,  "*r
     approved by EPA?

     No, such movement is not a change in interim status under
 Federal regulations as long as the unit is always operated within
 the constraints identified on the Part A permit application
 (e.g., the types and quantities of hazardous waste, and the unit
 process types and design capacity).  Simply moving the unit to or
 from the site does not in itself constitute a change in interim
 status.  However, any change to the unit or to the operation that
 results in an "increase in design capacity", a "change in
 process", or an "addition of process" would require a revised
 Part A and prior approval by EPA before the change could be
"implemented (see § 270.72(a)).

 4.   If a facility in an authorized state obtains interim status
     for TC wastes from EPA, can the company amend interim status
     without prior approval to treat and store hazardous waste
     not previously identified in the Part A?

     An interim status facility located in an authorized state
 but regulated by EPA because of the TC rule can apply to EPA  for
 additional TC waste codes not on the original Part A and other
 HSWA waste codes that the State is not authorized for.  The
 addition of a new, non-HSWA waste code would be subject to
 regulation by the authorized State and not by EPA.  Note that if
 the State has not yet adopted the TC rule and a facility with
 Federal interim status due only to TC wastes wants to make
 changes to add non-HSWA wastes regulated under the authorized

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                              - 3 -

State program, this may be viewed by the state as a "new"
hazardous waste operation since the facility would not have
interim status under State law.  In this case,  the State might
require a RCRA permit prior to receipt of the wastes.

     If you have any questions, please contact me (202-382-2223)
or Wayne Roepe of my staff (202-475-7245) .
                                   Sincerely,
                                   Frank McAlister
                                   Acting Chief,  Permits Branch

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I
                                       9523.1991(03)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
          WASHINGTON. D.C.  20460
                           AUG  I 9 1991
                                                       OFFICE OF
                                              SOLID WASTE AND EMERGENCY RESPONSE
  MEMORANDUM

  TO:        James J.  Scherer                     ^--_     ^   /I
            Regional  Administrator              CiJ ^ fY  (/l^^

  FROM:      Don R.  Clay, Assistant Administrator  ^   f/
            Office of Solid Waste and Emergency ResponseL_^X

  SUBJECT:   Interim Status under the Boiler and
            Industrial Furnace Rule


      Thank you for  your memoranda of April  16 and May  2,  1991,
  in which  you  described your strategy for addressing  boilers and
  industrial furnaces (BIFs) seeking interim  status as "existing
  facilities" under EPA's BIF rule.

      I appreciate your concern about BIFs seeking interim
  status without any  history of hazardous  waste management, or
  any documented commitment to such activities.   Further,
  I commend your efforts to ensure that  interim status is
  reserved  for  those  facilities that, under the regulations,
  are legitimately entitled to such status.   At the same time,
  our decision  on whether a specific facility has met  the standard
  should be consistent with our past decisions and with our
  established regulatory interpretations.

      In an attachment to this memorandum, I address  the specific
  points you raised in some detail.  In  any decision on a
  particular facility,  however, you need to keep  in mind what we
 'believe is the general intent of both  the statute and our
  implementing  regulations:  that facilities  with a history of
  handling  hazardous  waste at the time the waste  becomes subject to
  regulation, or that have made a substantial commitment to handle
  the waste in  the near future, be allowed to continue their
  activities under interim status.  Where  a facility has actually
  handled hazardous waste before the effective date of the
  regulation (that is,  August 21, 1991,  for the BIF rule), the
  facility  is clearly eligible for interim status.  Where the waste
  has not yet been handled by thm effective date, we agree that the
  case becomes  more complex, and its resolution depends on the
                                                            Printed on Recycled Paper

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ability of a facility to demonstrate a substantial commitment
to hazardous waste management within the near future.  Criteria
for making this decision are discussed in more detail in the
attachment to this memorandum.  Clearly, these criteria must be
applied on a case-by-case basis considering the particular
circumstances at each facility.

     In your April 16 memorandum, you made an important point:
that BIFs seeking interim status may be underestimating the
potential costs for corrective action.  We agree that the costs
could be high and that BIFs may not have adequately taken them
into account.  I suspect that if the potential liabilities are
clearly pointed out to BIF owner/operators, those who have not
already made a substantial commitment to managing hazardous
waste may have second thoughts about entering the business.
Additionally, BIF facilities should clearly understand that
gaining interim status, by itself, does not convey the right to
burn hazardous waste.  It is likely that other federal, state,
and local requirements must also be met, and the conferring of
interim status does not extinguish any other legal obligations.

     I trust that the attached response will assist you in
implementing the BIF rule in your region.  If you have any
questions regarding these criteria, please feel free to contact
Devereux Barnes at (202) 475-7276.

Attachment

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                            ATTACHMENT

Clarification of Intaria Status Criteria for BI7 Facilities

Background

     The basic requirements for obtaining interim status were
established by section 3005(e) of RCRA, as amended by HSWA, which
specifically grants interim status to "any person who is in
existence on the effective date of statutory or regulatory
changes under this Act that render the facility subject to the
requirement to have a permit."  In the legislative history
accompanying this provision, Congress indicated that "existing
facilities" would include types of facilities that were
previously exempted from certain RCRA requirements but
subsequently became subject to those requirements.  (See 50 FR
28723, July 15, 1985.)  We have consistently taken this position
in the case of new waste identifications (e.g., see the Toxicity
Characteristic rule, 55 FR 11798).  EPA has also acknowledged on
several occasions that non-hazardous waste management facilities
that are converting to hazardous waste management but have not
yet begun hazardous waste management by the effective date of a
regulation could qualify for interim status (see 46 FR 2346).

     One of the three basic prerequisites for obtaining interim
status pursuant to §3005 of RCRA is for a facility to be "in
existence" on the effective date of any statutory or regulatory
amendments that render the facility subject to the requirement to
have a RCRA permit (§270.70(a)).  Two kinds of facilities are
deemed to be "in existence":  (1) a facility that is "in
operation" on the effective date of a regulatory or statutory
change that renders a facility subject to the permit requirement
(i.e., treating, storing, or disposing of hazardous waste), or
(2) a facility that is "under construction" on the effective date
of such a change.  For a facility to be considered "under
construction," §260.10 (under the definition of "existing
facility") requires that the facility must have all permits and
approvals necessary for physical construction and either:   (1) an
on-site construction program has begun, or (2) the facility has
accepted substantial contractual obligations for such
construction, to be completed within a reasonable time.

     We understand that several BIFs in Region VIII have already
been constructed and may wish to begin hazardous waste operations
after the August 21 date.  EPA has interpreted the term
facilities "under construction" also to include facilities that
have completed construction on the relevant date if they can
demonstrate the intent to commence hazardous waste operations
within a reasonable period of time (i.e., through a trial burn or
agreements with suppliers to receive hazardous waste derived
fuels),  and if the facility meets the other relevant standards
for "in existence."  The Agency's interpretation of what

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 constitutes  being  "under construction" is discussed in detail in
 the  January  9,  1981, Federal Register  (46 IB 2344).


 1.    What  State and local approvals or permits are necessary to
      meet  the definition of "existing facility"?

      One requirement for a facility to be considered "under
 construction" is that it possess "the Federal, State, and local
 approvals  or permits necessary to begin physical construction."
 As defined in §260.10 (under the definition of "Federal, State,
 and  local  approvals or permits necessary to begin physical
 construction"), these permits or approvals are those required
 under hazardous waste control statutes, regulations, or
 ordinances.  Air pollution control permits that must be obtained
 prior to facility  construction or modification under Federal or
 state laws would not be needed for interim status if the purpose
 of the legislative provision is to regulate air emissions in
 general, and not specifically to regulate the treatment, storage,
 or disposal  of  hazardous waste, or the siting of a hazardous
 waste management facility.  Similarly, state or local building or
 zoning permits  would be included only if they specifically
 address hazardous  waste management.  Of course, the facility
 remains responsible under state or local law for obtaining
 relevant building  and zoning permits and approvals, even though
 the  failure  to  obtain them will not prevent a facility from
 obtaining  interim  status.

      It is important to recognize that the requirement relating
 to approvals and permits refers to approvals or permits necessary
 to begin physical  construction.  Since the Region VIII BIFs have
 already been constructed, the requirement should be read to apply
 to approvals for any physical modification needed to receive
 hazardous  waste.   Of course, if the physical modification has
 already been completed, the need for preconstruction permits
 would not  arise as an issue (unless it could be argued that the
-construction took  place illegally in the absence of a necessary
 permit).

 2.    What  constitutes a "substantial loss due to a contractual
      obligation"?

      To be considered "in existence," a facility not already
 handling hazardous waste and not yet under construction must have
 "entered into contractual obligations — which cannot be canceled
 or modified  without substantial loss — for physical construction
 of the facility to be completed within a reasonable period of
 time."  As one  way of demonstrating substantial loss, EPA has
 in the past  used cancellation contract clauses.  Thus, EPA has
 interpreted  "substantial loss" as being at least 10 percent of
 the  total  project  cost for physical construction.  Physical
 construction means fabrication, erection, installation, or
 modification of a  facility.  The term does not refer to all costs

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that may be associated with a construction project; for example,
options to purchase, contracts for feasibility, or engineering or
design studies would not constitute an eligible contractual
obligation.   (See 46 FR 2346, January 9, 1981.)  In the case of
BIFs that have not burned hazardous wastes before, the total
project cost  for physical construction refers to the
modifications necessary for the BIF to manage hazardous waste.
Although the  1981 preamble does not specifically address when
meeting the 10 percent threshold would not be sufficient, we
believe that  if the loss to the facility of canceling the
construction were minimal, the loss could not be considered
substantial, even though it exceeded 10 percent.  For example, if
the total cost of kiln modification were $5,000, a 10 percent
loss ($500) would not be viewed as substantial.  In contrast, for
a project that would exceed $250,000, we believe that 10 percent
would represent a substantial amount.

     Of course, contract cancellation clauses with higher
percentages, or other approaches to a demonstration of
substantial loss, could be considered by the Regions as well.
In that regard, we note the unique circumstances presented by the
BIF rule for cement kilns that will be modified to burn hazardous
waste.  Even though the contractual cost of installing such
modifications can be relatively low, the Regions can take into
account other economic factors and actions showing substantial
loss insofar as they provide evidence of a bona fide substantial
commitment to managing hazardous waste in the near future.

     You should also note that the "substantial loss" criterion
must be met only at facilities where construction  (i.e., facility
modifications to receive hazardous waste) has not begun.  Where
physical construction is underway or completed, a facility is
not required to show "substantial loss," but rather objective
indications of a bona fide intent to manage hazardous waste.

3.   What constitutes a "reasonable time to complete
     construction"?

     The regulations do not define the term "reasonable time to
complete construction," nor do they define a "reasonable time" to
begin management of hazardous waste, in the case of an already
constructed facility.  To determine what is a reasonable time,
Regions must make a case-by-case decision.  Generally, if a
facility is undergoing a continuous process to initiate or
complete construction activities, and arrangements are in place
to ensure that such construction can be carried out on a schedule
that is typical of similar construction activities, then
completion of construction should be considered to be within a
"reasonable time."  The same rule of thumb applies to the
definition of a "reasonable time" to begin management of
hazardous waste.

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4.   Effect of a state moratorium.

     In your memorandum of April 16, 1991, you discuss the
possible effect of the Utah moratorium on the ability of cement
kilns in the state to qualify for interim status.  Since the Utah
moratorium only prohibits the burning of hazardous wastes in
cement kilns, it is still possible for a facility to meet the
fundamental criteria for gaining interim status.  Of course,
gaining interim status does not affect the legal status or
applicability of Utah's moratorium.  In contrast, there could be
other situations where a moratorium could prevent a facility from
meeting one of the "in existence" criteria.  For example, if the
facility were unable to obtain a required approval for
construction due to a moratorium on hazardous waste
preconstruction permitting, interim status would be precluded.

5.   Section 3010 notification requirements for BIFs.

     It is likely that very few BIFs were required to submit a
section 3010 notification on May 22, 1991.  One reason is that
this notification requirement only applied to facilities actually
handling hazardous waste fuel on February 21, 1991.   (See 45 FR
76631, November 19, 1980.)  This section 3010(a) notification is
intended to be a "snapshot" of hazardous waste management
practices at the time a rule is promulgated.  Therefore, if a
facility is "under construction" a Section 3010 notice is not
required.  (See H.R. Rep. No. 198, 98th Cong., 1st Session, 40
(1983).)  Another possibility is that the facility might have
already submitted a notification previously either for the
burning of hazardous waste fuel under §266.35, or for some other
hazardous waste activity, in which case the BIF is not required
to renotify.

6.   Pre-Compliance certification.

     The BIF rule does not require facilities to submit a pre-
compliance certification by August 21, 1991, to attain interim
status.  Once a facility meets the statutory and regulatory
requirements, interim status follows automatically.  However, if
a facility fails to submit such a certification  (or if the
facility fails to comply with subsequent interim status
compliance schedule requirements), it loses its ability to manage
hazardous waste in the BIF unit, unless and until it receives a
Part B permit.

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                   UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                                              9528.1992(01)
                                  OCT  I 5 1992
      Lewis D. Walker
      Deputy Assistant Secretary of the Army
      (Environment, Safety and Occupational Health)
      OASA (I,L and E)
      Department of Army
      Office of the Assistant Secretary
      Washington, D.C.  20310-0110

      Dear Mr. Walker:

           The purpose of this letter is to follow up our June  30th
      meeting by providing you, as you requested, with a written
      regulatory interpretation of the loss of interim status
      provisions in the Resource Conservation and Recovery Act  (RCRA)
      that affect your open burning/open detonation facilities.

           It is the Agency's interpretation that Section 3005(c)(2)(C)
      of RCRA provides a deadline of November 8, 1988, for treatment
      and storage facilities (other than incinerators) and/or units
      that were in interim status on November 8, 1984 to submit their
      Part B permit applications.  We also believe that this section of
      RCRA provides that if any of these interim status facilities, or
      units,  did not submit their Part B applications by the 1988 date,
      they would lose interim status on November 8, 1992 unless a
      permit determination is made prior to that date.

           As discussed during the meeting, our interpretation  of RCRA
      divides your facilities that were in operation before November 8,
      1984 into two groups:  those that submitted applications  on time
      and those that did not.  For those units submitting applications
      on time, interim status will continue after November 8, 1992. In
      relation to this interpretation on continued operation, we stated
      that we do not believe there will be any legal challenge  to
      deprive the Agency of its discretionary authority to process
      penr.its after November 8, 1992.

           Facilities that did not submit applications by November 8,
      1988 will lose interim status on November 8, 1992 (unless final
      permit determinations are made by that date).  This relates to
      all units that were in existence prior to November 1984,
      including units that properly notified the Agency of their
      activities and units that should have notified but did not.
      However, note that a unit handling temporarily excluded	
      (delisted) waste on NovembercQnctjftJft&tas or a unit added to  an^    _*"
  BOL
SURNAME^


DATE
                (o •
 Ef* Form 1320-1A (1/90)
OFFICIAL P&l <
                                                        •U.S.GKW

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                              - 2 -

interim status facility after that date through a change in
interim status, is not subject to the 1988 application deadline.

     We will continue to discuss with your staff our efforts to
minimize the impact from the loss of interim status.  If you have
any further questions, please contact Chester Oszman at (202)
260-4499.

                                     Sincerely,
                                     Sylvia K.  Lowrance, Director
                                     Office of  Solid Waste

cc: Tina Kaneen, OGC
    Jim Michael, OSW
    Christine Dibble, OSW
    Ken Gigliello,  OWPE
    Lee Tyner,  OGC
    Chester Oszman, OSW
    Subpart X Permit Writers'  Workgroup

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                                                       9528.1992(02)

             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                        WASHINGTON, D.C. 20460
                           OPT 9 I<:t992                 OFFCEOF
                           Ubl C. \  •»***•               GENERALCOm*
Robert H. Hunter
Associate General Counsel
U.S. General Accounting Office
Washington, DC 20548

Dear Mr. Hunter:

     This letter responds to your inquiry of July  24,  1992,  to
William K. Reilly regarding issues raised under the Resource
Conservation and Recovery Act  (RCRA) as a result of certain  site
preparation work performed by the U.S. Army for its proposed
chemical stockpile incineration facility at the Anniston  Army
Depot (ANAD), Alabama.

     Our understanding, from your letter and independent  inquiry,
is that, on July 23, 1990, ANAD applied for a permit under
Section 3005 of RCRA, 42 U.S.C. 6925, to construct a hazardous
waste incinerator to destroy on-site chemical weapons  as  part of
the Army's chemical agent demilitarization program.  This program
implements Public Law 99-145, which was enacted by Congress  in
1985 and mandates the destruction of most of the U.S.  stockpile
of chemical weapons.  ANAD submitted its permit application  to
the Alabama Department of Environmental Management (ADEM), which
is authorized pursuant to Section 3006 of RCRA, 42 U.S.C. 6926,
to carry out the requirements of RCRA within the State.   ANAD
presently has "interim status" under RCRA, which is available to
facilities that have on-going hazardous waste management
operations, or that have commenced construction related to such
operations, on the date they first become subject  to the
requirements of RCRA.  42 U.S.C. 6925(e), 40 CFR 270.70.  ANAD
obtained interim status for two categories of units — open
burning and open detonation grounds, and storage igloos for  M-55
rockets, which have been classified as hazardous wastes because
they are obsolete.

     In early 1990, because of shallow groundwater, the Army
decided to perform cut and fill to elevate the site for the
proposed incinerator by 25 feet.  The Army has indicated  that
this fill required six to eight months for settling before the

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site .could bear the load of concrete .and heavy facility equipment
necessary for construction'of the incinerator.  To avoid delay in
the construction schedule, the.Army sought approval from ADEM. for
its cut and fill work prior to receiving its RCRA permit. 'ADEM
informed the Army that, under ADEM's RCRA authorized'regulations,
the site preparation could proceed prior to the issuance of the
RCRA permit.

     You asked three questions relating to the ANAD project.  We
respond to each in turn.

     1.   Whether EPA or ADEM, under Alabama's EPA-approved RCRA
     program/ is the appropriate authority (1) to issue the
     permit to the army for constructing the disposal facility,
     and (2) to allow site preparation work before a permit is
     issued.

     (1)  The State of Alabama is authorized to implement the
"base" RCRA program, including the issuance of permits to
implement base program requirements.  This authorization includes
the authority to issue permits to hazardous waste incinerators
such as the unit the Army seeks to construct at ANAD.   The
state's authorization does not include the authority to implement
certain requirements of the 1984 Hazardous and Solid Waste
Amendments (HSWA)  to RCRA, including the requirement of Section
3004(u) of RCRA that all RCRA permits must provide for corrective
action for releases of hazardous waste or constituents from solid
waste management units at the facility.  42 U.S.C. 6924(u).  EPA
administers the requirements of HSWA in states authorized to
implement RCRA's base program until the states are specifically
authorized to implement the HSWA requirements, including issuing
the portions of permits required to implement the requirements.
42 U.S.C. 6926(c)(4).   In states such as Alabama that have not
been authorized to implement all of the requirements of HSWA, a
RCRA permit is comprised of both the state base portion and the
federal HSWA portion.   Thus, in the case of ANAD, assuming that
ANAD needs a RCRA permit to commence construction of the
incinerator and related construction, the permit would be issued
jointly by EPA and ADEM.  The issue of whether the Army needs a
permit to commence construction is discussed in response to
question 3,  below.

     (2)  ADEM is the appropriate authority to determine whether
site preparation work is allowed.  EPA administers only the
limited set of requirements created by HSWA for which the state
has not yet become authorized.  The decision as to whether any
given activity at a site is permissible under interim status is
part of the base program,  which is governed by Alabama's EPA-
approved regulations,  as further explained below in response to
question 3.

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     2.   Whether EPA or ADEM gave the Army permission to do the
     site preparation work.

     EPA did not give permission to the Army to do the site
preparation work.

     EPA's knowledge of communications between ADEM and the Army
on this issue is based on (i) a June 26, 1992 letter from General
Walter L. Busbee to Congressman Glen Browder stating that the
Army obtained approval from ADEM for the site preparation work;
(ii) an August 29, 1990 letter from Ronald M. Grant of the Army
to ADEM seeking written confirmation of a conversation relating
to site preparation work; (iii) a September 10, 1990 response
from Nathan Hartman at ADEM confirming Mr. Grant's summary of the
conversation; and (iv) a letter from Leigh Pegues of ADEM to
Congressman Michael L. Synar discussing the issue.  These
documents were attached to your July 24, 1992 letter to Mr.
Reilly.  EPA has no independent knowledge of communications
relating to the site preparation work and believes that these
documents speak for themselves.

     3.   Whether the Army's undertaking the cut and fill site
     preparation work without a permit was consistent with RCRA
     and implementing federal regulations.

     First, it should be noted that, within the scope of the base
program, it is Alabama's regulations, not EPA's, that govern the
hazardous waste management program within the state.  Once
approved, the state's program operates "in lieu of the Federal
program. ..."  42 U.S.C. 6926(b).  Thus, with the exception of
HSWA requirements, Alabama's regulations determine the
requirements of RCRA within the state.  However, in order for it
to maintain its authorization, Alabama's regulations must be
equivalent to and no less stringent than EPA's regulations.  Id.
We have not examined the Alabama regulations.  The following
analysis is based on EPA's RCRA regulations.

     The Army's undertaking the cut and fill work was not
consistent with EPA's RCRA regulations.  Changes to interim
status facilities that involve the addition of processes or
capacity must conform with the provisions of 40 CFR 270.72 (or
the state equivalent in an authorized state).  The addition of
the incinerator to the ANAD facility would be the "addition of a
process" and, under section 270.72(a)(3), would require agency
approval based on a showing that the addition was necessary to
prevent a threat to human health and the environment because of
an emergency situation, or that the addition was necessary to
comply with a federal, state, or local requirement.

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     Under EPA's regulations, a "hazardous waste management unit"
is defined to include the "contiguous area of land on or in which
hazardous waste is placed," 40 CFR 260.10, and "physical
construction" includes "movement of earth," 40 CFR 270.2.
Therefore, the elevation of the land which will serve as the
foundation for the incinerator would be considered part of the
construction of the incinerator.  To our knowledge, the Army did
not make either of the showings 'required under section
270.72(a)(3) or receive approval for a change during interim
status.  Absent such approval, the Army should not have performed
the cut and fill work prior to the issuance of the RCRA permit.

     In addition, a facility normally cannot make a change under
interim status that would result in "reconstruction" of the
facility, which is defined as a change for which the capital
investment exceeds 50% of the capital cost of a comparable
entirely new hazardous waste management facility.  Section
270.72(b).  Given the high projected cost of the ANAD
incinerator, it is possible that the construction of the
incinerator would amount to reconstruction.  While reconstruction
can be approved in certain limited situations, section
270.72(b)(l)-(7), to our knowledge ANAD has not made any of the
showings that would be required for such approval.

     The Army's undertaking the cut and fill activity is
understandable, since ADEM apparently advised that such activity
was permissible under its regulations.  ADEM (and the Army as
well) appears to have viewed the issue as a "pre-construction"
issue, rather than as an interim status issue.  RCRA's "pre-
construction ban" requires "each person owning or operating an
existing facility or planning to construct a new facility for the
treatment, storage, or disposal of hazardous waste. . . to have a
permit. . . ."  42 U.S.C. 6925(a)  (emphasis added).  EPA's
implementing regulations provide that "no person shall begin
physical construction of a new [hazardous waste management]
facility without. . . having received a finally effective RCRA
permit."  40 U.S.C. 270.10(f)(l) (emphasis added).  These
provisions apply to "new facilities."  A facility in interim
status is hot "new," and the construction of new units at such a
facility is governed by the interim status regulations, not by
the "pre-construction" provisions.  Because ANAD has interim
status, the scope of permissible changes ANAD may effect at the
facility is regulated by the interim status regulations, as
described above.

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     If you have any questions about this matter please call me
(260-7697)  or Brian Grant on my staff (260-6512).
                              Sincerely,
                                   K.  Friedman
                              Associate General Counsel
                         (J   Solid Waste and Emergency
                                Response Division (LE-132S)

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9545 - STATE
AUTHORIZATION
RESERVED
Part 271
                  ATKl/l 104/10 kp

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Land Disposal Restrictions (Part 268)
                                       vo
                                       en

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9551 - GENERAL
PART 268 Subpart A
                  AT. Kearney 1/3590/8 cr

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                                                                  9551.1986(03)
              RCRA/SUPERFUND  HOTLINE MONTHLY SUMMARY

                              FEBRUARY  86
1.  Land Disposal Ban of Solvents

Section 3004(e) of JCRA as amended by the Hazardous and Solid  Waste Amendnents
of 1984 (HSWA) prohibited the land disposal  of certain hazardous wastes oy
specific dates unless the Administrator determines that the  prohibition is
not required in order to protect human health and the environment  for as
long as the taste remains hazardous.  The first group of wastes to be affected
include "those hazardous wastes numbered F001, F002,  F003, F004, and F005
in regulations promulgated by the Administrator under Section  3001 (40 CFR
261.31  (July 1, 1983)), as those regulations are in effect on  July 1983."

EPA proposed regulations on January 14, 1986 (51 Fj* 1602), fen' the implemen-
tation of HSWA Section 3004(e).  Proposed 40 CFR 268.30 addresses  the prohi-
bition on land disposal of solvent wastes and lists as prohibited, with
certain exceptions, the wastes numbered F001, F002, F003, F004, and F005 as
those listings were amended and expanded to include mixture? OP blends on
December 31, 1985, (50 F* 53315).  How does  EPA have the aui.hoi.ity to use
the expanded solvent listings for the prohibition when the statute specifies
that the prohibition applies to the solvent listings as the  .solvent listings
as they were in effect on July 1, 1983?

Section 3004(e) of RCRA  as amended  by  HSWA  specifies  that tne earliest land
disposal prohibition applies  to  the solvent  listings  as  they were in effect
on July 1, 1983.  The universe of solvent wastes covered by ttose listings in
1983 is prqpoaed  to be restricted from land disposal  under the autno-ity of"
that section.  Section 3004(g)(4) of RCRA as  amended  requires the Administrator
to maxe a determination  concerning  the  prohibition on  land disposal of "any
new waste identified or  listed under Section  3001 after  the date of enacoient"
of HSWA within six months after  the date of such identification or listing.
Since the expanded solvent listings promulgated on December 31, 1985, (50 FR
53315) list new solvent  blends or mixtures as hazardous wastes after the daTe
of enactment of HSWA (November 8, 1984), EPA  is required to make a determination
concerning the prohibition on  land  disposal of these newly listed wastes witnir
six months of listing.  The universe of solvent wastes not covered by F001-5
listings on July  1, 1983, but  included  in the proposed 5268.30 land disposal
restrictions is proposed under the  authority of S3004(g)(4)  of RCRA as amended
by HSWA.

Source:    Susan Brcmn   (202) 382-4770

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                                                         9551.1986(07)
        UNITED STATES EN v I
                    WASHINf
,<.  \L :
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                                                                  9551.1936(03)
              RCRA/SUPERFUND HOTLINE  MONTHLY SUMMARY

                                 JULY  86
5.   Land Disposal Prohibition

    Will the EPA prohibit the land disposal  of all hazardous waste?

         Section 3004(d),  (e) and (g)  of RCRA prohibit  the  land disposal of
         untreated hazardous waste beyond specified dates.  For the purposes
         of the land disposal restrictions program, Section 3004(k)
         specifically defines land disposal  to include, but not be limited
         to any placement of hazardous waste in a landfill, surface impound-rent,
         waste pile, injection well,  land treatment facility,  salt dome ---
         salt bed formation,  or underground  mine or cave.

         Paragraphs (d),  (e)  and (g)  do not  impose an abosulte ban on  the
         land disposal of hazardous waste.   A waste may be  excluded from
         the ban under the following  circumstances:

         (1) t^hen wastes  residues meet treatment standards  established by
             EPA under Section 3004(m).   On  January 14, 1986,  EPA proposed
             regulations  to implement this provision at 40  CFR 268.40
             (51 FR 17262).

         (2) Vtoen EPA grants a site-specific variance that  demonstrates
             that there will be no migration of hazardous constituents
             from the disposal unit for as long as the  waste remains
             hazardous, under Section 3004(d)(l), (e)(l) or (g)(l).  On
             January 14,  1986, the EPA proposed regulations to jjrplement
             this provision at 40 CFR 268.5  (51 FR 1762); and

         (3) Untreated waste may be treated  in a surface impoundment
             under Section 3005(j)(ll) if the impoundment complies with
             minimum technological requirements and if  the  treatment
             residues which are hazardous are removed within a year of
             entry.   The  EPA proposed regulations implementing this
             provision on January 14,  1986 at 40 CFR 268. l(e)  (51 FJ*
             1760).

         Sections 3004(d)(3)  and (e)(3) create an exemption lasting
         until November 8, 1988 for soil or  debris resulting from
         response actions taken under Sections 104 or 106 of CERCLA or
         corrective action taken under Subtitle C of RCRA.  (see
         proposed 40 CFR  268.1(f)(2)).

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       RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY

                          JULY 86
Land disposal prohibitions are effective inrnediately upon
promulgation unless EPA sets another effective date (no more
than two years beyond the statutory deadline) based on the
earliest date on which alternative protective treatment, recovery,
or disposal capacity would be available under Sections 3004(h)(2)
and (h)(4); (see proposed 40 CFR 268.4).  EPA may grant up to
two, one-year, case-by-case extensions under Sections 3004(h)(3)
and (h)(4) when an applicant demonstrates that there is a
binding contractual camutment to construct or otherwise provide
alternative capacity, but due to circumstances beyond the
control of the applicant, such alternative capacity cannot
reasonably be made available by the effective date.  The procedures
for these extensions were proposed on January 14, 1986 at 40
CFR 268.4 (51 F* 17611) (see also June 24, 1986, 51 FR 22948).

Treatment  standards  established under Section  3004(m) can
take  the  form of prescribed methods of  treatment, or they
can be performance standards based on concentration  levels
of Appendix VIII constituents in the waste itself or in extracts
from  the wastes.   EPA proposed to use technology-based  levels in
conjunction with risk-based standards (screening levels)  (see
51 FR 1602, January  14,  1986).  Screening levels would be
based on a comprehensive modeling approach to assess potential
adverse effects to human health and the environment through
release of contaminants  frcn land disposal units to ground
water, surface water, and air.  However, after  evaluating
cements received  on the proposed rule,  EPA may consider not
using a risk-based methodology but rather to implement Section
3004(m) by solely  relying on technology-based standards.

Treatment standards  may be established  by identifying all available
and demonstrated technologies for a waste group and evaluating
the performance of these technologies in order  to  identify
the best demonstrated available technology (BOAT).  According to
the January proposal, BDAT are technologies that achieve the  lowest
concentration of constituents in either the treatment effluent or
in the extracts from treatment residual.  BDAT  will only consider
treatment technologies that are found through comparative risk
assessments to not pose a greater risk  than  land disposal.  The
EPA prefers achieving BDAT by setting performance standards
based on a concentration level associated with  a technology or a
series of technologies because the resulting regulation does not
inhibit innovation or least cost compliance efforts.

If EPA fails  to promulgate treatment standards  for solvents
and hazardous dioxin waste addressed in Section 3004(f) by
November 8, 1986,  the statute would ban the placement of all
solvent and hazardous dioxin wastes addressed  in Section
3004(f) in a  land  disposal unit.

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              UNITED ST."*S ENVIRONMENTAL PROTECTION AGENCY        occn  ,ooe,
                                                            9551.19 86(11]
                                  I  I 1986

Mr. Ray D. Mclntosh
IDM General Products Division
Department 04C
Tucson, Arizona  85744

Dear Mr. Mclntoshi

     We received your request on July 11, 1986 for an extension
of the effective date of the land disposal restrictions under the
Hazardous and Solid Waste Amendments of 19C4 (HSWA).  While I
have not had the chance to review your request yet, I will
reiterate what was said both over the phone and in our meeting of
June 10th.

     The request for an extension should include, at a minimum,
the following information:

     *  a demonstration that alternative capacity is not.
        available - including a description of good faith
        efforts to locate or supply treatment caoacity.
     •  a demonstration that the lack of capacity is beyond the
        control of the applicant.
     *  a demonstration of a binding contractual committment to
        provide sufficient permanent capacity by the end of
        the extension period.
     *  a schedule showing when capacity will be available.
     "  a demonstration that waste management capacity during
        the extension will be adequate and that the land disposal
        facility used during the extension meets the minimum
        technological requirements of suppart F section 265 and
        section 265.301 or subpart P of section 264 and section
        264.301 as applicable.
     *  certification that the information provided is accurate.

     As discussed, the following information will also be helpful:

     *  documentation of the site
     "  documentation of the proposed tank system
     *  documentation of the current lagoons and their leak
        detection and monitoring systems.
     *  a description of the processes and the wastes being
        granted the exemption.

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     At the meeting we discussed the possibility of using the
statutory exemption of section 3005(j)(ll) for treatment surface
impoundments in lieu of seeking an extension under §3004(h)(3).
You stated that this was possible but not desirable,  as you did
not want to risk rupturing the liners by dredging.  If you do
use section 3005(j)(11), even for a short time, you will be
required to dredge by the end of one year after first utilizing
this exemption in order to be in compliance*

     The minimum technology requirements of {3004(o)  for surface
impoundments appear to have been met at your site based on your
verbal description of the site to Kenneth Shuster during the
July 10th meeting.  We will be examining this as part of the
petition request, and will notify you immediately if this is not
the case.

     From a procedural stand point, we will be notifying you of our
initial determination within a few weeks.  At the same time, we
will be notifyinq the affected states (Arizona) and publishing a
Notice in tJie FEDERAL REGISTER noting this initial determination,
the availability of further information, and requesting public
comment on your request.  After review of the comments, the
Administrator will notify you in writing of the Agency's final
determination on your request.  You will need to retain a copy of
this notice during the period of the extension and for three
years after the extension expires.

     Finally, we will attempt to get all of this done by
November 8,1986.

                                    Sincerely yours,
                                    Stephen R. Weil
                                    Chief
                                    Land Disposal Restrictions Branch
cct  Eileen Claussen, EPA
     Kenneth Shuster, EPA
     Gregory Bone, IBM

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                                                    9551.1986(15)


September 15, 1986


MEMORANDUM


SUBJECT:  Effect of Land Disposal Restrictions on Permits

FROM:     Marcia E. Williams, Director
          Office of Solid Waste

TO:       Hazardous Waste Division Directors
          Regions I-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
regardless 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 processed it is not 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:
        This document has been retyped from the original.

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                               -2-

     11 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 dioxins 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 the permit.  This will clarify specific activities
at the facility and will provide a stronger basis for enforcing
the land disposal requirements at permitted facilities.

     Please feel free 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
        This document has been retyped from the original.

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                                                                     9551.1986(19)
               RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                               OCTOBER  86
1.  Land Disposal Restriction Variances

    A manufacturer generates a waste which will be  subject  to land disposal
    restrictions and for which no treatment technologies  have been developed
    that are capable of achieving the treatment standards.   The  only manage-
    ment method available is landfilling.   Can the  generator obtain a  variance
    from or an extension to the effective  date of the land  disposal restrictions
    that will be finalized November 8, 1986?

         The generator has three options:

         1) He may demonstrate that there will be no migration of
         hazardous constituents from the disposal unit for as long
         as the waste remains hazardous, per §3004(e).
                                        •>
         2) He may apply for a 1 year extension of the effective date
         of the  prohibition, per §3004(h)(3),  if he meets the criteria in
         §268.4(a).  Essentially these criteria require that the generator
         has entered into a contractual agreement either with someone  to
         build treatment capacity for him or with someone who can eventually
         provide alternative capacity for the waste, but that the capacity
         will not be available until some  time after the effective date of
         the ban.  The Administrator's decision to grant an extension  will
         be made on a case-by-case basis.   An extension may be renewed once
         for an additional year.

         3) He may apply for a treatibility variance, wherein the
         generator proves that no treatment method  for the  particular
         waste will achieve the §3004(m) standards  specified in  the
         rule.  The generator essentially  applies for a different
         performance standard for the particular waste,  although it
         would still be based on the performance achievable by the
         application of BOAT to the particular waste.  This new
         option is discussed in the September 5, 1986 Federal Register
         (51 FR 31787).                                          	

         Source:    Steve Weil  (202) 382-4770
         Research:   Kim B.  Gotwals

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                                                                  9551.1986(22)
           RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                           DECEMBER  86
9.   Variances to Ban

    What are the effective dates for solvents and dioxins under the land
    disposal restrictions?

         The land disposal restrictions become effective on ^fovember 3,
         1986, for all F001-F005 solvent wastes,  with the exception of
         the following wastes wnich will receive a. 2-year variance that
         extends the effective date for the land disposal restric-.-.ens
         to .^tovember 8, 1988:

         (1) The generator pf the solvent waste is a siw.1.! quantity'
         generator of. 100-1000 kilograms of hazardous wsste per month;
         or
         (2) The solvent -waste is generated from any response action
         taken under sections 104 or 106 of CERCLA or any RCHA corrective
         action, except where the waste is contaminated soil or debris
         not subject to the -provisions of this chapter iurij.1 Jtovember B,
         1983; or
              The solvent waste  is a .solvent -water mixture  a
           sol vent -containing sludge, or a solvent-contaminated soil
           (ncn-CERCLA or RCRA correction action) containing less than '
           percent total F001-F005 solvent constituents listed in Table'
           CCWE of §263.41.  (51 FR 40579)

           Furthennore, until November 8, 1988, contaninated soil or
           STS r?££?f fr0m * res?onse action ^en under section 104
           or 106 of CERCLA or a corrective action required under RCRA may
           continue to be land disposed (§268.1 (c) (3) ).

           Finally,  effective November 3, 1988, the dioxin-K^ntaining
          wastes specif iced in 40 CTR 261.31 as EPA Hazardous Wast- 'to
           F020. P021. F022,  FO23, P026,  F027,  and F028,  are orohibited
           from land disposal (§268.31(a)).

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            RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY       9551.1986(23)

                            DECEMBER  86

                     LAND DISPOSAL RESTRICTIONS

4.  Land Disposal Definition

    Hew is land disposal defined regarding the Section 2004(d)  RCRA land
    disposal restrictions?

         Land disposal is defined to include,  but not be Limited to,  any
         placement of hazardous -waste in a landfill,  surface impoundment,
         •waste pile, injection well, land treatment facility,  salt dome
         formation, or underground mine or cave [Section 3004(k) RCRA].
         EPA also considers placement of hazardous wastes in concrete
         vaults or bunkers intended for disposal purposes as methods of
         waste :nanagement subject to the land disposal restrictions.
         riowever, EPA does not consider open detonation, 'which would
         include open burning, as methods constituting land disposal and
         has concluded that the land disposal restrictions program is
         not applicable to open detonation and open burning
         [51 FR 40580].

5.  Lab Packs

    Are lab packs containing wastes restricted from land disposal included in the
    land disposal restrictions?

         Either the legislative history nor the statute indicates that
         lab packs can be excluded from the land disposal restrictions
         if they contain restricted wastes.  If a lab pack contains
         these restricted wastes, the entire lab pack is subject to the
         land i_sposal restrictions [51 Fjl 40585].

6.  Conditionally Exempt SQG Waste

    Are conditionally exempt small quantity generator wastes subject to the
    "Ban"?

         In the land disposal restrictions rule [51 FR 40572],  the
         Agency has amended §261.5 to exclude conditionally exempt small
         quantity generators from the requirements of. i«rt 263, so long
         as the generator has caviled with all arolicable provisions of
         §261.5 [51 FR 40637].

7.  Stpty Containers

    Is an "empty container" which held SCRA hazardous wastes F001-F005
    subject to the land disposal restrictions?

         No: according to 40 CFR 261.7(a)(l) as amended [51 FJ3 40637],
         "Any hazardous waste remaining in either (i) an empty container
         (ii) an inner liner removed from an empty container, as defined
         in paragraph (b) of this section, is not subject to regulation
         under Parts 261 through 265, 268 (added in this role), and
         Parts 270 and 124 of this chapter or to the notification
         requirements of Section 3010 of RCFA.  Thus, if the container
         has been emptied in accordance with the applicable provisions
         of §261.7(b), it is not subject to land disposal restrictions."

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                                                                 9551.1986(24)
          RCRA/SUPERFUND  HOTLINE  MONTHLY  SUMMARY

                           DECEMBER 86
8.  Storage of Restricted Wastes

    When is the storage of rastricted wastes not prohibited?

    In section 3004(j) of RCRA,  Congress expressly prohibited  the  storage
    of any hazardous waste restricted from land disposal  "unless such
    storage is solely for the purpose of the accumulation of such  quantities
    of hazardous waste as are necessary to facilitate proper recovery,
    treatment or disposal. "

         In the final rule (51 FR 40572, §268.5), EPA has incorporated
         this language directlyThto provisions for generator  accumulation
         and storage by owners or operators of treatment,  storage,  or
         disposal facilities.  "The Agency believes that  a storage limit
         of up to one year should generally provide sufficient time for
         an owner/operator to accumulate sufficient guanitities to facilitate
         proper recovery, treatment, or disposal of restricted hazardous
         wastes while meeting the intent of Congress to prohibit long-term
         storage as a means of avoiding the land disposal restrictions.
         The burden is on the Agency to demonstrate that  storage of
         restricted waste for periods less than or equal  to one year is
         not in compliance with the storage provisions.  The Agency also
         recognizes that there may be instances where one year does not
         provide sufficient time to accululate such quantities.
         Therefore, the Agency will allow an owner/operator to store
         restricted wastes beyond one year.  Although, the owner/operator
         is not required to submit any data or application to  EPA, in
         the event of an enforcement action, the burden of proving
         compliance with §268.50(b) is on the owner/operator.   The
         Agency believes that this is reasonable because  the record for
         this rulemaking indicates that less than one year should  be
         sufficient.  This provision does not apply to situations  where
         back-ups at treatment or recovery facilities, operational
         difficulties, and repairs and maintenance result in additional
         delays" (51 FR 40583).

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                                                    9551.1987(01)


January 20, 1987


Michael Edwards, Training Officer
GSX Chemical Services, Inc.
Post Office Box 216799
121 Executive Center Drive
Congaree Building, Suite 100
Columbia, SC  29221

Dear Mr. Edwards:

     Thank you for your letter of November 25, 1986, requesting
confirmation of EPA's interpretation on several issues pertaining
to the land disposal restrictions final rule  (51 FR 40572,
November 7, 1986).  With a few exceptions, your interpretations
of the regulation are correct.  I have addressed each issue
raised in your letter and provided the responses below:

1.   "Only the RCRA and CERCLA contaminated soils are exempted
     for disposal at landfills."

          Congress provided a statutory exemption from the land
          disposal restrictions for contaminated soil and debris
          resulting from a response action taken under Section
          104 or 106 of CERCLA or a corrective action under RCRA.
          The exemption is in effect until November 8, 1988,
          (48-months after the date of the Hazardous and Solid
          Waste Amendments enactment).  This exemption does not
          apply solely to landfills; rather, it applies to all
          units defined as land disposal in 40 CFR 268.2.

          On November 7, 1986, the Agency promulgated a two-year
          delay of the effective date (ending November 1988) of
          the land disposal restrictions for solvent wastes from
          generators of 100-1000 kilograms of hazardous waste per
          month, CERCLA and RCRA corrective action solvent wastes
          (except solvent-contaminated soils), and solvent wastes
          containing less than 1 percent total F001-F005
          solvents.  In addition, the Agency granted a two-year
          exemption (ending November 1988) for certain dioxin-
          containing wastes, including dioxin-contaminated soils.
        This document has been retyped from the original.

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                               -2-

2.   "Federally ordered cleanups are the only ones that have the
     extension for soils, State ordered cleanups are not exempt."

     —   This is correct.  Only Federally ordered cleanups under
          CERCLA or RCRA are covered under the statutory
          exemption.

3.   "Waste collected from small quantity generators can be
     collected at a TSDF and be remanifested by the TSDF and
     still go to the landfill for disposal under the small
     quantity generator extension."

          The Agency granted a two-year exemption for spent
          solvent wastes generated by small quantity generators
          of 100-1000 kilograms of hazardous waste per month.
          These wastes are exempt from the restrictions until
          November 1988.  Wastes from these generators may go to
          land disposal even if collected and remanifested by a
          TSDF.  However, each generator of the waste must
          forward a notice to the land disposal facility stating
          that his waste is exempt from the restrictions (see 40
          CFR 268.7 (a) (3)).

4.   "The ash from the incineration of F003 waste does not
     exhibit the characteristic of ignitability; so the ash is
     nonhazardous.  This waste can be landfilled without meeting
     the CCWE standards."

          This is incorrect.   According to the "derived-from"
          rule in 40 CFR 261.3(c)(2)(i),  any waste generated from
          the treatment, storage,  or disposal of hazardous waste
          is a hazardous waste.   Therefore, although incineration
          of an F003 waste may render the waste nonignitable, the
          waste remains a hazardous waste and as such the
          residual is subject to the land disposal restrictions
          and cannot be landfilled without meeting .the treatment
          standards in Table CCWE.

5.   "F003 materials once changed from the ignitable state can be
     landfilled.   (i.e., mixing the waste with an absorbent is an
     acceptable means of treatment.)"

          According to the mixture rule in 40 CFR
          261.3(a)(2)(iii) a mixture of a solid waste and a
          hazardous waste that is listed in Subpart D solely
          because it exhibits one or more of the characteristics
          of hazardous waste is excluded from regulation provided
          that the mixture no longer exhibits any of the
        This document has been retyped from the original.

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                               -3-

          characteristics of hazardous waste.  Thus, mixing of an
          F003 waste with a solid waste is an acceptable means of
          treatment.

6&7. "F001-F005 waste may be stored at a TSDF for a period of one
     year for the sole purpose of accumulation of such quantities
     of waste to facilitate proper disposal, recovery, or
     treatment."

     "It will be acceptable to use the tank inventory as means of
     showing disposal of F-listed material in the one year time
     frame."

     —   These two statements reflect a misconception about the
          storage provision.  The statute prohibits storage of
          restricted wastes unless such storage is solely for the
          purpose of accumulating sufficient quantities to
          facilitate proper recovery,  treatment, or disposal.
          Therefore, according to the provisions in 40 CFR
          261.50, an owner/operator may store prohibited wastes
          if such storage is for the purpose defined above.
          Storage is not limited to 1-year.  Rather, the 1-year
          period serves as a benchmark to determine who bears the
          responsibility of demonstrating whether or not the
          waste is being stored to accumulate sufficient
          quantities to facilitate proper recovery, treatment, or
          disposal.  40 CFR 268.50 (b) places the burden on the
          Agency to show that wastes being stored for up to 1-
          year are not being stored for reasons allowed under the
          statute.  Under 40 CFR 268.50(c) the owner/operator
          bears the burden of showing that storage beyond 1-year
          is for the reasons allowed under the statute.  It
          should be noted that the owner/operator is not required
          to notify the Agency that wastes are being stored for
          longer than 1-year.

8.   "Solvent waste which is a solvent-inorganic sludge mixture
     or solvent-contaminated soil (non-CERCLA or RCRA corrective
     action)  containing less than one percent total F001-F005
     solvent constituents may be landfilled."

          This statement is correct.   These wastes are subject to
          the two-year extension of the effective date due to the
          lack of alternative treatment capacity.  After November
          8,  1988, these wastes are restricted from land
          disposal.
        This document has been retyped from the original.

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                               -4-

9.   "F001-F005 contaminated soils may not be removed from the
     ground and be stock piled."

          This is correct.  F001-F005 contaminated soils  (i.e.,
          non-CERCLA and non-RCRA corrective action) containing
          greater than 1% total F001-F005 solvents, are subject
          to the November 8, 1986, effective date.  Once removed
          from the ground, these wastes only may be stored for
          the purpose of accumulating sufficient quantities to
          facilitate proper treatment, recovery, or disposal.
          Such storage must be in tanks or containers.  F001-F005
          contaminated soils containing less than 1% total F001-
          F005 solvents are subject to the two-year extension of
          the effective date may be stored or disposed in or on
          the land until November 8, 1988.

10.  "When working with RCRA and CERCLA cleanups, it is
     acceptable to assume the best scenario when determining
     whether the waste is F-listed or not (i.e., do not assume a
     solvent is spent)."

          The Agency recognizes that situations occur in cleanup
          operations where the origin and type of waste is not
          known.  When such cleanups involve F001-F005
          constituents, it is the Agency's policy, when
          conducting Superfund cleanup operations, to consider
          such wastes as listed hazardous wastes.

     I trust that this letter clarifies the issues raised in your
letter.  If you have additional questions, please contact me or
Jacqueline Sales of my staff at (202) 382-4770.

                              Sincerely,
                              Stephen R. Weil, Chief
                              Land Disposal Restrictions Branch
        This document has been retyped from the original.

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                                HOTLlNr,
                                                                   9551.1987(04)
                               JANUARY 87
2.   Land Disposal Restriction,  Dioxins,  and  90-Day Accumulation

    The land disposal restriction rule,  published in the Noveniber 7,
    1986 Federal Register (51 FR 40572)  allows generators to store their
    restricted wastes on-site beyond the 90-day limit set forth  in 40
    CFR 262.34 provided that the waste is being accumulated to "facilitate
    proper recovery,  treatment, or disposal" (40 CFR 268.50(a)(1)).
    Generators of the restricted wastes are  eligible for interim status
    provided that they are in existence on the effective date of the new
    regulations (40 CFR 270.70(a)) and the new requirements will subject
    them to storage periods longer than 90 days.  A generator who stores
    the waste for more than 90 days must submit a Part A application no
    later than 30 days after the generator becomes subject to the new
    regulations (40 CFR 270.10(e)).  Are generators of the restricted
    dioxin wastes, which received a two year extension for compliance
    with land disposal restrictions, eligible for interim status and,
    therefore, able to store their wastes en-site for more than 90 days
    between November 8, 1986 and November 8, 1988?

     No, the provision in 40 CFR 268.50(a) and under section 3005(e),
     that rrakes generators eligible to apply for interim status and
     subsequently able to store their restricted waste on-sita for
     longer than 90 days applies only to those generators -whose
     waste is currently subject to land disposal restrictions and
     who are accumulating to recover, treat, or dispose of the waste.
     The dioxin generator would not yet be eligible for interim
     status since he was not in existence on the date of regulatory
     changes which affect his operation (RCRA (§3005(e)(l)(ii))
     since the effective date of the land disposal restrictions that
     applies to the dioxin waste was deferred until November 3,  1988
     (40 CFR 268.31).  The dioxin generator would have been eligible
     for interim status for the storage of his dioxin wastes on
     July 15,  1985, the effective date of the listing of the dioxin-
     containing wastes.  Interim Status would have to have been
     applied for within 30 days after the generator became subject
     to the new regulations (40 CFR 270.10(e)(1)).

     If a dioxin generator did not apply for interim status pursuant
     to the July 15,  1985 Dioxin Rule the generator of dioxin wastes
     would not currently be eligible for interim status.  The dioxin
     generator could however, apply through the state or region for
     a full permit as a new facility.  The generator may also be
     able to obtain an informal compliance agreement with the state
     or region.  This agreement could only be obtained if the generator
     has not previously applied for interim status.  It could include
     enforcement orders and may grant the generator some immunities.

     The specifics would have to be determined by the Regional
     Administrator or the state.  The dioxin generator should be
     physically in compliance with applicable regulations under
     40 CFR 265.  He should also notify the state or region of his
     activities and submit a Part A Permit Application.  Although he
     could not technically obtain interim status, the proper steps
     should be taken to show a "good faith effort" on his part.   The
     ccnpliance agreement with EPA, or other authority, could include
     premises not to enforce against the facility as long as all applicable
     regulations were complied with.

     Source:    Tony Bancy      (202) 382-4460
                Jacqueline Moya (202) 382-3122

     Research:  Deborah McKie   (202) 382-3112

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                                                              9551.1987(05]
           RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY

                            FEBRUARY 87
4.  Land Disposal Restrictions

    The November 7,  1986 Federal Register (51 FR 40572),  land disposal
    restrictions final rule,  states that the storage of hazardous waste
    which is restricted from land disposal is prohibited unless conditions
    are met under §268.50.

    A generator has  interim status to store waste on-site.   The generator
    wants to store his waste for up to one year to accumulate the waste
    as necessary to  facilitate proper recovery, treatment and disposal
    in accordance with §268.50(b) (51 FR 40572).  When does the one year
        n?

        Storage of restricted wastes by permitted or interim status
        facilities is allowed solely for the purpose of accumulating
        sufficient quantities to facilitate proper treatment,  recovery
        or disposal.  The one-year period acts as a bench-mark to determine
        which party (EPA or the storage facility) bears the burden of
        proof to demonstrate that storage is for the allowable reasons.
        For storage of one year or less, the burden is on EPA to demonstrate
        non-compliance.  For storage  more than one-year,  the burden
        is on the facility owner or operator to demonstrate that such
        storage time is necessary.  The owner/operator does not have to
        notify the agency of storage for more than one year.  The
        burden of proof only applies in the event of an EPA inspection
        or for enforcement purposes.

        For a generator with interim status or a permit to store
        hazardous wastes, the one year begins on the date the waste is
        first placed in the tank or container.  If the generator
        accumulated the waste prior to the effective date of the land
        disposal restrictions final rule (51 FR 40572), the waste is
        not subject to the rule.  Therefore, tHe generator can store
        his waste indefinitely since he has interim status to store a
        hazardous waste.

        The November 7, 1986 land disposal restrictions final rale
        (51 FR 40572) allows generators to gain interim status if
        compliance with the land disposal restrictions requires storage
        for more than 90 days.

        Source:    Mitch Kidwell     (202) 382-4805
        Research:  Carla Rellergert  (202) 382-3112

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               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY       9551.1987 (06 )
Lauren 3. 3rown, ?n.D.
Prasident
J3L Scientific, Inc.
i*5 Casitolio rf&y
San Luis Oaisco, California  93401

Dear Dr. urown:

     This letter responds  to your  inquiry  of  December 9,  1985,
to Hooert Scarberry requesting tnat the  Agency  grant  either  an
exe.r.ntion fro- the  land dis*x>s*l  restrictions or an extension of
tne effective date  of the  restrictions for  solvent-containim
waste qeneratsd at  your facility  and  solidified with veniculite.
I apologize for the delay  in responding  to your inquiry,   After
tne new regulations »ere published  the Aciency received numerous
request^ for guidance on inplenenting  the restrictions.

     The Hazardous  and Solid Waste  Amendment* of 1984 do  not
provide the Agency  with the flexibility  to grant an extension of
tne effective date  of the  lanO  disposal  restrictions to qensrstors
tnat need- ti.vie to find treatment  caoacity  for restricted  wastes.
riowever, if adequate  treatment  capacity  does  not exist a  aenerator
;r,ay apoly for a case-by-case extension of  the effective date
i; ne nas entered into a binding  contractual  corn^it^ent to construct
or otherwise crovida adequate capacity.  Likewise,  the statute
aoes not provide a  mechanise for  .^rantinn  sn  exemption fro.1!  the
restrictions in cases where the generator  finds the cost  of
treatment to be prohioitive.

     I suggest that you evaluate  available treatment alternatives,
and then cnoose the most suitable method for  treating your waste.
For eximple, biological tr*»stynent is  in  efficient method  for
treating .^any solvent-containing  -.tastes.   You should contact
eitner your State or  EPA Regional Off ice. for  issistince.   Jam«?s
serlow, of the EPA  /Jaste Treatment  Branch, can  provide information
on alternative treatment methods.   He can  be  reached at (202)
362-7917.
                                                              M.S. GK) 1»85-«»1-«1)

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     If /ou nave additional questions,  you nay call re at (202)'
3d2-4770.

                                Sincerely,
                                Jacqueline w. sales,  Chief
                                Regulation Development Section

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               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY      9551.1987(07)
                            MfiP
                                 n 100*7
Mr. jert jrews
••utun.U Institute of Health
Nation-il Institute or Environrnental
  :io3lt:i Services
Post Office Sox  12233
£os
".IMC san-j a notice with oach snipnent  of  restrict".*? wast-rs.
me notice must include the SP* hazardous waste number, the
corresoondinq treatment standard, the  manifest number associated
vitn tiie snip.-nent of the waste, and tne waste analysis  data,
wnor-2 availiole.  >^ disposal
facilities have the  ultimate resoonsiblity to verify thit
only restricted wastes  wnich reet the  applicable treatment
standards are land disposed.  There is nothina in the lan^
disposal restrictions which prohibits  a treator or  disposer
sucn as 3SX from imposing  more atrinaent requirements.

     I nope this letter adequately  addresses  your  concerns.  If
you have questions,  you may contact me or Jacqueline Sales
of ,i>y staff (202) 382-4770.
                                 Sinceroly,
                                 3UR»EMC|S       . ..   p'.i a'

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                                                              9551.1987(09)
             RCRA/SUPERFUND  HOTLINE MONTHLY  SUMMARY

                               MARCH 87


1.   Land Disposal  Restrictions-California Waste
                    - •
    A generator produces  two separate liquid hazardous waste streams;
    one -waste stream contains 8,000 ppm halogenated organic compounds,
    and the other  waste stream  contains 25,000 ppm halogenated organic
    conpounds.   After  the effective date of the  Pyy* disposal restrictions
    (July 1,  1987),  may these waste streams be land disposed?

         According to  the Agency's proposed rule,  the waste stream
         containing  8,000 ppm halogenated organic  cotpounds will be
         prohibited  from  land disposal  effective July 8, 1987.  The
         waste stream  containing  25,000 ppm halogenated organic compounds
         will be prohibited  from  land disposal effective July 8, 1989.

         Section 3004 (d)  of  the Hazardous and Solid Waste  Amendments
         (HSWA)  requires  the EPA  Administrator to  determine whether  to
         prohibit  hazardous  waste containing greater than  1000 mgAg
         (1000 ppm)  halogenated organic compounds  from land disposal  by
         July 8, 1987.
             section  3004(h)(2) allows  the  EPA Administrator to grant a
         variance  fron the prohibition for up to  two years if adequate
         treatment capacity does not exist for the waste.

         The proposed  rule published in  the  December 11,  1986 Federal
         Register  states that  The best demonstrated available technology
         (BDAT)  for solids containing greater than 1000 mgAg (1000 ppm)
         halogenated organic compounds is incineration; however, the
         incinerator capacity  is insufficient. Therefore, a two-year
         nation-vide variance  from  the prohibition is granted (51 ra 44725 ).

         Liquid hazardous waste containing greater than 1% (10,000 ppm)
         halogenated organic compounds has a BEAT of incineration and is
         also granted  a two year nationwide  variance due  to a lack of
         treatment capacity  (51 FR  44725).

         EPA has not determined a BEAT for HOC liquids containing
         between 1000  mgAg  (1000 ppm) and 1% (10,000 ppm) halogenated
         organic cotpounds.  The statute requires that a  lack of capacity
         be demonstrated in order to grant a variance.  The Agency
         indicated that lack of capacity cannot be demonstrated if no
         3Q&T is specified.  As a result, the Agency proposed that the
         effective date of the ban  for liquid hazardous wastes  containing
         between 1000  mgAg  (1000 ppm) and 1% (10,000 ppm) halogenated
         organic compounds is  July  8,  1987,  since no variance can be
         granted.

         Source:    Steve Weil     382-4770
         Research: Randy Eicher

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              UNITED STATES ENVIRONMENTAL PROTECTION
   JUN I 2 1987

D^.iion Piragea, Director
Inatitutw of Chemical Waste  Mana. even if the) generator or treataent facility
    provided the rllspnsal facility  with data indicating that the
                     %n«k nuaaasjemj  standard*.
                   rola> requires  that testing to assure wastes
                  wXtit treatSMnt  standards- must be performed
                  frequency  specified in the facility's waste
                  evoirod by |264.13 or $263.13."  Therefore,
                  ipswjnt is  not necessarily required.   Enclosed
you will fin? a copy of the  correction notice as it will a«-ptar
in tne federal Register.
           to entering into  un  agreement to accept hazardous
wastc?b frosi a generator or treatment facility,  the owner/operator
o: an off-site disposal facility  must obtain a detailed listing
of wasts constituents.  While the frequency of comprehsnsive

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                              - 2 -
     ing will depend upon the variability of the waste stream,
  v   Agency recommends that a cletailed analysis for the waste
 constituent* regulated under the land disposal restrictions rule
 L.e coirpl-tod at least annually by the generator or treater (s^e
 51 iR 40596, November 7, 1966).  If the owner/operator of the
 disposal -acility dots not receive such information in writing,
 /4e must periorm the analysis to determine whether the wastes meet
 tne  treaUr.eut stanuarcs according to the waste analysis plan.

     The Agency has issued guidance that discusses the general
wabt-- analysis requirements or §264.13 (s«e Waste Analysis Flan
 Guidance Manual, September, 1984; available from GPO. r$K!55-000-
 Gu2~44-4~), As §2to4.13(a) (3) states, tho preacceptance analysis
must be repeated if the generating process changes, or if inspection
ol incoming Siii^ments reveals a discrepancy with the manifest.
Off-aite disposal facilities are also required under $264.13(a)(4)
tc inspect aod, if necessary, analyze  .ach shipment of hazardous
waste to ensure that the waste matches the specifications in the
ro&Qt  fust.  Vvhen necessary, shipments ars sampled and analyzed
 for a few Xey parameters, i.e., a "fingerprint" analysis.

     Vfh*ie screening of tach incoming shipment will usually
 be limited to relatively simple and rapid tests, such as visual
 inspection, tests for pH, density, weight, etc., the disposal
 facility has a responsibility to identify any restricted wastes
 that exceed treatment stancerd*.  Son* flexibility is allowed
 under )264.13(c) as to the extent of analysis necessary for *?ach
 br..Lament.  The need for sacpling and analysis depends on a variety
of site-specific factors which the permit writer should consider.
Such factors includo; the variability cf the waste; the prior
history of the waste generator's performance and reliability; the
 impact of improperly trnateu waste en the waste management process;
and  frequency and extent of testing performed by the generator
or treator.  The permit writer may require further analysis by the
 owner/operator, for example, if shipments of a highly variable
wdstustreaa (e.g., trcsa occasional batch processes) are sent without
 sufficient analysis by the generator/treater to determine if
waste constituents exceed the treatment standards.

     On* strategy used by some disposal facilities to verify
 data supplied by generators is a random sampling program fcr
 incoming vasts shipments.  In this program, the disposal facility
taxes a "representative sample frost a small percentage of incoming
waste shipments and performs a comprehensive chemical analysis.
 Such & ^rogram icay encourage generators ana treaters to prop-rly
 test and treat restricted wattes.

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                              - 3 -
               ,.>,»<- the corrections to the land restrictions
  ,       t    lability inherent in the general waste analysis
rule ana the.fl^"lT3 adequately address the concerns you raisea
regulations in ^°*'      haye forwarded copies of this memo and
in your recent Ivtte ^      Hazardous Waste Division Directors
                 PI -ase let me Know if I can be of any further
help in this matter.

                                Sincerely,
                                Marcia Williams,  Director
                                Office of  Solid Waste
Enclosure

cc:   Regional  Division Directors

bcc.   Bruce Iveddle
       Suzanne  Rudzinski
       Bob  Kayser
       Sylvia  Lowrance
       Jacqueline  Sales

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             UNITED STATES B^mpNMEHTAL PROTECTION AGENCY       9551.1987(12)

                            ^   M 26  1987
Mr. Robert H. Campbell
Sun Refining and Marketing
  Company -
Ten Penn Center
1801 Market Street
Philadelphia, Pennsylvania  19103-1699

Dear Mr. Campbell:

     Thank you for your June 8, 1987, expressing your concern
regarding the Environmental Protection Agency's (EPA) regulatory
approach to land treatment, and in particular, the classification
of land treatment as land disposal.

     Under the Resoruce Conservation and Recovery Act (RCRA), as
amended by the Hazardous and Solid Waste Amendments (HSWA) of
1984, land disposal is defined as  including, among other  things,
land treatment.  Given the explicit statutory language found in
HSWA, the intent of Congress to include land treatment as land
disposal is clear.  If a variance  has not been granted extending
the effective date for the waste due to insufficient treatment
capacity, restricted waste may not be land treated (i.e., land
disposed) unless it meets the applicable treatment standard in 40
CFR 268 Subpart D, or has been granted a "no migration" exemption
under S 268.6.

     The "no migration" exemption  is based on a petition
demonstrating, to a reasonable degree of certainty, that  there
will be no migration of hazardous  constituents from the disposal
unit of injection zone for as long as the waste remains hazardous.
The Agency is currently developing guidance on the S 268.6 "no
migration" petition.  Until EPA develops this guidance, the Agency
will evaluate such petitions on a  case-by-case basis.

     Thank you for your interest in this matter, and for  expressing
your concerns.

                                Sincerely,
                                J. Winston Porter
                                Assistant Administrator
WH-562/PERLA/T.MCMANUS - 475-86\K3/sld/6-19-87/Control
No: AX701033/DU6 Date: 6-26-87/CONTROLLED CORRESPONDENCE  113

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY      OCC1
                                                          7 b Ji •
                        '-  - C i'997
Mr.  Donald E. Stone
Safety, Health and
  Environmental Manaper
GSX Services of South Carolina, Inc.
Route 1,  Box 255
Pinewood,  South Carolina  29125

Dear Mr.  Stone:

     This is written in resnonee to your letter o* £nril ?<*, l«>r>7,
requesting confirmation of an earlier nhone conversation with a
r.enber of my staff concerning the regulatory status of a sludoe
containing i,1,1-Trichloroethane (TCF).

     As described in your letter and phone conversation, a
generator operates a surface impoundment for separatino ir-etals
from an electroplating waste stream prior to discharging the water
to a POTW.  The sludge is removed from the imoundnent, dewatere'',
and then shipped to your facility for discosal.  n-.tr-ical arislvei«>
of the Toxicity Characteristic Leaching Procedure (TCLP) extract
from the sludge showed the presence of TCF in concentrations above
the applicable treatment standard, but less than on*, percent.  How-
ever, the generator has not used TCE for two years ui.C you  «S3ur*>
that the TCE is a spent solvent residual fror wastes placfe^ in
the impoundment at least two years prior to the effective date.
The question is whether the TCE must meet the treatment standard
or whether the extension to the effective date for wastes containino
<1% total F<">01-F005 solvent constituents would apnly.

      The Agency stated in the November 7,19P6, final rule  (51 rP
40572) and in the June 11, 1987, Notice of Availability of  nata
(52 FR 22956), that wastes placed in storage or land disposed
prior to the effective date become subject to the land disposal
restriction* when removed from storage or taken out of the  land.
It is at this point (i.e., prior to treatment) that a determination
is made as to whether the waste is subject to a variance or must
be treated to meet the applicable treatment standard.  Therefore,
if the total concentration of FOOl-^OOS solvent constituents is
less than 14 as the sludge is removed from the inooundment, the
waste is subject to the variance.
                                                            •V..S. SO

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     I trust that this letter arteouatelv addresses your concerns.
If vou have any further Questions please call Mitch
ry staff, at (202) 382-4P.05.

                                Sincerely,
                                Stephen R. Weil, Chief
                                Land DieooBal Pestrictions Branch

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                                          9551.1987(14)
                              JUL  16 067
Mr. D. L. Brucker, Plant Manager
Taft Plant
Union Carbide Corporation
Pest Office Box 50
Kahnville, Louisiana 70057

Dear Mr. Brucker t

     We have completed a preliminary review of your application
for an extension of the effective date of the California list
land disposal restrictions for corrosive wastewaters generated
at your facility.   However/ more information is needed before a
determination can be made to grant or deny your petition.  "^is
information is necessary to demonstrate that the procedures for
a case-by-case extension to an effective date have been "met,
as specified in § 268.5 of the November 7, 1986 final rule.

     The applicant is required under $ 268.5(a)(l) to make a
good-faith effort to locate and contract with treatment, recovery,
or disposal facilities to manage his waste.  Your petition indicates
that you are aware of alternative capacity for your waste.  More
specific information is needed, however, to properly evaluate
this showing.  Please submit the names and addresses of all
off-site facilities that have been contacted in an effort to
provide alternative capacity for your wastewater.

     Paragraph (a)(2) requires a showing that the applicant has
entered into a binding contractual commitment to construct or
otherwise provide alternative treatment or disposal capacity
that meets the treatment standards specified in Subpart D.  In
your application you include copies of contracts with Jacobs
Engineering and Daniel Construction Company; however, the contract
with Daniel Construction Company does not  include a signature
page.  We are requesting this information 00 that we can further
proceos your application.

     Paragraph (a)(3) specifies that due to circumstances beyond
the applicant's control/ alternative capacity cannot reasonably
be made available by the effective date.  Although your aoplication

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emphasizes that due to technical and practical difficulties
alternative capacity will not be available for your waste by the
July 8, 1987, effective date, it is unclear why the project to
provide alternative capacity or to provide a Beans of trnnsportino
these wastes off-site for treatment was not initiated at an
earlier date (the regulated community has been on notice since
December 11, 1986).  We are requestino that you provide an explanation
or data indicating why such measures were not initiated in a
more timely fashion.

     Your application indicates that there are interim measures
that could be implemented in the event that EPA fails to respond
to your request for a case-by-case extension in a timely fashion.
It is necessary for EPA to evaluate these interim measures to
determine that a case-by-case extension and continued use of the
existing Regenerant Neutralization Basin (P.NB) is a viable option
in light of existing alternatives.  Please submit a technical
description of the interim measures and, if necessary, a complete
explanation of why these interim measures are not reasonably
available as a source of alternative capacity.

     Paragraph (a)(7) specifies that any waste managed in a
surface impoundment or landfill during the extension period may
be disposed of at a facility only if each new landfill or surface
impoundment unit, each replacement of an existing landfill or
surface impoundment unit, and each lateral expansion of an existina
landfill or surface impoundment unit at the facility is in compliance
with the minimum technological requirements of Part 265, Subnart F
and § 265.301(a),  (c), and (d) for interim status facilities.  This
requirement applies not only to the RfTE, but also to any such units
at your facility.  Your application states that "[t]here will be
no new surface impoundment installed, no replacement in kind
of the existing unit, nor will there be any lateral expansion
of the existing unit during the extension." To determine if
the facility itself is presently in compliance with the minimum
technological requirements for interim status facilities, we are
requesting that you submit data indicating the current status of
all other units at the facility with respect to this requirement.

     We are Baking every effort to respond to your request for
an extension of the effective date as quickly as possible.  The
case-by-case extension of the effective date is a rulemaking
procedure; although this process takes time, we will continue to
work with you to arrive at a suitable solution to your problem.
However, to expedite this effort, please submit your response to
the following address:

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     Rhonda Craic
     U.S. Environnental Protection Aoency
     Mail Code: WH-562B
     401 M Street, SW
     Washington, D.C.  20460

     Should you have any questions reoarding this request, please
call Rhonda Craig at (202) 382-4800.
                                  Sincerelv,
                                  Marcia Williams
                                  Director
                                  Office of Solid Waste

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                                  f AL PROTECTION AGENCY

                                                           9551.1987(16)
5ED   4


Ms. Patricia v.  Trainer
AOUA-TFCH, IVCCRPOPATFD
14T South Park Street
Port <-'ashir.aton,  Wisconsin  53074

Dear Ms. Trainer:

     In vour letter of August 12, 1?P7, vou reouesteH Aoency
guidance in clarifying the interoretation of "restricted waste"
as defined under 40 CFR Part 2fP, entitled Land Oisoosal postric-
tions.

     A restricted waste is a waste which is prohibited fror
disposal by regulation, even if such prohibitions are accomr
by a delayed effective date, or which, absent any regulatorv
action by the Apency, would be orohibited from land disposal
by the statute.

     The examole given in your letter is a California list
waste containing 100 mp/1 arsenic.  Under Section ?6«?.7, waste
analysis and recordkeeoing is the responsibility of the "initial
generator" to test the waste utilizing the Paint Filter Mauid
Test (PFLT) or use knowledoe of the waste to determine if the
waste is restricted from land disposal.

     In your example,  it is not specified whether the waste con-
taining 100 mg/1 arsenic has been treated to reach that level.
If so, certification under Section 2fP.7(a)(2) is recruired.

     If the waste in your example contains 100 mo/1 arsenic unon
generation, prior to any treatment, Section 2*R.7(a)(2) does
not apply.  As a practical matter, the Generator In your exa^cle
iray have to prepare a  certification, even thouch It is not  leoollv
reouired, in order to  satisfy the land disrosal facility accenting
the waste.

     You should  also be aware that the Aoency solicited comment!'
on the possibility of  lowering levels of toxic metals in liouid
wastes.  Were we to take this action, your waste would then be
restricted and subject to all of the reouirements of Section ?fP.7,

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                                               9551.1987(19)
     RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                  SEPTEMBER 87
8.    Land Disposal Restrictions - Corrosive Waste

     A  manufacturer  generates  an  acidic Aqueous hazardous
     waste stream (D002,  per 40 CFR  26.122(a)>  wj.th  a pH of
     1.8 in  his production process.   The waste  is piped from
     the production  area  to  an  acid  neutralization tank,
     where  the  pH  is  raised  to an average of 3.0.  After
      reatment, the waste stream  is  shipped  off-site  to a
     commercial  wastewater   treatment  plant  where  it  LS
     neutralized further  and then  discharged  under  a NPDES
     permit.       Must   the  manufacturer  comply  with  the
     requirement of  40 CFR  268.7(a)(2) to  certify that the
     restricted  waste  may  be land disposed without further
     treatment when he ships the waste off-r.xi.f-i?

          No.   If the waste stream  was hazardous  solely for
          the    characteristic   of   corro£-:-,vity   (40   CFR
          261.22(a)) and  after treatment it do«*s  not exhibit
          any   characteristic   of  a   hazardous  waste,  as
          described in Subpart C of Part 261, the waste is no
          longer a hazardous waste (40 CFR 261.3(d)(1)).

          According to the applicability provisions set forth
          in  40 CFR 268.1(a), "This part identifies hazardous
          wastes that  are restricted  from land disposal and
          defines those limited circumstances  under which an
          otherwise prohibited  waste may continue to be land
          disposed."  Consequently, if  the  waste  cannot be
          identified  as   a  hazardous waste under RCRA, then
          the  regulations of Part 268 do not apply, including
          the     certification    requirement   of   40   CFR
          268.7(a)(2) .

     Source:    Mitch Kidwell  (202) 382-4805
     Research: Kris Andersen

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           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY       ^ ^ 198 7 (20 )
                     OCT 2 8 i987
Mr. James T. Bell
Manager Environmental Control
Advanced Environmental Technology Corporation
Gold Mine Road
Flander, New Jersey  07836

Dear Mr. Bell:

    In your letter of October 14, 1987, you requested confirmation
in writing of the. application of the land disposal restrictions
notification requirements to Advanced Environmental Technology
Corporation (AETC) as a interim status treatment, storage, and
disposal (TSD) facility.  It is our understanding that your
facility stores waste generated at off-site sources and packages
that waste for treatment or disposal elsewhere.

    The generator is required to determine that he is managing a
restricted waste at the point of generation through analysis or
knowledge of the waste.  The Environmental Protection Agency (EPA)
has imposed certain waste analysis, notice, and recordkeeping
requirements on generators, treatment facilities and disposal
facilities.  In the preamble to the final rule (51 FR 40597), the
Agency stated that testing and recordkeeping is essential to
implementation of the land disposal restrictions.

    Although storage facilities were not directly referenced in 40
CFR 268.7 or the preamble, the intent reflects that these
requirements are applicable.  In other words, a notification is
required when restricted waste is shipped to an off-site storage
facility.

    I hope this information adequately addresses your concerns. If
you have additional questions, you may contact me at  (202)
382-4770.

                                         Sincerely,
                                         Jim Thompson
                                         Environmental  Specialist

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                 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                                9551.1987(21)
                         OCT 2 8 i957
Mr. Steven H. White
Regulatory Affairs Manager
Tricil Environmental Services Inc.
Talbott Tower, Suite 510
131 North Ludlow
Dayton, Ohio  45402

Dear Mr. White:

    This letter repsonds to your request for information
regarding compliance with the California list final rule (52 FR
25760, July 8, 1987).  I apologize for the delay in responding
to your correspondence.

    Each of the issues raised in your letter is restated below
and followed by the appropriate response.

    1.  Tricil is a treatment facility and not a disposal
        facility.  Must generators of restricted waste notify
        Tricil that their wastes are restricted?

        Yes, section 268.7(a)(l) requires generators managing
        restricted waste to notify the treatment facility
        that the waste does not comply with treatment .standards
        specified in 40 CFR 268, Subpart D and all applicable
        prohibitions set forth in 40 CFR 268.32 or RCRA Section
        3004(d).

    2.  When notified that a waste is restricted, must the
        generator identify the appropriate treatment method or
        standard?

        Yes, the generator must identify equivalent treatment
        standards and all applicable prohibitions set forth in
        section 268.32 or RCRA section 3004(d).

    3.  Can notification information be placed on the
        Uniform Hazardous Waste Manifest under the section
        entitled Special Handling Instructions?

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        Yes, the federal regulations do not prohibit it, but
        review your state regulations as they may.

    I hope this information adequately addresses your concerns.
Please "feel free to contact Jim Thompson at (202) 382-7438 if you
have any additional questions.

                                         Sincerely,
                                         James A. Thompson
                                         Environmental Specialist

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                                                      9551.1987(22)
        RCRA/SUPERFUND/OUST HOTLINE  MONTHLY REPORT QUESTION
                            OCTOBER  1987
3.   Export of Restricted Waste

    A generator  determines   that   he   is   managing   a  restricted
    hazardous  waste   under   the   November   7,  1986  Land  Disposal
    Restrictions  rule  (see November 7,  1986  Federal Register,  51
    FR 40572).    However,  the waste is going to  be  exported  to a
    Canadian disposal   facility.     Does the  generator   need  to
    attach a  notification and/or  certification for  each  shipment
    of waste as per Section  268.7?

         Yes.   The June  4,  1987   correction  notice   (see June  4,
         1987   Federal   Register,   52   FR   21010)  reiterates the
         Agency's intent that  the   Section  268.7  waste analysis,
         notice,  and   recordkeeping requirements are applicable
         regardless of  whether or  when  such restricted wastes are
         ultimately  land  disposed (52  FR   21011).  The key  to
         determination  of applicability of  the  requirements  is
         whether   the    generator  handles    restricted  wastes
         exceeding the  applicable  treatment standards.  (Id.)

         The Agency    realizes  that    the  notification  and/or
         certification  documentation is not legally  necessary for
         the Canadian disposal  facility.     However,  the Agency
         still  requires  the  notification and/or certification for
         each   shipment   of    restricted   waste.     Unforeseen
         circumstances  may arise during the transportation of the
         restricted waste and  it   might need  to be  handled by a
         domestic hazardous  waste  treatment, storage or disposal
         facility.     The   notification   and/or  certification
         documentation   will   allow  waste  handling  in accordance
         with   the   land   disposal    regulations   should  this
         situation arise.

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            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, O.C. 20460

                                                   9551.1987(23

                                                        C. f •= iCc Of
                                                      E. ii.J C:..e flOEr.C '
Mr. Richard C. Fortuna
Executive Director
Hazardous Waste Treatment Council
1440 New York Avenue, N.W.
Suite 310
Washington, DC  20005

Dear Mr. Fortuna:

    Thank you for your letter of October 21, 1987 regarding   the
applicability of the California list land disposal proniuitions
to the practice- of adding certain materials to restricted liquid
hazardous wastes solely for the purpose of rendering the wastes
nonliquid.  Specifically, you requested guidance on whether  the
mixing of fly ash or cement Jciln dust to California list
metal-bearing or cyanide-containing wastes con.-.t i tutes dilution
or an allowable method of treatment.  In addition, you.inquired
about the schedule for promulgating requirements relating to
containerized wastes, including the regulatory status for
incorporating the use of the Liquids Release Test.

    In order for a metal-bearing or cyanide-containing hazardous
waste to be subject to the Resource Conservation and Recovery
Act (RCRA) Section 3004(d) provisions, the waste must exist  in
liquid form.  As indicated in the July 8, 1987 final rule, Lhe
Environmental Protection Agency (EPA) believes that congres.-;'
primary intent behind the California list prohibitions was to
eliminate the land disposal of highly toxic liquid hazardous
wastes as a starting point (emphasis added).  As you are aware,
California list metal and cyanide wastes are currently subject
to the statutory prohibition levels and thus are restricted  from
land disposal unless treated to concentrations below the
prohibition levels or rendered nonliquid.

    Under the land disposal restrictions program, the regulated
community is prohibited from diluting restricted wastes  (a)  as a
substitute for adequate treatment standards, (b) to avoid a
prohibition level for the California list wastes, and (c) to
circumvent the effective date of a prohibition on land
disposal.  The Agency has noted that in many cases solidifi-
cation techniques may be considered treatment rather than
dilution.  As you cited in your correspondence, solidification
techniques that produce physical or chemical changes, or
otherwise immobilize the hazardous constituents, would be

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considered appropriate treatment.   In other words,  the addition
of reagents (i.e., substances that take part in reactions or
processes) must aid in treatment of the hazardous waste in order
to be considered legitimate treatment.  See generally 52 FR at
25778 (July 8,  1987).

    With these considerations, the addition of fly ash or cement
kiln dust to metal-bearing or cyanide-containing wastes must
contribute to immobilization of the hazardous constituents
contained in the liquid hazardous waste (through chemical
fixation or some other reaction or process).  If this
solidification technique results only in the absorption or
mixing of the hazardous constituents with these materials, ihe
pract. •-:  would constitute impermissible dilution.  Where Uu.
addi:     : fly ash or cement kiln dust generates a nonliquid
wast>          -opriaucly inunobi 1 izes the hazardous constituent.!;,
the w^_      .. _: be rendered nonliquid legitimately and no longer
be prohibite^ rrom land disposal  (even it the constituent
concentration exceeds the prohibition levels).  Ar> stated in r.hc
July 8, 1987 final rule, however, should treatment sumdurdij be
established for Calitornia list metal and cyanide wastes, these
wastes will have to meet the treatment levels or be treated by
the specified technology designated as the treatment  standard.

    You also inquired about the time  frame for promulgating
restrictions on the disposal of containers holding liquid
hazardous wastes and free liquids.  At present, the Agency  is
intending to publish the final containerized  liquids  rule in
June 1988.  An initial evaluation of  the public comments on the
December 24, 1986 proposed rule and the June  24, 1987, notice of
supplemental information has been conducted.  The Agency  iy
currently in the workgroup phase  of developing a final
rulemaking.  The Agency intends to include the Liquids Release
Test to determine whether a containerized  liquid treated with
absorbents would release liquids  under pressure experienced in
landfills.

     If I can be of any further assistance, please  let me  know.

                                       Sincerely,
                                        J. Winston  Porter
                                        Assistant Administrator

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                                                    9551.1987(24)
                  RCRA/SUPERFUND  HOTLINE  SUMMARY

                           NOVEMBER 87
Land Disposal Restrictions

An F001 F002 waste subject to the November 7, 1986 FR land
disposal restrictions meets the criteria for the 1% National
Variance specified in Section 268.30.  In the July 8, 1987 FR,
treatment standards were set for most HOCs.  F001 and F002 wastes
are also HOCs.  Would the F001 F002 wastestream be subject to the
newly-promulgated HOC treatment standards even though it has been
granted a two-year variance for F001-F005 solvent wastes?

     The solvent would only be subject to the treatment standards
     and effective date in the November 7, 1986 rule.  In 52 FR
     25762, it says that "where treatment standards and
     prohibition effective dates are promulgated for California
     list waste constituents that are also covered under the
     November 7, 1986 rule, the treatment standards and effective
     dates from the prior rule apply."  The general rule is that
     where a constituent is subject to more than one treatment
     standard, the treatment standard (and effective date) for
     the more specific constituent applies.  Example:  the F001-
     F005 treatment standard effective date presides because, as
     a subset of the HOCs, it is more specific.

     Also, for a waste where two or more treatment standards
     apply because of different constituents (e.g., F001 and
     lead), both would apply with respective effective dates.  In
     the case above mixed with lead, the F001 F002 treatment
     standard and effective date would apply for the solvent
     constituents (rather that the HOC standard) and would get a
     variance until 11/8/88.  However, the lead would be subject
     to the requirements effective 7/8/87.

Source:   Mitch Kidwell  (202) 382-4805
Research: Mark Janaskie
        This document has £>ee.n retyped from the original.

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                                                           9551.1988(01)
           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                       WASHINGTON D C  20460
                         APR -5  _
                                                       O' * iCE OF
                                              SOulD'WAS'E AND EMERGE.'
MEMORANDUM
SUBJECT:  Facility Testing Requirements and Solidification
          Issues Under the Land Disposal Restrictions Rules
                                                  j
FROM:     Sylvia K. Lowrance , DirectotA J\  ^ .  JTrw-'— '
          Office of solid Waste      -*^>/b

TO:       Robert L. Duprey, Director
          Hazardous Was.te Management Division, 8  HWM
          Region VIII


    This memo is in response to your memorandum of February  4,
1988 to Marcia Williams requesting clarification  of two  key
provisions of the Land Disposal Restrictions Rules.  The issues
are related to the testing requirements under 40  CFR 268.7 and
the use of solidification/stabilization prior to  landfilling.

Issue 1  What are the exact testing requirements  (appropriate
         sampling conditions, analytical methods, frequency  and
         data comparisons) under 40 CFR 268.7(c)  for off-site
         commercial disposal facilities receiving land disposal
         restricted wastes.

    As you note, section 268.7 itself does not specify the
frequency of testing required for disposal facilities receiving
wastes from off-site (nor does it specify the frequency  of
testing required for treatment facilities or on-site disposal
facilities).  In particular, the requirements in  section 268.7
only specify the frequency of testing required by generators,
treatment facilities or land disposal facilities  by reference to
the facility waste analysis plan. Specifically, section  268.7(c)
requires that the owner or operator of the treatment or  land
disposal facility must test the waste according to the frequency
specified in their waste analysis plan.  Those plans may allow
the data to be supplied by the generator or treatment facility,
such determinations being the subject of negotiations between
the permit writer and the owner/operator during the development
of the permit.

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     I would note that the December  1,  1987  Codification  rule  (52
 FR 45788)  does allow the permits  to be reopened  to  incorporate
 HSWA provisions, and this could be  used to  reopen and  modify  the
 Waste Analysis Plans to require testing at  a  specified
 frequency.

     We are  aware of the potential cost of testing for  not  on~y
 the disposal facility,  but also for the treatment facility and
 the generator.  We are also aware  of the need  for adequate  data
 for compliance monitoring and  enforcement purposes.  Unfor-
 tunately,  these factors work in opposite directions, one
 indicating  the need for more testing and the  other  the need to
 minimize the testing burden.   At  the time the rules were
 written, we felt that the individual permit writer  would be in
 the best situation to determine on  a case by  case basis  the
 appropriate frequency of testing  that  would best balance those
 opposing factors while  remaining  in compliance with the  general
 parameters  outlined under section 264.13 and  secton 265.13.
 This point  is also addressed at 52  FR  21012,  Col 2  (June 4,
 1987).

 Issue 2   Which wastes restricted  under 40 CFR Part  268. Subpart C
          may be treated at an  off-site commercial facility
          utilizing stabilization/solidification  prior  to
          landfilling.

     The  Agency has not  specified methods of treatment  for
 restricted  wastes with  the exception of PCB and  most HOC wastes
 under the California List (which must  be incinerated).   For
.spent solvent and dioxin containing wastes  covered  by  the
 November 7,  1986 rule (51 FR 40572),  the Agency  has specified
 performance standards based on a concentration of a hazardous
 constituent  in an extract generated using the Toxicity
 Characteristic  Leaching Procedure (Appendix I to 40 CFR  Part
 268).  While the treatment standards were based on incineration
 of  the wastes,  the rules do not prohibit stabilization/solidifi-
 cation in order to meet the treatment  standard.  On the  other
 hand,  we do  not encourage the  solidification  of  wastes
 containing  high levels  of organic constituents.

     California List wastes may not  be  placed  in  land disposal
 facilities  as liquids with concentrations exceeding the
 statutory levels.  With  the exception of PCBs  and HOCs,
 stabilization/solidification may be used to treat the  wastes,
 converting  them to a non-liquid form,  after which they may be
 placed in land disposal units.  However, I  would call  your
 attention to the preamble language  in  the final  California List
 rule (July  8,  1987,  51  FR 25760) on page 25778 dealing with
 dilution, where we note that:

          "Where such physical  or chemical changes do not occur,
          or where hazardous constituents (e.g.,  metals)  are not
          otherwise immobilized, "solidification" techniques may
          possibly be considered dilution as a substitute for
          adequate treatment within  the meaning of the  section
          268.3  prohibition."

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While  this  language  is not definitive, it does indicate th
solidification by  simple absorption is not what was intend
thai
iciec
     Further, the preamble goes on to note that even where
solidification  techniques are not considered dilution, the
liquids  in  landfills prohibitions remain applicable, and that
these provisions prohibit certain types of absorbency.  The
specific document  referred to is the "Statutory Interpretative
Guidance on the Placement of Bulk Liquid Hazardous Wastes in
Landfills," OSWER  Policy Directive #9487.00-2A, June 11, 1986.

     Your memorandum raises several other issues with respect to
the  use of solidification that we have tried to address below.

     On page 9 of the attachment to your letter, you state
"Apparently, solidification may be an appropriate treatment
methodology for F001-F005 solvent/solid/sludge mixtures and
dilute wastewater  HOCs  (and F020-F028 dioxin wastes?)." We do
not  specify the methods that are used to meet the treatment
standards.  The Part 268 regulations do not prohibit solidifi-
cation for either  solvents or dioxins.   As noted above, we are
not  advocating the solidification of wastes containing high
concentrations of  organic constituents.  With respect to the
dioxin containing  wastes, sections 264.317, 264.343 and 265.352
all  deal with special requirements for handling the F020-F023
and  F026-F028 dioxin containing wastes, and to our knowledge,
there are no commercial facilities treating or disposing of
these wastes in the United States.

     Dilute HOC wastewaters, on the other hand, may not be
solidified to take advantage of the two year extension of the
effective date.  If at the point of initial generation (i.e.
when the waste first meets the Part 261 listing description or
first exhibits a Part 261 characteristic of a hazardous waste),
the wastewaters are greater than 1,000 mg/kg HOCs, solidifi-
cation cannot be used to make the waste a non-liquid subject to
the two year extension of the effective date. In such a case,
the July 8, 1987 effective date attaches at the point of initial
generation, and solidification can only be used if it is
"treatment" and such treatment succeeds in lowering the
concentration below the 1,000 mg/kg statutory prohibition level
(which is applicable in the case of HOCs to both liquid and
non-liquid hazardous wastes.

     Section 268.41 does not require the use of the TCLP and
GC/MS.  In some cases, a total waste analysis could be used for
the F001-F005 solvent to show compliance with the requirements
of section 268.41.   If the results of the total waste analysis
are  less than 20 times the applicable Table CCWE concentration,
then the concentration in the waste extract cannot be greater
than the Table CCWE concentration.  We agree that the require-
ment in the TCLP that the waste be ground or crushed does limit
the usefulness of  stabilization for organics since no physical

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or chemical reaction is likely to be occurring.  This is not, in
our view, an unfortunate result.

    If the treatment standards or statutory levels are set as
total waste concentrations, then the total waste must be
analyzed, and not just an extract developed using the TCLP.

    Finally, we are not aware of any easy surrogate tests that
provide any realistic information about Table CCWE or California
List HOC constituents.   TOC and TOX tests do provide an upper
limit in that if the TOC or TOX concentrations are below the
relevant standard, then the waste must pass that standard, since
the standards are based on a subset of the constituents measured
by the TOC or TOX test.  However, we realize that if the results
of the tests are greater than the regulatory levels (e.g. 1,000
mg/kg HOCs), we still know nothing about the actual levels of
the constituents of concern, which may in fact be below the
concentration of concern.

    If you have further questions, please contact-Stephen Weil,
Chief of the Land Disposal Restrictions Branch, on FTS 382-4770.

cc. Regional Waste Management Division Directors
    Steven Silverman, OGC
    Bruce Potoka, OWPE
    Gary Jonesi, OECM

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                                                                9551.1988(02)
               RCRA/SUPERFUND  HOTLINE MONTHLY SUMMARY

                                 APRIL 88
6. Dilution of Land Disposal Restricted Waste

   A generator of a spent solvent, which contained one hundred percent (100%) acetone
   before  use, identified the waste as F003.  She/he regenerates the spent solvent by
   distillation, and then treats the stillbottoms in an accumulation tank by mixing them with
   nonhazardous solid waste. The resulting mixture no longer exhibits the characteristic of
   ignitability. According to 40 CFR Section 261.3(a)(2)(iii), the material is no longer a
   hazardous waste. However, the enforcement agency considers the mixing with nonhaz-
   ardous waste  to be dilution, which is  prohibited by Section 268.3.  Would the dilution
   prohibition prevent the generator from being able to mix the F003 waste with nonhaz-
   ardous solid waste?

    The preamble to the November 7,1986 Federal Register (51 FR40592) specifies that the
    prohibition on dilution of wastes restricted from land disposal, found at Section 268.3,
    "does not affect provisions in other EPA regulations which may allow dilution for other
    purposes." Thus, if the generator's purpose in mixing the stillbottoms with nonhaz-
    ardous waste is to render the  mixture nonhazardous she/he is not precluded from
    doing so by Section 2683. However, if the generator's purpose in mixing the waste is
    to dilute the F003 waste as a substitute for adequate treatment to achieve compliance
    with Part 268, Subpart D, the action is prohibited.

  Source:       Mike Petniska           (202) 475-9888
                Mitch Kidwell           (202) 382-4805
  Research:     Becky Cuthbertson
                Deborah McKie

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<.
 \ f
                                           9551.1988(03:
               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                          WASHINGTON. D.C. 20460
  •l rn^'t-
                              MAY  1 3 1988
                                                            T-f r.'  ".'
                                                   501. !C '.'. iS'E A MO ?r.i: »';.:-. C '
  Dr. Paul Palmer, Ph.D.
  Onscreen Directories  Inc.
  7345 Healdsburg Avenue
  Suite 524
  Sebastopol, California  95472.

  Dear Dr. Palmer:

       This letter is in response to your March  1,  1988  and
  April 19, 1988, letters requesting an  interpretation- of
  40 CFR 268.7 requirements.  Your  letter of April  19, 1988
  expresses a general frustration with EPA's seemingly meaningless
  recordkeeping and certification requirements.   EPA  believes  that
  these requirements are necessary, and  I will try  to -explain  the
  rationale behind the  rules.

       EPA is responsible for enforcing  the prohibitions on  land
  disposal of untreated hazardous wastes  imposed by Congress.   A
  determination that a  waste is a listed  hazardous  waste
  (40 CFR 261.31, and 261.32) is, in general, based on how  the
  material is used or the process by which  it was generated, not
  on the .constituents in the wastes.  Thus, only the  original
  generator can determine what the  applicable waste codes are.
  This information is frequently, but not always, on  the
  manifest.  Waste codes have also  been  subdivided  for the  purpose
  of setting treatment  standards.   The treatment, storage,  or
  disposal facility must be informed of  the applicable standard.
  In cases'where no land disposal is anticipated, the notice  is
  still required to insure that the waste is not disposed of by a
  facility not realizing that such  disposal for  that  particular
  waste is prohibited.

       All restricted wastes, whether treated and disposed  on
  site, or sent off-site to a RCRA  treatment or  disposal facility
  or to a non RCRA recycling facility, are  subject  to testing  and
  recordkeeping requirements.  Please note  that  although recycling
  facilities may be exempt from RCRA regulation, the  wastes  they
  receive and the resulting residues are  regulated  by RCRA  and are

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subject to the land disposal restrictions.   We believe that  the
notifications are necessary to assure that  the information for
insuring compliance with the statute is available to both the
handlers of the hazardous waste and to EPA.

     Certification is a necessary tool for  tracking restricted
wastes from generation to final disposal.   This law clearly  puts
the burden on the generator to see that the waste is properly
managed and disposed of.  Thus, the certification operates to
protect the generator in addition to providing EPA information
needed to efficiently enforce these regulations.

     In response to the specific questions  in your March l
letter, I hope the following discussion will be helpful.
After a generator makes a determination that he is managing
a restricted waste which does not meet the  appropriate
treatment standards, or where the waste does not comply with
the applicable prohibitions in section 268.32 or RCRA Section
3Q04(d), the generator must notify the treatment or storage
facility in writing of the appropriate treatment standards and
applicable prohibitions in section 268.32 or RCRA section
3004(d).  This notification must accompany  each shipment of  the
waste.

     As a treatment and storage facility that ships restricted
wastes off-site for further management, you must comply with the
notice requirements applicable to generators in section
268.7(a)(l).   You must also comply with the manifest
requirements of section 264.71(c) or section 265.71(c).

     In the case of the operator of a cement kiln receiving
restricted wastes for further management (for use as a fuel
supplement),  the treatment residues from these restricted wastes
are subject to all requirements under section 268.7(b)(2), (i)
and (ii) prior to land disposal.

     Your interpretation of 40 CFR 268.7 certification
requirement is correct.  A certification,is required that the
waste meets the applicable treatment standards before the
restricted waste may be land disposed.  When the restricted
waste is not destined for land disposal a certification is not
required.  However, a written notification must accompany each
shipment of restricted waste where further  management is
appropriate before land disposal.

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     I hope this information adequately addresses your concur :;s.
If you have further questions, please feel free to contact .Jir.i
Thompson, at  (202) 382-7438.

                                   Sincerely ,


                                      -   V   -'   'U-
                                       " ^ V.-   x •  J^s

                                   Sylvia K. Lowrance, Director
                                   Office of Solid waste

cc:   Region IX

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              RCRA/SUPERFUND  HOTLINE MONTHLY SUMMARY        9551.1988( Q4;

                                 MAY  88


3.  Land Disposal Restrictions - Manifest Requirements

 The  EPA  regulations  that prohibit land disposal of spent solvent hazardous
 waste, specified in 40 CFR Section 261.31  (F001-F005), became effective on
 November 8, 1986. These restricted wastes must meet applicable  treatment
 standards  in 40 CFR Section 268.41 prior to land disposal.  A two-year nationwide
 variance from the effective date  of the prohibition  was  provided to small
 quantity generators of 100-1,000 kilograms of hazardous waste per month,  as per
 40 CFR Section 268.30(a)(l).

 These small quantity generators are still required, however, to determine if their
 spent solvent hazardous wastes are restricted using waste analysis test methods
 described in 40 CFR Section 268.7(a). If the wastes are restricted, & notice stating

 that the waste is exempt from the land disposal restrictions must be sent with the
 shipment of waste to the receiving land disposal  facility  as per 40 CFR Section
 268.7(a)(3).

 At the end of the two-year nationwide variance period, (November 8, 1988) the
 small quantity generator's  restricted spent solvent wastes will be  required to
 meet  the appropriate treatment standards prior to land disposal.  As well, when
 the restricted waste is now sent to a treatment facility prior to land disposal, the
 applicable  notification  requirements are detailed  in 40 CFR Section 268.7(a)(l)
 (i-iv).

 As required by 40 CFR Section  268.7(a)(l)(iii)  the notice must include the
 manifest number associated  with the shipment of the waste.   Under certain
 conditions; (in example, 40 CFR Section 262.20(e)) small  quantity generators of
 100-1,000 kilograms of hazardous waste  are not subject to  the  manifest
 requirements in 40 CFR Part  262, Subpart B.  Specifically when the generator's
 wastes are  being reclaimed  under a contractual  agreement with  K  recycling
 facility. When these conditions apply and the waste shipment  is  a restricted
 waste being sent to a treatment facility, will a manifest be required to comply
 with 40 CFR Section 268.7?

    When a  manifest is not required to be sent with a shipment  of hazardous
    waste (e.g., 100-1,000 small quantity generators having  their wastes reclaimed
    under contractual agreement with a recycling facility as per Section 262.20(e)),
    a manifest number will not be  associated with those shipments of hazardous
    waste.  Therefore, the manifest number information that is required in the
    notification requirements in 40 CFR Section 268.7(a)(l)(iii), is not applicable to
    shipments of restricted hazardous waste that do not require a manifest.
    Shipments of hazardous waste previously not required to have a manifest
    will not become subject to manifesting solely due to  information required by
    the land disposal restriction regulations.

 Source:        Mitch Kidwell    (202) 382-4805
 Research:       George Kleevic
                                                                               ', .0

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                                                                   9551.1988(05)
              RCRA/SUPERFUND  HOTLINE MONTHLY SUMMARY

                                 MAY  88
4.  Land Disposal Restrictions - Disposal of Wastes Granted a Variance

 On November 8, 1986, all spent solvent wastes (F001-F005) were prohibited from
 land disposal  unless those wastes met treatment standards set forth in Section
 268.41. However, based on a shortage of incineration capacity, EPA granted a
 two-year variance for spent solvent wastes that meet the  criteria  set forth  in
 Section 268.30(a)(l-3).

 According to  Section 268.30(b), these wastes granted a variance may be land
 disposed  in a landfill or surface impoundment only if the facility  is  in
 compliance with Section 268.5(h)(2)  (minimum  technological requirements).
 Does this  preclude land disposal of these wastes in other types of land disposal
 units, such as a land treatment facility?

    No, land disposal of these wastes in other types of land disposal units is not
    precluded.

    RCRA  Section 3004(h) is the statutory  authority that EPA uses to implement
    Section  268.30(b).   It  applies  only  to land disposal  in  landfills  and
    impoundments, not  to any other type of land disposal.  The language  in
    RCRA  Section  3004(h)  is similar  to  that in Section  268.30(b)  and states,
    "Whenever another effective date (herein after referred to as a "variance") is
    established..., with  respect to any hazardous  waste during the period for
    which such variance or extension is in effect such hazardous waste may be
    disposed in a landfill or surface impoundment only if such a facility is  in
    compliance with the requirements of subsection (o)."

    Section  3004(k) defines the term "land disposal"  to include land treatment
    facilities.   Neither  the RCRA  statute nor the land  disposal  prohibition
    regulations specifically prohibit the placement  of these wastes in other types
    of land  disposal units such as land treatment facilities  with the exception  of
    RCRA   Section  3004(b).    This  section prohibits  the  placement  of
    noncontainerized or bulk  liquids in any  salt dome formation, salt bed
    formation, underground mine or cave. Furthermore, RCRA Section 3004(h)
    which requires all new, replacement or lateral  expansion landfill or surface
    impoundment units  to have minimum  technological  standards  in place,
    does not require the  minimum technology standards for otHer types of land
    disposal units. Thus, wastes granted a variance under Section 268.30(a) may
    be disposed in a land treatment facility that is not in compliance with the
    minimum technology standards.

 Source:        Mitch Kidwell    (202) 382-4805
 Research:       Susan Brugler

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                                                9551.1988(07)
Mr. Kerry Bennert
Coordinator Special Projects
E.I. du Pont de Nemours & Co.  (Inc.)
Medical Products Department
331 Treble Cove Road
No. Billerica, MA.  01862

Dear Mr. Bennert:

    I received your letter of April 18, 1988 in which you commented
that regulatory events limiting mixed waste disposal have impacted
your radioactive materials manufacturing operations.  Specifically,
you cited as examples, the absence of disposal capacity for
"small-volume mixed waste laboratory generated (organic solvents)
materials" and lead.

    As you know, EPA promulgated regulations which appeared in the
Federal Register of November 7, 1986 prohibiting land disposal of
certain spent solvent wastes unless they meet specific concentration
based treatment standards.  Some solvent containing mixed wastes may
not lend themselves to incineration, the best demonstrated available
technology (BOAT) for solvent wastes.  Such wastes could conceivably
be delisted and disposed in a low-level waste disposal facility
following treatment.

    Enclosed is a copy of a letter to Mr. Terry Husseman, Chair,
Northwest Interstate Compact Committee which details the Agency's
position on disposal of lead.  As the Husseman letter points out,
EPA has not evaluated specific containerization or encapsulation
methodologies using the EP toxicity test.  Such approaches to
managing lead mixed waste may be viable in certain circumstances.
Of course, States may adopt a more stringent position with regard
to regulation of lead or any other hazardous waste.  We recommend
disposal of lead in a mixed waste unit.

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                                 - 2 -
    Also, I share your concern that neither of the three existing
commercial low-level radioactive waste disposal facilities have
applied for a RCRA permit although U.S. Ecology has expressed a
strong interest in filing such an application.  EPA and NRC developed
a series of guidance documents last year aimed at facilitating the
State and compact effort in siting and designing a low-level waste
disposal unit that could also accept mixed waste.  As a regulatory
agency, EPA believes this level of involvement is consistent with its
mandate.  The Agency is available to review alternate waste
management proposals developed by industry.  However, until such time
as disposal capacity becomes available or treatment technologies are
identified, storage, an activity which also requires a RCRA permit,
may be the only waste management option available to generators of
mixed waste.

    Although mixed wastes are not subject to Federal hazardous waste
regulations until the State applies for and obtains authorization to
regulate the hazardous component of the mixed waste, State law is
applicable in the interim.  The deadline for filing mixed waste
authorization applications is July of this year.  You may want to
contact Paul Bedrosian, the mixed waste coordinator for EPA Region I
(617-833-1792) to discuss your concerns.  Further, I will apprise you
of any future developments on management of solvent containing mixed
wastes.

                            Sincerely,
                            Bruce R. Weddle, Director
                            Permits and State Programs Division
cc:  Paul Bedrosian, Region I

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                                                          'J( C
                                                                    9551.1988(08)
            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                          WASHINGTON. D.C. 20460
     JUN I  6 1988
Subject:    Land Ban Issues
                                                               OFFICE OF
                                                     SOLID WASTE AND EMERGENCY RESPONSE
                                              ,
From:      Sylvia K. Lowrance, Director     ^
           Office of Solid Waste

To:        Hazardous Waste Division Directors, Regions I-X

     The purpose of this memo is to alert you to a number of issues that
may arise on the Land Ban. As you know, during the period from early August
to mid-November of this year, the number of waste disposal activities
affected by the land ban will increase substantially. In August, we will issue
treatment standards for approximately 40 "P and "K" waste codes. We expect
the standards to be immediately applicable for at least 33 of these wastes;
the remaining wastes will likely be subject to a two-year capacity variance.
In November, the previously-granted capacity variances for under-1% solvent
wastewaters, soil and debris, and small quantity generator wastes will expire.
Because of a substantial increase in liquid  incineration capacity, we also plan
to rescind certain of the California list capacity variances in November,
making those wastes subject to the ban earlier than expected.

      Final policy decisions have not yet been made on many of these issues,
but given the short deadlines on land ban rules, we wanted to apprise the
Regions of potential issues that some facilities may face.  There appear to be
several areas in which the relationship between RCRA permit activities and
aspects of the land ban program may not be well understood.  In this memo, we
are highlighting seven land ban issues which could affect permitting activities
or considerations. Our intention is to alert  regional permit staff to these
issues and Invite you to consult with the staff of the Land Disposal
Restrictions Branch on these or any other issues.

     Staff of the Land Disposal Restrictions Branch will be travelling to the
Regions near the time of promulgation of the final First Third rule to discuss
the content of the rule and any specific regional issues.  In the meantime, if
you have any questions about the application of the land ban to facilities you
are dealing with, please call Barbara McGuinness or Steve Weil at FTS -
382-4770.

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     1. Surface Impoundment Retrofit Waivers

     After November 8,1986, a non-minimum technology surface impoundment
could not be used to treat a banned waste for which the effective date had
passed unless the impoundment had a 3005 (j)(2) or (j)(4) waiver. After
August 8,1988, "soft hammers" will apply to a number of First Third waste
codes for which we will not set treatment standards; most notably, "soft
hammers" will apply to 107 "P" and "U" waste codes and to all or part of 12 "F"
and "K" waste codes. (See Attachment 1.) Surface impoundments cannot
receive banned wastes or "soft hammer" wastes on the basis of
0(3) or 0)0 3) waivers alone.  If an impoundment has  received a (j)(3) or
(j)(13) waiver and wishes to receive a banned waste or a "soft hammer" waste,
a further equivalency demonstration  under 3004(o)(2) is required. In the case
of a G)(13) impoundment which already has releases, this is likely to be a very
difficult showing.*

     2. Minimum Technology Requirements During Extensions

     In the April 8,1988 Notice (the "First Sixth"), we proposed to change our
interpretation of the term "facility" in 3004(h)(4). This is the section which
specifies that "facilities" receiving banned wastes during an extension of the
effective date (i.e., a national capacity variance or a case-by-case extension)
must meet minimum technology requirements. Previously, we had defined
"facility" in the broad sense of property boundaries. Thus, as long as new,
replacement or expansion units met  minimum technology requirements
(MTR), banned wastes with extensions of the effective date could go to
existing, non-MTR units.

     In the April proposal, we changed that interpretation to equate "facility"
with "unit" for purposes of 3004(h)(4). As a result, after the effective date of
the change (most likely November 8, (988 to avoid short- term disruptions for
surface impoundments), when banned wastes with capacity extensions are
placed in landfills or surface impoundments, those units must meet MTR.

     Note that here, as in Issue 1, 3005 Q')(3) or (j)(13) waivers will not
suffice unless the stricter 3004(o)(2) equivalency demonstration can also be
made.
* Note that the equivalency demonstration required as part of the (j)(13)
waiver and that required for 3004(o)(2) are quite different.

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     3. Closures of Surface Impoundments

     The expected closures of numerous surface impoundments over the next
several years could result in significant additional volumes of land-banned
wastes requiring treatment and disposal.  At this time, EPA HQ does not have a
clear picture of how many impoundments will clean close (or require removal
of at least some accumulated material), or the time frame in which closures
will occur. As a result, it is difficult to assess whether adequate BOAT
treatment and disposal capacity will be available for these wastes.

     We know of several  industries likely to produce significant volumes of
banned wastes when impoundments are closed. These include wood preservers
(K001  sludges), metal platers (F006 sludges), chemical manufacturers (F001-
005 solvent sludges).  Some of these industries have expressed concern that
there will not be adequate capacity to treat wastes generated from closing
units.  If this proves to be true, it may be necessary to delay closure, or to
close in place.

     If you believe that a facility or industry will have a problem finding
treatment and disposal capacity for wastes from closures (particularly if
there is an indication of environmental damage that may be exacerbated by a
lengthy delay in closure or closure in place), please alert us to this situation.

     4. Case-By-Case Extensions

     In instances where capacity to treat banned wastes is determined to be
available (i.e., there is sufficient capacity on a national basis), but where BOAT
treatment capacity is not actually available to a specific facility, a generator
or owner/operator may apply for a case-by-case extension of the effective
date. A total of two one-year extensions may be granted.

     For a successful case-by-case extension petition, the generator or owner/
operator must show that BOAT treatment is not available in fact and must
have a binding contractual commitment to build or acquire access to the
necessary capacity within the period of the extension. The first showing
cannot be based on cost or inconvenience, but rather must be based on actual
infeasibility of obtaining treatment.  It must be supported by evidence that the
generator or owner/operator has attempted to obtain treatment capacity but
has been unable to do so. An example could be a facility with a very large
volume of material requiring incineration to meet BOAT. Commercial incin-
erators have rejected the material because of its volume and because the form
of the waste requires special loading and feed equipment which is not now in

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place. A case-by-case extension can be granted while the company (or a waste
treatment facility) completes construction of the needed facilities.

      The Land Disposal Restrictions Branch is now preparing guidance on
case-by-case extensions; the draft guidance will be distributed to the Regions
for review and comment  Please note that the review and notice processes for
case-by-case extensions will require at least four to six months. After the
deadlines, facilities must comply with BOAT treatment standards until
case-by-case extension applications are approved.

      The deadline for First Third wastes is August 8,1988.  Capacity variances
for three solvent waste groups (under 1-% solvent wastewaters, small quantity
generator wastes and non-soil and debris solvent wastes from RCRA and
CERCLA actions) will be subject to land disposal restrictions. Also, after
November 8, restrictions may apply to RCRA and CERCLA soil and debris, and to
many California list wastes.  At this point, it is  not possible to process a
case-by-case extension of the August deadline by August 8.  If any facilities
plan to seek a case-by-case extension of the August deadline, they should
recognize that they will be required to comply with the standards for at least
some period while the petition is reviewed and processed. Facilities seeking
case-by-case extensions of the November 8,1988 deadlines should submit
petitions as soon as possible.

      5. New Treatment Capacity Information

      The May 17,1988 proposal (the "Second Sixth") contains new capacity data
from the comprehensive survey of treatment, disposal and recycling facilities.
In general, there is significantly more treatment capacity available than had
previously been assumed. This means that BOAT for most waste codes is likely
to go into effect August 8,1988, and few national capacity extensions will be
granted. In particular, there is a large amount of liquid injection incineration
capacity available at both incinerators and cement kilns and other industrial
furnaces. Also, stabilization capacity is commercially available in virtually
every area of the country; stabilization is also  relatively easy to bring on line,
given the availability of materials and technology (lime or cement dust and
mixing apparatus).

     There has also  been a significant increase in the amount of rotary kiln and
fluidized bed combustion capacity, although incineration capacity for solids
and sludges is still considerably more limited than for liquids. We expect that
only a few of the First Third waste codes (principally the petroleum refinery
wastes) will receive a two-year capacity extension.

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     6. Contaminated Soil and Debris

     The May 17, 1988 Notice proposed a two-year national capacity variance
for RCRA and CERCLA contaminated soil (and possibly debris) which required
solids incineration.  It now appears possible that there will be adequate solids
incineration capacity and that the variance will not be finalized.  If this proves
true, soil and debris contaminated by Rrst Third wastes will be required to
meet BOAT treatment standards as of August 8,1988.  Soil and debris from
Superfund and RCRA corrective actions contaminated with solvents and dioxins
or California list wastes would be required to meet BOAT treatment standards
as of November 8,1988.

     Guidance on treatment of contaminated soil and debris at RCRA and
CERCLA sites will be available soon. This will include guidance on obtaining a
site-specific, administrative treatability variance in cases where the basis
for BOAT is inappropriate for soil and debris.

     OSW and OERR have been working for the past few months to develop
interim treatment levels for soil and debris; the interim treatment levels are
for use during the next several years while BOAT treatment testing for soil and
debris is conducted. When a treatability variance for contaminated soil and
debris is necessary, the interim treatment levels provide guidance on the range
of constituent concentration levels that can be achieved by well-designed and
well-operated technologies. The treatment levels were derived from Superfund
site data on constituent concentrations after treatment.  Generally, several
alternative types of treatment can achieve the concentration levels within the
range.

     The attached memo to Regional Superfund staff explains the purpose of
the interim levels and requests comments on the levels. We will be interested
in receiving comments from RCRA staff as well.

     7. Soft Hammer Provisions

     If the Agency does not set treatment standards for a First or Second
Third waste by the statutory effective date, the waste may continue to be land
disposed in a landfill or surface impoundment only if the generator has
investigated the availability of treatment capacity and certified to the
Regional Administrator that the use of the surface impoundment or landfill is
the only practical alternative to treatment currently available. Other forms of
land disposal are not affected.

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     The proposed rule also allowed certification for disposal of wastes
that have been treated but for which no further "meaningful" treatment is
practically-available. This was done to allow the generators of wastes for
which treatment standards have not been set to continue to operate, as we
believe that Congress intended them to use the available treatment rather
than shut down.

     Several commentors have raised concerns as to how the Agency will
define treatment.  In the proposed rule, the Agency asked for comment on
how to define treatment for the purposes of the soft hammer, discussing
concepts such as requiring "meaningful" treatment, or specific percent
reductions. Owners and operators of disposal facilities tell us they will
not accept wastes if there is a chance that the RA will disallow the
certification and subject them to enforcement action. They feel that we
need a firmer definition.  In the final rule, we are  planning to discuss a
hierarchy of treatment technologies that should be investigated before
certification.  For example, removal/reclamation is preferrable to
destruction which is preferrable to stabilization. Is this a workable
approach from your perspective? Is there a way to make this approach
even more concrete?

     We are looking for ideas on how to make the certification meaningful,
and yet not bring the land disposal of all soft hammer wastes to a grinding
halt due to uncertainty regarding the criteria.

     At this time, we expect to publish the First Third Rnal Rule around
August 8. Attachment 1 gives the expected status of all restricted wastes
(except those covered by UIC rules), assuming promulgation of the final
First Third rule by the August 8 deadline.  The "Second Sixth" comment
period closes June 16,1988. It is  possible that, given the short
timeframe, it may be several weeks after August 8 before the final rule is
signed and published. If this happens, the "soft hammer" goes into effect
for all non-UIC First Third wastes.

     As noted earlier, all of the policy calls on these issues have not been
made.  Some of those we have indicated  may change. However, we wanted
to give you an early alert on these potential issues. We will keep you
posted on developments.

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Attachments

cc:   RCRA Branch Chiefs, Regions I-X
     RCRA Section Chiefs, Regions I-X
     Bruce Weddle, PSPD
     Joe Carra, WMD
     Dev Barnes, CAD
     Elaine Stanley, OWPE, RCRA
     Jon Cannon, OWPE

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                      Attachment 1

     Expected Status of Restricted Wastes* as of August 8,1988

1. Wastes with BOAT in Effect

     Solvents and Dioxins
     o Over 1-% Solvents - F001-005 (11/8/86)
     o Listed Dioxin Wastes -- F020-023 and F026-028  (11/8/86)
     California List
     o Liquids or Free Liquids Containing Free Cyanides (7/8/87)
     o Liquids or Free Liquids Containing Arsenic, Cadmium, Chromium,
       Lead, Mercury, Nickel, Selenium, Thallium  (7/8/87)
     o Liquids or Free Liquids Containing Corrosives with pH £ 2 (7/8/87)
     o Liquids or Free Liquids Containing PCBs £_ 50 ppm  (7/8/87)
     o Halogenated Organic Compounds: Dilute Wastewaters
       il.OOOmg/l (7/8/87)
     First Third
     o F006  (8/8/88)
     o K001, 004, 008, 015, 016, 018, 019, 020, 021,  022, 024, 025, 030,
       036, 037, 044, 045, 046, 047, 060, 062, 069, 073, 083, 086
       (solvent washes only), 087, 099,100,101,102,103,104,106
       (8/8/88)

2. Wastes with BDAT. with Capacity Extension in Effect

     Solvents and Dioxins
     o Small Quantity Generator Solvents (11/8/88)
     o RCRA and CERCLA Corrective Action Wastes (11/8/88)
     o RCRA and CERCLA Soil and Debris  (11/8/88)
     o Under 1-% Solvent Wastes (11/8/88)
     California List
     o Other Halogenated Organic Compounds (11/8/88)
     o RCRA and CERCLA Soil and Debris (11/8/88)
     First Third
     0 K048, 049, 050, 051, 052, 061, 071  (8/8/90)

3. No BDAT Established. "Soft Hammer" In Effect

     First Third
     o F007, 008, 009,019
     o K011, 013,014, 017, 031, 035, 084, 085, 086 (solvent sludges and
       wastewaters)
     o First Third "P" and "U" Wastes
  • Other than UIC.

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY       9551.1983(09
                           AUG  I I  1988
Mr. James W. Walpole
Plant Manager
BP Chemicals International
Sohio Division
Ft. Amanda Road
Post Office Box 628
Lima, Ohio  45802-0628

Dear Mr. Walpole:

     This letter responds to your July 19, 1988, correspondence.
requesting the Environmental Protection Agency (EPA) to act on;
your case-by-case extension petition for an extension of the
applicable effective date of the land disposal restrictions.
This petition addresses K011, K013, and K014 wastes, generated
at BP Chemicals International, which you want to continue
treating in a surface impoundment until November 8, 1988.  We
have completed a preliminary review of your petition.  However,
more information is needed before a determination can be made to
grant or deny your request.  This information is necessary to
satisfy the demonstrations for a case-by-case extension of an
effective date specified in 40 CFR 268.5.

     Under 40 CFR 268.5 (a) (1) the petitioner is required to maJce
a good-faith effort to locate and contract with treatment,
recovery, or disposal facilities nationwide to manage his waste
in accordance with the land disposal restrictions.  Your
application addresses off-site capacity by claiming that
off-site disposal capacity is available, but the logistics of
loading, transporting, and unloading the large volume of
wastewater prevents the use of such capacity.  To satisfy this
demonstration you must also address the availability of on-site
capacity and, if the capacity is available, the feasibility of
using such capacity.
          • *
     As required by 40 CFR 268.5(a)(2) the applicant must
demonstrate that there is a binding contractual commitment to
construct or otherwise provide alternative treatment, recovery,

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or disposal capacity.  In your petition you give only the
signature dates for individual contracts which will provide
alternative treatment capacity.  To make this showing you win
have to provide a copy of the signed contracts, which includes
the signature page.  This material will be used by EPA to
determine the scope of the contracts and to verify that the
contracts have been signed.

     As specified in 40 CFR 268.5(a)(4) a successful petition
must show that the capacity being constructed or otherwise
provided will be sufficient to manage the entire quantity of
waste that is the subject of the application.  Although your
petition states that the alternative capacity will have the
volume of the surface impoundment it is replacing you need to
provide numerical values for the volumes of the individual
treatment system units and the maximum flow rates that can be
accomodated by these units.  This information will support your
general statement.

     Under 40 CFR 268.5(a)(6) the petitioner must arrange for
adequate capacity to manage his waste during an extension period
and document in the application the location of all sites at
which the waste will be managed.  You state that the waste will
undergo physical treatment in the surface impoundment to reduce
its solids content.  This treatment should be described in more
detail, and you must include the location of the surface
impoundment.  Furthermore, you fail to show how and where the
solids from physical treatment are to be managed.  Locations can
best be shown on a map of your facility.

     To properly evaluate your petition EPA is requesting
additional information pertaining to your facility.  The Agency
wants to know whether the ground water in the vicinity of the
surface impoundment is contaminated.  In addition, we are
requesting a brief description of the impact of curtailing
production.

     EPA is making every effort to process your case-by-case
extension petition as quickly as possible.  However, this  is a
rulemaking procedure which for your application has the
following minimum schedule:
middle of August
end of August to
end of September
beginning of October
receive additional infor-
mation on petition

write Federal Register
notice proposing to grant
petition

publish Federal Register
notice proposing to grant
petition

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beginning to end                    public comment period
of October

beginning of November               write Federal Register
                                    notice granting petition

middle of November                  publish Federal Register
                                    notice granting petition

To expedite the processing of your petition, please submit the
requested information to the following address:

           Ms. Barbara McGuinness
           Acting Section Chief
           Regulation Development Section (OS-333)
           U.S. Environmental Protection Agency
           401 M Street, SW
           Washington, DC  20460

Should you have any questions, please call Barbara McGuinness at
(202) 382-4800.

                               Sincerely,
                               Stephen R. Weil, Chief
                               Land Disposal Restrictions Branch

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                                                                     9551.1983(10)
                RCRA/SUPERFUND HOTLINE  MONTHLY SUMMARY

                               SEPTEMBER  88
3.  Land Disposal Restrictions - First Third

On August 17, 1988, EPA promulgated a final rule on the "first third" of listed wastes
which were banned from land disposal on August 8, 1988 (53 FR 31138).  In this final
rule, the Agency did not establish treatment standards for many of the wastes that

were on  the  first third list, but did promulgate regulations  to allow  for  the
continued land  disposal of these wastes (Section 268.8).  These  so-called "soft
hammer" wastes may be  land disposed until May 8, 1990, or until  treatment
standards or extensions to the effective date are promulgated, whichever is later and
provided  the generator of the waste complies with Section 268.8.

What must a generator of "soft hammer" waste do in order to land dispose of his
waste?

     Basically, the generator must demonstrate and certify that there is no practically
     available treatment  that reduces toxicity or  mobility  of the waste and that
     disposal of these wastes in a landfill or impoundment  is the only practical
     alternative.  (Any landfill or impoundment that receives "soft hammer" waste
     must meet the minimum technological requirements of RCRA Section 3004(o),
     which consists of a double liner, leachate collection system  and  groundwater
     monitoring.)  If treatment is practically available, the generator must certify
     that  his waste  is being treated by  the treatment  that provides  the  most
     environmental benefit that  is  practically  available.  The residuals  from
     treatment of "soft hammer" waste remain "soft hammer" waste.  Thus, if these
     residues  (e.g.,  incinerator  ash) are  disposed  in  a  landfill  or surface
     impoundment unit, that  unit must  be in compliance  with  the minimum
     technological requirements of Section 3004(o).

     Where the generator determines  that there ij no pract :ally available  treatment
     prior to disposal, with the initial  shipment of waste, the generator must submit
     a copy of his demonstration/certification to the Regional Administrator and to
     the receiving facility. With each  subsequent shipment, only the certification is
     required to  be submitted, provided that the conditions being certified remain
     unchanged.  This paperwork trail is  the same for situations where treatment
     prior to disposal is practically available.

Source:      Bill  Fortune      (202)475-6715
Research:    Chris Bryant •

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                                                                  9551.1988(13


               RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY

                              NOVEMBER 88


4.  "Soft Hammer" Certifications/Demonstrations

   On August 17, 1988, EPA promulgated a final rule on the "first third" of listed
   wastes which were banned from land disposal on August 8, 1988  (53 FR  31138). In
   this final rule, the Agency did not establish treatment standards for many of the
   wastes that were on the first third,  but did promulgate regulations to  allow for
   the continued land disposal  of these so-called "soft hammer" wastes. Generators
   of soft hammer wastes who dispose of the  waste in surface impoundments or
   landfills must comply with  the regulations found in Section 268.8. This  section
   requires the generator to demonstrate and certify that there is no  practically
   available  treatment  for the  waste  and that disposal in a landfill or surface
   impoundment is the only option. If treatment is available, the  generator must
   certify and demonstrate that the treatment method is the  most environmentally
   sound method  available. These requirements  also  apply to the treatment
   residuals  of soft-hammer wastes  (53  FR  31138).  Also, landfill or surface
   impoundments must meet minimum technology standards for double liners
   and leachate collection systems.

   A generator of  "soft hammer" waste  ships the waste to an  incinerator'. The
   operator of the incinerator bums the waste and ;ubsequently ships the ash to.a
   hazardous waste landfill.

   With respect to the  ash  that is  shipped off-site from the incinerator, who is
   responsible for meeting the demonstration/certification requirements of Section
   268.8, the original generator of the waste or the incinerator operator?

     In this situation, both are responsible.  The original generator of the waste
     that was sent to the incinerator would be  responsible for complying with the
     demonstration/ certification requirements of Section 268.8. Thus, a generator
     is responsible for knowing the  final disposition of the treatment  residues
     from his wastes. If the  treatment  residues are disposed  of  in a surface
     impoundment or landfill,  the original  generator must comply  with the
     Section  268.8 requirements with  respect to the shipment of  that waste. The
     generator is solely responsible for determining which treatment is the best
     practicable and available alternative (or  for certifying that no treatment is
     practical or available).  The operator of the incinerator would be required  to
     certify  that  the treatment of  the waste  had been properly accomplished.
     Finally, the owner or operator of the disposal facility would be responsible for
     ensuring  that the treatment residuals  were  placed in  a unit  meeting
     minimum technology  requirements.

  Source:         Rhonda Craig     (202) 382^1800
  Research:       Chris Bryant

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                                            9551.1988(14;
            RCRA/SUPERFUND HOTLINE  MONTHLY SUMMARY

                            DECEMBER 88
2. Land Disposal Restrictions:  Soils and Debris from RCRA Corrective Action

Under the land disposal restrictions, some soil and debris have national capacity
variances.  Must the response  action under CERCLA be pursuant to Section 104
or Section  106 of CERCLA and must the corrective action  under RCRA be
pursuant to a corrective action order?

   Soil and debris contaminated with  wastes from the "first third" list and for
   which the promulgated treatment technology is incineration have a national
   capacity variance until August 8, 1990. This  variance, however,  applies to all
   soil and debris contaminated  with  these wastes not just to soil and debris
   generated  by CERCLA or RCRA clean-up actions (53 FR 311%). In contrast,
   soil and debris contaminated with solvent, dioxin, or California list wastes are
   subject to  a  variance only if they result from an action taken under Section
   104 or Section 106 of  CERCLA, or a corrective action under  Subtitle  C of
   RCRA.  This variance extends to November 8, 1990.  EPA, however, can use
   either orders or  permits to  require  corrective action under   RCRA.  The
   variance is not limited  to soil and debris from corrective action orders.

Source:         Steve Weil        (202)382-4770
               Steve Silverman   (202)382-7706
Research:       Renee Pannebaker

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          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY


                                               9551.1988(15)




                         JAN £ I  1988
MEMORANDUM
SUBJECT:  Headquarter's Clarification of the Regulatory
          Status of Drainage Water Beneath Land Treatment
          Units and Integration of the Region's Permitting
          Activities with the "No Migration" Petition Program

FROM:     Marcia E. Williams, Director
          Office of Solid Waste

TO:       Charles E. Findley, Director
          Hazardous Waste Division-Region 10

    This memorandum responds to your December 4, 1987,
memorandum in which you raised several issues on permitting of
land treatment units at oil refineries in Region 10.

    Your first question was whether ground water which is
seasonally drained from beneath land treatment units
constitutes a hazardous waste.  You concluded that the
situation is roughly analogous to situations described in the
1985 policy memorandum clarifying application of the derived
from and mixture rules to petroleum refinery wastewater
treatment systems.  Based on that 1985 policy, you concluded
that the drainage water is not a hazardous waste by
definition.

    While we agree that ground water pumped from beneath a land
treatment unit is not necessarily hazardous, we do not agree
that ground water contaminated with hazardous waste leachate
from a land treatment unit can be categorically deemed
non-hazardous.  The 1985 policy on.wastewater treatment systems
does not address releases to ground water.  The regulatory
status of contaminated ground water is addressed more directly
in Marcia Williams' memorandum of November 13, 1986, which
states that ground water contaminated with hazardous waste
leachate must be managed as if it were a hazardous waste.  This
applies equally to land treatment units and other RCRA units.

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    You also questioned whether the drainage water, which is
returned to an NPDES treatment system, must be addressed in a
"no migration" petition.  Under the "no migration" standard,
there can be no migration from the unit.  If the drainage water
is to be excluded from the "no migration" petition, the
petitioner must demonstrate that the drainage water is not
being contaminated by hazardous constituents migrating from the
land treatment unit.  However, for a leachate collection system
that is considered part of the unit (e.g., it is above a
liner), and where leachate is pumped directly to a wastewater
treatment plant, the leachate would not be considered to be
migrating from the unit.  However, any ditches or pipes used to
conduct leachate from a leachate collection system, or runoff
from the unit must meet the "no migration" standard, since
these conduits could be extensions of the unit.

    With respect to your suggestion that a Part B land
treatment demonstration can be used in lieu of a "no migration"
petition covering subsurface transport, we do not believe that
an approved Part B land treatment demonstration can replace a
"no migration" petition.  Although it is true that the
subsurface transport demonstrations for the permit and the
petition are very similar, the statutory standard that must be
met for a "no migration" demonstration is more stringent.  For
example, "no migration" must be demonstrated for "as long as
the waste remains hazardous," and not just for the permitted
life of the facility.  Thus, a "no migration" demonstration may
have to meet a standard for a much longer time than the land
treatment demonstration.  In addition, "no migration" must be
demonstrated for all media, including soil, surface water and
air.  We realize that much of the information contained in a
Part B application is relevant to "no migration"
demonstrations.  Thus, we have been encouraging potential
petitioners to attach a summary of all relevant Part B data
and/or specific sections of the Part B application.  We are
planning to work very closely with both the Regions and the
States when reviewing "no migration" petitions, since the
permit writers can offer invaluable technical and historical
information on the site.

    In response to your suggestion that a determination made
under a RCRA Facility Investigation (RFI) can replace an
evaluation of air emissions addressed in a "no migration"
petition, we do not believe that such a determination can
automatically substitute for a "no migration" demonstration.
The standard that must be met for no migration from the unit
will likely be more stringent than the demonstration required
under the RFI.  We are continuing to evaluate the best way to
handle the air pathway for "no migration" demonstrations, and
propose to use health or environmentally-based exposure  levels
at the edge of the unit.  For the air pathway, we have not yet
defined what this will be, but one option is that the edge of
the unit be defined as the surface of the waste.  In defining
the "no migration" standard the Agency must determine how this

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standard relates to the section 3004(n) standards which will
control air emissions from treatment, storage, and disposal
facilities as "may be necessary to protect human health and the
environment.11  Finally, RFI information may not be available at
the time a "no migration" petition is submitted.  When it is
available, it will be considered.   We are encouraging the use
of all relevant site data in the "no migration" petition,
including information collected for permitting or corrective
action purposes.

    In your memorandum you requested that authority to grant
"no migration" petitions be delegated to the Regional
Administrators.  We are planning to propose an interpretation
of the "no migration" language in the Federal Register for
public comment.  Because of the controver>sy surrounding the
interpretation of the "no migration" statutory language, and
the potential for changes in policy, we believe that
Headquarters should evaluate the initial set of "no migration"
petitions received.  We will consider delegation to the regions
after the program is developed and initial petitions have been
evaluated to assess issues and establish precedent.  Therefore,
you should advise facilities to submit petitions to the
Administrator.  It would also be advisable to send a copy of
the petitions to the Assistance Branch of the Permits and State
Programs Division, which will have the lead on reviewing the
petitions.  We will coordinate individual petition reviews on a
case-by-case basis.  The Agency expects to receive relatively
few viable petitions.  The petition approval process should not
affect the November 1988 permitting deadline, since petition
approval is not a prerequisite for Part B permit approval.

    In addition, you asked Headquarters to have a staff person
devoted primarily to covering land treatment issues for the
Permit Assistance Team (PAT).  We understand your concern
regarding the need for technical expertise in this subject
area.  Unfortunately, we do not have the resources to assign an
individual to land treatment on a full-time basis.  We will
continue to use the technical staff available, and supplement
with contractual support when necessary.  If you need
assistance or wish to discuss this, please contact Elizabeth
Cotsworth on  (FTS) 382-4206.

    For further clarification on these issues, please contact
Stephen Weil at (FTS) 382-4770.

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            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY       9551 1990{04)
                                          Uil
                                              3  1990
Mr. Joseph J. Zimmerman
Sachs & Taylor
1140 Connecticut Avenue, N.W.
Washington, D.C.  20036-4002

Dear Mr. Zimmerman:

     Thank you for your recent correspondence dated August 20,
1990 concerning the prohibitions on land disposal of untreated
hazardous waste and the prospect of a "no migration" variance for
your client, Giant Industries Arizona, Inc. (Giant).

     In that letter, you correctly stated that the land disposal
prohibitions become effective for refinery hazardous wastes
(KO48-KO52) on November 8, 1990, after being extended from the
original effective date of August 8, 1990.  You also correctly
reiterated EPA's advisory that the processing of "no migration"_
petitions, from the date of receipt by EPA, through internal    £
review, notification of any petition deficiencies, statutorily  3
mandated publication of a proposed decision in the Federal      "V
Register, and public comments, to publication of the final
decision in the Federal Register, is likely to take approximately
12-18 months.  (EPA records indicate that Mr.  Jim Michael of my
staff discussed this issue with Mr. John Stokes of Giant in a
December 13, 1989 telephone conversation.)  Finally, your
correspondence refers to EPA's policy, where a national lack of
BDAT treatment, recovery, or disposal capacity can be
demonstrated, for granting a one-year, case-by-case extension to
the land disposal prohibition effective date,  for provision of
alternative protective treatment, recovery, or disposal.  (See  40
CFR 268.5.)  However, you should be aware that the statutory
provisions under RCRA Section 3004(h)(3) require that the
applicant make several demonstrations, among them that a binding
contractual commitment has been made to construct or otherwise
provide alternative treatment, recovery, or disposal capacity
that protects human health and the environment.  In order to
address this requirement, the Agency has indicated that this
provision may be satisfied by a Federal Register notice wherein
the Agency proposes to grant either a "no migration" or a
treatability variance.   (See 55 FR 22673-4, June 1, 1990.)  The
Agency believes that once we have proposed to grant either a
treatability or "no migration" petition, the petitioner has made
a good faith effort to commit to obtaining alternative protective

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disposal capacity.  In addition, the Agency's action in proposing
to grant the petition serves as a preliminary determination that
the disposal unit is protective; the mere filing of a
treatability or "no migration" petition provides no such
indication of protectiveness and thus, cannot be deemed to
satisfy the statutory requirement.

     However, contrary to statements in your letter, regulations
and draft guidance on the content and evaluation criteria for "no
migration" petitions are currently available to the public, and
have been for some time.  Regulations currently exist at 40 CFR
268.6 describing the requirements for petitioning EPA to receive
a "no migration" variance.   These regulations were promulgated
on November 7, 1986, and June 4, 1987, and since have been
amended on July 8, 1987 and August 17, 1988.  EPA also antici-
pates proposal of another "no migration" rule in 1990 that would
further define "no migration" and would create new procedural and
substantive petition requirements.  Furthermore, a draft guidance
document entitled "No .Migration Variances to the Hazardous Waste
Land Disposal Prohibitions:  A Guidance Manual for Petitioners"
has been available to the public upon request during the past two
years.  It also is available from the National Technical Informa-
tion Service (NTIS, telephone number 703-487-4650),  document
number PB90204736.  EPA records indicate that Mr.  Michael of my
staff responded to a January 16, "1990 request from Ms. Kim
Bullerdick of Giant for a copy of this draft guidance.  A copy
of the latest draft of this guidance, dated March 1990, also is
attached for your convenience.

     EPA recognizes the situation land disposers face as the
land disposal prohibitions become effective.  However, the
prohibition of land disposal of K048-K052 hazardous wastes
prevents the continued land disposal of these wastes past
November 8, 1990.  Land disposal is prohibited until the "no
migration" variance has received final approval.

     Although a "no migration" variance could be granted to Giant
after November 8, 1990, Giant is advised to be actively arranging
for other treatment or disposal after November 8,  1990.  Should
Giant decide to petition EPA for a "no migration"  variance, that
petition should be submitted to: U.S. Environmental Protection
Agency, Permits and State Programs Division, 401 M Street S.W.,
Washington, D.C. 20460.  As Mr. Michael discussed previously with
Mr. Stokes of Giant, EPA strongly recommends that potential
petitioners meet with the Agency prior to development and submit-
tal of "no migration" petitions.  You may contact Mr. Michael of

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my staff at 202-382-2231 to arrange such a meeting,  or if you
have specific questions concerning the "no migration" petition
process.
                                   Sylvia K.  Lowrance,  Director
                                   Office of Solid Waste
Attachment

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            UNiicl> STATES cJrriKafttiCRTOL' PHUIttTIOM AUWCT      9551.1989(31
 Mr.  Robert  H.  Sinunington
 Senior  Environmental Engineer
 Niagara Plant  - Waste Disposal
 Occidental  Chemical Corporation
 P.O. Box 344
 Niagara Falls, New York   14302

 Dear Mr.  Sinunington:

     In  response to your letter of November 28, 1988 to
 Mr. William Fortune, the  following information is provided to
 clarify your questions about hazardous wastes containing
 halogenated organic compounds  (HOCs).  Mr. Fortune is no  longer
 with the Agency,  so I am  responding *:o your  letter in his place.

    As  correctly  stated in your  letter, the  two-year national
 capacity variance for hazardous  wastes containing HOCs  in
 concentrations greater than 1000 ppm was  rescinded in the First
 Third rule  (Federal Register, August 17,  1988, page 31138),  with
 the exception of  HOC-contaminated soil and debris.  Your
 questions relate  to the specific HOCs regulated by these
 provisions.  Your questions are  repeated  below, followed  by  our
 response.

 Question it  "The HOCs to be included in  the 1000 ppm are only
 those listed in the Appendix III to Part  268 - List of
 Halogenated Organic Compounds Regulated Under Part 168.32, as
 published in the  Federal Register, Vol. 562, No. 130 on
 Wednesday,  July 8, 1987."

 Response:   As stated in your question, the Agency has  limited
 the California list HOC prohibition to those HOCs listed  in  Part
 268 Appendix III, which is a finite list  of  constituents  for
 which test  methods exist.  In determining the concentration  of
 HOCs in  a hazardous waste for purposes of the land disposal
 restrictions, EPA has defined the HOCs that  must be  included in
 the calculation as any compounds that have a carbon-halogen  bond
 and are  listed in Appendix III.  Therefore,  those wastes
 affected by the rescission of the two-year national capacity
 variance for hazardous wastes containing  HOCs in total
concentrations greater than or equal to 1000 mg/1 are  those
 • UJLU LuiiLuiiuul  in Pap*  aiL.ABi>jmdiM III,	

-------
 Mr.  Robert. H.  sinunington
 January 6,  1989
 Page 2


 Question 2:   "The  land disposal restrictions only apply to
 hazardous wastes that contain over the 1000 ppm HOCs (i.e.,
 wastes classified  as non-hazardous that contain over 1000 ppm of
 these  HOCs  or  hazardous wastes with less than 1000 ppm of these
 HOCs are not  restricted from land disposal)."

 Response;   The California list land disposal restrictions apply
 to wastes that:

     o    Are  listed as hazardous under 40 CFR Part 261; OR

     o    Exhibit one or more of the characteristics of hazardous
         waste identified in Part 261 (i.e., ignitability,
         corrosivity, reactivity, or EP toxicity); AND

     o    Also  contain a California list constituent.

 In other words, as indicate in vonr question, the California
 list land disposal restrictions cniy apply to wastes that are
 listed or characteristic hazardous wastes and that also contain
 a California list constituent in concentrations that exceed the
 prohibition levels.

     Your second example in question 2 mentions hazardous wastes
 with less than 1000 ppm HOCs.  While these wastes would not be
 restricted from land disposal as California list wastes, they
might be restricted as solvent- or dioxin-containing wastes, or
 as First Third wastes.  These restrictions include treatment,
notification,  demonstration, and certification requirements
prior to disposal  (see 53 FR 31138).

Question 3:   You also requested an opinion as to whether the
PCBTF Finishing Filter Soda Ash described in your "OXY
CHEM-Niagara Plant Waste Characterization Form" is now subject
 to the land disposal restrictions on the basis of its HOC
content, or will be in the future due to its characteristic of
EP Toxicity for arsenic.

Response.-  Based on the data provided in your waste
characterization, it appears that the total concentration  of
HOCs in this waste may exceed 1000 ppm (i.e., the value  for
total organic  halogen is 3.7 percent, or 37,000 ppm).  As
 indicated in the response to question 1 above, however,  the HOCs
to be included in the calculation are only those  listed

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                                          9551.1989(02)
             RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                              MARCH  89
 1. Mixed Waste and Land Ban

 The   owner/operator  of   a   facility   generates   a  liquid   mixed
 hazardous/radioactive waste.  The waste contains  F006 waste as well  as
 California list metals above the levels specified in RCRA Section 3004(dX2).  Is
 this waste subject to the land disposal restrictions? If so, which land disposal
 restrictions apply?

   According to the August 17, 1988, Federal Register (53 ££ 31202), First
   Third waste mixed with radioactive waste  is moved to the  Third Third
   schedule, whether that First Third  waste has  a  treatment  standard
   associated  with it or not.  Section 268.10 identifies F006 waste as a First
   Third Waste, thus mixed waste which contains F006 will not be subject to
   the land disposal restrictions until May 8, 1990. However,  this action only
   affects First Third wastes mixed with radioactive wastes.  Mixed waste
   containing spent solvents, dioxins and  California list wastes  or mixed
   radioactive/First Third waste, that also contains spent solvents, dioxins, and
   California list waste (i.e., wastes prohibited under Sections 268.30, 268.31,
   268.32) would still be subject to the land disposal restrictions associated with
   those wastes.  However,  this is  only true in unauthorized states  or
   authorized states that do not have mixed-waste authority. Therefore, mixed
   waste which contains F006 and California  list metal wastes must  only
   comply with the land disposal restrictions  in Section 3004(d) of RCRA.
   Sections 3004(d) states  that California list metal wastes were prohibited
   from land disposal as of July 8, 1987 unless the waste meets the statutory
   prohibition standards in Section 3004(d)(2XB).  However, if the State in
   which the facility is located is authorized for  the base RCRA program,  and
   the State has not yet received mixed waste authorization, the waste is not
   considered hazardous and the land ban does not apply.

Source:        Rhonda  Craig     (202)382-4770
Research:      Kim Jennings     (202) 382-3112

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                                                    9551.1989(03.
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON. D.C. 20460
                                                       .'"'C'. .-
                                                'D V.-ST. J\3 S V£ ° :•• '.C * PE5»C'.SE
MEMORANDUM                     DEC  IQ, |9*9
SUBJECT: Applicability of the Land Disposal Restrictions  to
         Recycled Hazardous Wastes
FROM:    Devereaux Barnes, Director
         Characterization and Assessment Division

TO:      Gerald M. Levy, Chief
         MA Waste Management Branch
         Region I

    This memorandum responds to your November  9, 1989,  request
for clarification concerning the applicability of  the  Part  268
Land Disposal Restrictions (LDR) program to recycled wastes that
are subject to the provisions of Part 266; in  particular,
recyclable materials from which precious metals are reclaimed
(i.e., wastes subject to 40 CFR 261. 6 (a) (2) (iv) and Subpart F  of
Part 266) .

    The requirements of Part 268 are applicable  (as stated  at.  ;o
CFR 268. l(b)) unless specifically provided otherwise in Part 261
(or in Part 268).  Section 261.6(a)(2) does not specifically
provide otherwise and, therefore, the LDR requirements,
including the applicable notification, certification and
demonstrations required by the generator of a  restricted
hazardous waste, are applicable to those recyclable materials
listed in section 261.6(a)(2).  (For comparison, section
261.6(a)(3) does specifically provide otherwise and, therefore,
the LDR requirements do not apply to those wastes  listed in
261. 6(a) (3)) .

    In future rulemakings, we will consider adding "Part 268"  to
the introductory paragraph of 40 CFR 261.6(a)(2),  specifically
stating that "the following recyclable materials"  are  subject  to
the LDR requirements to help clarify the applicability of Part
268.  However, we have consistently maintained and believe  it  is
understood that such "recyclable materials"  (and,  in fact,  all
hazardous wastes, unless specifically provided otherwise) are
(or will be) subject to the LDR requirements.  For example,
Subpart C of Part 266 was specifically modified  (see 53 FR  at
31197, August 17, 1988) due to the LDR statutory requirement
that a hazardous waste must meet the treatment standards prirr
                                                          frutiu .- -r .  /-• fjpir

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                              - 2 -
to placement on the land.  Were those recyclable materials
listed in 261.6(a)(2) not subject to Part 268, this modification
would not have been necessary.

    Should you have further questions, or need more information,
please contact Andrea McLaughlin, of my staff, at FTS 382-6946.
cc: RCRA Branch Chiefs, Regions II-X
    Jim Thompson,  OWPE

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y*°T4>*
                                                        9551.1989(04)

            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                       WASHINGTON, D.C. 20460
                                                        OFFICE OF
                                               SOLID WASTE AND EMERGENCY RESPONSE
  JUL-6
MEMORANDUM

SUBJECT:



FROM:
THRU;
TO:
             Current Status of Health-Based Values  for  PAH's  in  Coke
             By-Product Wastes

             Susan Griffin, Ph.D.
             Toxicologist
             Health Assessment Section
             Technical Assessment  Branch  (OS-331)
                                           9..
Stephanie R. Irene, Ph.D.
Section Chief          ^y
Health Assessment Section
Technical Assessment Branch  (OS-331)

Ron Josephson
Environmental Engineer
Listing Section
Land Disposal Restrictions Branch  (OS-333)
     Listed below are the  PAH  compounds  commonly detected in coke
by-product wastes and their health-based numbers derived from
carcinogenic or non-carcinogenic  endpoints.   The RfD's indicate
non-carcinogenic health numbers verified by  the reference dose
workgroup.  The RSD's  (risk specific  doses)  indicate carcinogenic
numbers derived from CRAVE, the cancer risk  assessment
verification workgroup, or from CAG,  the cancer assessment group.
The risk level for the RSD is  IxlO'6.
   Benzo[a]pyx«ne
        -Bj carcinogen; RSD is 8.6xlO"a mg/kg/day

   Benzo[a]anthracene
        B2 carcinogen; RSD is 3x10  mg/kg/day
                                                  (CAG profile)
                                                  (CAG profile)

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 Benzo  (b)  fluoranthene
     -82 carcinogen; no quantitative RSD         (CAG profile)

 Benzo  (k)  fluoranthene
     -B2 carcinogen; RSD in l.lxlO"4 mg/kg/day    (1985 NIOSH
                                                    RTECS

 Benzo  [g,  h,  i] perylene
     -This compound was assigned an RSD equal to the RSD for
     benzo[a]pyrene for the wood preserving listing.

 Benzene
     -A carcinogen; RSD is 3.4xlO"5                (CRAVE
                                                   verified)

     -RfD  inhalation is 5.7xlO'3 mg/m3             (under review
                                                     by RfD
                                                    workgroup)
 Chrysene
     -C carcinogen; This compound was assigned an RSD equal to
     the RSD  for bnezo[a]pyrene.
                                                  (CAG profile)
 Dibenzo [A, H] anthracene
     -B2 carcinogen; RSD is 2.0xlO"8 mg/kg/day    (CAG profile)

 Ethylbenzene
     -Oral RfD 1x10"1 mg/kg/day                    (RfD workgroup
                                                   verified)

 Indeno  (1,2,3-cd) pyrene
     -C carcinogen; RSD is 5.7x10   mg/kg/day      (Water  Quality
                                                      Criteria
                                                      Document)
 2-Methyl napthalene
     This  compound was assigned an RfD equal to the RSD  for
     Indeno (1,2,3-CD) pyrene for the wood preserving listing.

 2-Methyl phenol (o-cresol)                        (RfD workgroup
                                                   verified)
     -oral RfD 5xlO"2 mg/kg/day

 4-Methyl phenol (p-cresol)                        (RfD workgroup
                                                   verified
     -oral BfD 5xlO"2 mg/kg/day

Napthalene
     -oral RfD 0.4 mg/kg/day                       (1986  Health
                                                      and
                                                   Environmental
                                                   Effects
Phenanthrene
     -This compound was assigned an RfD equal to  the RSD for
Indeno (1,2,3-cd) pyrene for the wood preserving  listing.

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Phenol
                   -1
     -oral RfD 6x10   mg/kg/day

Styrene
     -oral RfD 2X10"1  mg/kg/day
     -B2 carcinogen; oral RSD 3.3xlO'5 mg/kg/day

     -Inhalation RSD is  S.OxlO"5 mg/kg/day
Toluene
                   -1
     -oral RfD 3x10  mg/kg/day
     -inhalation RfD 2.0 mg/m

Xylenes
     -oral RfD 2.0 mg/kg/day
     -inhalation RfD 3.0x10"' mg/m3
     The following PAH's are in the process of
developed.

     Acenaphthene
     Acenaphthylene
     Anthracene
     Fluoranthene
     Fluorene
     2,4-dimethyl phenol
     Pyrene
 (RfD workgroup
   verified)

 (RfD workgroup
   verified)

  (CRAVE
    verified)
 (RfD workgroup
     verified)

  (RfD workgroup
     verified)

  (RfD workgroup
     verified)

 (RfD workgroup
     verified)

having RfD values

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                                                           9551.1989(05
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                        WASHINGTON. D.C. 20460
      i 2 •:•--                                              OPPICEOP
                                                SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM

SUBJECT: Health Status of PAH's  in Coke  By-Product Wastes

FROM: V^Susan Griffin, Ph.D.
      jj  Toxicologist
         Health Assessment Section
         Technical Assessment Branch  (OS-331)
THRU:    Stephanie R. Irene, Ph.D.
         Section Chief
         Health Assessment Section
         Technical Assessment  Branch  (OS-331)

TO:      Ron Josephson
         Environmental Engineer
         Listing Section
         Land Disposal Restrictions Branch (OS-333)
    The following PAH's currently  have  RfD values or CAG
classifications.

    1.   Benzo[a]pyrene  50-32-8
              -B2 carcinogen,  no quantitative data

    2.   Benzene  71-43-2
              A carcinogen; oral and inhalation slope factor
              2.9X10"2 mg/kg/day

              RfD inhalation  5.7xlO"3 mg/m3 (under review)

    3.   Ethylbenzene  100-41-4
              D carcinogen

              RfD oral 1x10"x mg/kg/day

-------
     4.   2-M«thyl phenol  (o-cresol)  95-48-7
              No CAG data
              RfD oral 5xlO~2 mg/kg/day

     5.   4-Methyl phenol  (p-cresol)  106-44-5
              No CAG data
              RfD oral 5xlO~2 mg/kg/day

     6.   Napthalene  91-20-3
              No CAG data
              RfD oral 0.4 mg/kg/day

     7.   Phenol  108-95-2
              No CAG data
              RfD oral exlO"1 mg/kg/day

     8.   Styrene  100-42-5
              No CAG data
              RfD oral 2X10'1 mg/kg/day

     9.   Toluene  108-88-3
              No CAG data
              RfD oral 3X10'1 mg/kg/day
              RfD inhalation 2.0 mg/m3

     10.  Xylene  1330-20-7
              D carcinogen
              RfD oral 2.0 mg/kg/day
              RfD inhalation 3.0X10"1 mg/kg/day

    The following PAH's are in the process of having RfD values
developed.

         Acenaphthene
         Acenaphthy1ene
         Anthracene
         Fluoranthene
         Fluorene
         2,4-dimethyl phenol
         Pyrene

    The following PAH's have health documents (HEEPs, Tox
Profiles, Hazard Profiles) indicating no evidence of systemic
toxicity and limited or inadequate evidence or carcinogenicity.

         Benzo(b) fluoranthene
         Benzo(k) fluranthene
         Chyrsene

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     Phenanthrene
     Dibanzo [A, H] Anthracene
     Benzo [a] anthracene
     Benzo [g,h,i] perylene

No information could be located on the following PAH's.

     Indeno (1,2,3-cd) pyrene
     2-methyl naphthalene

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          UNITED STATES EMVIBOMmTAL PHUfBCltUMJ           9551.1989(06)
                       MAY   31989
Ms. Barbara Young
Booz-Allen & Hamilton, Inc.
4330 East West Highway
Bethesda, MD  20814-4455

Dear Ms. Young:

     I have received your letter of April 20, 1989 requesting
clarification on the Q. & A. associated with Ms. Barbara
McGuinness' presentation at the Environmental Compliance
Conference in San Antonio, TX on January 31, 1989.

     I have enclosed the necessary corrections  and
clarifications to each question.  If you have further
questions, you may contact me at (202) 382-4770.

                              Sincerely,
                              Michaelle Wilson, Chief
                              Regulation Development section

Enclosure

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Land Disposal Restrictions

0. #1  Correct as stated.

Q.   Does a facility have to certify a "soft-hammered" waste
     even if it is going to an incinerator and not to a
     landfill?

A.   "Soft hammer certifications/demonstrations are required
     only when the wastes (or residues) are disposed in a
     landfill or surface impoundment.  Typically, incinerator
     residues are disposed in such units and a certification is
     required.  The owner/operator must also certify that
     treatment was conducted as per the generator
     certification/demonstration.

Q.   Who would be responsible for providing the waste analysis
     of residuals from incineration, and what sample would they
     take?

A.   The treatment facility would have to perform a waste
     analysis before land disposal of incinerator residual
     waste at the frequency indicated in the waste analysis
     plan.  The samples required for testing would be
     incinerator ash and scrubber water.

Q. #4  ...carry the waste codes....

Q.   Is waste that is sent to a recycler considered hazardous
     waste?

A.   This question relates to the definition of a solid waste,
     not land disposal restrictions.  Certain types of
     recycling exclude the material from the definition of
     solid waste, while others do not.  See 40 CFR 261.2(c) and
     (e).  Also, for a more specific determination, contact the
     appropriate State regulatory agency, EPA Regional office,
     or the RCRA Hotline at 1-800-424-9346.

Q.   If a facility sends an F-solvent waste to a recovery
     facility, do they have to notify them that it is an LDR
     waste?

A.   Yes.  Recycling is defined as treatment and is  likewise
     subject to the .recordkeeping requirements.  Typically,
     solvent recyclers generate a still bottom (that carries
     the same waste codes) that must be treated to the
     treatment standards prior to disposal.  Recyclers are
     definitely in the loop.

Q.   What facilities are allowed to store waste for  up to a
     year if they are storing solely for the purpose of
     accumulating sufficient quantities for efficient recycling
     or treatment?

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A.   One year is the rule of thumb as far as delegating
     responsibilities of the burden of proof.   The rebuttable
     presumption is that one year is sufficient time to store
     wastes solely for the purpose of accumulating sufficient
     quantities to facilitate treatment.   For less than one
     year, EPA bears the burden of proof that such storage is
     not in compliance (i.e., not for the sole purpose allowed
     by the statute).  For more than one year, the burden of
     proof is on the storage facility.  The facility is, of
     course, subject to all other regulatory requirements,
     including Part B permits, interim status, or the 90-day
     generator storage rule.

Answers to questions on Research Permits and Medical Waste are
correct as stated.

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             UNITED STATES ENVIRONMENTAL PROTECTIOI
                                                     9551.1989(07)
Mr. James P. Ward, Chief Chemist
Omark  Industries
Post Office Box 856
Lewiston, Idaho  83501

Dear Mr. Ward:

     This letter is in response to your letter of July 19, 1988
requesting Environmental Protection Agency  (EPA) guidance with
respect to OmarJc Industries generation and treatment of EPA
hazardous waste K044, a First Third restricted waste.

     As you are aware, K044 was listed as hazardous waste
because it exhibits the ch'.racterist ir of  'reactivity".   (See 40
CFR 261.23.)  In your letter you indicated that after the K044
material is treated in the facility's waste water treatment
process, it ceases to exhibit reactive/explosive characteristics
and thus should not be subject to the K044  land disposal
restrictions.

     The Agency has addressed this situation in 40 CFR
261.3(a)(2)(iii) which states that if a hazardous waste is mixed
with a solid waste, the resulting mixture is also a hazardous
waste unless the hazardous waste is listed solely because it
exhibited in characteristic of hazardous waste  (as is the
situation for K044).  In that case, the mixture is only
considered to be a hazardous waste if it continues to exhibit
hazardous characteristics describes in 40 CFR 261.21-.24.  In
the case described in your letter, the K044 no  longer exhibits
the reactivity characteristic, and is therefore no longer
considered to be K044, and no longer subject to the Land
Disposal Restrictions.  However, should the treated waste
exhibit one of the other hazardous characteristics  (i.e.,
ignitability, corrosivity, or extraction procedure toxicity),  it
must be designated as a hazardous waste.

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     I would also note that the treatment standard promulgated
on August 8, 1988 for K044 was "no land disposal", based on the
ability to treat the waste so that it no longer exhibited the
characteristic of reactivity (53 FR 31158, August 17, 1988).
The treated waste generated by Omark therefore also meets the
applicable -treatment standard.

     If your have any further questions, please get back to me.

                              Sincerely,
                              Stephen R. Weil, Chief
                              Land Disposal Restrictions Branch
cc:  Pat O'Flaherty,
     Mike Gearheard,
CH2M Hill
Region X

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                                                      9551.1990(01
              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C. 20460
                           MAY   9
                                                          OFFICE OF
                                                 SOLID WASTE AND EMERGENCY RESPONS
MEMORANDUM
SUBJECT:  RCRA Waste Disposal Sites ^rfd T>e/t Potential
          Association with Wet]
FROM:     Sylvia K. Lovrance
          Office of Solid Waste

TO:       Tom Kelly, Director
          Office of Regulatory Management and Evaluation


     Thank you for your memorandum of April 9, 1990, in which you
discuss the need for an assessment of industrial waste disposal
facilities and their proximity to wetlands, and suggest that we
coordinate a joint effort to examine these issues.

     My office also shares a serious concern that many waste
management facilities — hazardous as well as non-hazardous —
are located in sensitive locations, including wetlands.  We have
several efforts underway to analyze and, where appropriate,
control the risks posed by facilities in sensitive  locations,
including in or adjacent to wetlands.

     First, we expect to promulgate this summer revised criteria
for municipal solid waste facilities, and a notification
requirement that will apply to industrial solid waste disposal
facilities and to construction/demolition waste landfills.  The
revised criteria for municipal facilities will incorporate
location standards, under which new facilities cannot be sited  in
or adjacent to wetlands unless there is no alternative, impacts
will be minimized, and any wetlands that are destroyed will be
offset by the creation of new wetlands.  The notification
requirement would include information on latitude and longitude,
which would enable us to access geographic information systems
and determine proximity to sensitive locations.

     Second, it is our intention to request funding to complete,
distribute and evaluate the Industrial D Survey.  Completion  of
the survey can occur in tandem with the notification process
described above, and distribution of the survey can be targeted
to the facilities identified in the notification process.   This

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survey will provide a comprehensive view of waste types,  volumes
and management practices at industrial solid waste facilities for
a large sample of facilities.  When coupled with information on
proximity to sensitive locations, this information will enable us
to characterize the potential risks posed by facilities in or
adjacent to wetlands.

     Another major effort is the development of location
standards for hazardous waste management facilities.  In the near
future the draft proposed location standards will enter Red
Border review.  Under this proposal, wetlands would be one of the
sensitive locations in which the siting of hazardous waste
facilities would be restricted.

     Finally, we are initiating an effort to characterize the
market and non-market values associated with wetlands due to a
variety of functions such as flood control, water quality
improvement, spawning grounds for fisheries, and ground-water
recharge.  The values generated could be useful in examining the
resource damages due to industrial solid waste facilities.

     We would welcome the opportunity to discuss further with you
how to coordinate our respective efforts.  My understanding is
that Ruth Miller is working with ORD/Las Vegas on the study you
are currently initiating on industrial waste disposal facilities,
and that this study will characterize the proximity of facilities
to wetlands in several states  (those with the best data available
on location).  My staff are reviewing and will provide specific
technical comments on the proposed effort.  I anticipate that the
results of your work will support OSW's efforts to analyze and
control potential risks posed by facilities in wetlands.  At this
time, I am designating Glen Galen (382-4654) to coordinate near-
term issues on the industrial waste facility study.  For wetlands
issues in general, our contact is Fred Chanania, one of my
Special Assistants (382-4627).  I suggest we also meet in the
near future to discuss longer-term coordination.

     I look forward to a continuing discussion of these
critical issues concerning hazardous and non-hazardous facilities
located in proximity to wetlands.

cc:  Loretta Marzetti
     Dave Bussard
     Bruce Weddle
     David Davis

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             UNITED'.  .rESEMVnUMUEifTAI-PROTECTION*  .NOT

                                                   9551.1990(02
                                   August 8, 1990


William J. Ziegler
Vice President of Health,
Safety and Environmental Affairs
ThermalKEM, Inc.
454 S. Anderson Rd.
BTC532
Rock Hill, SC  29730

Dear Mr. Ziegler:

     This letter responds to your request of July  12,  1990,  for
clarification of the following aspects of the land disposal
restrictions rule for lab packs as published on June  1,  1990 (55
Federal Register 22520):

     (1)  EPA's rationale for excluding EPA Hazardous Waste  Codes
          P046, Pill, and U163 from Appendix IV, and

     (2)  whether §265.316(f) requires that fiber  drums  used for
          disposal of lab pack waste be overpacked in steel
          drums.

     In response to your first question, EPA inadvertently
excluded P046, Pill, and U163 from Appendix IV.  You  are correct
in stating that these wastes are incinerable and should  be
included in Appendix IV.

     With respect to your second question, lab packs  destined for
incineration in fiber drums are not required to be placed in
metal or steel containers.  Paragraph (f) states that persons who
incinerate lab packs prior to landfilling "may use fiber drums in
place of metal outer containers" (emphasis added)  .  .  .   However,

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             UNITED v.  TES EMVIBONMEMTAL PgUihCIIUM .   .MCT
                              - 2 -


fiber drums used in this manner must be over-packed  with inside
containers and absorbent material as described  in §265.316(b).
This provision does not require the use of metal shipping
containers; however, it continues to require  safe packaging and
management of lab pack waste.

     I hope that this letter adequately address your concerns.
If you have additional questions, you may contact Rhonda Craig at
382-7926.

                                   Sincerely,
                                   Richard Kinch,  Chief
                                   Waste Treatment Branch
                                                                   E COPY

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                 RCRA/SUPERFUND  HOTLINE SUMMARY         g551  1990(03

                          SEPTEMBER 1990


L  SIGNinCANT QUESTIONS AND RESOLVED ISSUES—SEPTEMBER 1990

   RCRA

   1.  Pretreatment of Characteristic Wastes Subject to Land Disposal
      Restrictions

   A Treatment, Storage and Disposal Facility (TSDF) receives an ignitable waste
   (D001) from a generator. The waste, which is identified as a high Total
   Organic Carbon (TOO D001 has a specified technology of fuel substitution,
   recovery of organics, or incineration as methods for treating the waste. Prior
   to introduction to one of these technologies, the TSDF pretreats the material
   by filtering or decanting the waste and separating it into a liquid and a solid
   phase. The solid phase, upon testing, does not exhibit the characteristic of
   ignitability. Would that portion of the waste that no longer exhibits a charac-
   teristic not be subject to Subtitle C regulation and the notification /certifica-
   tion requirements of Section 268.7 even though the waste was not treated by
   the specified technology indicated in Section 268.42?

    The noncharacteristic solid phase would no  longer  be regulated
    under Subtitle C. EPA considers processes that separate .phases of a
    waste, in this  case a solid and an ignitable liquid, to be recovery and
    hence  an   acceptable form of pretreattnent  provided  that  the
    remaining material that  exhibits the  characteristic is treated by the
    required technology (June  1, 1990; 55  FR 22544). In this example, the
    non-characteristic solid,  assuming it is not hazardous  for any other
     reason, would  pass  from Subtitle C  into Subtitle D solid  waste
     regulations. This would  be the case for any aqueous, liquid, or solid
     material which, as a result of pretreatment,  no longer exhibits a
     characteristic. Moreover, the notification /certification  requirements
     of Part 268 would not attach to the  non-hazardous solid; however,
     this paperwork would follow the remaining hazardous  material (e.g.,
     the ignitable liquid) to the  treatment facility. Once the ignitable liquid
     is treated  and no  longer exhibits the characteristic,  then  the
     paperwork would be forwarded  on  to the  Regional Administrator
     and the remaining waste (e.g., any ash resulting from  the  treatment
     of the liquid) sent to a Subtitle D facility per Section 268.9 (d).

 Contact:        Larry Rosengrant, OSW  (202)382-3678
 Research:       Steve Baker

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY  9551' 199°(°5)
                              OCT   9(990
MEMORANDUM

SUBJECT:  Replacement of Contaminated Soil and Debris
          Treated under a Treatability Variance

FROM:     Sylvia K. Lowrance, Director
          Office of Solid Waste

TO:       David Ullrich, Acting Director
          Waste Management Division, Region V


     This memorandum is in response to your correspondence of
April 25, 1990, in which you requested guidance in relation to six
specific questions dealing generally with how the RCRA land
disposal restrictions may affect certain remedial situations.  We
offer the fqllowing response to those six questions:

1.   Q:   Can  soil and debris which has been treated in a tank
          within the area of contamination  (AOC)  in accordance
          with a treatability variance be replaced within the area
          of contamination without meeting any additional .40 CFR
          Part 264 requirements?

     A:   If contaminated soil and debris is treated to meet
          standards specified in a treatability variance that has
          been approved by the Agency, the treated soil/debris may
          then be placed in any treatment, storage or disposal
          unit that is in compliance with RCRA Subtitle C.  This
          could include an "area of contamination"  (i.e., a RCRA
          landfill) that has been designated by the Regional
          Administrator for the purpose of remediating the
          facility or site.  Thus, as a regulatory matter, there
          would be no real distinction between soil/debris that is
          treated to the standard(s) set in the treatability
          variance and then placed in another unit, as opposed to
          "pure" hazardous wastes that are treated to the
          applicable Part 268 standards, and placed in another
          unit, except as discussed in the response to Question #5
           (concerning contaminated media which no longer contains
          any  waste).
                 /U-
               By/ stating in your question that the treated  wastes
          are  to'redeposited into the AOC, we assume there is an
          implied question as to what design and  operating

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           implied question as to what design and operating
           standards would then be applicable to the AOC itself.
           This  is discussed in our response to question 16, below.

2.   Q:    Has the policy set forth on Page 5.12 of the document
           Implementiny the Land Disposal Restrictionsr October
           1989, been revised?

     A:    This  policy has not been revised.  The policy states
           that  once an owner/operator receives a treatability
           variance, completes treatment, and has a treatment
           residual to be land disposed, the residue can be
           directed to any permitted or interim status unit.

3.   Q:    For the purpose of land disposal, is the residue of soil
           treated under a treatability variance to be
           distinguished from the residue of waste treated
           according to treatment standards?

     A:    No.   See response to Question 1, above.

4.   Q:    For the purpose of land disposal, is the residue of soil
           treated under a treatability variance in a tank within
           the area of contamination to be distinguished from the
           residue of soil treated under a treatability variance in
           a tank outside of the area of contamination?

     A:.__   No.   The location of the tank in relation to the "area
           of contamination" would not create a distinction as to
           how or where the treatment residuals could be land
           disposed.  This assumes, of course, that the wastes have
           been  treated to the standards specified in the
           treatability variance.  A tank cannot be considered a
           part  of the AOC  (landfill), regardless of where it is
           physically located; thus, its location would have no
           bearing on the standards that would apply to management
           of the contaminated soils  (or other hazardous wastes,
           for that matter) after they have been treated in the
           tank.

5.   Q:    Is a  treatability variance for soil and debris to be
           considered in effect a delisting?  Do the principles of
           the "contained in" policy for the treatment of
           contaminated ground water have any applicability to the
           treatment of contaminated soil and debris?

     A:    A treatability variance for soil/debris does not have
           the effect of a delisting approved for the waste.  The
           treated residuals typically will still contain hazardous
           wastes, and thus must be managed as such.  In contrast,
           when  wastes are delisted they are generally no longer
           subject to .Subtitle C regulation.

                The "contained in" policy applies to ground water

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          and other contaminated media such as soil which are
          contaminated with listed hazardous wastes. Thus, if
          ground water or soil are treated such that
          concentrations of the listed wastes are at or below
          health based levels, the ground water or soil
          would no longer "contain" the hazardous wastes/ and
          would therefore be no longer subject to Subtitle C
          regulation.  Enclosed is a recent memorandum which
          provides a more detailed explanation of the contained-in
          policy.

6.    Q:   If an AOC can be considered a RCRA unit for the purpose
          of closure, would an AOC ever be considered equivalent
          to a RCRA compliant unit for the purpose of disposal?
          (See page 6 of OSWER Directive 9234.2-04FS RCRA ARARS•
          Focus on Closure Requirements.)


     A:   As outlined in the cited ARARs manual, the AOC is a
          concept which can be applied in the context of
          remediation under CERCLA response actions or RCRA
          corrective actions.  It is in many ways analogous to
          situations where two or more regulated surface
          impoundments would be treated as one unit in the context
          of closure of the impoundments.

               When applied in the context of RCRA corrective
          actions or CERCLA remedial actions, the AOC concept
          would allow the Regional Administrator to designate a
          broadly contaminated contiguous area to be a RCRA "unit"
          (i.e., a landfill) for the purpose of implementing the
          remedy.  In an existing landfill, the movement or
          consolidation of hazardous wastes within the
          designated area would not by itself trigger Subtitle C
          requirements (including the land disposal restrictions
          and the RCRA minimum technology requirements) since that
          movement or consolidation does not constitute
          "disposal" for Subtitle C purposes.  If, however, wastes
          are excavated from the designated area, treated in
          another unit, and subsequently redeposited into the same
          area or unit, disposal has occurred, and the landfill
          would have to comply with applicable Part 264 or 265
          requirements,including the LDRs, MTRs, closure standards
          (264.310), and the ground water monitoring requirements
          of Subpart F, Part 264 or 265.

               The proposed Subpart S corrective action rule
          explains the AOC  (described therein as the "corrective
          action management unit") concept in more detail.
          However, if you have more specific questions or issues
          regarding AOCs, we will be glad to work with you or your
          staff to resolve them.

     If there are any questions on the above responses to your

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questions, please contact Dave Fagan (FTS 382-4497) or Judy
Goldberg  (FTS 382-4534).
Enclosure
cc:  Regional RCRA Branch Chiefs
     PSPD Branch Chiefs

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                                               9551.1990(06)
                           OCT | 4 1990
MEMORANDUM
SUBJECT:  Guidance from Headquarters to Help Determine Possible
          Violation of the Land Disposal Restrictions
                               /   : // !i I 1  '
                               f    '. 11 : I
FROM:     Jeffery D. Denit, Deguty
          Office of Solid
             m A %* ^* _>_ >r A fc* »» A •*• *•» • V M ** *• *» ^ *r ** f I'


             ice l^mTth, Director  /
TO:       Bruc
          Office of Hazardous Waste Programs (3HW03)
          Region III


     This memorandum is written in response to your request for
assistance from EPA Headquarters in making a Land Disposal
Restrictions  (LDR) determination for the Rhone-Poulenc facility
located in Institute, West Virginia.  As stated in your
August 17, 1990, memorandum, Region III is concerned that the
facility may be impermissibly diluting several waste streams
subject to the LDR requirements.  The restricted wastes of
concern are:  (1) F039 multi-source leachate wastewater streams
from the Goff Mountain RCRA Landfill, from the site of Union
Carbide's Private Trucking Operation, and from recovery well
(RW-1); and (2) U025 dichloroethyl ether "chlorex" from the RW-1
well.  The characterization data provided by Rhone-Poulenc show
the F039 wastewaters as generated (prior to mixing) exceed both
organic and metal LDR treatment standards, and U025 wastewaters
as generated exceed the LDR treatment standard for dichloroethyl
ether.

     As described by Rhone-Poulenc in the document entitled
"Treatment of Multisource Leachate in Rhone-Poulenc's Institute,
West Virginia WWTU" submitted to EPA Region III on June 14, 1990,
the treatment system consists of primary treatment  (e.g., mixing,
equalization, emergency diversion, neutralization and
clarification) in tanks and secondary treatment (biotreatment and
clarification) in surface impoundments.  Before entering the
primary treatment tanks, approximately 15,000 gallons per day
(GPD) of F039 and U025 wastewaters subject to the LDR are mixed
with approximately 4.5 million GPD of process water not subject
to the LDR.  The resultant wastewater mixture apparently meets
the LDR levels for F039 and U025 wastewaters before entering the
secondary treatment system.  Rhone-Poulenc did not analyze for
all regulated constituents or properly justify the selected
constituents.

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     We believe that the facility may be violating the dilution
prohibition.  They have not provided evidence supporting that
legitimate treatment for LDR organic or metal constituents is
occurring in their treatment system.  We also believe that the
facility may be in violation of land disposing nonwastewaters
that exceed the U025 treatment standards because the facility
appears to have interpreted a portion of the LDR requirements for
nonwastewaters incorrectly.  Our analysis is summarized below.

Possible LDR Dilution Prohibition Violation

     Rhone-Poulenc argues that its system consists of an initial
aggregation point which  equalizes wastes, followed by legitimate
centralized treatment in section 3005(j)(3) aggressive biological
treatment impoundment.  (Chambers letter, pp. 4-5.)  We discuss
this argument below with respect to organic and metal
contaminants.

     Oraanics

     The Agency's discussion of this issue appears at 55 FR
22666.  In general, we determined that initial aggregation of
similar wastes followed by legitimate centralized treatment may
be permissable (i.e., may not constitute impermissible dilution),
even if treatment occurs in a surface impoundment or other land
disposal unit (provided, of course, that the waste meets the
treatment standard before land disposal occurs, or that disposal
occurs in a section 3005(j)(ll) impoundment).  (Thus, the issue
of treatment of organics in aggregation tanks is not relevant.)
In determining what constitutes legitimate centralized treatment,
we indicated that the clearest indication was use of the same
type of treatment as that on which the treatment standard for the
prohibited waste is based.  Id. col. 2.  While biological
treatment was one of the treatment technologies relied upon by
the Agency in establishing treatment standards for multi-source
leachate, it is not the only treatment and is clearly not
appropriate for all F039 constituents.   (See Background Documents
on BOAT for F039.)  In addition, combination of leachate
containing organics with process wastewater containing organics
for biological treatment could be permissible aggregation,
because it appears that the facility could be combining different
wastes amenable to the same type of treatment technology.  Id.
col. 1.  Before a final assessment could be made, Rhone Poulenc
would need to submit characterization data demonstrating
similarities in composition between leachate and process
wastewaters (e.g., indicating biodegradable constituents at
approximately the same concentration levels).  A demonstration
would also be needed indicating that the treatment impoundment is
capable of treating toxic organics in the commingled wastewaters,
i.e., that levels of these toxic organics are not so low as to go
untreated in the Rhone Poulenc impoundment.  Absent such a
showing, EPA could not conclude that the impoundment is
legitimately treating the organics in the prohibited wastes.

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     Assuming that the leachate is commingled with similar plant
wastewaters and that biodegradation is the appropriate treatment
for all of the F039 organics and for the plant wastewaters, the
treatment of organics would be permissible.
     Metals

     It appears that Rhone-Poulenc is impermissibly diluting
metals in its system.  The same analysis used for organics would
indicate that biological treatment is inappropriate for metals
fid, col. 1-2 ("An example of a type of treatment that is
inappropriate for treatment of certain prohibited wastes would be
biological treatment standards for metals.  In these systems,
metal removal is incidental and nowhere as efficient as systems
designed to treat metals...")).  The initial aggregation step, in
which metals are removed by settling, likewise probably does not
constitute proper treatment of metals.  As Rhone-Poulenc states,
it is an aggregation step, not a treatment step; it achieves a
homogenous mixture that allows optimization of biological
treatment of organics.  Adequate treatment of metals would
require chemical precipitation or some other type of comparable
treatment.  (See Background Documents on BOAT for F039.)  At the
least, Rhone-Poulenc has not yet demonstrated that it can meet
the F039 wastewater metals standards by use of primary treatment
(i.e., settling in tanks for short periods of time).

     Consequently, Rhone-Poulenc is taking a prohibited waste
with treatment standards for metals, which does not meet those
treatment standards as generated, mixing it with a large volume
of wastewater, and introducing it to a system that does not
provide anything more than incidental removal of metals.  This
appears to constitute impermissible dilution.  Id. at 22666 col.
1-2.  (Rhone-Poulenc's argument that the leachate does not differ
significantly from its process wastewater which is only treated
by biological treatment does not prove anything; it may be that
Rhone-Poulenc is not adequately treating the metals in its
process wastewater either.  The key here is that there are metal
standards for multi-source leachate, Rhone-Poulenc's leachate as
generated does not meet those standards, and the leachate only
meets those standards after it is mixed in a treatment system
that at no point does proper treatment for metals.)

     Rhone-Poulenc submitted influent and effluent data from a
lab-scale model in an attempt to demonstrate the applicability
and treatment performance of the primary treatment system.  The
data submitted show only some reduction for a few regulated
organic constituents and no data is provided to demonstrate
removal rates for any metal constituents.  While the final
determination on a case-specific dilution issue should generally
be made by the Region (or State), you should be aware of our
concerns with these data submitted by Rhone-Poulenc.  (In many

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instances, our concerns are similar to those presented in a
memorandum from Region III to Rhone-Poulenc on July 30,  1990.)
The facility incorrectly labels their lab-scale experiment as a
more stringent test criteria than that required by the Agency to
demonstrate treatment performance and refers to the November 1989
proposal for the Third-Third rule.  EPA proposed to require a
reduction of at least one BDAT list constituent at the point of
aggregation to demonstrate that the aggregation did not
constitute impermissible dilution (54 FR 48372, 48494-48496).
The reason the Agency did not finalize this criteria is because
it was not stringent enough to provide the adequate information
needed to make a reliable determination of legitimate treatment
(55 IB 22665).

     We believe that the lab-scale data are inadequate to
demonstrate that appropriate treatment for F039 and U025
wastewaters is achieved before disposal into the surface
impoundments.  Not only should data from the actual full-scale
treatment system be used to make a demonstration of treatment
performance, but it should include removal rates for all
regulated constituents determined to be present in the wastes.
(For F039, the regulated constituents include over 200
constituents, regardless of the original constituent listings of
wastes disposed in the landfill and surface impoundments.)  Based
on our experience, the type of treatment used by Rhone-Poulenc
will likely not provide removal rates comparable to the levels
otherwise needed to legitimately treat the metals present in the
F039 wastes to BDAT levels; consequently, it appears the facility
is diluting metals impermissibly to achieve the LDR levels for
F039 wastewaters.

Possible Nonwastewater LDR Violation

     It also appears that Rhone-Poulenc is in violation of
various standards for nonwastewaters.  First, with respect to the
sludge derived from treating F039 wastewaters, the sludge
received a two-year national capacity variance and consequently
can only be disposed of in a minimum technology surface
impoundment during that period or must comply with F039
nonwastewater standards.  See Section 268.35(h).  Section
3005(j)(3) impoundments do not meet the minimum technology
requirement provisions unless they have received one of the
section 3004(o)(2) or (3) waivers.  See 53 FR 31185-186 (August
17, 1988) ("although many commenters stated that the retrofit
waivers granted under 3005(j)(3)  ... should also be recognized
under the land disposal restrictions, the Agency disagrees.  EPA
believes that Congress would have included these waivers had it
intended to do so.")  Thus, absence compliance with a waiver from
minimum technology requirements  (the section 3004(o)(2) waivers
are codified in 264.221(d) and  (e) and 265.221(c) and (d)), the
sludge cannot be placed in the surface impoundment.

     With respect to the treatment standard for U025, the
standard must be met before land  disposal of the waste.  API v.

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EPA. 906 F. 2d 729, 735-36 (D.C. Cir. 1990).   Consequently, the
sludge in the impoundment must meet the nonwastevater U025
standard.  In addition, further placement of the sludge in the
Goff landfill is acceptable only if that landfill is a subtitle C
unit (and the sludge would have to meet the U025 treatment
standards before that land disposal as well).

     Should you require additional information, please contact me
at FTS 382-4627 or Richard Kinch at FTS 382-7917.
Attachments

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                                                   9551.1990(07)
                         OCT I 4 1990
Mr. G. A. Vogt, Manager
Environmental Compliance & Plant Services
Thompson Consumer Electronics, Inc.
P.O. Box 2001
Marion, Indiana  46953-4399

Dear Mr. Vogt:

     This letter is in response to your July 10, 1990, letter
regarding clarification of the national capacity variance for
inorganic solids debris under EPA's Land Disposal Restriction
Regulations for Third Third Wastes.  In general, your letter
questioned the scope of the definition of inorganic solids debris
as well as its application.  The delay in responding to your
letter results from the myriad related questions that the Agency
has received concerning these issues.  The Agency can now offer
the following clarifications for your situation:

     For the purposes of determining the applicability of the
capacity variance extension, the waste in question must only be
specified as a D004, D005, D006, D007, D008, D009, D010, or D011
waste and must meet all the criteria listed in the definition of
inorganic solids debris in 268.2(g).  (See 55 FR 22686 (June 1,
1990).)  It must also exactly fit one of the eight specific
categories of inorganic solids debris listed in 268.2(g)(l)-(8).
While some wastes may appear to fall under one of these
categories (e.g., 268.2(g)(6) and (7) include wastes identified
as containers, drums, pipes, valves, appliances, or industrial
equipment), they must first meet the criteria in the preceding
portion of the definition that clearly indicates that these
wastes must be inorganic or metal materials.  In the June 1, 1990
rule, the Agency also gave specific examples of organic solids
debris (55 FR 22555) in order to help clarify the classification
of a waste as organic versus inorganic.  These examples of
organic debris included: rags, paper, cardboard, clothes, gloves,
paints, paint chips, wood, grubbing materials, blankets, hoses,
bags, resins, plastic liners, and PVC piping. (Please see also
the discussion of inseparable mixtures of inorganic and organic
debris later in this letter.)

     In response to your question on metal-contaminated cloth
filters, they would be classified as organic solids debris
because cloth is typically comprised of organic materials.  EPA

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has granted a national capacity variance for soil and debris for
which the underlying standard  (i.e., waste code-specific
standard) is based on incineration, vitrification (D004 arsenic
wastes), or mercury retorting  (D009 mercury wastes with greater
than 260 mg/kg total mercury).  While the underlying standards
for most D004—D011 metal wastes were generally based on
stabilization rather than incineration, the Agency did state, at
55 IB 22555 (June 1, 1990), "as a matter of treatment policy
prohibited metal wastes that are generated as an organo-metallic
or in an organic matrix can be incinerated ... , prior to
subsequent treatment of the ash (if necessary),  in order to
comply with a concentration-based standard or to comply with a
technology-based metal treatment standard." and that "... much of
the D004—D011 organic debris may be treatable by washing or
extraction rather than incineration."  Thus, only organic solids
debris that must be treated by incineration, vitrification, or
mercury retorting in order to comply with the metal standards,
received a variance.  If the metal-contaminated cloth filters
cannot be decontaminated to below the appropriate treatment
levels by washing or extraction with acids (or other appropriate
media) and would therefore have to be incinerated, they are
subject to the national capacity variance.

     During a follow-up telephone conversation with my staff, you
also indicated that one of the wastes on which you were seeking
guidance consists of broken color picture tubes made primarily of
glass.  While EPA has specifically identified glass as one of the
specific types of inorganic debris according to 268.2 (g)(3), one
needs to evaluate the applicability of the rest of the definition
of inorganic solids debris.  One must first determine if the
waste is friable (i.e., easily or readily crumbled).  Although
broken color picture tubes would be expected to be somewhat
friable, one must also determine whether the subsequent pieces
pass the 9.5 mm sieve size.  Based on your remarks,  we assume
that at least some of the waste (either "as generated" or the
friable residues) will indeed pass through, but not all.  Also,
additional small pieces from other similar friable materials may
be generated during transportation and handling (i.e., more
pieces may be generated that would pass through a 9.5 mm sieve).
Thus, the questions become "When does one apply the standard?"
and "Is there a percentage of the waste that must not pass
through the sieve in order to be classified as an inorganic
solids debris?"

     In responding to this question, one must examine the
Agency's intent in promulgating the variance.  The key to the
variance is that wastes in the inorganic solid debris categories
would have to be crushed or "otherwise reduced in size" prior to
stabilization (55 FR 22556).  The Agency had determined, that
there was inadequate capacity for "cutting, or crushing and
grinding in mechanical sizing equipment" for these wastes.  Thus,
it is the link between the type of inorganic solids debris and

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the sizing equipment required as pretreatment (i.e.,  prior to the
stabilization process) that was the key factor in determining the
need for the capacity variance.

     As a result, the Agency has determined that the point of
generation is where the waste is identified as inorganic solid
debris for purposes of the national capacity variance.   If any of
the waste material does not completely pass through a 9.5 mm
sieve, then the entire quantity of waste material qualifies as
inorganic solid debris.  In addition, if the waste material is
friable (i.e., easily crumbled) but some of the pieces will not
pass through a 9.5 mm sieve, then the entire quantity of waste
material is considered to be inorganic solid debris.   Therefore,
any debris that may fall through a 9.5 mm sieve because of
transporting from the generator's site to the disposal site is
also considered to be inorganic solid debris that is subject to
the national capacity variance.

     Wastes appearing to meet the definition of inorganic solids
debris under section 268.2(g)(6) (metal cans, containers, drums,
or tanks)  and (7) (metal nuts, bolts, pipes, pumps, valves,
appliances, or industrial equipment) often contain organic parts
that are difficult to separate.  This occurs particularly in
cases such as: 1) industrial process equipment being dismantled;
2) industrial valves comprised of composites of organic and
inorganic materials; and 3) appliances containing multiple
connected parts.  Capacity for sizing and separation is also
lacking for this type of inorganic solid debris (which was the
basis of the variance is also applicable for this type of
inorganic solids debris.  Thus the variance for inorganic solids
debris will apply to these inseparable mixtures except in
situations where during the dismantling, the organic materials or
a significant portion of the organic materials are manually
separable or separable by simple mechanical means.  The separated
organic materials must then be treated for their metals content
and thus comply with the applicable treatment standards for D004
— D011 (except as noted above).  Only the inorganic solids
debris that are separated from the nonhazardous organics are
subject to the national capacity variance.

     I hope this letter addresses your major concerns.  If you
have any further questions, please call Richard Kinch, Chief of
the Waste Treatment Branch, at (202). 382-7927.

                              Sincerely,
                               >ylvia K. Lowranc
                              Director
                              Office of Solid Waste

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            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                                        9551.1990(08)


                             OCT 24 1990
Mr. Fielding Formway
ARCO Products Company
Post Office Box 1127
Ferndale, Washington  98248

Re:  No-Migration Petition submitted for ARCO Products Company's
     Ferndale, Washington Land Treatment Facility  (F-90-NCPP-
     FFFFF)

Dear Mr. Formway:

     I am writing in regard to your September 5, 1989 "no-
migration" petition, which requests a variance under 40 CFR
§268.6 to allow ARCO Products Company (ARCO) to continue the land
treatment of restricted wastes (EPA Hazardous Waste Nos. K050 and
K051) at ARCO's Ferndale, Washington Land Treatment Facility
No. 7 (LTF-7).  After a careful review of your petition, we have
concluded that your facility does not meet the standard for a no-
migration finding.  Therefore, we will recommend to the Assistant
Administrator for Solid Waste and Emergency Response that the
petition be denied.

     Our decision to recommend denial of the petition is based on
several concerns:

•    The ground-water monitoring system is inadequate for the
     purpose of a no-migration variance, because it will not
     detect migration at the earliest time.

•    The separation between the bottom of the treatment unit and
     the top of the seasonally high-water table exceeds the
     minimum requirement.

•    Unsaturated zone monitoring for benzene, chrysene, and
     selenium indicate that hazardous constituents have already
     migrated beyond the unit boundary, and are likely to
     continue to do so in the future.

•    Your air modeling shows concentrations of benzene at the
     unit boundary that exceed the allowable health-based
     standard.

The details of our concerns are described below.

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                               -2-
Ground-Water Monitoring System

     We have concluded that ARCO has failed to meet the
requirements of 40 CFR §268.6(a)(3) and (4).  Specifically, we
believe that ARCO has not adequately determined background
conditions in both the ground water and soil-pore water
underlying LTF-7.  First, ARCO proposed well AW-45 as an
upgradient well and wells AW-47, 48, 49, and 50 as downgradient
wells.  ARCO notes elsewhere in the petition, however, that
because of the transient nature of the water table, wells 45 and
63 are considered downgradient as well as upgradient  (V.I, page
5-30 and Section 6.6).  We conclude, therefore, that ARCO's
ground-water monitoring system at LTF-7 does not have an
upgradient monitoring well that is capable of consistently
providing samples of ground water unaffected by the treatment
unit.

     Second, we question whether ARCO can collect samples of
soil-pore water which are representative of background
conditions, as required by 40 CFR §264.278(b)(1).  Specifically,
ground-water contours shown in Figure 3-7 of the petition
indicate a ground-water divide trending generally to the west
across Plot-7C.  Although ground water is shown to flow generally
to the northwest under LTF-7, the presence of the ground-water
divide, as well as the southwesterly ground-water flow shown for
LTF-45 and LTF-47, indicate that ground water may flow to the
southwest from LTF-7 to the background plot and, thus, to the
background lysimeters located south of the southwest corner of
Plot-7C, (Figure 5-1 on page 5-14).  (This means that one of the
background lysimeters may be downgradient of LTF-7.)   We are
concerned that this flow pattern may be present since only the
general direction of ground-water flow is shown (e.g., an annual
average) and not its seasonal patterns.  If ground water
periodically flows from LTF-7 to the background lysimeters for
Plot-7C, soil-pore water samples taken from these lysimeters
could not be reliably used to establish background
concentrations.
Maintaining Minimum Separation

     Federal regulations require that the depth to ground water
at land treatment facilities should be no less than three feet
from the bottom of the treatment zone to the seasonal high water
table (see 40 CFR §§264.271(c)(2)).   As ARCO acknowledged in its
petition (V.I, page 3-12), the ground water beneath LTF-7
sometimes rises to a level that is within the lower treatment
zone of LTF-7 (i.e., above a depth of five feet) due to the low
permeability of the subsoil and the area's humid climate.  Figure
3-8 of the petition displays the results of bi-weekly readings of
water levels in three sets of paired, shallow piezometers

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                               -3-

conducted from July 1988 to April 1989.  These data show that
ground water was present during this period at depths in the
treatment zone as high as 2.8 feet below the ground surface and
that, in general, ground water was present at depths at or above
five feet below the ground surface between November and April of
the sampling period.

     ARCO's inability to maintain the minimum separation between
the bottom of the treatment zone and the top of the seasonally
high ground-water table is further supported by information
presented in Table E-4 of ARCO's petition.  Our evaluation of the
data presented in Table E-4 revealed that between January and
April 1987, ground water beneath LTF-7 was measured at depths
ranging from 0.89 to 6.1 feet below "top of casing."  Although,
ARCO did not provide information on the distance between the
ground surface and the "top of casing," typical distances from
the ground surface to the top of the well casing are generally
between one and three feet.1   Thus,  even if the distance between
the ground surface and the "top of casing" was three feet, the
water table would only have been 3.89 to 9.1 feet below the
around surface during the January - April 1987 period.


Presence of Constituents Below the Treatment Zone (BTZ1

     Various data indicate that migration of hazardous
constituents below the treatment unit has recently occurred.  The
petition noted (V.I, page 5-18), that chrysene was detected in
ground-water monitoring well No. 43 in January, 1988 at 3.3 ppb,
which is in excess of the health-based level (HBL) of 0.2 ppb
used in no-migration decisions.  Furthermore,  correspondence
between ARCO and Washington Department of Ecology (WDOE)
(November 6, 1989 and January 24, 1990) that has been shared with
us indicates that benzene, chrysene, and selenium have also been
detected in soil-pore liquids beneath the treatment zone at
hazardous concentrations.  We present these data below in
Table 1.
     1   Table E-5 of Appendix A presents  for monitoring  wells
other than those listed on Table E-4, elevation measurements made
at the top of casing and surface grade.  These data indicate that
the distance between the ground surface and the top of the well
casing ranged from a low of 0.59 feet (well number AP-46) to a
high of 2.15 feet (well number AP-64).

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                               -4-


                             TABLE 1

                Soil-Pore Liquids Monitoring Data
Constituents   Lysimeter No.   HBL(ppb) Concentration(ppb) Date
Benzene
Chrysene
Selenium
22
Composite £/
Composite I/
5
0.2
10
6.4
7.4
10.0
1.4
14.0
8/89
9/89
12/89 I/
9/88
2/87
     I/  Composite sample (Based on page 1-5 of ARCO's January
     24, 1990 letter to Mr. Richard A. Burkhalter, Washington
     Department of Ecology) .
         Composite sample containing samples collected from
     lysimeter numbers 21GB, 22GB, and 23GB.
         Composite sample containing samples collected from
     lysimeter numbers 21PC, 2 2 PC, and 2 3 PC.

     As shown above in Table 1, benzene, chrysene, and selenium
have migrated past the unit boundary at concentrations in excess
of the HBL used in no-migration petition decision-making.  We
note that concentrations of the above constituents may actually
have been detected at an individual lysimeter at concentrations
higher than those reported, due to the averaging effect obtained
from compositing the lysimeter samples.

     ARCO's January 24, 1990 letter also stated that toluene,
ethylbenzene, and xylene were detected in lysimeters, which
"indicates a problem with the current operating practices for
landfarm Plot-7B."  ARCO indicates that hairline fractures in the
clay may be aiding contaminant transport from Plot-7B (Attachment
page 1-4) but also suggests that these hairline fractures are a
local phenomenon because similar lithology was not detected in
other borings.  Because the petition states that fractures in the
clay are a source of recharge for the underlying ground water, we
conclude that future migration will continue to occur.  ARCO
believes it can address this concern by decreasing waste loadings
made to Plot-7B.  If this leads to an increase in waste loadings
made to Plots-7C and 7A, we are concerned that this increase may
cause additional migration.

     Lastly, data presented in Table 5-8 of the petition, show
that chrysene was detected below the treatment zone at

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                               -5-

concentrations of 130 ppb for separate sampling periods in July,
1987 and January, 1988.  We do not believe that ARCO can explain
the presence of chrysene as resulting from a recent, one-time
overapplication and the recurring presence of chrysene beneath
the treatment unit at concentrations in excess of the health-
based level of 55 ppb is a further basis for petition denial. The
presence of chrysene beneath the treatment zone, will also
obscure future determinations of whether chrysene is continuing
to migrate.

Air Monitoring

     In its petition, ARCO stated that the CHEMDAT6 model
predicted concentrations of benzene at the unit boundary in
excess of the health-based standard by a factor of 1.4;
therefore, ARCO is "exploring waste minimization, pretreatment,
and operation modifications which can effectively reduce the
predicted emissions for benzene to meet appropriate standards if
necessary" (V.I, Executive Summary, pages 6-7).  In fact, the
petition indicates (V.I, page 8-12) that the predicted annual
average concentration of benzene in the air at the unit boundary
is 1.0 ug/m3,  which exceeds  the  health-based level  of  0.12  ug/m
Elsewhere in the petition (V.I,  page 7-11), the average
concentration of benzene in the air at the unit boundary is
reported as 1.56 ug/m3 (including a May  1985 waste  sampling
event), which also exceeds the health-based level.   Therefore,
ARCO's predicted benzene concentrations (1.0 ug/m )  at the  unit
boundary fail to satisfy the no-migration standard of 0.12
ug/m3.2

     Finally, our review indicates that the petition is
incomplete and that information and clarification in areas beyond
those highlighted above, would be needed to complete the
petition.  However, because of the problems above,  we believe we
have enough information at this time to move toward a denial of
your petition.

     It is our practice to give petitioners the option of
        Based on our review of  Tables  E-24  through  E-27,  it
appears that the values of predicted maximum long-term ambient
air concentrations in Table 7-3 were not corrected based on the
results of the confirmatory monitoring program discussed in
Appendix E.  If corrected for monitored concentrations, the
predicted concentrations of benzene at the unit boundary actually
may be higher than reported in the petition.  In addition, it is
likely that ARCO's confirmatory monitoring program may not have
been performed during worst-case emission and dispersion
conditions.  As a result, the concentration of benzene may
actually be higher than measured and an even higher correction
factor may be warranted.

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                               -6-

vithdrawing their petitions to avoid a negative publication in
the Federal Register.  If you prefer this option, you must send
us a letter withdrawing your petition and acknowledging that the
petitioned wastes are still considered to be restricted wastes
subject to the Third Third Land Disposal prohibitions scheduled
to be effective November 8, 1990.  This letter should be
forwarded to the following address within two weeks of the date
of receipt of today's correspondence:

     Elizabeth A. Cotsworth, Chief
     Assistance Branch (OS-343)
     Office of Solid Waste
     U.S. Environmental Protection Agency
     401 M Street, S.W.
     Washington, D.C.  20460

     If you choose not to withdraw your petition, we will
recommend that a proposed denial decision be published in the
Federal Register.

     Any questions regarding our findings may be submitted in
writing to Mr. James Michael of my staff.

                              Sincerely,
                              Jeffery D. Denit, Deputy Director
                              Office of Solid Waste
cc:  Michael Gearheard, Region X
     Carrie Sikorski, Region X
     Dave Bartus, Region X
     Kim Anderson, WDOE
     Elizabeth Cotsworth, EPA HQ
     James Michael, EPA HQ
     Terry Keidan, EPA HQ

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                               -7-
bcc: Newman Smith, AB, PSPD, OSW
     Dave Reeves, WMD, OSW
     Richard Kinch, WMD, OSW
     Kathy Stein, OE
     Wanda Levine, WMD, OSW
     Howard Finkel, ICF Incorporated

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                                      j j j i.
                            NOV
Mr. David R. Saad  .
Environmental Coordinator
Marathon Petroleum Company
Marathon Avenue
Robinson, Illinois  62454

Re:  No-Migration Petition submitted for Marathon Petroleum
     Company's Robinson, Illinois Land Treatment Facility and
     Storage Surface Impoundments (F-90-NMPP-FFFFF)

Dear Mr. Saad:

     I am writing in regard to your December 5, 1989 "no-
migration" petition, which requests a variance under 40 CFR
§268.6 to allow Marathon Petroleum Company  (Marathon) to continue
the land treatment and storage of restricted wastes  (EPA
Hazardous Waste Nos. K048 - K052) at Marathon's Robinson,
Illinois land treatment facility  (LTF) and  storage surface
impoundments.  After a careful review of your petition, we have
concluded that your facility does not meet  the standard for a no-
migration finding.  Therefore, we will recommend to the Assistant
Administrator for Solid Waste and Emergency Response that the
petition be denied.

     Our decision to recommend denial of the petition regarding
the land treatment facility is based on several concerns:

          Ground water and unsaturated zone monitoring data
          indicate that hazardous constituents have already
          migrated beyond the unit boundaries.

          The ground-water monitoring system for the land
          treatment facility is inadequate  for the purpose
          of a no-migration variance because it will not
          detect migration at the earliest  practicable time
          due to the presence of hazardous  constituents
          beneath the land treatment units.

     •    The separation between the bottom of the land
          Treatment unit anctomamfeftgi ot tne seasonally nign
          water t&W,eve)fcefeas me minimum requirement

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We also recommend denial of the petition for the storage surface
impoundments because Marathon will not be able to differentiate
between past releases from the previously unlined surface
impoundments and possible future releases from the retrofitted
units.  The details of our concerns are described below.

Land Treatment Facility

Presence of Constituents Below the Treatment Zone fBTZ)

     Ground-water and soil-pore monitoring data provided in
Marathon's petition indicate that migration of hazardous
constituents below the treatment units has already occurred.
Specifically, analyses of ground-water samples collected during
May 1989 (Appendix C, V.3, Appendix E, Table E-14) have indicated
the presence of bis(2-ethylhexyl)phthalate in three monitoring
wells (P6B, P7C, and P12B) at concentrations ranging from 20 to
47 ug/1.  These data indicate that bis(2-ethylhexyl)phthalate is
present in the ground water at concentrations in excess of the
health-based level of 3 ug/1 used in no-migration petition
decision-making.  In addition, results from six other monitoring
wells (P3D, P4C, P5C, P8B, P8C, and P12A) show the use of higher
than normal detection limits  (20 or 36 ug/1 rather than 10 ug/1)
for this same parameter, indicating this compound's possible
presence at similar concentrations in the ground water at these
other locations.

     In addition, benzene was detected at a concentration of 33
ug/1 in the soil-pore liquid collected from lysimeter L-3 on
July 6, 1989 (Appendix C, V.3, Table E-14).  (The health-based
level for benzene is 5 ug/1.)  Marathon infers that benzene is
commonly found in the air at refineries, and therefore, spurious
contamination of the sample may have occurred (Appendix C, V.I,
page 2-16).  However, Marathon did not provide the necessary data
to support their speculation.  Therefore, we can only conclude
that these data provide evidence of migration from the unit.

Detecting Migration at the Earliest Practicable Time

     We have also concluded that Marathon's groundwater
monitoring system will not be able to detect migration at the
earliest practicable time.  Therefore, it failed to meet the
requirements of 40 CFR §268.6(a)(4).  Specifically, we are
concerned that Marathon will be unable to differentiate between
past releases from other sources and past, present, and future
releases resulting from the operation of the LTF.  We also are
concerned that Marathon's unsaturated zone monitoring system will
not be able to detect potential migration in the northern section
of the West land treatment unit.  We discuss our conclusions
below.

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     Soil-core data provided by Marathon indicate that hazardous
constituents are present below the West land treatment unit.
Specifically, based on the presence of benzo(a)anthracene,
benzo(a)pyrene, benzo(b)fluoranthene, bis(2-ethylhexyl)phthalate,
chrysene, and pyrene in below treatment zone (BTZ) soil cores,
Marathon has concluded that a "historical waste body" which
predates operation of the West land treatment unit, exists
beneath the unit (see Attachment I).  Of these constituents,
benzo(a)anthracene, benzo(a)pyrene, benzo(b)fluoranthene, and
chyrsene were detected below the treatment zone at concentrations
exceeding the health-based levels used in no-migration petition
decision-making.

     Marathon states that these data do not conclusively prove
that constituents are migrating below the treatment zone.
Rather, Marathon argues that the presence of the above
constituents is due to past operations at this same site.
Marathon, however, has not explained how and when this
"historical waste body" was deposited.  Therefore, we conclude
that Marathon has not conclusively proven that the constituents
detected below the treatment zone did not occur as a result of
land treatment operations.

       Regardless of whether the contaminants beneath the
treatment unit resulted from a "historical waste body" or from
current operations, we believe that Marathon will be unable to
determine whether releases occurred because the waste
constituents detected below the treatment zone have also been
detected Nin the wastes managed at the land treatment unit.  Due
to Marathon's inability to differentiate between past releases
from other sources and past, present, and future releases (if
any) resulting from the operation of the LTF, we conclude that
Marathon has failed to meet the requirements of 40 CFR
§268.6(a)(4).

     Lastly, in 1988, Marathon expanded the 17-acre West land
treatment unit to include an adjacent three acres  (the northern
expansion).  Run-off from both the East and West land treatment
units drain  into this area and are routed to storage tanks and
the refinery's wastewater treatment system.  During storms,
however, the run-off does not drain as fast as it accumulates,
and the northern expansion area floods.  As a result of the
ponding, a temporary hydraulic head is formed, increasing the
potential for migration of hazardous constituents.  Although
Marathon recently installed new lysimeters in the northern
expansion, samples have yet to be collected.   Marathon has
collected soil core samples from this area, but results have not
been submitted.  Marathon, therefore, is unable to demonstrate
that there has been, or will not be migration of hazardous
constituents from this area of the West land treatment unit.

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Maintaining Minimum Separation

     Federal regulations require that the depth to ground water
at land treatment facilities should be no less than three feet
from the bottom of the treatment zone to the seasonal high water
table (see 40 CFR §§264.271(c)(2)).  Data provided in the
petition indicate there may be a seasonal high water table or
perched water table within the till layer beneath the LTF, or at
least near the northern part of the LTF, that encroaches into the
three foot thick buffer zone required below the treatment zone.
Specifically, some of the monitoring wells screened in the till
and at the till/sandstone interface were found to have depth-to-
water level measurements of less than eight feet.  The water
level measurements were taken during relatively dry months
(August and November) in which ground water is at a low level.
Marathon's inability to demonstrate that it is maintaining the
minimum separation between the bottom of the treatment zone and
the top of the seasonally high ground-water table is a basis for
denial of the no-migration petition.

Surface Impoundments

     We have concluded that Marathon has failed to demonstrate,
to a reasonable degree of certainty, that constituent migration
from the three storage surface impoundments will not occur.  We
note that it is difficult to evaluate the long-term performance
of the liner system installed in the three surface impoundments
for the storage of both liquid wastes and bulk .dry wastes.
Discussed below are the reasons why we have concluded that
Marathon has failed to demonstrate that there will be no-
migration of constituents at hazardous concentrations from the
three impoundments.

     First, we are concerned that Marathon will not be able to
differentiate between past releases from the previously unlined
impoundments and future releases (if any) from the new lined
impoundments.  Specifically, between 1980 and 1988, Marathon
operated the three surface impoundments without liners and leak
detection systems.  After eight years of operating without
liners, we believe that it is likely that some contamination of
the subsoils has occurred beneath these impoundments.  According
to the Geological Engineering Report for the three surface
impoundments (Appendix D, V.I, Attachment V, page 3-2), soil
borings taken from areas near the pits showed a layer of soil
with strong odor and appearance of hydrocarbons.  The presence of
contaminated soils beneath the impoundments will hinder
Marathon's ability to determine whether constituents are
migrating from the impoundments and affect Marathon's ability to
detect constituent migration at the earliest extent practicable.

     Second, on June 19, 1990, the Illinois Environmental
Protection Agency  (IEPA) conducted a site visit at the Robinson

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 Refinery.   During the site visit,  it was  apparent  that waste
 overtopping had occurred as evidenced  by  the  dead  vegetation  and
 stained soil on the south side  of  the  impoundment.   In the
 petition,  Marathon has claimed  that, to prevent  overtopping,  they
 designed the impoundments with  adequate freeboard  (two-feet).  As
 overtopping, induced by local meteorological  conditions,  recently
 occurred,  Marathon's design of  the impoundments  is insufficient
 to prevent future occurrences of overtopping.  As  a result,
 Marathon has failed to prove, to a reasonable degree of
 certainty,  that there will be no migration.

      Third, Marathon stated that the Oily Sludge Pit had  leaked
 due to a one-inch tear in the upper flexible  membrane liner  in
 the center of the pit, which "appeared to have been caused by
 some external mechanism and was not the result of  material
 failure."   Marathon does not know  how  the liner  was damaged.
 Without this knowledge, Marathon can not  guarantee that such  an
 event would not occur in the future.   In  addition,  the petition
 indicated  that the bulk waste pit  will be manually cleaned out
 every one-to-five years,  depending on  the waste  accumulation
 rate.  Without knowledge of how or why the impoundment liner  was
 damaged, Marathon will not be able to  guarantee  that the  bulk pit
 liner will not be damaged when  personnel  remove  solids.

 Completeness of Petition

      Finally, our review indicates that the petition is
 incomplete and that information and clarification,  in areas
 beyond those highlighted above, would  be  needed  to complete the
 petition.   However, because of  the problems noted  above,  we
 believe we have enough information at  this time  to move toward a
 denial of  your petition.


      It is our practice to give petitioners the  option of
'withdrawing their petitions to  avoid a negative  publication  in
 the Federal Register.  If you prefer this option,  you must send
 us a letter withdrawing your petition  and acknowledging that  the
 petitioned wastes are still considered to be  restricted wastes
 subject to the Third Land Disposal prohibitions  scheduled to  be
 effective  November 8, 1990. This  letter  should  be forwarded  to
 the following address within two weeks of the date of receipt of
 today's correspondence:

      Patricia Cohn, Acting Chief
      Assistance Branch (OS-343)
      Office of Solid Waste
      U.S.  Environmental Protection Agency
      401 M Street, S.W.
      Washington, D.C.  20460

-------
     If you choose not to withdraw your petition, we will
recommend that a proposed denial decision be published in the
Federal Register.

     Any questions regarding our findings may be submitted in
writing to Mr. James Michael of my staff.


                    Sincerely,
                    Jeffery D. Denit, Deputy Director
                    Office of Solid Waste
Attachment
cc:  Karl Bremer, EPA Region V
     George Hamper, EPA Region V
     Gale Hruska, EPA Region V
     Larry Eastep, Illinois EPA
     Patricia Conn, PSPD, OSW
     James Michael, PSPD, OSW
     Terry Keidan, PSPD, OSW

-------
                          ATTACHMENT Z



       Summary of Constituents Detected in the BTZ (mg/kg)
Constituents
Benzo(a)anthracene


Benzo(a)pyrene
Benio( b) f I uor anthene
Bls(2EH)phthalate
Chrysene







Pyrene
1

Date
07/11/89
07/11/89
04/18/89
07/11/89
07/11/89
08/10/88
08/10/88
07/11/89
04/19/89
07/11/89
08/09/88
08/10/88
04/18/89
04/18/89
07/11/89
07/11/89
04/18/89
Saiple
Ninfcer
LTD-5-2
LTD-5E-2
LTO-12D
LTO-5E-2
LTO-5E-2
RI-170
RI-50
LTO-50-2
LTO-5E
LTO-5E-2
RI-100
RI-12D
LTO-12D
LTD-12E
LTO-5-2
LTO-5E-2
LTO-120
Concentration
20
120
0.63
63
52
0.68
0.41
110
0.095
650
1.3
0.35
3.4
0.99
27
160
0.63
Health-Based
Level
0.055


0.055
0.055
50
15 I/







32.000


I/   Calculated by Marathon using the RFI Guidance Manual.

-------
            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY   9551.1990(10)
                                     NOV  7 1990
Mr. R. G. Soehlke
Plant Manager-
Star Enterprise
Delaware City Refinery
2000 Wrangle Hill Road
Delaware City, Delaware  19706

Re:  No-Migration Petition submitted for Star Enterprise's
     Delaware City, Delaware Land Treatment Unit
     (F-90-NSEP-FFFFF).

Dear Mr. Soehlke:

     I am writing in regard to your December 26, 1989 "no-
migration" petition, which requests a variance under 40 CFR
§268.6 to allow Star Enterprise to continue the land treatment of
restricted wastes (EPA Hazardous Waste Nos. K048 - K051) at
Star's Delaware City, Delaware land treatment unit (LTU).  After
a careful review of your petition, we have concluded that your
facility does not meet the standard for a no-migration finding.
Therefore, we will recommend to the Assistant Administrator for
Solid Waste and Emergency Response that the petition be denied.

     Our decision to recommend denial of the petition is based on
two main concerns:         	

          Unsaturated zone monitoring for lead and nickel
          indicate that hazardous constituents have already
          migrated beyond the unit boundary*

     •    Ground-water monitoring for arsenic, chromium, lead,
          selenium, and vanadium indicate that hazardous
          constituents have already migrated beyond the unit
          boundary.

The details of our concerns are described below.

Presence of Constituents Below the Treatment Zone (BTZ);

     Analyses performed on the soil-pore liquids indicate that
lead and nickel have migrated out of the treatment zone.  Soil-
pore samples taken during the first three quarters of the land
treatment demonstration (12/88 - 5/89)  show the exceedance of
lead and nickel above their respective health-based levels.  Lead
showed concentrations in excess of the health-based level of 0.05
mg/1 for 13 out of the 34 samples taken, while nickel showed
concentrations in excess of the health-based level of 0.1 mg/1

-------
                               -2-

for 15 out of the 35 samples taken.  These data demonstrate that
both lead and nickel have migrated below the treatment unit at
concentrations in excess of their respective health-based levels.
(See Attachment, Table 1).

Presence of Constituents in the Ground Water

     Results of ground-water monitoring analyses also indicate
the presence above health-based levels of metals in the ground-
water at the LTU boundaries.  Specifically, arsenic (125 ppb),
selenium (up to 50 ppb), lead (up to 208 ppb),  chromium (up to
320 ppb), cadmium (up to 122 ppb), and vanadium (455 ppb)  were
shown to exceed their respective health-based levels. (The
health-based level for arsenic, lead, and chromium is 50 ppb; for
selenium and cadmium, the health-based level is 10 ppb; and for
vanadium the health-based level is 240 ppb).  While background
may have contributed somewhat to the measured levels of the
hazardous constituents, the differences between the upgradient
monitoring well concentrations and the downgradient monitoring
well concentrations exceeded the health-based levels.  Therefore,
these data demonstrate that arsenic, selenium,  lead, chromium,
cadmium, and vanadium have migrated to the ground-water above
their respective health-based levels.  (See Attachment, Table 2).

Incomplete Petition

     Finally, our review indicates that the petition remains
incomplete and that information and clarification in areas beyond
those highlighted above would be needed to complete the petition.
However, because of the problems above, we believe we have enough
information at this time to move toward a denial of your
petition.

     It is our practice to give petitioners the option of
withdrawing their petitions to avoid a negative publication in
the federal Register.  If you prefer this option,  you must send
us a letter withdrawing your petition and acknowledging that the
petitioned wastes are still considered to be restricted wastes
subject to the Third Third Land Disposal prohibitions scheduled
to be effective on November 8, 1990.  This letter should be
forwarded to the following address within two weeks of the date
of receipt of today's correspondence:

     Patricia Cohn, Acting Chief
     Assistance Branch (OS-343)
     Office of Solid Waste
     U.S. Environmental Protection Agency
     401 M Street, S.W.
     Washington, D.C.  20460

-------
                               -3-

     If you choose not to withdraw your petition, we will
recommend that a proposed denial decision be published in the
Federal Register.

     Any questions regarding our findings may be submitted in
writing to Mr. James Michael of my staff.

                              Sincerely,
                              Jeffery D. Denit, Deputy Director
                              Office of Solid Waste
Attachment
cc:  John Humphries, EPA Region III
     David Turner, EPA Region III
     Guy Lee, DNREC
     Patricia Cohn, PSPD, OSW
     James Michael, PSPD, OSW

-------
                               -4-

bcc: Terry Keidan, AB, PSPD, OSW
     Allyson Ugarte, AB, PSPDf OSW
     Dave Reeves, AB, PSPD, OSW
     Richard Kinch, WMD, OSW
     Kathy Stein, OE
     Nikki Roy, WMD, OSW
     Howard Finkel, ICF Incorporated

-------
                               ATTACHMENT

                                 TABLE X

                 Summary  of Soil-Pore Monitoring Data
                          For  Lead and Nickel
           First Quarter
           (12/15/80-3/6/89)
Cell No.
           Lead
Nickel
Second Quarter
(3/13/89-5/1/89)

Lead   Nickel
                            Third Quarter
                            (5/8/89-7/3/89)
Lead
Nickel
1 <0.
2 <0.
3 <0.
4 • <0.
5 <0.
6 <0.
7 <0.
8 <0.
9 <0.
10 <0.
11 NA
12 <0.
BL-1 NA
Triple Blank <0.
0.29
0.18
0.08
0.2
0.15
0.08.
0.12
0.08
0.12
<0.04
0.31
1 0.06
NA
1 <0.04
0.17
0.1
<0,1
<0,1
0.12
^0 1
^Q 1
0.12
^0 1
^0 1
0.21
0.11
<0.1
<0.1
0.07
0.04
0.06
0.09
0.18
<0.04
0.05
0.14
<0.04
<0.04
0.25
<0.04
0.06
<0.04
0.1 '
0.1
0.1
<0.1
0.14
^0» 1

-------
                             TABLE 2

                   GROUND-WATER MONITORING DATA
YEAR
Arsenic   Selenium  Lead Chromium  Cadmium   Vanadium
BKG*
<50
          <50  <50
               90
          130
HBL
50
10
50   50
10
240
1980
1981
1982
1983
1984
1985
1986
1987
1988
1989
125
50

15
                    173
                    96
                    136
                    208  230
                         320
                    60
                         73
                         55
                         104
                         122
                                   455
   Background values shown record the highest reported value.
   Background value for cadmium (well no. 26) was taken 9/86, and
   for vanadium (well no. 36D) was taken 6/89.
   Downgradient values are taken from well numbers 18, 19 and 41.
   All units are in ppb.
   Only the highest values detected are shown in this table.
   No-Migration Petition, Appendix B, Volume 3, Section E-2.

-------
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY  9551.1990(11)
                                            f

                                              NOV  7 1990
Mr. D. D. Smart
Manager of Health, Safety, and Environment
Shell Oil Company
Anacortes Refinery
P.O. Box 700
Anacortes, Washington 98221

Re:  No-Migration Petition submitted for Shell Oil Company's
     Anacortes, Washington Land Treatment Facility
     (F-90-NSAP-FFFFF).

Dear Mr. Smart:

     I am writing in regard to your January 17,  1990 "no-
migration" petition, which requests a variance under 40 CFR
§268.6 to allow Shell Oil Company to conduct the land treatment
of restricted wastes (EPA Hazardous Waste Nos. K049, K051, K052,
and WP03) at Shell's Anacortes Refinery land treatment facility
(LTF).  After a careful review of your petition, we have
concluded that your facility does not meet the standard for a no-
migration finding.  Therefore, we will  recommend to the
Assistant Administrator for Solid Waste and Emergency Response
that the petition be denied.

     Our decision to recommend denial of the petition is based on
several concerns:

     •    Soil-pore and soil-core monitoring indicate that
          hazardous constituents have already migrated beyond the
          unit boundary.

          Shell will not be able to detect migration at the
          earliest time because Shell has indicated that ground-
          water monitoring wells will not be used to demonstrate
          no-migration.

The details of our concerns are described below.

Presence of Hazardous Constituents Below the Treatment Zone (BTZ)

     Soil-pore and soil-core monitoring data provided in Shell's
petition indicate that migration of hazardous constituents below
the treatment unit has already occurred.  Specifically, analyses
of soil-pore data collected from 1987-1990 have  indicated the
presence of antimony, benzene, benzo(a)anthracene,
benzo(b)fluoranthene, benzo(k)fluoranthene, and chrysene above

-------
health-based levels used in no-migration decision-making.  The
results of these analyses are presented in Attachment 1.

     In addition, several soil samples from beneath the treatment
zone indicated the presence of antimony, benzo(a)anthracene, and
benzo(b)fluoranthene above health-based levels.   The results of
these analyses are provided in Attachment 2.  Shell personnel, in
the course of a March 1990 site visit by EPA representatives,
suggested that the presence of certain of these contaminants may
be due to cross-contamination in the coring process.  However,
since these contaminants were found beneath several management
sites within the land treatment facility, we question Shell's
explanation.  Furthermore, many of these contaminants are also
present in the soil-pore water, which could not be attributed to
cross-contamination during coring activities.

Detecting Migration at the Earliest Practicable Time

     We have concluded that Shell has failed to meet the
requirements of 40 CFR §268.6(a)(4).  Specifically, Shell has
stated in the petition that ground-water monitoring wells are not
part of the no-migration monitoring plan.  Shell's determination
is inconsistent with 40 CFR §268.6(a)(4) which requires a
monitoring plan that detects migration at the earliest
practicable time.  In addition, Shell has not provided any
ground-water monitoring data more current than 1985.  Due to
Shell's failure to provide this data, the petition is incomplete
and significant amounts of information and clarification would be
needed to complete the petition.  However, because the technical
basis for denial already exists, we are not requesting you to
provide further information.

     It is our practice to give petitioners the option of
withdrawing their petitions to avoid a negative publication in
the Federal Register.  If you prefer this option,  you must send
us a letter withdrawing your petition and acknowledging that the
petitioned wastes are still considered to be restricted wastes
subject to the Third Third Land Disposal prohibitions scheduled
to be effective November 8, 1990.  This letter should be
forwarded to the following address within two weeks of the date
of receipt of today's correspondence:

     Patricia Cohn, Acting Chief
     Assistance Branch (OS-343)
     Office of Solid Waste
     U.S. Environmental Protection Agency
     401 M Street, S.W.
     Washington, D.C.  20460

     If you choose not to withdraw your petition,  we will
recommend that a proposed denial decision be published in the
Federal Register.

-------
     Any questions regarding our findings may be submitted in
writing to Mr. James Michael of my staff.

                              Sincerely,
                              Jeffery D. Denit, Deputy Director
                              Office of Solid Waste
Attachments
cc:  Michael Gearheard, Region X
     Carrie Sikorski, Region X
     Kim Anderson, Washington DOE
     Patricia Conn, PSPD, OSW
     James Michael, PSPD, OSW
     Terry Keidan, AB, PSPD, OSW

-------
                                 Attachment 1
                               Soil-Pore Results

April! 1,1 987
Antimony
July 23, 1987
Antimony
OCI19, 1987
Antimony
Jan 20, 1988
Antimony
May 1989
Antimony
September 1989
Antimony
December 1989
Antimony
Benzene
Benzo(a)anthracene
Benzo(b)fluoranthene
Benzo(k)fluoranthene
Chrysene
March 1990
Antimony
Benzene
Units
mg/l

mg/l
mg/l

mg/l

mg/l

mg/l

mg/l
mg/l
mg/l
mg/l
mg/l
mg/l

mg/l
mg/l
Lysimeter
1







0.047

0.05



0.0017
0.0022
0.0022
0.0072

1.2

2







0.012




0.064





0.038
3
•0.65

•0.78








0.4







4











0.3







5



0.77

0.32

0.7

0.8

0.5







6











0.3







7



















8



















•Composite sample with lysimeter 5
- Health-based levels:
                    Antimony » 0.01 mg/l
                    Benzene = 0.005 mg/l
                    Benzo(a)anthracene » 0.0002 mg/l
                    Benzo(b)fluoranthene = 0.0002 mg/l
                    Benzo(k)fluoranthene » 0.0002 mg/l
                    Chrysene - 0.0002 mg/l

-------
            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY    9551.1990(12)
                                8 1990
Mr. Joel Rich
Sinclair Oil Company
902 West 25th Street
Tulsa, OK  74107

Re:  No-Migration  Petition submitted for Sinclair Oil Company,
     Walnut Grove  Land  Treatment Facility,  Tulsa, Oklahoma

Dear Mr. Rich:

     I am writing  in  regard to your June 14,  1990 "no-migration"
petition, which requests  a variance under 40  CFR §268.6 to allow
Sinclair Oil Company  to continue the land treatment of restricted
wastes (EPA Hazardous Waste Nos.  K049,  K050,  K051 and K052) at
the Walnut Grove land treatment facility in Tulsa, OK.  We have
completed an initial  review of the petition for overall
administrative and technical completeness.  As you know, the
statute establishes a very strict standard for no-migration
variances.  The standard  to be met requires demonstration of no
migration (to a reasonable degree of certainty) of hazardous
constituents beyond the unit boundaries.   Based on our evaluation
of the petition, we have  concluded that Sinclair's Tulsa facility
does not meet that stringent standard.   As a  result, we intend to
dismiss your petition.

     It is our policy to  dismiss petitions that contain
deficiencies which require more than six months for the
petitioner to correct,  or that show evidence  clearly indicating
releases of hazardous constituents to environmental media have
already occurred.  Our  decision to dismiss your petition is based
on the present groundwater monitoring system  not being able to
detect migration at the earliest practicable  time as required by
the Agency's no-migration petition requirements (see 40 CFR
§268.6(a)(4)) and  that  soil-pore data provided in the petition
indicate that releases  have already occurred  at the land
treatment facility.

     First, EPA's  review  of the Groundwater Assessment Plan and
the Third Quarterly Progress Report of the RFI Workplan revealed
that the current groundwater monitoring system is inadequate to
wsttv»C Lli<= uiXv^i.dftTOtT  w£ n&L/y4JJ5JjJ^JJ^jnStl.'LUe'ft^S"'Tl?OlB"^tlfr^TO'TWS^"M~
      1~..il  llUAlliM.il  il. '. L .At  IT.^ J-XiI '. J-^tL ^..^^L l^ALI ± L I ...^   Til
      ^QilWT . t^c£d Igijcrpj^.. ,yUTi^w |O W  W4*^ ^*f * ^ *&^ t» £J J^aw w .kwa*'j. ^ w xiuc.  T

-------
Groundwater Assessment Plan was required by a Consent Agreement
between Oklahoma State Department of Health (OSDH) and Sinclair
on April 9, 1990 because of non-compliance with the land
treatment facility's (LTF) permit.  The LTF's background
groundwater monitoring well (WTP-4) is located in a solid waste
management unit (SWMU-C) and is also being affected by a
hydrocarbon plume.  To come into compliance, Sinclair agreed to
expand the groundwater sampling and analysis plan to meet the
requirements of 40 CFR §270.14(c)(4) .   Specifically, Sinclair
must develop a plan capable of determining the extent of
migration of hazardous constituents into the groundwater and the
background concentration of all Appendix IX constituents detected
at the point of compliance.  A plan has not yet been approved by
OSDH.  In addition, the Third Quarterly Progress Report states
that the existing upgradient and downgradient monitoring wells at
the Walnut Grove facility may not comply with EPA's Technical
Enforcement Guidance Document (TEGD) well installation and
completion requirements.  Further investigation is required to
determine if the wells are in compliance.

     Second, lead has been detected in the soil-pore water
monitored at the land treatment unit.   Sampling analysis data
from all the lysimeters at the Walnut Grove facility (WGL-1, WGL-
2, WGL-3, WGL-4, WGL-5, and WGL-6) from 1981 through 1988 show
concentrations above the health-based level (0.05 mg/L) for lead.
More recent data were not provided in the petition.  The sampling
analysis data provide evidence that migration has already
occurred beyond the unit boundary at hazardous concentrations.

     The effect of our dismissal will be to close your petition
file.  If you disagree with our intent to dismiss your petition,
you may submit a letter explaining why you believe a dismissal is
not warranted.  If we do not receive such correspondence within
two weeks from the date you receive this letter, the dismissal of
your petition will become effective.  You may choose to submit a
new petition for this land treatment facility in the future, once
you have an approved plan for a groundwater monitoring system in
compliance with 40 CFR §265 and §270 requirements.  However, the
evidence that releases of hazardous constituents have migrated
beyond the unit boundary would serve as the technical basis for
the development of a proposed Federal Register denial of the
petition.

     If you have any questions regarding the dismissal of your
petition or require additional information, please contact Jim
Michael of my staff at  (202) 382-2231.

                                   Sincerely,


                                   Don R. Clay
                                   Assistant Administrator

-------
cc:  Patricia Cohn, PSPD, OSW
     James Michael, PSPD, OSW
     Terry Keidan, PSPD, OSW
     Bill Honker, Region VI
     Bill Gallagher, Region VI

-------
bcc: Athena Rodbell, PSPD, OSW
     Richard Kinch, WMD, OSW
     Kathy Stein, OW
     Nikki Roy, WMD, OSW
     Howard Finkel, ICF, Incorporated

-------
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY  9551.1990(13)
                                         NOV  8 IS90
Mr. R. B. Sheldon
Manager
Amoco Casper Refinery
P.O. Box 160
Casper, Wyoming 82602

Re:  No-Migration Petition submitted for Amoco's Casper Refinery
     Land Treatment Unit (F-90-NACP-FFFFF)

Dear Mr. Sheldon:

     I am writing in regard to your October 24, 1989 "no-
migration" petition, which requests a variance under 40 CFR
§268.6 to allow Amoco Oil Company to continue the land treatment
of restricted wastes (EPA Hazardous Waste Nos. K049 and K051) at
Amoco's Casper Refinery land treatment unit (LTU).  After a
careful review of your petition, we have concluded that your
facility does not meet the standard for a no-migration finding.
Therefore, we will recommend to the Assistant Administrator for
Solid Waste and Emergency Response that the petition be denied.

     Our decision to recommend denial of the petition regarding
the land treatment facility is based on two main concerns;

          • Ground-water monitoring data indicate that hazardous
            constituents have already migrated beyond the unit
            boundaries.

          • The ground-water monitoring system for the land
            treatment facility is inadequate for the purpose of a
            no-migration variance because it will not be able to
            detect migration at the earliest practicable time due
            to the presence of hazardous constituents beneath the
            land treatment units.

The details of our concerns are described below.

-------
 Presence of Hazardous Constituents Below the Treatment Zone

     Our review of Amoco's 1989 ground-water monitoring report
 for the LTU submitted subsequent to its petition indicates that
 migration of hazardous constituents beyond the unit boundaries
 has already occurred.  Attachment 1 indicates that exceedance
 criteria1  values were surpassed on 54  occasions,  and,  on 11
 occasions, concentrations surpassed both the exceedance criteria
 and the health-based level for the following analytes: antimony,
 beryllium, chromium, and lead.  Respectively, the maximum
 downgradient concentration as compared to the health-based level
 for each metal is (in mg/1):  0.26 vs. 0.005, 0.03 vs. 0.002,
.0.327 vs. 0.035, and 0.07 vs. 0.002.  Therefore, we can only
 conclude that these data provide evidence of migration from the
 unit.

     Benzene was also found above the health-based level of 5
 ug/1 in downgradient well LF-43 during the second and fourth
 quarters at concentrations of 17 and 6 ug/1, respectively.
 Because benzene was not reported in any of the upgradient wells,
 we have concluded that benzene has migrated beyond the unit
 boundaries.

 Detecting Migration at the Earliest Practicable Time

     We believe that Amoco is unable to detect migration from the
 treatment unit to the ground water at the earliest practicable
 time and therefore has failed to meet the requirements of 40 CFR
 §268.6(a)(4).  Specifically, we are concerned that Amoco will be
 unable to determine the occurrence of migration directly beneath
 the LTU and that Amoco has not identified an acceptable method of
 differentiating between "background" contamination and releases
 from the LTU.

     Analysis of ground-water monitoring data indicates the
 presence of contaminants in upgradient, as well as downgradient,
 wells near the LTU.  In addition, Amoco has suggested that prior
 tank farm activities in the vicinity of the LTU, particularly on
 the eastern side, may contribute to downgradient contamination.
 Several problems arise from these conditions which contribute to
 the deficiency of Amoco's monitoring program.

     Amoco speculates that petroleum contamination in the ground
 water and soils both upgradient and downgradient of the LTU  (and
          The RCRA permit  for the facility establishes exceedance
          criteria for compliance purposes; these include
          "critical values"  for metals and "reporting limits"  for
          organics (page 6).

-------
possibly beneath the plots as well) is derived from leakage from
petroleum storage tanks that previously occupied the area.
Amoco, however, has provided neither analytical results that
describe the possible source(s) nor an adequate plan to
differentiate releases from the LTU from such a source.  Because
the constituents of a weathered petroleum product plume would
likely be very similar to a release from the LTU, it would be
difficult to discern one from the other.  Furthermore,  since the
concentration of a contaminant from an upgradient source would be
higher closer to the source, the dilution effect as the plume
moves downgradient would likely mask concentrations due to a
release from the LTU, making a statistical comparison
meaningless.

     Amoco has suggested that because the ground-water samples
show similar characteristics,  they are most likely derived from a
common, upgradient source.  As noted by Amoco, similar
characteristics are to be expected in the various fractions of
crude and refined oil found within the refinery.  However,  the
samples from the downgradient wells indicate a wider variety of
benzene, ethylbenzene, toluene, and xylene than the upgradient
samples, an observation that is contrary to what would be
expected from a common source.

Completeness of Petition

     Finally, we have found that the petition is incomplete and
that information and clarification, in areas beyond those
highlighted above, would be needed to complete the petition.
However, because of the problems noted above, we believe we have
enough information at this time to move toward a denial of your
petition.


     It is our practice to give petitioners the option of
withdrawing their petitions to avoid a negative publication in
the Federal Register.  If you prefer this option, you must send
us a letter withdrawing your petition and acknowledging that the
petitioned wastes are still considered to be restricted wastes
subject to the Third Third Land Disposal prohibitions scheduled
to be effective November 8, 1990.  This letter should be
forwarded to the following address within two weeks of the date
of receipt of today's correspondence:.

     Patricia Conn, Acting Chief
     Assistance Branch (OS-343)
     Office of Solid Waste
     U.S. Environmental Protection Agency
     401 M Street, S.W. -
     Washington, D.C.  20460

-------
     If you choose not to withdraw your petition, we will
recommend that a proposed denial decision be published in the
Federal Register.

     Any questions regarding our findings may be submitted in
writing to Mr. James Michael of my staff.
                              Since
                                          en it, Dep'xfty Director
                                      f Solid Waste
Attachment

cc:  Carol Campbell, Region VIII
     Felix Flechas, Region VIII
     Patricia Conn, PSPD, OSW
     James Michael, PSPD, OSW
     Terry Keidan, PSPD, OSW

-------
                                      Attachment 1

       SUMMARY OF DOWNGRADIENT GROUND-WATER MONITORING DATA
AMALYTE
Antimony
Arsenic
Beryllium
Cobalt
Cadmium
Chromium
Copper
Lead
Mercury
Selenium
Silver
Vanadium
Zinc
Benzene
Ethylbonzene
Toluene
Xylene
2-Methyl
naphthalene
Naphthalene
2.4-Dimethyl
phenol
>
EXCEEOANCE
CttlTtHU1

3



1



10


13
3
3
8
9
2
2
1
> EXCEEOANCE
CWTERUANO
MCI*
3

3


1

4












INDETERMINATE3
20

17


9

21



8
7







LOW
CONCENTRATION*

9

5

4
5

1

1

3







The RCRA permit for th* facility eetablohe* 'exceedance criteria' for contaminant* that include critical value* for
inorganic* and reporting limits for organic*. Thia column show* the number of aamplee collected from dcwngradtent
well* that violated the exceedence criteria for a particular anatyt*. Violation* of botti the exceedence criteria and the
MCL are counted
Number* in ttta column reflect violation* of both the exceed ance critaria and the MCI.

Contaminant leveto were reported only e* 'I*** than (a given value).' and H cannot be determined whether they ere
higher or ta**r than the exceedenee crtterta and/or MCL

Although not in violation of exceedenoe criteria or MCL, conedtuent* wer* detected In the downgradlent tamplee
indicating that migration i* taking place.

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                                              9551.1990(14)



            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY  9551.1990(14)
                       WASHINGTON, D.C. 20460
                                 PEC
                                                     OFFICE OF
                                            SOLID WASTE AND EMERGENCY RESPONSE
Mr. Garth Dull, Director
Department of Transportation
State of Nevada
1263 South Stewart Street
Carson City, Nevada  89712

Dear Mr. Dull:

     Thank you for your letter of November 21,  1990,  requesting  a
written confirmation that the asbestos/lead/soil/debris  material
on property intended for highway construction  is classified as
inorganic solids debris.  In previous letters,  you have  described
this material as lead dross, concrete hooker cell, metal drums,
masonry and refractory bricks, scrap metal, carbon anode blades,
and concrete pipes.

     The Environmental Protection Agency  (EPA)  has defined
"inorganic solids debris" as wastes contaminated with
characteristic metals that are nonfriable and  that do not pass
through a 9.5-mm sieve tray.  These wastes fall into  eight
classifications, such as bricks, metal cans, metal pipes, and
scrap metal.  Based on the description you provided,  your waste
falls under the inorganic solids debris treatability  group.  EPA
has determined that this treatability group has a two-year
capacity extension of the effective date of the land  disposal
restrictions.  Therefore, this material currently does not need
to be treated to comply with the treatment standard for  lead, and
can be disposed of in a Subtitle C landfill that meets minimum
technological requirements.

     If you have further questions, please do  not hesitate to
call Richard Kinch at (703) 308-8434.

                                   Sincerely yours,
                                               K
                                    Sylvia K.  Lowrance,  Director
                                    Office of  Solid Waste*

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             UNI'   STATES ENVIRONMENTAL PROTEC1  .AGENCY

                                                       9551.1990(15)
                            DEC  20 860


Mr. Douglas MacMillan, Director
Hazardous Waste Policy
National Solid Wastes Management Association
Suite 1000
1730 Rhode Island Ave., N.W.
Washington/ DC 20036

Dear Mr. MacMillan:

     This letter responds to your inquiry dated October 11, 1990
about several aspects of the Third Third land disposal
restrictions final rule.  Your letter includes questions about
the following topics:  lab packs, inorganic solid debris,
certification/notification requirements, and the disposal of D001
ignitable wastes.  Responses to the specific questions about each
of these topics are presented below.

1.  Lab Packs

     Your question concerns the language in 40 CFR 264.316(f) and
40 CFR 265.316(f).  You refer specifically to perceived
contradictions between the first and second sentences of these
paragraphs; however, it is assumed that you are actually
concerned with the language of the second and third sentences
which specifies that n[p]ersons who incinerate lab packs
according to the requirements in 40 CFR 268.42(c)(l) may use
fiber drums in place of metal outer containers.  Such fiber drums
must meet the DOT specifications in 49 CFR 173.12 and be
overpacked according to the requirements in paragraph (b) of this
section."  In particular, you request clarification of whether
this language requires fiber drums to be overpacked in metal
drums.  It is assumed that your confusion stems either from the
DOT specifications in 49 CFR 173.12, or the overpacking
requirements in 40 CFR 264.316(b) and 40 CFR 265.316(b).  The
language of the DOT specifications and the §§ 264.316(b) and

-------
 265.316(b) does not require overpacking of fiber drums in metal
drums.  The first sentence of §§ 264.316(b) and 265.316(b)
("[t]he inside containers must be over-packed in an open head DOT-
specification metal shipping container") does not apply because
§§ 264.316(f) and 265.316(f) clearly state that "[p]ersons who
incinerate lab packs according to the requirements in 40 CFR
268.42(c)(l) may use fiber drums in place of metal outer
containers."  The §§ 264.316(b) and 265.316(b)  language that does
apply/ however, is the requirement to pack a sufficient quantity
of absorbent material around the inner containers to completely
absorb all of the liquid contents of the inside containers,
making the outer container full after packing.

     As you mention in your letter, the preamble language on page
22631 of the Third Third final rule explains the Agency's
decision to allow fiber drums to be used as outer containers for
lab packs being incinerated according to the requirements in
40 CFR 268.42(c)(1). The language of §§ 264.316(f) and 265.316(f)
does not eliminate this decision by otherwise requiring the fiber
drums to be overpacked in metal drums.


2.  Containers

     You request clarification of why containers are included in
the "inorganic solid debris" definition.  You also ask when an
empty container would be judged to carry a characteristic of
hazardous waste.

     By way of background,  inorganic solid debris is defined in
40 CFR 268.2(g) as nonfriable inorganic solids contaminated with
D004 - D011 hazardous wastes that are incapable of passing
through a 9.5 mm standard sieve; and that require cutting, or
crushing and grinding in mechanical sizing equipment prior to
stabilization; and, are limited to certain types of debris
specified in subsequent paragraphs.  Paragraph (g)(6) of
§ 268.2 includes metal cans, containers, drums, or tanks in the
definition of inorganic solid debris.

     As a further point of background, the answers to your
questions are impacted by whether the container being discussed
is empty as defined at 40 CFR 261.7(b).  Under the § 261.7(b)
provisions, a container that has held hazardous waste (other than
a compressed gas or an acute hazardous waste) is "empty" if it
meets certain criteria.  All wastes must have been removed that
can be removed using the practices commonly employed to remove
materials from that type of container.  To assure that all waste
has been removed, there may be no more than 2.5 centimeters  (one
inch) of residue remaining on the bottom of the container or
inner liner; or no more than 3 percent by weight of the total
capacity of the container remaining in the container or inner •"
liner if the container is less than or equal to 110 gallons in
size, or no more than 0.3 percent by weight of the total capacity

-------
of the container remaining in the container or inner liner if the
container is greater than 110 gallons in size.

     In response to your first question, containers are included
in the definition of inorganic solid debris to cover the possible
scenario of a container that has been discarded by means of land
disposal (as defined in § 268.2), that does not meet the
§ 261.7(b)  definition of empty, and that is contaminated with a
characteristic metal waste.  This scenario could occur, for
instance, during an excavation at a corrective action site.  A
container might be uncovered that is damaged (e.g., crushed)  so
that the hazardous waste within it cannot be removed sufficiently
to meet the § 261.7 (b) definition of empty'.  Such a container
(i.e., including its contents) is a hazardous waste subject to
the. land disposal restrictions if it is subsequently land
disposed.  Furthermore, it is likely that the disposed container
would be considered contaminated debris (such a determination may
depend upon site-specific conditions best made by an authorized
State or EPA Regional representative).  If the waste
contaminating this disposed container is a characteristic metal
waste (DO04 - D011), the container would likely meet the
§ 268.2(g)(6) criteria of inorganic solid debris, and would thus
be subject to a national capacity variance until May 8, 1992 (see
§ 268.35(b)).

     In response to your second question, a container meeting the
§ 261.7(b)  definition of empty may be judged to be a
characteristic metal waste under two scenarios.  In the first
scenario, a container that has never held any hazardous waste may
be a characteristic waste if: (1) it is being discarded; and, (2)
if the container is in itself a characteristic waste.

     In the second scenario, an empty container  (as defined in
§ 261.7(b)) may be a characteristic waste if:  (1) it is being
discarded;  and, (2) if the container is in itself a
characteristic waste. It should be noted, however, that any
residue remaining in the container is exempt from regulation
under the provisions of § 261.7(a) that states that "[a]ny
hazardous waste remaining in either  (i) an empty container or
(ii)  an inner liner removed from an empty container, as defined
in paragraph (b) of this section, is not subject to regulation
under Parts 261 through 265, and Parts 268..."


3.  Certifications

     You request clarification of the record keeping requirements
for a particular scenario:  A waste that the generator determines
(based on process knowledge) does not meet the treatment standard
is sent to a treatment facility.  The treatment  facility
determines the waste does meet the treatment standard. ' You did
not suggest how such a determination was made.   Your question is,
how would the record keeping requirements be affected?

-------
     In this particular scenario, the treatment facility should
analyze the waste in order to determine that the waste meets the
treatment standard according to the provisions of their waste
analysis plan.  It should be noted, however, that there is no
requirement that treatment facilities analyze each shipment of
waste received, except as specified in their waste analysis plan
(see § 268.7 (b) .  In this particular scenario, however, the
generator has made the determination that the waste must be
treated based on his knowledge of the waste.  The treatment
facility is countering the generator's determination with a
determination that the waste meets the treatment standard as
generated; therefore, the Agency believes that it is appropriate
to ask the treatment facility to support their determination with
analytical data.  The treatment facility also must complete a
certification that the waste met applicable treatment standards
as generated (see § 268.7(a)(2)(ii), supported by the general
principle expressed in § 268.7(b)(6) requiring treatment
facilities to comply with notice and certification requirements
applicable to generators) .

     The treatment facility must send the waste analysis data
(see § 268.7(b)(4)(iv)), the certification, and a notification
(either the generator's notification may be sent, or the facility
may create a new notification) to the disposal facility.  Copies
of the waste analysis data, the generator's notification (as well
as the treatment facility's notification if a new notification
was created), and the certification must be kept as records in
the treatment facility's files.

4.  Notification/Certification

     A scenario was presented of a TSD company that has a sister
company on adjacent property that recycles "side-stream" and
"off-spec" chemicals and other wastes containing recoverable
amounts of organics by means of a custom distillation process.
This process generates still bottoms and wash waters that are
subject to the land disposal restrictions.  These restricted
wastes are piped directly back to tanks at the TSD facility,
sometimes on an intermittent basis, sometimes continuously.  The
question is asked:  How must these piped transfers of hazardous
wastes from the recycler to the TSD be handled from the
perspective of notification/certification compliance?

     Even though the recycling facility and the TSD facility are
sister companies on adjacent property, they would have been
assigned different EPA identification numbers and are thus
considered separate facilities.  Therefore, the waste that is
piped to the TSD facility  (regardless of whether it is on a
continuous or an intermittent basis) is subject to the record
keeping requirements of § 268.7.

     The recycling facility would be subject to the generator
requirements of § 268.7(a), which specify that a notification
must be sent with each shipment of waste  (in this case, from the

-------
recycling facility to the TSD facility).  The TSD facility must
comply with the requirements of § 268.7(b).  Questions on how
frequently the required paperwork should be sent from the
recycling facility to the TSD (i.e., what constitutes a
"shipment") should be directed to the EPA Regional land disposal
restrictions contact.

5.  D001

     The question is whether 40 CFR 264.312 allows for the land
disposal of a D001 waste.  Until promulgation of the Third Third
final rule on May 8, 1990, 40 CFR 264.312 (and § 265.312) set out
special management requirements for ignitable or reactive wastes
that were disposed in a surface impoundment, waste pile, land
treatment unit, or landfill.  On page 22553 of the final rule,
however, the Agency explained that these management requirements
are superseded by the treatment standards promulgated in the
Third Third final rule.  This means that "[facilities handling
ignitable and reactive wastes will have to comply with the
promulgated treatment standards for these wastes in order to land
dispose them."  The Agency made changes to the regulatory
language of §§ 264.312 and 265.312 in the Third Third final rule
to incorporate the requirement that the treatment standards for
ignitable and reactive wastes must be met prior to land disposal.
Furthermore, the Agency's intent is clearly expressed in the
preamble (55 FR 22553).

     Therefore, land disposal is allowed only for those D001
wastes that meet the treatment standard.  (The treatment standard
for D001 wastes containing less than 10% total organic carbon
(TOC):  deactivation; for D001 containing greater than 10% TOC:
incineration or fuel substitution; see 40 CFR 268.42, Table 2.)

     I hope you find these answers to be helpful.  If you have
any further questions, please feel free to contact
Matthew A. Straus at (703) 308-8414.


                                   Sincerely,
                                   Sylvia K. Lowrance
                                   Director
                                   Office of Solid Waste

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                                                          9551.1990(16)
        RCRA/SUPERFDND HOTLINE MONTHLY  SUMMARY

                       DECEMBER  1990
1. LDR Requirements During National Capacity Variances

During a corrective action removal, a RCRA permitted treatment facility generates
a contaminated soil that is characteristic for arsenic (D004). The generator
determines that the waste has a treatment standard established in 40 CFR 268.41 of
the Land Disposal Restrictions (LDR) Third Third Final Rule. (55 FR 22520)
However, Section 26835(e) of the final rule also establishes a 2-year variance from
the land disposal prohibitions for D004 nonwastewaters due to  insufficient
treatment capacity.  What LDR requirements remain in effect during the period in
which a waste is granted a national capacity variance?

   Section 300400(2) of RCRA provides EPA with the authority to grant national
   capacity variances from the statutory effective dates upon which land disposal
   prohibitions become effective if there is insufficient alternative treatment,
   recovery or disposal capacity for the wastes subject to the prohibition.  In
   determining whether a variance is warranted, EPA compares the nationally
   available treatment capacity that will be in operation on the prohibition
   effective date with the volume of wastes generated. If a significant shortage
   exists, an alternate effective date will be established based on the earliest date
   such capacity will become available. (55 FR 22526)

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       1.  LDR Requirements During National Capacity Variances (Cont'd)

       Although a national capacity variance temporarily extends prohibition effective
       dates, it does not supersede the requirements applicable to hazardous wastes
       that are "restricted"/(see 55 FR 22592)  Effective May 8,1990, all hazardous
       wastes, except those identified or listed after the enactment of HSWA, are
       "restricted" and therefore subject to certain provisions. (55 FR 22521) These
       include three major requirements. First, generators of such restricted wastes
       must comply with applicable waste analysis and recordkeeping requirements
       established in Section 268.7, including the special notifications found at
       268.7(a)(3) for wastes subject to a national capacity variance that are sent off-^e
       for treatment, storage or disposal. (53 FR 31208)

       Second, in addition to fulfilling relevant recordkeeping requirements,
       generators of hazardous wastes subject to a national capacity variance must
       evaluate their waste against the California List prohibitions. (55 FR 22529) The
       California Lost establishes treatment standards and land disposal restrictions for
       certain liquid wastes containing free cyanides, metals, corrosives and PCBs, and
       for HOCs in either solid or liquid form [See Section 268.32 and RCRA Section
       3004(d)]. In the interim period in which a national capacity variance is in effect,
       the California List requirements apply. (53 FR 31118)

       Finally, if the generator determines that no other land disposal prohibitions are
       applicable, the waste may be managed in a landfill or surface impoundment
       provided the waste is placed in a unit that meets the minimum technology
       requirements set out in 268~5(h)(2). After the national capacity variance has
       expired, such restricted hazardous waste may be land disposed only if the
       applicable treatment standard is attained or disposal occurs in a unit that
       satisfies the "no migration" demonstration found at 40 CFR 268.6. (55 FR 22521)

       Please note, however, for wastes that are subject to more than one treatment
       standard, that during a national capacity variance for one of the wastes, the
       treatment standards for any of the other waste codes that have not received
       such a variance must be met (55 £R 22660)

Source:        Rhonda Craig, OSW             (703)308-8451
Research:      Stephen Buchanan

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                                                       9551.1991(01)


                              JAN 3-19^
Mr. John R. Kampfhenkel
Chief Environmental Engineer
Koch Refining Company
P.O. Box 2608
Corpus Christi, Texas 78403

Re:  No-Migration Petition submitted for Koch Refining's Corpus
     Christi, Texas Land Treatment Unit (F-90-NKCP-FFFFF)

Dear Mr. Kampfhenkel:

     I am writing in regard to your April 26, 1990 "no-migration"
petition, which requests a variance under 40 CFR §268.6 to allow
Koch Refining Company (Koch) to continue the land treatment of
restricted wastes at Koch's Corpus Christi, Texas land treatment
unit (LTU).  After a careful review of your petition, we have
concluded that your facility does not meet the standard for a no-
migration variance.  Therefore, we will recommend to the
Assistant Administrator for Solid Waste and Emergency Response
that the petition be denied.

     Our decision to recommend denial of the petition is based on
the following concerns:

     •    Soil-pore and soil-core monitoring indicate that
          hazardous constituents have already migrated beyond the
          unit boundary.

     •    Ground-water monitoring for vanadium indicates that
          this hazardous constituent has already migrated beyond
          the unit boundary.

Presence of Hazardous Constituents Below the Treatment Zone (BTZ)

     Soil-pore and soil-core monitoring data provided in Koch's
petition indicate that migration of hazardous constituents below
the treatment unit has already occurred.  Specifically, analyses
of soil pore liquid samples collected during August and September
of 1988 and in February, April, May, June, and October of 1989
indicate the presence of beryllium, cadmium, chromium, lead,
nickel, selenium, toluene, benzene, styrene, 2-butanone, 1,2-
dichloroethane, and ethyl benzene in excess of their respective

-------
                               -2-

health-based levels used in no-migration decision-making.  The
results of these analyses are presented in Attachments 1 and 2.

     Analyses of soil core monitoring data collected in December
1989 indicate that beryllium was detected at concentrations
exceeding the health-based level (HBL) of 0.2 mg/kg for soil
ingestion in Bores 1, 2, 3, 4, and 6.  Antimony was also detected
at a concentration exceeding the HBL of 30 mg/kg for soil
ingestion in Bore 6 during December 1989.(See Attachment 3.)

     Furthermore, Attachment 3 also shows that several organic
constituents were detected in the BTZ.  Concentrations of
benzo(a)pyrene (6.5 mg/kg) and methyl chrysene (4.4 mg/kg) were
detected in Bore 1 above their respective HBL'a of 0.055 mg/kg
for soil ingestion.  Oil and grease levels in soil bores averaged
4,500 mg/kg for Bore 1 and 193 mg/kg for Bore 4 in December 1989.
The individual values for the BTZ samples from Bore 1 were 1,900
mg/kg (5.0-5.5 feet); 7,000 mg/kg (5.5-6.5 feet); and 4,600 mg/kg
(6.5-7.5 feet).  The presence of benzo(a)pyrene and methyl
chrysene and elevated levels of oil and grease beneath the
treatment zone further demonstrate that hazardous constituents
have migrated below the treatment unit.

Ground-Water Monitoring Data

     Ground-water monitoring data presented in Koch's petition
indicate that migration of hazardous constituents to the ground
water has already occurred.  Specifically,  a review of the August
1988 ground-water monitoring data indicate the presence of
vanadium in downgradient wells LE-3 (0.39 mg/1) and LE-5 (0.28
mg/1) in excess of the HBL (0.24 mg/1) used in no-migration
petition decision-making. (See Attachment 4.)

     In addition, total organic carbon (TOC) levels were
significantly higher in downgradient wells LE-3,  LE-4, LE-5, and
LE-6 than in upgradient wells in September of 1988.  However, we
are unable to determine whether organics are present at levels of
concern because Koch did not provide a fractional analysis of the
constituents in the TOC samples.  Lastly, although the difference
between the downgradient and upgradient monitoring wells did not
exceed the health-based levels, the downgradient concentrations
for arsenic (LE-3 and LE-4), mercury (LE-6), and selenium (LE-6)
did exceed the upgradient concentrations during August of 1988.

Incomplete Petition

     Finally, our review indicates that the petition is
incomplete and that information and clarification in areas beyond
those highlighted above would be needed to complete the petition.
However, because of the problems discussed above, we believe we
have sufficient information at this time to move toward a denial
of your petition.

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                               -2-

health-based levels used in no-migration decision-making.  The
results of these analyses are presented in Attachments 1 and 2.

     Analyses of soil core monitoring data collected in December
1989 indicate that beryllium was detected at concentrations
exceeding the health-based level (HBL) of 0.2 mg/kg for soil
ingestion in Bores 1, 2, 3, 4, and 6.  Antimony was also detected
at a concentration exceeding the HBL of 30 mg/kg for soil
ingestion in Bore 6 during December 1989.(See Attachment 3.)

     Furthermore, Attachment 3 also shows that several organic
constituents were detected in the BTZ.  Concentrations of
benzo(a)pyrene (6.5 mg/kg) and methyl chrysene (4.4 mg/kg) were
detected in Bore 1 (December 1989)  above their respective HBL's
of 0.055 mg/kg for soil ingestion.   Oil and grease levels in two
of the soil bores averaged 4,500 mg/kg for Bore 1 and 193 mg/kg
for Bore 4 in December 1989.  The individual values for the BTZ
samples from Bore 1 were 1,900 mg/kg (5.0-5.5 feet); 7,000 mg/kg
(5.5-6.5 feet); and 4,600 mg/kg (6.5-7.5 feet).  The presence of
benzo(a)pyrene and methyl chrysene and elevated levels of oil and
grease beneath the treatment zone further demonstrate that
hazardous constituents have migrated below the treatment unit.

Ground-Water Monitoring Data

     Ground-water monitoring data presented in Koch's petition
indicate that migration of hazardous constituents to the ground
water has already occurred.  Specifically,  a review of the August
1988 ground-water monitoring data indicate the presence of
vanadium in downgradient wells LE-3 (0.39 mg/1) and LE-5 (0.28
mg/1) in excess of the HBL (0.24 mg/1) used in no-migration
petition decision-making. (See Attachment 4.)

     In addition, total organic carbon (TOC) levels were
significantly higher in downgradient wells LE-3,  LE-4,  LE-5, and
LE-6 than in upgradient wells in September of 1988.  However, we
are unable to determine whether organics are present at levels of
concern because Koch did not provide a fractional analysis of the
constituents in the TOC samples.  Lastly, although the difference
between the downgradient and upgradient monitoring wells did not
exceed the health-based levels, the downgradient concentrations
for arsenic (LE-3 and LE-4), mercury (LE-6), and selenium (LE-6)
did exceed the upgradient concentrations during August of 1988.

Incomplete Petition

     Finally,  our review indicates that the petition is
incomplete and that information and clarification in areas beyond
those highlighted above would be needed to complete the petition.
However, because of the problems discussed above, we believe we
have sufficient information at this time to move toward a denial
of your petition.

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                               -3-
     It is our practice to give petitioners the option of
withdrawing their petitions to avoid a negative publication in
the Federal Register.  If you prefer this option, you must send
us a letter withdrawing your petition and acknowledging that the
petitioned wastes are still considered to be restricted wastes
subject to the Third Third Land Disposal prohibitions.  This
letter should be forwarded to the following address within two
weeks of the date of receipt of today's correspondence:

     Patricia Conn, Acting Chief
     Assistance Branch (OS-343)
     U.S. Environmental Protection Agency
     401 M Street, S.W.
     Washington, D.C. 20460

     If you choose not to withdraw your petition, we will
recommend that a proposed denial decision be published in the
Federal Register.

     Any questions regarding our findings may be submitted in
writing to Mr. James Michael of my staff.

                         Sincerely,
                         Jeffery D. Denit, Deputy Director
                         Office of Solid Waste
Attachments
cc:  Bill Honker, EPA Region VI
     Tony Robledo, EPA Region VI
     Minor Hibbs, Texas Water Commission
     Patricia Conn, PSPD, OSW
     James Michael, PSPD, OSW

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                               -4-

bcc: Terry Keidan, AB, PSPD, OSW
     Jeffrey Gaines, AB, PSPD, OSW
     Dave Reeves, AB, PSPD, OSW
     Richard Kinch, WMD, OSW
     Kathy Stein, OE
     NiXki Roy, WMD, OSW
     Howard Finkel, ICF Incorporated

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                     ATTACHMENT 1




  So11-Pore  Liquids - Inorganic  Constituents  (mg/1)

a/sa
LY-1
LY-5N
9/88
LY-1
LY-2N
LY-3N
LY-4N
LY-5N
LY-SS
11/88
LY-2N
LY-5S
2/89
LY-2N
LY-4N
LY-5N
3/89
LY-2N
LY-3N
LY-4N
LY-5N
LY-SS
4/89
LY-4N
LY-SN
6/89
LY-2N
LY-3N
LY-5N
LY-SS
10/89
LY-3S
HBLS
AS

0.89
0.0072

0.19
0.013
0.021
0.02
0.013
0.069

0.029









"








0.047


0.05
Ba














0.04
0.23
0.07

0.16

0.24
O.H
0.19

0.018
0.021




0.047

0.066
1
Be





0.021
0.0093


0.0093























0.001
Cd




0.03

0.19
0.13
0.046
0.12

0.03


















0.013


0.01
Cr






0.11
0.075







0.097
0.055



0.092
0.059











0.05
Pb






0.36
0.17
0.076
0.099























0.05
Hg

0.13
0.0055

0.053
0.0034
0.0045
0.0057
0.0069


0.0016





















0.002
Nf






0.51
0.34
0.13






0.12




0.086

0.037

0.11





0.29


0.1
So


0.019

0.09
0.018





0.011


















0.0061


0.01
TOG


31


54


19


57
31

29
33
13

80


15


38







10

•LY-1 is the background lysimeter

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                                             ATTACHMENT  2




                         Soil-Pore  Liquids  -  Organic Constituents  (ug/1)

9/88
LY-2N
LY-3N
LY-5N
11/88
LY-2N
6/89
LY-2N
LY-3N
LY-5N
HBLs
Xylenet

4.200
28


9

8
5
19
10.000
Toluene

2.100
6
. 7

5

6

6
2.000
Benzene

1.600



6




5
Styrene

110








5
2-Butanone

14,000








2,000
1 ,2-DlcMoroethane

950








5
Ethylbenzene

2.800
13







700
* Organic Constituents have not been found in the Background Lysimeter (LY-1)

-------
                                    ATTACHMENT 3

              Soil Core  Data from the  BTZ  -  LTU  Expansion*-*
Bora 6
(6/29/89)
pH (ranga) 9.1-9.4
Oil and Craasa (maan) <10
Barylliuo —
Antimony -••
Banzana 13.0
Toluana 13.0
1-Mathylnapthalana —
Anthracana •••
Banzo(a)Pyrana —
Mathyl Chryaana --•
Phananthrana -••
Bora 1 Bora 2
(12/14/89) (12/13/89)
8.1-8.2 7.9-8.0
4,500 <10
0.51/0.68C 0.5/0.8
...
...
...
4.3
4.2
6.5
4.4 	
24.0
Bora 3 Bora 4 Bora 6
(12/13/89) (U/13/89) (12/13/89)
8.1-8.2 7.8-8.0
<10 193 <10
0.36/0.46 0.37/0.72 2.3/0.65
16.8/32e
:..
...
...

...
...
...
Thaaa data ara lunmarind fzoa thr«« i«mpl«« from thri* BTZ d«pths «t ««ch soil boring:   3.0-3.3 '••&;
3.3-6.5 £««t; and 6.5-7.5 f««t.  A tot«L of 12 soil borti w*t« taken duriag 1989 in th»  LTU Expansion.
Six corai war* collaetad in Juna 1989,  and aiz coraa wata eollactad in Juna  1989.

Although units  ara not spaeiflad  in Tibia 4-1 of tha patition (V.I,  piga 4-3 through f'.J).  .*. .»
assumad that tha data ara raportad  in units of mg/kg,  with  tha  axcaption of pfl and organies.  2:(4r.:c
concentrations wara apparantly  raportad as og/kg in Tabla 4-1 and wara eonvartad to mg/kg for •..-.:•
azhibit.

Tha valuas in this row rapraaant tha BTZ maan from tha  tnraa dapths, followad by tha mazimum valu* ft a*
tha thraa BTZ dapths.

-------
            ATTACHMENT 4




Ground-Water Monitoring Data (mg/1)

8/88
LE-0
LE-1
LE-3
LE-4
LE-S
LE-6
9/88
LE-O
LE-t
LE-3
LE-4
LE-5
LE-6
1/89
LE-0
LE-t
LE-3
LE-4
LE-S
LE-6
3/89
LE-O
LE-1
LE-3
LE-4
LE-5
LE-6
6/89
LE-O
LE-1
LE-3
LE-4
LE-5
LE-6
12/89
LE-O
LE-t
LE-3
LE-4
LE-5
LE-6
HBL
TOC

9.1
14
13
12
8.8
8.9

5.4
8.8
48
54
29
9.8

5.2
4.9
5.1
2.7
2.6
4.4

1.9



1


1.5

1.3
1.5
1.2


2.1

3.4
1.5
1
2.4

Be

0.014

0.009






































0.001
CO

0.027
0.027


0.018




































0.01
Nl

0.12
0.12
0.055

0.12
0.055

0.11
0.078


0.078
0.05

0.17
0.063
0.084
0.084
0.15
0.084


















0.073


0.1
Se


O.OU
0.0056
0.0059
0.0092
0.019



































0.01
V



0.39

0.28
















0.029
0.044
0.044
0.057
0.029
0.018














0.24
As

0.01
0.0076
0.011
0.012
0.0093
0.009




































Hg

0.0007
0.0008
0.0008
0.0009
0.001
0.0008





































-------
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                                        9551.1991(02)
                            JAN I  7  199!

Mr. W. Thomas McCollough
Refinery Manager
Sun Refining and Marketing Company
P.O. Box 2039
Tulsa, Oklahoma  74102

Re:  No-Migration Petition submitted for Sun Refining and
     Marketing Company's Tulsa, Oklahoma Land Treatment Facility
     (F-90-NMSP-FFFFF)

Dear Mr. McCollough:

     I am writing in regard to your March 16, 1990 "no-migration"
petition, which requests a variance under 40 CFR §268.6 to allow
Sun Refining and Marketing Company  (Sun) to continue the land
treatment of restricted wastes at Sun's Tulsa, Oklahoma land
treatment facility  (LTF).  After a careful review of your
petition, we have concluded that your facility does not meet the
standard for a no-migration variance.  Therefore, we will
recommend to the Assistant Administrator for Solid Waste and
Emergency Response that the petition be denied.

     Our decision to recommend denial of the petition is based on
the following concerns:

     •    Soil-pore monitoring indicates that benzene has already
          migrated beyond the unit boundary.

     •    Ground-water monitoring indicates that hazardous
          constituents have already migrated beyond the unit
          boundary.

     •    The required minimum separation between the bottom of
          the treatment unit and the top of the seasonally high
          water table has not been demonstrated.

     •    Air modeling shows concentrations of arsenic at the
          unit boundary that exceed the allowable health-based
          standard.

The details of our concerns are described below.

-------
                               -2-

Presence of Hazardous Constituents Below the Treatment Zone (BTZ)

     Soil-pore liquids monitoring data collected from lysimeter
14 indicate the presence of benzene (33.4 ppb) beneath the
treatment zone at concentrations above the health-based level
(HBL) of 5 ppb used in no-migration decision-making.  Sun
explained that during the installation of lysimeter 14 (in March
1987), the borehole had been contaminated by a load of spent jet
fuel filter clay dumped nearby.  We, however, question whether
the contamination can be attributed to nearby applied spent jet
fuel filter clay for the following reasons:

     First, it stands to reason that if the borehole were
contaminated during the installation process, then the first-
quarter soil pore-water sample taken between March and April of
1987 should have shown high levels of benzene (which is very
mobile).  However, elevated levels showed up only after the
third-quarter samples were taken in October 1987.  (No second-
quarter data was provided in the tables.)  Thus, the
contamination occurred at a later date rather than during initial
installation.

     Secondly, the results from analyses of the spent jet fuel
filter clay reported benzene as "NP" (not present)  and the
petition stated that "the other [non-hazardous,  including the
spent jet fuel filter clay] wastes, in comparison,  are
insignificant in oil/organic content and/or annual quantity
disposed of; the presence of various specific organic compounds
in these wastes would have little or no impact on the overall
soil/waste system at the LTF" (V.I, pages 4-11 and 4-15).
Therefore, Sun, in one instance claimed that they did not have to
analyze the non-hazardous wastes for organic constituents, yet in
another instance, claimed that the bore hole was contaminated by
the spent jet fuel filter clay.

     Lastly, benzene has been detected in both background and
active LTF area lysimeters.  (See Attachment I.)  The continuous
detection of low levels of benzene, especially at lysimeter 15,
indicate that benzene has migrated below the treatment zone.  We,
therefore, believe both that Sun has failed to demonstrate that
the benzene detected at lysimeter 14 is due to contamination and
that the presence of benzene in the soil-pore liquids clearly
demonstrates that this constituent has migrated below the LTF at
hazardous concentrations.

Ground-Water Monitoring and Detecting Releases at the Earliest
Extent Practicable

     As shown in Attachment II, ground-water monitoring between
May 1984 and January 1990 indicate that barium,  chromium,
mercury, lead, and benzene were detected at concentrations above
their respective health-based levels.   Sun claims that these

-------
             UNITED STATES EHVIROHMEHTAL PROTECTION AGENCY
                                                         9551.1991(04)
                             JAN 3 0 1991
Mark J. Lupo, Ph.D.
Manager, Applied Sciences
K. W. Brown & Associates, Inc.
500 Graham Road
College Station, TX  77845

RE:  Standards for Air Pathway for Metals and Organic Chemicals

Dear Dr. Lupo:

     We have reviewed Tables 1 and 2 and the information you
provided in your letter of January 11, 1991.  In the tables,
three of the columns (TWA, STEL, and Ceiling) are only applicable
to OSHA standards.  Although a petitioner does not have to make a
demonstration of no-migration for the short term events, they
must still certify compliance with the OSHA requirement.
Attached are the most current levels for metals in the air phase.

     The Health Based Level (HBL) for chromium is based on
hexavalent chromium which is carcinogenic when inhaled.  EPA
determines exceedance based on the total volume of chromium using
the hexavalent HBL.  If BP Oil is to use only the amount of
hexavalent chromium to determine exceedance, they must
substantiate how these values are separated from total chromium.

     Also attached are the most current standards for organics in
the air phase.  Three of the compounds in Table 2 do not relate
to no-migration and have been deleted.  1-Methylnaphthalene and
Indene are not Appendix VIII or IX compounds and 3-Methy1-
cholanthrene, while an Appendix VIII compound, is not on the
Modified Skinner List.  These three compounds do not have Health
Based Levels (HBL).  Although Benzidine is not on the Modified
Skinner List, it is an Appendix VIII constituent and has a HBL
and is therefore included in the attachment.

                              Sincerely,
                              Newman Smith
                              Disposal Technology Section
                              Office of Solid Waste

cc:  Terry Keiden, AB, OSW
     Athena Rodbell, AB, OSW

-------
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                                                     9551.1991(05)

                              FEB -5 1991
Mr. Gregg L. Lorimor
Refinery Manager
Kerr-McGee Refining Company
P.O. Box 305
Wynnewood, Oklahoma  73098

Re:  No-Migration Petition submitted for Kerr-McGee Refining
     Company's Wynnewood, Oklahoma Land Treatment Facility
     (F-91-NWOP-FFFFF)

Dear Mr. Lorimor:

     I am writing in regard to your June 22, 1990 "no-migration"
petition, which requests a variance under 40 CFR §268.6 to allow
Kerr-McGee Refining Company (KMRC) to continue the land treatment
of restricted wastes at KMRC's Wynnewood, Oklahoma land treatment
facility (LTF).  After a careful review of your petition, we have
concluded that your facility does not meet the standard for a no-
migration variance.  Therefore, we will recommend to the
Assistant Administrator for Solid Waste and Emergency Response
that the petition be denied.

     Our decision to recommend denial of the petition is based on
the following concerns:

     •    Soil-pore monitoring indicates that hazardous
          constituents have already migrated beyond the unit
          boundary;

     •    The ground-water monitoring system is inadequate for
          the purpose of a no-migration variance, because it will
          be unable to detect constituent migration at the
          earliest time practicable; and,

     •    The required minimum separation between the bottom of
          the treatment unit and the top of the seasonally high
          water table has not been demonstrated.

We discuss our concerns below.

-------
                               -2-

Presence of Hazardous Constituents Below the Treatment Zone (BTZ^

     Soil-pore liquids monitoring data collected from the active
LTF and from the land treatment demonstration (LTD) plot indicate
that constituents have already migrated beyond the unit boundary
at hazardous concentrations.  As shown in Attachment 1, soil-
pore monitoring data collected during the LTD (November, 1988 -
February, 1989) indicate that antimony, arsenic, barium, benzene,
and 2,4-dimethylphenol were detected at concentrations in excess
of their respective health-based levels.  Additionally, as shown
by Attachment 2, soil-pore monitoring data collected from the LTF
between December 8, 1983 and November 12, 1986 indicate that lead
has migrated beyond the unit boundary at hazardous concentrations
above the health-based level (0.05 mg/1).  We, therefore,
conclude that the presence of these constituents in the soil-
pore liquids clearly demonstrates that these contaminants have
already migrated below the LTF at hazardous concentrations.

Ground-Water Monitoring Data and Detecting Releases at the
Earliest Time Practicable

     As shown by Attachment 3,  benzene was detected in shallow
well LMW-5-0 at concentrations exceeding the health-based level
of 0.005 mg/1 during four ground-water sampling events between
February and November, 1989.  KMRC claims that the benzene
detected in this well was attributable to a soil-core sampling
event in January, 1989, when LTD soil-core samples were augered
through nine inches of standing water (precipitation).  KMRC
states that this enabled water to run down the boreholes,
carrying hazardous constituents to a depth of at least 5.5 feet
below the surface.  However, KMRC has failed to prove
conclusively that the soil-core sampling event is directly
related to the presence of benzene in shallow well LMW-5-0.  For
example, the benzene levels found in the sampling events have
fluctuated (0.310 mg/1 in February, 1989; 0.130 mg/1 in May,
1989; 0.240 mg/1 in August, 1989; and, 0.130 mg/1 in November,
1989).  If the soil-core sampling event was directly related to
the presence of benzene in the shallow well, it would stand to
reason that the benzene concentrations would have peaked, then
tapered off.  However, since the benzene concentration has
fluctuated, we have concluded that the operations at the LTF are •
contributing to the to the presence of benzene in shallow well
LMW-5-0.

     Additionally we believe that KMRC has failed to meet the
requirements of 40 CFR §268.6(a)(4).  Specifically, KMRC has not
demonstrated that the ground-water monitoring system at the LTF
is capable of detecting (and differentiating) releases at the
earliest extent practicable.

     KMRC's current ground-water monitoring system consists of
seven pairs of wells, each pair consisting of a shallow well

-------
                               -3-

(indicated by a "-0" suffix) and a deep well.  Free hydrocarbon
products were detected in the ground water at LWM-1 during the
first sampling event on November 17, 1981 (LMW-6 replaced LMW-1
in 1984).  According to KMRC, this was the first indication of
the existence of a liquid hydrocarbon plume on the refinery
property.  Ground-water monitoring between November 1988 and
November 1989 at deep wells LMW-2, LMW-4, LMW-5, LMW-6, and RW-2
indicated the presence of benzene above health-based levels,
which KMRC attributed to impacts from the hydrocarbon plume.

     We believe that the locations of the monitoring wells are
generally adequate, provided that the local ground-water flow
pattern will not change in the future.  However, given the
proposed free oil recovery and ground-water remediation to be
carried out in the next few years by KMRC, the local
hydrogeologic regime may be drastically altered because of the
hydraulic drawdown (to remove free products)  in the currently
upgradient processing area.  In response to the planned
remediation activities, some of the upgradient wells may become
temporarily downgradient (e.g., RW-2 and RW-2-O) to those wells
that are currently downgradient.

     Lastly, the ramifications of the contamination resulting
from the underlying hydrocarbon plume in regard to ground-water
monitoring of the LTF are unclear.  KMRC has not provided
detailed analytical results that describe the extent of the known
contamination beneath the LTF and KMRC is relying on the shallow
wells to differentiate between releases from the LTF and the
underlying hydrocarbon plume.  Shallow well LMW-5-O, however, is
already contaminated with benzene.  We, therefore, believe that
KMRC will be unable to differentiate between the two releases and
therefore, conclude that the ground-water monitoring system will
not be able to detect constituent releases at the earliest extent
practicable.

Maintaining Minimum Separation

     Federal regulations require that the depth-to-ground water
at land treatment facilities be no less than three feet from the
bottom of the treatment zone to the seasonal high water table
(see 40 CFR 264,271(c)(2)).  Based on the discussion below, we
have concluded that KMRC has not demonstrated that the required
minimum separation of three feet between the bottom of the
treatment unit and the top of the seasonally high water table is
consistently maintained.

     KMRC stated that during the LTD in 1988-89, the water table
beneath the LTF averaged from 9.2 to 11.9 feet, with seasonal
fluctuations ranging from 1.22 to 1.82 feet.   Given this range,
the water table can rise to 7.38 feet of the surface, or 2.88
feet below the treatment zone.  Historically, however, the water
table at the LTF has shown much more fluctuation than observed

-------
                               -4-

during the LTD.  In June, 1985, a depth of 4.92 feet was recorded
at well RW-1, and in March, 1987, depths of 5.03, 5.82, and 6.01
feet were recorded at LMW-3, LMW-6, and LMW-2, respectively (Part
B Permit Application, pages E-38 to E-41).  These data indicate
that fluctuations ranging from 0.42 to 1.51 feet of separation
between the treatment zone  (4.5 feet deep) and the water table
have occurred, showing that the required three foot separation is
not maintained.

Incomplete Petition

     Finally, our review indicates that the petition is
incomplete and that information and clarification in areas beyond
those highlighted above would be needed to complete the petition.
However, because of the problems discussed above, we believe we
have sufficient information at this time to move toward a denial
of your petition.

     It is our practice to give petitioners the option of
withdrawing their petitions to avoid a negative publication in
the Federal Register.  If you prefer this option, you must send
us a letter withdrawing your petition and acknowledging that the
petitioned wastes are still considered to be restricted wastes
subject to the Third Third Land Disposal prohibitions.  This
letter should be forwarded to the following address within two
weeks of the date of receipt of today's correspondence:

     Patricia Conn, Acting Chief
     Assistance Branch (OS-343)
     U.S. Environmental Protection Agency
     401 M Street, S.W.
     Washington, D.C. 20460

     If you choose not to withdraw your petition, we will
recommend that a proposed denial decision be published in the
Federal Register.

     Any questions regarding our findings may be submitted in
writing to Mr. James Michael of my staff.

                         Sincerely,
                         Jeffery D. Denit, Deputy Director
                         Office of Solid Waste
Attachments
cc:  Bill Gallagher, Region VI
     Fenton Rood, OSDH
     Patricia Cohn, PSPD, OSW
     James Michael, PSPD, OSW

-------
                               -5-

bcc: Terry Keidan, AB, PSPD, OSW
     Jeffrey Gaines, AB, PSPD, OSW
     Dave Reeves, AB, PSPD, OSW
     Richard Kinch, WMD, osw
     Kathy Stein, OE
     Nikki Roy, WMD, OSW
     Howard Finkel, ICF Incorporated

-------
                       ATTACHMENT 1

       Summary of Soil-Pore Liquids Monitoring Data
For Constituents Detected Above Health-Based Levels (mg/1)

         (Data from LTD Final Report, Appendix C)
Constituents
Antimony I/
Arsenic I/
Barium I/
Benzene





2, 4 -Dimethyl
Phenol
Sampling
Dates
11/88
11/88
11/88
11/88
01/89
02/89
04/89
07/89
08/89
11/88
04/89
Lysimeter
Numbers
3
3
3
»
2
3
3
4
2
4
bkgrnd
2
4
1
4
4
2
2
Concentrations
0.036
0.06
1.7
1.3
2.3
2.1
0.014
1.5
0.32
0.011
2.6
0.36
0.71
0.42
0.43
0.044
0.029
Health-Based
Levels
0.01
0.05
1.0
0.005





0.02
 I/   Analyses  for inorganics  only performed  on  11/88  samples
      due  to limited volume  of soil-pore  liquids collected
      during subsequent  sampling  events.

-------
                       ATTACHMENT 2

       Summary of Soil-Pore Liquids Monitoring Data
For Constituents Detected Above Health-Based Levels  (mg/1)

         (Data from LTF,  Recon.  Report,  Table 3-4)
Sampling Lysimeter Health-Based
Constituents Dates Numbers Concentrations Levels
Chromium 06/05/84


06/12/85
05/16/86
Lead 12/08/83

05/16/86



11/12/86

1 (bkgrnd)
2
3
4
2
2
5
2
4
5
1 (bkgrnd)
2
3
4
5
1 (bkgrnd)
3
4
0.2 0.05
0.05
0.16
0.05
0.08
0.07
0.05
0.19 0.05
0.18
0.14
0.29
0.45
0.5
0.37
0.4
0.06
0.05
0.09

-------
                                     ATTACHMENT 3

        Summary  of Ground-Water Monitoring Data For  Benzene Found
               at  Concentrations Above  the Health-Based  Level*
Concentration (•0/1)
Downgradient Wall*
Date
NOV.,
Feb.,
May,
Aug.,
Nov.,
UW-3 UV-3-0 LMU-4 UW-4-0
1988
1989
1989
1989
1989
L0b LD 0.049
LO LO 0.033
LS LO 0.0073
LO LO LS
LO LO 0.018
LSC
LO
LO
LO
LO
LNU-S UW-5-0 m-1 W-1-0 LMU-2 LMU-2-0
0
0
0
0
0
.056
.036
.064
.023
.140
LO LO
0.310 LS
0.130 LS
0.240 LS
0.130 LO
LO 0.034 LO
LO 0.0047 LO
LO 0.0061 LO
LO LO LO
LO LO LO
Upgradfent Uellt
LtM-6 LUN-6-0
0.049 LO
0.022 LO
0.023 LO
0.02S LD
0.017 LO
RU-2 RU-2-0
0.500
0.150
0.180
0.220
0.190
LO
LS
LO
.<*
LO
Footnote:
 a. The current health based level for benzene Is 0.005 mg/L.
 b. "LO" means a concentration lower than the detection Unit.
 c. "LS" means a concentration greater than the detection Knit but leas than the drinking water standard.
 d. "•" means data was not available.

-------
          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY    9551.1991(06)


                            APR 2 2 199!
Mr. J. R. Mclntire
Refinery Manager
Atlantic Refining & Marketing Company Corporation
3144 Passyunk Avenue
Philadelphia, Pennsylvania  19145

Re:  No-Migration  Petition  submitted  for Atlantic  Refining  &
     Marketing  Company Corporation's  Philadelphia,  Pennsylvania
     Land Treatment Facility (F-91-NARP-FFFFF)

Dear Mr. Mclntire:

     I am writing in regard to your  May  16,  1990 "no-migration"
petition, which requests a  variance under 40  CFR §268.6 to allow
Atlantic to continue the land treatment of restricted wastes at the
Philadelphia, Pennsylvania land treatment  facility (LTF).  After a
careful review  of your petition, we  have identified  three major
technical problems.  These are:

          Evidence of  releases  from the LTF in excess of health-
          based levels;

          Inadequate ground-water and  soil-pore monitoring systems
          for no-migration purposes; and,

          Apparent    non-compliance    with    other   regulatory
          requirements.

Therefore, we have  concluded that the Atlantic facility does not
meet the standard set by the statute for a no-migration variance.
We will, therefore,  recommend  to the  Assistant Administrator for
Solid Waste and  Emergency Response that a no-migration variance for
Atlantic be denied.

     Each of the major technical deficiencies identified from our
evaluation of your petition is  discussed in detail below.   Any
questions concerning any of our technical analyses and findings may
be submitted in writing to Mr.  James Michael of my staff.


Presence of Hazardous Constituents in the Ground-water

     Atlantic states that "ground-water will  not be used for the
purposes of no-migration"  (Vol.1, section 5.3.1.2.2, page 138), and
no  quantitative  analysis  of  ground-water was  provided  in  the
petition.  Therefore, in order to conduct a complete evaluation of

-------
Atlantic's no-migration petition,  we sought ground-water data from
the Pennsylvania Department of Environmental Resources (PADER).

     Hazardous constituents above health-based levels were detected
in the  1987 and  1990  sampling events.   Specifically,  in 1987,
PADER detected benzene, chlorobenzene,  1,4-dichlorobenzene,  and
ethyl benzene  above their respective health-based  levels  in the
downgradient monitoring wells.   In  1990,  PADER again  detected
benzene and 1,4-dichlorobenzene above their respective health-based
levels in the downgradient monitoring wells (see Table 1).
               TABLE 1  -  GROUND-WATER CONTAMINATION
HAZARDOUS
CONSTITUENT
(mg/1)
BENZENE
CHLOROBENZENE
1,4-
DICHLOROBENZENE
ETHYL BENZENE
HEALTH-BASED
LEVEL
(mg/1)
0.005
0.100
0.075
0.700
1987: MAXIMUM
CONCENTRATION
DETECTED
(mg/1)
3.652
0.675
0.425
1.825
1990: MAXIMUM
CONCENTRATION
DETECTED
(mg/1)
2.990

0.140

     Although Atlantic argues that the underlying ground-water has
been  contaminated  from  other  pre-existing sources,  Atlantic's
petition has failed to demonstrate that the existing ground-water
contamination did not  result,  even in  part, from LTF operations.
A  comparison  of   PADER   data  for the  LTF's  upgradient  and
downgradient  wells  shows  in  all cases  that  concentrations  of
hazardous constituents in the downgradient monitoring wells exceed
the concentrations of the same constituents, if detected at all, in
the  upgradient  monitoring  well.    This  indicates to us  that
migration has  already occurred  that may be attributable  to the
wastes in the LTF unit  and not the hydrocarbon plume underlying the
general  area  where  the LTF  is located.   Furthermore,  we  do not
believe that Atlantic's ground-water monitoring system is capable
of differentiating the source of the constituents already detected
(see  discussion below).   As  a  result,  we cannot definitively
conclude that the contamination which is already evident is not due
to migration of  constituents from the  LTF  unit.  This finding is
      PADER  performed only  a  qualitative  analysis of  organic
constituents in 1988, and did not perform any analyses for organic
constituents in 1989.

-------
necessary to satisfy the no-migration standard for land disposal of
restricted hazardous wastes.
Presence of Hazardous Constituents in the Soil-Pore Liquids

     We understand that the LTF is divided into eight plots, A-H,
with one lysiroeter located on each plot, and that Atlantic has not
applied wastes  to plots  G and H since  1985.   The  RCRA  Permit
specifies that  Atlantic should conduct soil-pore  monitoring for
each  plot  on  a semi-annual  basis  for  the principal  hazardous
constituents (PHC's)  identified, which include volatile and semi-
volatile organics and inorganics.  In contrast to this requirement,
Atlantic's petition included soil-pore monitoring data from only a
few plots.   Specifically, soil-pore liquid samples were collected
from only three plots in April 1989, four plots in July 1989, and
three plots in  October 1989.  Moreover, even though  plot H has been
inactive since  1985,  only the soil-pore liquids  collected from plot
H were analyzed  for  the inorganic indicator constituents.   These
limited data showed  that benzene was  detected above  the health-
based level of  0.005  mg/1 (see Table 2).   The instances of benzene
in the soil  pore liquids above the  health-based  level  indicates
that this contaminant has migrated below the LTF at concentrations
considered hazardous by EPA.

     Furthermore, because the soil-pore monitoring data provided by
Atlantic  are  so  limited,  we  consider  them  insufficient  to
demonstrate, to  a  reasonable  degree of certainty,  that inorganic
and other organic constituents have not migrated from the LTF.
     TABLE 2 - SOIL-PORE CONTAMINATION OF  BENZENE (mg/1)

PLOT H
Health-
based level
5/21/89
0.013
7/19/89
0.010
10/24/89
0.007
0.005 mg/1
Detecting Releases at the Earliest Practicable Time

     In  its  petition,  Atlantic  has not  demonstrated  that  the
ground-water and soil-pore monitoring systems at the land treatment
facility  (LTF)  are capable  of  detecting releases from the LTF at
the  earliest   practicable   time,   as   is   required   by  40  CFR
§268.6(a)(4).   Of particular concern is the inability to clearly
differentiate between past and present releases.

-------
Ground-Water Monitoring System

     Atlantic stated that it developed its ground-water detection
monitoring  program  "in  light  of well-documented,  pre-existing
ground-water contamination associated with the general area where
the LTF  is  located"  (Vol.  1,  section 6,  page 55) .   We note that
during the  1989  and 1990 compliance monitoring  evaluation (CME)
inspections, approximately three feet of standing oil was observed
in the downgradient monitoring well  (W6), preventing collection of
ground-water samples with a three foot bailer.  In addition, older
CME monitoring results indicated the presence of significant levels
of contamination, particularly total organic  carbon (TOC)  in the
underlying ground-water, up to 98,000 mg/1.

     Although  Atlantic  attributes   this   contamination  to  pre-
existing  site conditions  and argues  the  LTF  has  not  affected
ground-water quality, we are not aware of any assessment monitoring
program conducted by Atlantic during interim  status, nor did the
petition describe any facility attempt to locate the sources of the
ground-water contamination.   In addition,  the constituents  of a
weathered petroleum product plume would be very  similar to those
detected in a release from your LTF managing wastes from petroleum
refining activities. Clear differentiation between the sources of
releases  is  necessary  to  support  a  finding  of  no-migration.
However, your petition does not provide this level of certainty.

     In  order  to   determine  whether  migration  of  hazardous
constituents  has occurred,  Atlantic plans to  perform a  trend
analysis on each of the  constituents detected in the ground water.
We  believe,  however, that the  elevated  levels  of  constituents
contributed by the "free-product plume" will mask all but massive
releases from the LTF.   We are concerned that, Atlantic intends to
rely  on a  significant  increase in  the  concentrations of  the
volatile aromatic organic  indicator compounds  to  provide  early
detection of migrating hazardous constituents. For the purposes of
no-migration, we  require  petitioners to clearly  demonstrate that
their facility is not contributing contaminants  at concentrations
in excess of the applicable health-based levels.  We do not believe
that a trend analysis will enable Atlantic  to identify releases at
low concentrations which are frequently used as health-based levels
(e.g.,  0.005 mg/1  of  benzene).   We,  therefore,  conclude  that
Atlantic's ground-water  monitoring  system  is inadequate  for the
purposes of  detecting  constituent releases from  the LTF  at the
earliest practicable time.


Soil-Pore Liquids Monitoring System

     Similarly, Atlantic has  not demonstrated that its soil-pore
monitoring program will allow  for  the detection  of constituent
migration at the earliest practicable time.

-------
     Atlantic's  soil-pore  monitoring program does  not  appear to
adequately monitor  the effect of accumulated waste on  localized
migration of hazardous constituents  (i.e., hot-spots).  Atlantic's
petition indicated that it  dumps wastes at the access ramps of each
plot and does not distribute these on the plots until  several loads
have accumulated.   The  wastes  spread over  the  plot may  not be
evenly distributed, as evidenced by  the "long-term accumulation of
treated waste residues in the proximity of waste off-loading ramps"
(App.l, page LTP-18).  The placement of the lysimeters was chosen
using a random number approach and are not placed near the access
ramps where the  wastes  are placed.   It is,  therefore, likely for
hot-spots to exist within the LTF, for which Atlantic's soil-pore
monitoring program does not adequately account.

     Second, in the petition, Atlantic described the physical and
chemical consistency  of the  soils as being  highly  variable over
short distances.   We believe that  the  physical  heterogeneity of
soil texture in the lower treatment zone  (LTZ),  as described, may
establish pathways of reduced resistance  to migration of hazardous
constituents.  We  expect these  pathways  of  reduced resistance to
"short-circuit"  the  land treatment processes and  facilitate the
migration of hazardous constituents below the treatment zone.  In
addition, if  slag, ash, bricks,  large chunks of  concrete,  wood
timbers, wires, and construction debris are present within the LTF,
as the petition states, we  are concerned.that these materials also
will form pathways of reduced resistance to soil water flow, or
themselves  be  a  source  contributing  hazardous  constituents.
Neither  Atlantic's placement of  lysimeters,  nor  its predictive
computer modeling,  accounted  for the potential effects of such soil
variability  or  foreign material on the physical   and chemical
processes within the treatment zone.  We  conclude, therefore, that
Atlantic's soil-pore monitoring system is not capable of detecting
constituent migration at the earliest practicable time.


Maintaining Minimum Separation

     Federal regulations require that the depth-to-ground water at
land treatment  facilities  should  be at  least three  feet from the
bottom of the treatment zone  to  the  seasonal high water table  (see
40 CFR 264.271 (c) (2)) .  Specific depth-to-ground-water measurements
beneath the LTF have not been provided in this petition.  However,
based upon topographic maps provided by Atlantic, it appears that
most of  the Atlantic's  LTF  is  at an elevation of  about  20 feet
above sea level.   In addition, seven to thirteen  feet  above sea
level was cited as the water  table elevation range (Vol.1, section
4.5.1, page 4-21), therefore, we estimated the depth of the water
table as also being between  seven and thirteen  feet below ground
surface.  This estimate indicates that portions of the LTF may not
be three feet above the seasonal high water table  as  is required by
40 CFR §264.271(c)(2).

-------
     In  addition,  Pennsylvania  State  regulations  define  the
seasonal high water  table as "the presence of  mottling"  (see 25
Pa.Code §75.264  (u)(5)).  As is shown by Attachment I, mottles were
reported at various depths within the LTF.  The presence of mottles
in the LTF indicates that there may be an insufficient separation
between the  LTZ  and  upper saturated zone (i.e., the  presence of
saturated  soil   conditions).    We  believe,   therefore,  that  the
presence of  mottles within  the LTF  soils  further supports  our
determination that Atlantic has failed to demonstrate compliance
With 40 CFR §264.271(c)(2).


Incomplete Petition

     Finally, our review indicates  that the petition is incomplete
and  that  information  and clarification  in  areas  beyond  those
highlighted  above would be  needed  to  complete  the  petition.
However, because of  the problems discussed above, we believe we
have sufficient information at this time to move  toward a denial of
your petition.
     It  is  our  practice  to  give  petitioners  the  option  of
withdrawing their petitions to avoid  a negative publication in the
Federal Register.  If you prefer  this option,  you must send us a
letter  withdrawing  your  petition  and  acknowledging  that  the
petitioned wastes are still  considered  to be  restricted wastes
subject to the Third Third Land Disposal prohibitions.  This letter
should be  forwarded to the following address  within two weeks of
the date of receipt of today's correspondence:
     Elizabeth Cotsworth, Chief
     Assistance Branch  (OS-343)
     U.S. Environmental Protection Agency
     401 M Street, S.W.
     Washington, D.C. 20460

     If you choose not to withdraw your petition, we will recommend
that  a  proposed  denial  decision be  published  in the  Federal
Register.


                         Sincerely,
                         Jeffery D. Denit, Deputy Director
                         Office of Solid Waste

-------
cc:  Elizabeth Cotsworth, PSPD, OSW
     James Michael, PSPD, OSW
     Paul Gotthold, Region III
     Hon Lee, Region III
     Larry Lunsk, PA DER

-------
                                8

bcc: Terry Keidan, AB, PSPD, OSW
     Allyson Ugarte, AB, PSPD, OSW
     Dave Reeves, AB, PSPD, OSW
     Kathy Stein, OE
     Bill Kline, WMD, OSW
     Douglas Donor, Region III
     Howard Finkel, ICF Incorporated

-------
                  ATTACHMENT  I

Depth to Uppermost Occurrence of Mottles (inches)
  Plot
Horizon   Depth
BTZ  Separation
A
B
C
D
E
F
G
H
Background
2F1
2F
ZOI2
2F2
ZOI2
ZOI2
2F1
4F3
Fl
37-48
39-51
11-40
35-44
10-35
10-38
28-32
48-53
0-28
37
39
40
28 '
35
38
28
28

None
None
None
7
None
None
None
20

  Note:    BTZ is the depth to the control area  (clean
           fill zone)

  Source:  App.3, Attachment 5-2

-------
                UNITED STATES ENVIRONMENTAL PROTECTION AGENCY   9551.1991(07)
                            WASHINGTON, D.C.  20460
                                                                 OFFICE OF
                                                      SOLID WASTE AMD EMERGENCY RESPONSE
MEMORANDUM

SUBJECT:   Applicability of the Land Disposal Restrictions to Exported Wastes

FROM:      Sylvia K. Lowrance, Direi
             Office of Solid Waste (08

TO:         Gerald M. Levy, Chief
             MA Waste Management Branch
             Region I

      This memorandum responds to your March 8, 1991, request for clarification
concerning the applicability of the  Part 268 Land Disposal Restrictions (LDR) program
to wastes to be exported for treatment and/or recovery; in particular, the testing and
recordkeeping requirements of Part 268.7.

      The requirements of Part 268 are applicable to hazardous wastes (as stated at 40
CFR 268. l(b)) unless specifically provided otherwise in Part 261  or Part 268.  Neither
Part 261 nor Part 268 generically exclude the export of hazardous wastes from the LDR
requirements. Therefore, the requirements of Part 268.7(a)  are applicable.  However,
this is not meant to imply that the treatment standards must be met prior to disposal in
another country.

      As a secondary matter, the description "corrosive, metal-containing wastes" used
in your March 8, 1991 correspondence  is  insufficient to make a determination regarding
the regulatory status of the secondary material when destined for reclamation.
Specifically, as presented in Table  1 of Part 261.2, a characteristic by-product or sludge
that is reclaimed is not  a solid waste (and therefore not subject to  the part 268
requirements); however, a characteristic spent material that is reclaimed is a solid waste
(and therefore must comply with the Part 268 requirements).  In addition, scrap metal
that is hazardous solely due  to a characteristic is not subject to the LDR Part 268
paperwork  requirements (See 40 CFR 261.6(a)(3)(B)(iv)).

      Should you have further questions, or need more information, please contact
Charles Hunt, of my staff, at FTS 475-8551.
                                                                       Printed on Recyc'ea

-------
           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY      QCC1  iaftl/AOX
                                                        9551.1991(08)


                             MAY 2 9 !^C!
Mr. Glenn A. Weiss
Refinery Manager
Texaco USA
Puget Sound Plant
P.O. Box 622
Anacortes, Washington  98221

Re:  No-Migration Petition submitted for Texaco's Anacortes,
     Washington Land Treatment Facility (F-91-NTAP-FFFFF)

Dear Mr. Weiss:

     I am writing in regard to your May 18, 1990 "no-migration"
petition, which requests a variance under 40 CFR §268.6 to allow
Texaco to continue the land treatment of restricted wastes at  its
Anacortes, Washington land treatment facility  (LTF).  After a
careful review, of your petition, we have identified three major
technical problems.  These are:

     •    Evidence of releases from the LTF in excess of health-
          based levels;

     •    Inadequate ground-water monitoring system for purposes
          of no-migration; and,

          Apparent non-compliance with other regulatory
          requirements.

     Based on these technical deficiencies, we have concluded
that the Texaco facility does not meet the standard set by the
statute for a no-migration variance.  We will, therefore,
recommend to the Assistant Administrator for Solid Waste and
Emergency Response that a no-migration variance for Texaco be
denied.

     Each of the major technical deficiencies identified from our
evaluation of your petition is discussed in detail below.  Any
questions concerning any of our technical analyses and findings
may be submitted in writing to James Michael of my staff.

Presence of Hazardous Constituents Below the Treatment Zone

     Our review of Texaco's 1988 soil-pore monitoring data for
the LTF indicate that chromium, benzene and nickel have already
migrated beyond the unit boundary above their respective health-
based levels (HBLs).  See Table 1.

-------
       TABLE  1  -  EVIDENCE  OF  MIGRATION  BEYOND UNIT  BOUNDARY
HAZARDOUS
CONSTITUENT
BENZENE
NICKEL
CHROMIUM
HEALTH-BASED
LEVEL
0.005 mg/1
0.01 mg/1
0.01 mg/1
1988: MAXIMUM
CONCENTRATION
DETECTED
0.019 mg/1
0.263 mg/1
0.121 mg/1
     Furthermore, the analysis of soil core monitoring data
collected in 1989 indicates that benzo(a)-anthracene,
benzo(a)pyrene, and benzo(b)fluoranthene were detected below the
treatment unit in excess of their respective HBLs.  See Table 2.
In addition, chrysene, fluoranthene, naphthalene, 1-methyl-
naphthalene, phenanthrene,  and pyrene were detected in the soil
cores at statistically significant concentrations.  Although the
concentrations detected do not exceed HBLs, statistically
significant concentrations below the treatment zone indicate that
these constituents are migrating and further add to our concern
(see Attachment 1).
       TABLE 2  -  EVIDENCE  OF  MIGRATION  BEYOND UNIT  BOUNDARY
HAZARDOUS
CONSTITUENTS
BENZO (A)
ANTHRACENE

BENZO (A)
PYRENE

BENZO (B)
FLUORANTHENE

HEALTH-BASED
LEVELS
0.055 mg/1

0.055 mg/1

0.055 mg/1

LYSIMETER
SAMPLE DATE
AND NUMBER
Jun/89
Oct/89
Jun/89
Oct/89
Jun/89
Oct/89
1989: MAXIMUM
CONCENTRATION
DETECTED
1.361 mg/1
0.993 mg/1
0.454 mg/1
0.310 mg/1
0.784 mg/1
1.676 mg/1

-------
     Another  indication  of  the migration of hazardous waste
 constituents  is  the  increase  in the concentration of total
 organic  carbon  (TOC)  at  the base of the treatment zone.
 Attachment  2  shows the concentrations of TOC  in  samples  collected
 from the 1988 lysimeter  monitoring events.  The  average
 concentration of the background lysimeter samples in plot BG-SE
 is  13 mg/1.   A significant  increase in TOC concentration is
 considered  to be the average  background value plus two standard
 deviations, or 27 mg/1.  As can be seen from Attachment  2, the
 average  concentration of TOC  detected from the 1988 lysimeter
 system exceeds the significance level of 27 mg/1.  These data
 indicate to us that  the  LTF is not successfully  degrading or
 immobilizing  all wastes  and further support our  conclusion that
 the migration of hazardous  constituents is occurring.

     In  the petition (Section 1, page 5), Texaco attributes
 the detection of constituents at the base of the treatment zone
 in  the West LTF  (WLTF) plot #8 to wastes buried  during the
 terracing of  the plot.   There is no explanation  in the petition
 of  how this could occur.  Lacking this explanatory information,
 we  cannot evaluate your  statement, particularly  since the plot
 is  situated in a relatively flat area, only portions of  the
 surface  layer were modified,  and buried wastes are located 7.5
 feet below  the surface of the plot  (i.e.. plot #8 would  have
 required very little cut and  fill).  Furthermore, Texaco's
 petition did  not explain the  presence of hazardous constituents
 detected in the  other plots,  such as plot #9, also in the WLTF
 (see Attachment  2).

 Detecting Releases at the Earliest Practicable Time

     In  its petition, Texaco  has not demonstrated that the
 ground-water  system  at the  land treatment facility (LTF) is
 capable  of  detecting releases at the earliest practicable time,
 as  is required by 40 CFR §268.6(a)(4).
*-*'
     According to the petition, the depth to ground water is too
 great to deem it an  important factor in determining subsurface
 contaminant migration (Volume 1, Table Exec-1).  Texaco  based
 this conclusion  on the historic absence of contaminants  in
 ground-water  monitoring  samples.  Consequently,  Texaco does not
 recommend monitoring of  the primary aquifer.  The petition
 indicated elsewhere,  however, that perched water tables  are
 present  at  the  facility  and that saturated conditions are present
 through  most  of  the  geologic  units.  Based on this facility
 description,  we  consider ground-water monitoring to be important
 for the  purposes of  a no-migration variance for  the LTF.

     Based  on our evaluation  of some of the features of  Texaco's
 ground-water  monitoring  system, we believe this  system is
 inadequate  for  early detection of migration because of well
 screen location. Attachment  3 illustrates well-screen position

-------
 for  twenty  monitoring  wells  at  the  East  and West  LTFs,  nine  of
 which  are down-gradient  wells.   Of  those nine,  six  are  screened
 between  six and  twenty one feet below  the top of  the water table
 making it possible  for a shallow plume to be missed by
 monitoring.   In  addition, as illustrated in Attachment  3, two
 monitoring  wells have  been screened over an interval that does
 not  intercept ground water,  and well 17  is screened above the
 ground-water depth.

 Maintaining Minimum Separation

     Federal regulations require that  the depth-to-ground water
 at land  treatment facilities should be at least three feet from
 the  bottom  of the treatment  zone to the  seasonal  high water  table
 (see 40  CFR §264.271  (c)(2)).   We believe that  Texaco has failed
 to demonstrate that either the  West or East Field of Texaco's LTF
 has  successfully maintained  this minimum separation.

     Unfortunately, the  petition did not present  a  comprehensive
 data set showing depths  to the  water table.  Attachment 4,
 however, displays that a sufficient amount of data  was  compiled
 from the no-migration  petition  to indicate that a water table
 exists within three feet of  the treatment zone  in the East LTF
 (ELTF).  If an accumulated waste layer is assumed,  we estimate
 the  minimum acceptable depth to the seasonal high water table to
 be 9.5 to 11.5 feet below the soil  surface (depending on waste
 accumulation).   Attachment 4 shows  that  at the  ELTF, a  separation
 in that  range occurs infrequently in any piezometer or  monitoring
 well.

     Texaco indicates  that the  observed  "perched" water table is
 seasonal and confined  to a shallow  surface soil layer (App.  I,
 Vol.5, pages XIX-27 and  XIX-32).  Texaco,  therefore, does not
 consider this to be a  perched water table, but  rather a temporary
 condition of excessive soil  wetness.   Texaco further associates
''high water  table readings with  leakage around the piezometer
 casing allowing  surface  water to enter the piezometers  (App. I,
 Vol.5, page XIX-38).   Only two  of the  five piezometers  tested,
 however, showed  any immediate response to a rainfall event.  The
 data shown  in Attachment 4 indicate that this condition persists
 throughout  the year with slight fluctuations in level.   The
 hydrology section of Texaco's permit application  also indicates
 that saturated conditions appear continuous through zone E
 (App.I,  Vol.3, page XV-20) and  are  not restricted to a  shallow
 surface  layer.   We, therefore,  do not  believe that  the  data
 support  a zone of restricted downward  flow.  Instead, we conclude
 that the data support  the existence of a perched  water  table and
 that continuous  saturated conditions exist throughout the
 treatment zone,  particularly at the ELTF.

-------
     Data supplied with the petition does not indicate that
sufficient depth to the water table exists under the West LTF
(WLTF).  In fact, mottling, indicating saturated soil conditions,
was reported in the WLTF soil descriptions in all profiles and
within 9 to 34 inches from the soil surface (Sec.4, page 8).
Saturated conditions in the WLTF surface layer is also reported
in the hydrology section of the permit application (App.I, Vol.3,
page XV-35).  In light of this information, Texaco did not
provide sufficient piezometric data for the WLTF to substantiate
that depth to the seasonal high water table meets the
requirements.  Therefore, in regard to both the ELTF and WLTF,
the minimum separation required by 40 CFR §264.271(c) is not
being maintained.  This is a deficiency that precludes granting a
no-migration variance to the facility.

Incomplete Petition

     Finally, our review indicates that the petition is
incomplete and that information and clarification in areas beyond
those highlighted above would be needed to complete the petition.
However, because of the technical nature of the problems
discussed above, we believe a technical basis already exists that
is sufficient to support a denial of your petition.


     It is our policy to give petitioners the option of
withdrawing their petitions to avoid a negative publication in
the Federal Register.  If you prefer this option, please send us
a letter withdrawing your petition and acknowledging that the
petitioned wastes are still considered to be restricted wastes
subject to the Third Third Land Disposal prohibitions.  This
letter should be forwarded to the following address within two
weeks of the date of receipt of today's correspondence:

          Elizabeth Cotsworth, Chief
          Assistance Branch (OS-343)
          U.S. Environmental Protection Agency
          401 M Street, S.W.
          Washington, D.C. 20460

     If you choose not to withdraw your petition, we will
recommend that a proposed denial decision be published in the
Federal Register.

                         Sincerely,
                         Jeffery D. Denit, Deputy Director
                         Office of Solid Waste

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                             ATTACHMENT 1



      Stunaary of Significant BTZ  Soil-Core  Detections
Corwtltuent/Plot
B«nzo( • ) Anthr KWW
Btnzo<«)Pyrerw
B«nzo< b) F luor •nthww
ChryMiw
FluorintherM
Naphthalene
1-Methylrttphthalww
Pn^nflOthf W
Pyrw
Jun 89
8
1361.4
660.1
783.8
3465.3
NO
NO
5775.6
3259.1
2681.5
Jun 89
8 Dup
1464.5
453.8
2475.2
1382.0
2681.5
206.3
742.*
4744.2

Oct 89
9
1464.5
453.8
2475.2
1382.0
2681.5
206.3
742.6
4744.4
391.9
Oct 89
9 Dup
993.4
310.4
1676.4
910.6
1821.3
NO
476.0
3311.4
248.4
H««lth>
teal uvdB
55
55
55
• »
3.2+E7
3.2+E7
1.6+E6
3.2*E7
3.2*€7
Nott:  En rtprt»«nts 1 x

-------
              ATTACHMENT  2

TOC Concentrations in Samples Collected
 From the 1988 Lysimeter System (mg/1)
Plot
1
3
4
6E
6EC
6W
7
8
9
10W
11
BG-SE
BG-T1
BG+2STD
11/3/88
PCUP GBRICK
32
70
47
82
23
256
114
384

168
58
6


44
91
75
15
28
261
189
348
287
248
47
24
18

12/21/88
PCUP GBRICK
53
101
115
106
81
185
190
293

116
142
12
4

57
96
102
61
79
203
236
289

194
60
19
5

AVERAGE
46
89
85
66
53
226
182
329
287
182
77
13
9
27

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                     ATTACHMENT  3



Distances From Top of Well Screen to Water Table (feet)
Well No.
1
2
3
I
11
12
13
U
15
16
17
21
22
23
24
25
26
31
32
33
Outer
Ground
Ground
Surface
1.49
1.79
2.25
* t 	 -*— — —
MMnoonH
2
1.5
1.92
1.92
2.03
1.3
2.01
2.06
2.12
2.07
2.26
1.92
1.25
1.82
1.9
2.28
Depth of
Well Ground
Bottoi of
Screen
70.79
45.27
75.01
i • July 1986
51.14
39.51
30.06
33.03
51.53
59.96
46.1
25.21
25.28
24.78
40.13
36.03
50.02
27.08
45.79
58.12
Feet to
Depth to
Top of
. Screen
60.79
35.27
65.01

41.14
29.51
20.06
' 23.03
41.53
47.96
36.1
15.21
15.28
14.78
30.13
26.02
40.02
17.18
35.89
48.22
Top of
Water
Fro*
Ground
56.49
30.12
43.13

13.09
MA
3.22
18.34
22.77
51.66
59.14
1.71
0.91
a
•ottoaed Out
34.8
••ttaMd Out
16.23
38.44
52.37
Screen
to
Veter
4.3
3.15
21.88

28.05
HA
16.84
4.69
18.76
•10.13
•23.04
13.3
14.37
6.78

•8.78

0.95
-2.55
•4.15

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                           ATTACHMENT 4

    Distance  froa the Soil Surface to the Piezometric Surface
Oat*
p10«   p12i  u13
w21
                                                         w22
w23
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where: the  letter prefix to the label  (p,v) denotes whether it is
       a piezometer or a monitoring well.

-------
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                                          9551.1991(09)


                           MAT 2 9 1991
Robert A. Olsen
Senior Process Engineer
Conoco Billings Refinery
P. O. Box 2548
Billings, MT 59103-2548

Re:  No Migration Petition for Conoco's Land Treatment Facility
     (LTF), Billings, MT  (F-91-NCBP-FFFFF)

Dear Mr. Olsen:

     The purpose of this  letter is to respond to issues raised by
Conoco during1EPA's site  visit on May 7, 1991.  Specifically,
Conoco requested guidance on how they should address
bioaccumulation in the assessment of environmental impacts at the
Billings land treatment facility.  To address this issue, Conoco
should first assess the environmental threat that exists at the
LTF.  An environmental threat can be assumed to exist at a LTF
only if three criteria are met.  These are:

     1)   Sensitive environmental receptors are within the
          vicinity of the site (such as aquatic ecosystems or
          endangered or threatened species located within 1000
          feet);

     2)   There is an exposure pathway by which these receptors
          may be exposed  to contaminants from the site (is there
          hydraulic connection between ground water and receptors
          or airborne transport of contaminants); and,

     3)   The receptor could be exposed to the contaminants at
          hazardous levels.

     If any of these three conditions does not hold, then no
significant ecological threat is presumed to exist and the issue
of bioaccumulation does not need to be addressed.  If these
conditions do exist, Conoco should:

     1)   Determine and state which substances present in
          Conoco's hazardous waste have a bioconcentration factor
          (BCF) over 1000, particularly mercury, cadmium, lead,
          and zinc.  The  most reliable source of peer-reviewed
          BCF values are  EPA ambient water quality criteria
          documents;

-------
     2)   Acknowledge those substances present in the waste and
          their potential for bioaccumulation; and,

     3)   And dismiss possibilities (no hazardous constituents
          leaving the treatment zone,  no environmental receptors,
          no surface runoff).

     If you have any additional questions on this issue or
related issues, please call me at (202) 475-9712.

                         Sincerely,
                         Newman Smith
                         Office of Solid Waste
                         Disposal and Technology Section (OS-343)
cc:  Mike Gansecki, Region VIII
     Stephanie Wallace, Region VIII Montana Office
     Duane L. Robertson, DHES
     James Michael, PSPD, OSW
     Terry Keidan, PSPD, OSW            ~
     Howard Finkel, ICF, Inc.

-------
             UK ' .D STATES CMY18OMMEMTAL P8OTK.. ,JN AGENCY



                                                          9551.1991(10)
 UN  5 1991
Mr. Allen P. Lusby
Safety/Environmental Director
EFCO Corporation
County Road & Bridle Lane
Monett, Missouri  65708

Dear Mr. Lusby:

     We have received your letter of May 16, 1991, concerning
certification/notification for multiple-constituent wastes
subject to the land disposal restrictions.

     As you stated in your letter, EFCO Corporation generates
FO19 sludge waste and thus must make a determination if the waste
is restricted from land disposal under 40 CFR 268.  F019 waste is
listed in 40 CFR Part 261, Subpart D.  Pursuant to 40 CFR
267.7(a), based on knowledge and testing of the extract, the
waste is determined to be restricted from land disposal under
Part 268.

     Under 40 CFR 268.7(a)(1), if the waste does not meet the
applicable treatment standards or exceeds applicable prohibition
levels, EFCO is required to notify, in writing, the treatment,
storage, or disposal facility (TSD) what the appropriate
treatment standards and applicable prohibition levels, as set
forth in Subpart D, are.

     EFCO makes notification to the TSD that it is managing a
restricted waste under 40 CFR 268 and that the waste does not
meet the applicable treatment standards for Chromium  (total), EPA
Waste Code D007 (268.41, Table CCWE).

     According to 40 CFR 268.41, Table CCWE, and 40 CFR 268.43,
Table CCW, F019 waste (nonwastewater) contains three regulated
hazardous constituents.  EFCO's F019 waste does not meet the
applicable treatment standards for the Chromium (total) waste
constituents, but it does meet the applicable treatment standards
for the Cyanides (total) waste constituent.

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              UK • .0 STATES ENY1BOMMEHTAL PROTEC. .JH AGENCY
                              - 2 -
     The Agency's position on the question of multiple-
constituent waste in which some constituents meet the treatment
standards and others do not is that the waste—not individual
constituents—must be certified to meet the standards.  The
phraseology is specific regarding "waste" in 268.7(a)(1) and
(a)(2)(ii).  Thus, in your case, even though the Cyanides  (total)
component meets the standard, you must notify the TSD that your
waste as a whole does not meet the standard because of the
Chromium (total) .component.  The TSD should, therefore, be told
to treat all constituents of the waste to the treatment
standards.

     Should you need additional information, you may contact Pat
Fox at (703) 308-8458.

                                     Sincerely,
                                     Sylvia K. Lowrance
                                     Director
                                     Office of Solid Waste

-------
              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY      9551.1991(11)
                             SEP 27 199!
 T.L. Nebrich,  Jr.
 Waste Technology Services,  Inc.
 640 Park Place
 Niagara Falls, New York 14301

 Dear Mr. Nebrich:

      I am writing in response to your letter of September 18,  1991
 regarding the land disposal restrictions program.   In particular,
 you raise two  questions concerning the applicability of California
 list prohibitions following promulgation of the Third Third.

      First,  you ask what treatment standards must  be met  to  land
 dispose  of  soils or  other  wastes  that are  granted a  national
 capacity variance but must meet California list prohibitions?  The
 treatment standard  that must be  met depends on which California
 list waste  is present.   Under  40 CFR 268.42(a)(1), liquid  and
 nonliquid PCBs of certain  concentrations must be  incinerated or
 burned  in high  efficiency  boilers.    Under  40 CFR 268.32  and
 268.43(a), numerical concentrations are specified  as prohibition
 levels or treatment  standards.   Any appropriate technology may be
 used to meet numerical treatment  standards.

      Second,  you ask whether  the California  list  prohibitions
'remaining in effect for HOCs apply only to characteristic wastes
 or also  to  listed wastes  containing  HOCs?  EPA specified in  the
 preamble to  the California list final  rule that California list HOC
 standards "are only  applicable  to those HOCs that  are not covered
 by other Agency  rulemakings...•    52 Fed.  Reg.  25760 at 25773.
 Similarly,  th« regulations   specify at  40  CFR  268.42(a)(2)  that
 California  list  HOC standards  "do not  apply  where  the waste is
 subject to a part 268, subpart D treatment standard for a specific
 HOC (such as  a  hazardous waste  chlorinated solvent  for  which a
 treatment standard is established under [section]  268.41(a)).*

      The California  list HOC standards apply only to characteristic
 wastes because all  listed wastes either have  their own treatment
 standards or,  because thev are newlv listed wastes, the California

-------
list prohibitions do not apply; more  specific  (i.e.,  waste code-
specific) standards have now been promulgated for all wastes listed
prior to November 1984,  and the California list prohibitions do not
apply to wastes listed after  November  1984.  55 Fed Reg. at 22674-
22675.

     I hope you find this discussion helpful.  Please feel free to
contact me at 703-308-8434 if you have any further questions.

                                   Sincerely,
                                   Richard J. Kinch, Chief
                                   Waste Treatment Branch

-------
            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                                          9551.1991(12)
                                i j
Mr. John R. Kampfhenkel
Chief Environmental Engineer
Koch Refining Company
P.O. Box 2608
Corpus Christi, Texas  78403

Re:  No-Migration Petition submitted for Koch Refining's Corpus
     Christi, Texas Land Treatment Unit (F-91-NKCP-FFFFF)

Dear Mr. Kampfhenkel:

     We have reviewed the information Koch Refining Company
(Koch) submitted on February 1, 1991 regarding the no-migration
petition for the Corpus Christi Refinery land treatment unit
(LTU), and found the additional information on unsaturated zone
and ground-water monitoring useful in answering some of the
earlier questions we had about the petition.  However, the
information from Koch did not resolve some of the critical
deficiencies noted in the original petition submission.  These
include the presence of hazardous constituents in soil-pore
liquids, below the treatment zone, and in the ground water.


PRESENCE OF HAZARDOUS CONSTITUENTS IN THE SOIL-PORE LIQUIDS

     Your letter suggests that the detection of benzene in soil-
pore liquids was most likely caused by using a pump contaminated
with oil and grease.  However, after our review of the type of
lysimeter used by Koch, we do not consider this explanation to be
convincing.  Specifically, our examination of the mechanics of
the pressure-vacuum type lysimeter indicates that the pressure-
vacuum pump and the connecting tube do not come in contact with
the liquid sample.  Therefore, any contamination occurring from
the pump would be limited to the air pumped into the lysimeter
during the evacuation phase.

     During the September 1988 sampling event, 2-butanone and
ethyl benzene were detected at higher levels than was benzene.
Since benzene is a relatively volatile constituent, and is
expected to degrade at a faster rate than 2-butanone or ethyl
benzene, the absence of these more persistent constituents during

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                               -2-

residual contamination from the September 1988 sampling event, 2-
butanone and ethyl benzene also should have continued to be
present.  Your letter also fails to provide any alternative
source or explanation for the detection of l,2-dichloroethane;
toluene, and styrene in the soil-pore liquids at concentrations
exceeding the health based levels.

     In regard to the inorganic constituents, your letter
concludes that "because there are no data available from LY-1
since September 1988, it cannot be determined whether the
concentrations of heavy metals from the LTU soil-pore liquid
samples are the result of a release from the LTU or due to other
factors (e.g., varying background conditions, laboratory
inaccuracies)."  Koch's inability to collect background
monitoring data after September 1988 is unfortunate for the
showing you are attempting to make.  However, for the purposes of
EPA's data evaluation, a sample was successfully collected from
the background lysimeter (LY-1) during the September 1988
monitoring event when the bulk of the data showing migration also
were collected.  Those data show that beryllium, chromium, lead,
and nickel were detected in the active area lysimeters, at
concentrations exceeding the HBLs, but not in the background
sample.  The lack of background data from other monitoring events
does not affect the validity of the data obtained from the
September 1988 sample.  Without supportive comparative background
data, we are obliged to discount other factors for the
contamination.  We, therefore, continue to conclude from Koch's
petition data that hazardous constituents have already migrated
beyond the unit boundary.


PRESENCE OF HAZARDOUS CONSTITUENTS BELOW THE TREATMENT ZONE

     Your letter claims that because background soil-core data
have not been collected, EPA cannot assume that data showing
antimony and beryllium below the treatment zone indicate
migration.  While it is unclear why Koch did not collect
background soil cores (i.e..  the permit stipulates that Koch must
collect background soil-core samples within 30 days of permit
issuance - August 31, 1988),  in their absence it is impossible to
make a conclusive showing that migration has not occurred.  We
also consider the detection of beryllium in soil-pore liquids in
the active area lysimeters to strengthen our conclusion that
beryllium detected in the soil-core sample is from the LTU.

     In addition, Koch claims that the detection of organics and
oil and grease below the treatment zone was caused by waste
migrating from Carson's Pit and not the LTU.  Koch supports their
claim by stating that concentrations of the organic constituents
increased with depth below the lower treatment zone, and organic
constituents were not detected in any of the soil-core samples

-------
                                -3-

 collected from the three sampling intervals  ranging from 1.5 to
 5.5  feet.

      Although it may be possible for organic constituents and oil
 and  grease to have originated from  Carson's  Pit,  due to  either
 mounding or as a direct result of a portion  of  Carson's  Pit
 extending beneath the LTU,  we do not believe that Koch has
 clearly demonstrated that> Carson's  Pit  accounts for the  observed
 contamination levels and patterns.   Your  suggestion of Carson's
 Pit  as  the contamination source provides  no  explanation  of the
 various data in the petition showing detection  of the following
 constituents in the 1.5 to 3.25 foot interval in one or  more
 locations and/or occasions:

      benzene,  ethyl benzene,  xylenes, 1-methylnaphthalene,
      3-methylphenol,  7,12-dimethylbenz(a)anthracene,  chrysene,
      methyl chrysene,  naphthalene,  phenanthrene,  benzo(a)pyrene,
      2,4-dinitrophenol,  fluoranthene, pyrene, and toluene.

 Your claim that organic constituents were not detected in any of
 the  soil-core samples collected from the  three  sampling  intervals
 ranging from 1.5 to 5.5 feet is at  odds with these petition  data.
 We,  therefore,  continue to believe  that wastes  are moving through
 the  unit,  and that Koch has failed  to demonstrate to a reasonable
 degree  of certainty that there will be  no migration of hazardous
 constituents from the disposal unit.
 PRESENCE  OF  HAZARDOUS  CONSTITUENTS  IN  THE  GROUND WATER

      Finally,  the presence  of  vanadium above  its health  based
 level in  the ground water,  as  detected in  August 1988, remains  a
 primary concern.   Koch claims  that  the August 1988 monitoring
 data  may  be  unreliable and  nonrepresentative  of the  ground  water
 because inorganic constituents were found  in  all of  the
"monitoring wells,  but  were  not found during subsequent events.

      Koch's  conclusion that the August 1988 monitoring data may
 be  invalid is not supported by the  fact that  low levels  of  other
 inorganic constituents (beryllium,  cadmium, nickel,  arsenic,  and
 mercury)  were only found during the August event.  Rather,  the
 presence  of  the inorganic constituents could  indicate  that
 contamination plumes occur  sporadically.   We  note that vanadium
 was detected in two of the  four downgradient  monitoring  wells,
 but not in the upgradient monitoring wells during the  August 1988
 sampling  event.

      Furthermore,  based on  the petition, we disagree with Koch's
 assertion that inorganic constituents  were not detected  during
 subsequent monitoring  events.   Although not found above  its
 health-based level, vanadium was detected  during the March  1989
 monitoring event at concentrations  ranging from 0.018  mg/1  to

-------
                               -4-

0.057 mg/1.  In addition, nickel was detected during September
1988, January 1989, and December 1989 sampling events at
concentrations ranging from 0.055 mg/1 to 0.15 mg/1.

     In order to help support a claim regarding unreliable
ground-water data, analytical data (e.q.. QC data) indicating
field or laboratory contamination would be necessary.  We,
therefore, continue to believe that the petition data show that
vanadium has already migrated beyond the unit boundary.


     As a result of our review of your supplementary information,
we have concluded that the technical basis still exists for
proposing to deny your petition.  After making our recommendation
to EPA's Assistant Administrator for Solid Waste and Emergency
Response, we will proceed to publish a proposed denial in the
Federal Register.  If you wish to avoid a negative publication,
you may send a letter withdrawing your petition and acknowledging
that Koch Refining Company considers the petitioned wastes to be
restricted wastes subject to the Third Third Land Disposal
prohibitions.  You should forward this letter to:

     James Michael, Acting Chief
     Assistance Branch (OS-343)
     Office of Solid Waste
     U.S. Environmental Protection Agency
     401 M Street, S.W.
     Washington, D.C.  20460

     Any questions regarding our findings may be submitted in
writing to Mr. Chris Rhyne of my staff.

                              Sincerely,
                              Jeffery D. Denit, Deputy Director
                              Office of Solid Waste

cc:  James Michael, PSPD, OSW
     Chris Rhyne, PSPD, OSW
     Bill Honker, Region VI
     David Neleigh, Region VI
     Minor Hibbs, Texas Water Commission

-------
Summary of Soil-Core Monitoring Data for Oil and Grease (ma/kg)
Soil- Core
#
0' -
1.5'
1.51 -
3.25'
3.25'
-5,0'
5 .0 ' -
5.5'
5.5' -
6.5'
6.5' -
7.5'
06/29/89
1
2
3
4
5
6
75,000
29,000
120,000
190,000
42,000
110,000
160
256
340- ,=
46,000
34
520
58
74
1,000
100
'v 
-------
 \
                                                     9551.1991(13)

                                            :TION AGENC
                         WASHINGTON, D.C. 20460
1       UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
«
                                r'.'rP ^ 0 '-••'-•-             OFFICE OP
                                ~ "J           SOLID WASTE AND EMERGENCY RESPONSE
Mr. Douglas MacMillan, Director
Hazardous Waste Policy
National Solid Wastes Management Association
Suite 1000
1730 Rhode Island Ave., N.W.
Washington, DC 20036

Dear Mr. MacMillan:

     This letter responds to your  inquiry dated  October 11,  1990
about several aspects of the Third Third land  disposal
restrictions final rule.  Your letter  includes questions about
the following topics:  lab packs,  inorganic solid  debris,
certification/notification requirements, and the disposal  of D001
ignitable wastes.  Responses to the specific questions  about each
of these topics are presented below.

1.  Lab Packs

     Your question concerns the language in 40 CFR 264.316(f)  and
40 CFR 265.316(f).  You refer specifically to  perceived
contradictions between the first and second sentences of these
paragraphs; however, it is assumed that you are  actually
concerned with the language of the second and  third sentences
which specifies that N[p]ersons who incinerate lab packs
according to the requirements in 40 CFR 268.42(c)(l) may use
fiber drums in place of metal outer containers.  Such fiber  drums
must meet the DOT specifications in 49 CFR 173.12  and be
overpacked according to the requirements in paragraph  (b)  of this
section."  In particular, you request  clarification of  whether
this language requires fiber drums to  be overpacked in  metal
drums.  It ia assumed that your confusion stems  either  from  the
DOT specifications in 49 CFR 173.12, or the overpacking
requirements in 40 CFR 264.316(b)  and  40 CFR 265.316(b).   The
language of the DOT specifications and the §§  264.316(b)  and
265.316(b) overpacking requirements will be examined below.

     The language specifying that  fiber drums  must meet the  DOT
specifications in 49 CFR 173.12 does not require fiber  drums to
be overpacked in metal drums.  In  fact, paragraph  (b) of 49  CFR
173.12 states:  "The outside packaging must be a DOT
specification metal or fiber drum" [emphasis added].

     Moreover, the language specifying that fiber  drums must be
overpacked according to the requirements in §§ 264.316(b)  and

-------
 265.316(b)  does not require overpacking  of  fiber drums  in metal
 drums.   Th« first sentence of §§  264.316(b)  and  265.316(b)
 ("[t]he inside containers must be overpacked in  an  open head DOT-
 specification metal shipping container")  does not apply because
 §§  264.316(f)  and 265.31£(f)  clearly  state  that  "[p]ersons who
 incinerate  lab packs according to the requirements  in 40 CFR
 268.42(c)(l)  may use fiber drums  in place of metal  outer
 containers."   The §§ 264.316(b) and 265.316(b) language that does
 aPPly/  however,  is the  requirement to pack  a sufficient quantity
 of  absorbent  material around the  inner containers to completely
 absorb  all  of the liquid contents of  the inside  containers,
 making  the  outer container full after packing.

     As you mention in  your letter, the  preamble language on page
 22631 of the  Third Third final rule explains the Agency's
 decision to allow fiber drums to  be used as outer containers for
 lab packs being incinerated according to the requirements in
 40  CFR  268.42(c)(1).  The language of  §§  264.316(f)  and  265.316(f)
 does not eliminate this decision  by otherwise requiring the fiber
 drums to be overpacked  in metal drums.


 2.  Containers

     You request clarification of why containers are included in
 the "inorganic solid debris" definition.  You also  ask  when an
 empty container would be judged to carry a  characteristic of
 hazardous waste.

     By way of background,  inorganic  solid  debris is defined in
 40  CFR  268.2(g)  as nonfriable inorganic  solids contaminated with
 D004 -  D011 hazardous wastes that are incapable  of  passing
 through a 9.5 mm standard sieve;  and  that require cutting,  or
 crushing and  grinding in mechanical sizing  equipment prior to
 stabilization; and,  are limited to certain  types of debris
 specified in  subsequent paragraphs.   Paragraph (g)(6) of
..§ 268.2 includes metal  cans,  containers,  drums,  or  tanks in the
 definition  of inorganic solid debris.

     As a further point of background, the  answers  to your
 questions are impacted  by whether the container  being discussed
 is  empty as defined at  40 CFR 261.7(b).   Under the  §  261.7(b)
 provisions, a container that has  held hazardous  waste (other than
 a compressed  gas or an  acute hazardous waste)  is "empty" if it
 meets certain criteria.  All wastes must have been  removed that
 can be  removed using the practices commonly employed to remove
 materials from that type of container.   To  assure that  all waste
 has been removed, there may be no more than 2.5  centimeters (one
 inch) of residue remaining on the bottom of the  container or
 inner liner;  or no more than 3 percent by weight of the total
 capacity of the container remaining in the  container or inner
 liner if the  container  is less than or equal to  110 gallons in
 size, or no more than 0.3 percent by  weight of the  total capacity

-------
of the container remaining in the container or inner liner if the
container is greater than 110 gallons in size.

     In response to your first question, containers are included
in the definition of inorganic solid debris to cover the possible
scenario of a container that has been discarded by means of land
disposal (as defined in § 268.2), that does not meet the
S 261.7(b)  definition of empty, and that is contaminated with a
characteristic metal waste.  This scenario could occur, for
instance, during an excavation at a corrective action site.  A
container might be uncovered that is damaged  (e.g., crushed)  so
that the hazardous waste within it cannot be removed sufficiently
to meet the § 261.7(b) definition of empty.  Such a container
(i.e., including its contents) is a hazardous waste subject to
the land disposal restrictions if it is subsequently land
disposed.  Furthermore, it is likely that the disposed container
would be considered contaminated debris (such a determination may
depend upon site-specific conditions best made by an authorized
State or EPA Regional representative).  If the waste
contaminating this disposed container is a characteristic metal
waste (D004 - D011), the container would likely meet the
§ 268.2(g)(6) criteria of inorganic solid debris, and would thus ;
be subject to a national capacity variance until May 8, 1992 (see
§ 268.35(b)).

     In response to your second question,  a container meeting the
§ 261.7(b)  definition of empty may be judged to be a
characteristic metal waste under two scenarios.  In the first
scenario, a container that has never held any hazardous waste may
be a characteristic waste if: (1) it is being discarded; and, (2)
if the container is in itself a characteristic waste.

     In the second scenario, an empty container (as defined in
§ 261.7(b)) may be a characteristic waste if: (1) it is being
discarded;  and, (2) if the container is in itself a
characteristic waste. It should be noted,  however, that any
residue remaining in the container is exempt from regulation
under the provisions of § 261.7(a) that states that M[a]ny
hazardous waste remaining in either (i) an empty container or
(ii) an inner liner removed from an empty container, as defined
in paragraph (b) of this section, is not subject to regulation
under Parts 261 through 265, and Parts 268..."


3.  Certifications

     You request clarification of the record keeping requirements
for a particular scenario:  A waste that the generator determines
(based on process knowledge) does not meet the treatment standard
is sent to a treatment facility.  The treatment facility
determines the waste does meet the treatment standard.  You did
not suggest how such a determination was made.  Your question is,
how would the record keeping requirements be affected?

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     In this particular scenario, the treatment facility should
analyze the waste in order to determine that the waste meets the
treatment standard according to the provisions of their waste
analysis plan.  It should be noted, however, that there is no
requirement that treatment facilities analyze each shipment of
waste received, except as specified in their waste analysis plan
(see § 268.7(b).  In this particular scenario, however, the
generator has made the determination that the waste must be
treated based on his knowledge of the waste.  The treatment
facility is countering the generator's determination with a
determination that the waste meets the treatment standard as
generated; therefore, the Agency believes that it is appropriate
to ask the treatment facility to support their determination with
analytical data.  The treatment facility also must complete a
certification that the waste met applicable treatment standards
as generated (see § 268.7(a)(2)(ii), supported by the general
principle expressed in § 268.7(b)(6) requiring treatment
facilities to comply with notice and certification requirements
applicable to generators).

     The treatment facility must send the waste analysis data
(see § 268.7(b)(4)(iv)), the certification, and a notification
(either the generator's notification may be sent, or the facility
may create a new notification) to the disposal facility.  Copies
of the waste analysis data, the generator's notification (as well
as the treatment facility's notification if a new notification
was created), and the certification must be kept as records in
the treatment facility's files.

4.  Notification/Certification

     A scenario was presented of a TSD company that has a sister
company on adjacent property that recycles "side-stream" and
"off-spec" chemicals and other wastes containing recoverable
amounts of organics by means of a custom distillation process.
This process generates still bottoms and wash waters that are
subject to the land disposal restrictions.  These restricted
wastes are piped directly back to tanks at the TSD facility,
sometimes on an intermittent basis, sometimes continuously.  The
question is asked:  How must these piped transfers of hazardous
wastes from the recycler to the TSD be handled from the
perspective of notification/certification compliance?

     Even though the recycling facility and the TSD facility are
sister companies on adjacent property, they would have been
assigned different EPA identification numbers and are thus
considered separate facilities.  Therefore, the waste that is
piped to the TSD facility  (regardless of whether it is on a
continuous or an intermittent basis) is subject to the record
keeping requirements of § 268.7.

     The recycling facility would be subject to the generator
requirements of § 268.7(a), which specify that a notification
must be sent with each shipment of waste  (in this case, from the

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recycling facility to-the TSD facility).  The TSD facility must
comply with the requirements of § 268.7(b).  Questions on how
frequently the required paperwork should be sent from the
recycling facility to the TSD (i.e., what constitutes a
"shipment") should be directed to the EPA Regional land disposal
restrictions contact.

5.  D001

     The question is whether 40 CFR 264.312 allows for the land
disposal of a D001 waste.  Until promulgation of the Third Third
final rule on May 8, 1990, 40 CFR 264.312 (and § 265.312) set out
special management requirements for ignitable or reactive wastes
that were disposed in a surface impoundment, waste pile, land
treatment unit, or landfill.  On page 22553 of the final rule,
however, the Agency explained that these management requirements
are superseded by the treatment standards promulgated in the
Third Third final rule.  This means that "[facilities handling
ignitable and reactive wastes will have to comply with the
promulgated treatment standards for these wastes in order to land
dispose them."  The Agency made changes to the regulatory
language of §§ 264.312 and 265.312 in the Third Third final rule,
to incorporate the requirement that the treatment standards for
ignitable and reactive wastes must be met prior to land disposal.
Furthermore, the Agency's intent is clearly expressed in the
preamble (55 FR 22553).

     Therefore, land disposal is allowed only for those 0001
wastes that meet the treatment standard.  (The treatment standard
for D001 wastes containing less than 10% total organic carbon
(TOG):  deactivation; for D001 containing greater than 10% TOO:
incineration or fuel substitution; see 40 CFR 268.42, Table 2.)

     I hope you find these answers to be helpful.  If you have
any further questions, please feel free to contact
Matthew A. Straus at  (703) 308-8414.
                                   Sincerely,
                                          K. Lowrance *
                                   Director
                                   Office of Solid Waste

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                                       9551.1991(14)
                                   MAY   i 1991
Mr. David R. Saad
Environmental Coordinator
Illinois Refining Division
Marathon Petrol exam Company
Robinson, IL 62454

Re:  No Migration Petition for the Robinson, Illinois Land
     Treatment Facility and Storage Surface Impoundments
     (F-91-NMPP-FFFFF)

Dear Mr. Saad:

     I understand from Jim Michael and Dave Eberly that the EPA -
Marathon meeting on April 30 was very productive.  Your interest
in discussing the proposed response to the Notice of Deficiency
for Robinson's No-Migration petition was welcomed by us.  One
procedural question hanging over from that meeting concerns the
best approach for revising Marathon's petition to cover only the
East land treatment unit.

     In our judgment, the most efficient approach would be for
you to withdraw your petition for the three surface impoundments
and the two land treatment units and to submit a new petition
limited to the East land treatment unit.  That approach would
simplify four related tasks for Marathon and EPA.  First, it
would close out the administrative record on your current
petition.  Our recommendation for denial is still on the record,
and your withdrawal would eliminate any need to publish a
decision or to maintain a docket.  Second, Marathon would not
have to respond to our Notice of Deficiency, but could instead
use it as a guide in preparing a new petition for the East unit.
Third, a new petition would be easier to prepare than a revision
to the existing petition which would involve excising or editing
discussion of all areas except as they pertain to the East unit.
Finally, a new petition for the East unit would, we believe, be
consistent with any required permit modifications.

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     We, therefore, recommend a letter of withdrawal for the
existing petition in response to our letter of November 6, 1990
and submission of a new petition for the East unit as soon as
possible.  As we stated at our meeting on April 30, we will focus
our review of the new petition on those technical concerns in the
November 6 letter related to the East unit.

     Please be assured that Marathon's withdrawal of its original
petition and subsequent submission of the new petition would not
affect Marathon's position in the queue for review and decision-
making by EPA.

     If you have any questions on implementing this approach,
please call Dave Eberly on 202-382-4691.

                                   Sincerely,
                                   Elizabeth Cotsworth, Chief
                                   Assistance Branch (OS-343)
cc:  Ronald Andes, Marathon
     Jim Michael, AB, PSPD, OSW
     Dave Eberly, AB, PSPD, OSW
     Gail Hruska, EPA Region V
     David Deisher, IEPA

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          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                     WASHINGTON, D.C. 20460


                          JAN  71991            9551.1991(15)
                                                       E OF
                                          SOLID WASTE AND EMERGENCY RESPONSE

Richard G. Stoll
Freedman, Levy, Kroll & Simonds
1050 Connecticut Ave. N.W.
Washington, D.C.  20036-5366
                                                    t
Dear Mr. Stoll,

     This letter is in response to your inquiry dated  August  22,
1990 concerning the applicability of EPA's "Superfund  LDR
Guides."  As you asserted, those interpretations  of RCRA were
found in the 1990 NCP and other CERCLA documents, but  you  asked
whether those interpretations apply at all sites, regardless  of v
whether the cleanup activity is being conducted under  federal
CERCLA authorities.
                              •vr '-
     The preamble to the 1990 NCP represents  an official Agency-
wide position concerning the interpretation of RCRA and other
statutes relevant to federally-mandated CERCLA cleanups (see  53
FR 51394, 51443-45  (December 21,1988) and 55  FR 8666,  8758-62
(March 8,1990)).  The LDR Guides implement these  interpretations
in more detail.  These interpretations of RCRA would apply at
Superfund sites and at non-Superfund sites.   Therefore,  in
general, the answer to your question about the applicability  of
the LDR Guides and NCP interpretations is that they apply
wherever the cleanup involves a RCRA waste.   However,  it is
conceivable that some of the interpretations  of RCRA developed to
apply to federal CERCLA sites may not exactly match non-CERCLA
circumstances because of different statutory  constraints or
authorities.  With that caveat, let me address the specific
issues and questions raised in your letter.

     First, your comments focus on the interpretations of  Area of
Contamination  (AOC), "placement," and the presumption  of
entitlement to treatability variances for contaminated soil and
debris.  Your principal concern focused on whether the
interpretations offered of these issues in the NCP and LDR Guides
apply at all sites.  The answer is yes.

     Second, you also questioned whether the  NCP  interpretations
and the LDR Guides noted above apply equally  where "a  party may
want to move or treat contaminated soil and debris as  part of a

                                                        Prixltd on Rtcycltd Paptr

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   RCRA corrective  action,  as part of a cleanup carried.out  under
   State law,  and/or as part of a voluntary .cleanup."   The answer is
   yes.        ,                                   r-
         •  •    . ^                       " *•

        Third, you  asked whether in sit.u treatment that  is-not
   "placement" at a CERCLA site is also not placement at  a non-
   SERGLA site .(site A in your letter).   The answer  is  yes.

   -r -.-'c Fourth, 'you question whether excavation -and  movement of
 ^^dfltaminit^d  soil within a certain area .would be  "placement" at a
 "f.'^
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