25217-7
                 BACKGROUND   DOCUMENT   NO. 7
                  HAZARDOUS VftSTE MANAGEMENT SYSTEM:  GENERAL;
                  STANDARDS APPLICABLE TO OWNERS AND OPERATORS
              OF HAZARDOUS WiSTE TREATMENT, STORAGE, AND DISPOSAL
                 FACILITIES; AND HAZARDOUS WASTE PEFMIT PROGRAM
                           (40 CFR 260, 264, and 122)
                    Permitting of Land Disposal Facilities;
                       Ground-Water Protection Standards
                This document (ms. 1941.40) provides background
                 information on EPA's proposed regulations for
                        land disposal of hazardous waste
                      U.S. ENVIRONMENTAL PROTECTION AGENCY
                                   July 1981

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                         TABLE OF CONTENTS

INTRODUCTION                                                Page  3

I.   NEED FOR REGULATION                                    Page  4

II.  ANALYSIS OF STANDARDS                                  Page  4

ISSUE; Human health and environmental standard
       (Ground-water endangerment standard)                 Page  4

ISSUE; Non-numerical health and environmental standard
       (Ground-water protection standard)                   Page  8

  A. Proposed Regulation and Rationale                      Page  8
  B. Summary of CommentsPage  9
  C. Discussion                                             Pag'e 17
  D. Regulatory Language                                    Page 23

ISSUE; Ground Water Protection Strategy                     Page 24

ISSUE; Facility design requirements                         Page 26

ISSUE; Containment strategies                               Page 28

ISSUE; Specific ambient health and environmental
       performance standards                                Page 30

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INTRODUCTION
     The agency proposed Human Health and Environmental Standards
for hazardous waste treatment, storage, and disposal facilities on
18 December 1978.  It subsequently reconsidered that proposal, and
on 8 October 1980 issued a supplemental notice of proposed rulemaking
stating its intent to proceed with the development of an alternate
standard to that which it had proposed.  The focus of the supplemental
notice was standards for the protection of ground water applicable to
hazardous waste land disposal facilities.
     The standards applicable to land disposal facilities proposed
on 18 December 1978 were facility design requirements supplemented
by an override provision when human health or the environment would
not be adequately protected by compliance with design requirements.
     The supplemental notice indicated that the agency intended to
combine elements of various types of standards to protect ground
water.  Four types of standards were described in the notice:
(A) Facility Design Requirements, (B) Containment Strategies,
(C) Specific Mbient Health and Environmental Performance Standards,
and (D) Non-numerical Health and Ehvironmetal Standards.
     The 5 February 1981 reproposal implements "EPA's intended
approach" described in the notice taking into consideration comments
received on both the original proposal and the supplemental notice.
     The specific standard under discussion herein is the Ground-water
Protection Standard which is a non-numerical health and environmental
standard proposed as a primary standard for the protection of ground
water.  Specific discussion of the other types of standards embodied
in the reproposed regulations can be found in companion background

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documents.  General discussion of those standards will be included
in this document as appropiate to promote an understanding of their
relationship to the Ground-water Protection Standard and among
the various other types of standards.
I.   NEED FOR REGULATION
     The files of the agency are replete with instances of adverse
human health and enviromental effects caused by discharges to
ground water from hazardous waste land disposal facilities.
Reference should be made to companion background documents for an
enumeration and discussion of those records.  They unquestionably
establish the need for regulation of discharges to the ground water
to achieve the objectives of the Resource Recovery and Conservation
Act (RCRA) .
II.  ANALYSIS OF STANDARDS
ISSUE: Human health and environmental standard
       (Ground-water endangerment standard)
  A. Proposed Regulation and Rationale
     In the preamble to the 18 December 1978 proposed regulations
for hazardous waste management facilities at 43 FR 58983, the agency
expressed it1 s intention to protect ground water by relying on
required design and operating standards, subject to and overriding
human health and environmental standard (HHES) which would apply
when design and operating standards alone did not achieve the
objectives of the Act.  The override mechanism would have required
stricter facility design and operating criteria for purposes of
ground-water protection if it was determined that a given facility
was not located, designed, constructed or operated to prevent

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"endangerment" of an "underground source of drinking water" (USDW)

beyond the facility property boundary; or of a sole source aquifer,

as designated pursuant to the Safe Drinking Water Act (SDWA) of

1974, at any point.  Ehdangerment was defined as the introduction

of a substance into ground water which would cause the maximum

allowable contaminant levels (MCL's)  established in the National

Interim Primary Drinking Water Regulations  (NIPDWR) to be exceeded

or,  if concentrations in ground water already exceeded the MCL's,

would require additional treatment so as not to exceed the MCL's.

Other constituents could be added to the endangerment definition

when deemed appropriate.  Implementation of the override mechanism

would have been determined by the "permit writer" who would

incorporate additional design and operating requirements as

enforceable conditions of the permit.

  B. Summary of Comments

0    A containment policy is necessary to protect priority aquifers,
     since ground water moves slowly and undergoes little mixing.

0    Design and operating (containment) standards should not apply
     to facilities located over a non-drinking water source.

0    The proposed design and operating standards may well not
     protect human health or the environment; therefore ground
     water quality standards are needed.

0    Facilities overlying aquifers which are not hydraulically
     connected to USDW1s or sole source aquifers should be exempt
     from the HHES.

0    Support the HHES and design and operating standards as a way to
     assist the regulated community.

0    Support HHES as a means of protecting  a USDW, but not if it is
     interpreted (as it appears to be) as a means of preventing
     any discharge to ground water.

0    The HHES does not integrate ground water and surface water
     protection requirements.

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MCL's are not a sufficient standard since ground water is
surface water base flow and MCL's are not adequate for surface
water protection.

Allowing degradation of ground water up to the N1PEWR levels
is contrary to environmental protection policy.

The MCL's are not sufficient even to protect the public
since they are not representative of hazardous wastes.

The HHES assumes that protection of ground water means the
protection of human drinking water; this is wrong, and RCRA
requires protection of human health and the environment.

Hie ground-water HHES is inadequate since it is based on
"endangerment".  The mandate of RCRA is far broader than the
SDWA.

EPA should add numerical standards based on drinking water
Water Quality  Criteria published under 304 of the Clean Water
Act to the ground water HHES.

EPA should include as part of the ground water HHES those
chemicals regulated under  [303] 304  {Water Quality Criteria)
and and 311  (Hazardous Substance Discharge Limits) of the
Clean Water Act.

EPA should include as part of the HHES a listing of known
carcinogens, mutagens, and teratogens.

Ground water  contamination when it occurs is essentially
irreversible.

EPA should abandon "endangerment" and adopt non-degradation
as a basic program concept.

Protection requirements should be geared to end use or present
quality and quantity of ground-water resources.

Suggest that  permit writers be required to justify use of the
HHES override  and that an appeal provision be  included to
avoid arbitrary  use.

The  HHES override should allow both more or less  stringent
controls (reflected in earlier drafts! rather  that just more
stringent.

Object  to the inference to  the authority of the "permit writer"
versus  the Regional Administrator.

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  C. Discussion
     The agency analyzed the comments received on the 18 December
1978 proposed ground-water endangerment standard while also
conducting further analysis on its own.  During the same time frame,
the Agency was in the process of developing a comprehensive ground-
water protection strategy as a guide to many of its programs.  As
a result of those analyses, the Agency decided to propose a
substantially different type of standard than had been proposed on
18 December 1978.  Therefore on 8 October 1980 the Agency published
in the Federal Register at 45 FR 666817-823 a Supplemental Notice
of Proposed Rulemaking outlining its intended approach for protecting
ground water resources from the adverse effects of hazardous waste
land disposal facilities to the extent necessary to protect public
health and the environment.
     A summary of the comments recieved on the discussion of "EPA's
intended approach" contained in the notice is presented under the
issue heading "Nonnumerical health and environmental standard
(Ground-water protection standard)".  Although all of the comments
are not specifically germane to the ground-water protection
standard, they are recorded in one location for the convenience of
the reader.  The various comments received on the ground-water
endangerment standard in the 18 December 1978 proposed regulations
and the comments received on the discussion of "EPA's intended
approach" are discussed in the preamble to the 5 February 1981
re-proposal, and in a number of the background documents of this
series.  That discussion which is particularly pertinent to the
ground-water protection standard proposed on 5 February 1981 as

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264.2 will be found in this document in the discussion under the
issue heading "Itonnumerical health and environmental standard
(ground-water protection standard}".
  D. Regulatory Language
     N/A
ISSUE; Nonnumerical health and environmental standard
       (ground-water protection standard)
  A. Proposed Regulation and Rationale
     The approach proposed in the Notice starts from a presumption
that it is unacceptable to allow the facility to affect a
downgradient water supply used for any purpose (domestic,
agricultural, industrial, commercial etc.).  This standard would
be applied at all points where water is or may be withdrawn for
water supply purposes.  The approach would provide a variance
mechanism to allow some discharge into ground water below and
beyond the facility, but only where the permit applicant could
demonstrate that such controlled release of waste constituents or
by-products would not adversely affect current or future water
uses.  The variance procedure would enable the permitting authority
to recognize that in some circumstances, limited, defined discharge
to points of use will not adversely affect public health or the
environment.  However, the burden would be on the permittee to
make this demonstration.  The approach would also require that the
facility owner or operator employ certain management practices and
certain design features that would control adverse effects on
ground water and surface water, as well as prevent or minimize
other surface environmental effects.

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B. Summary of Comments

   (1) Overall Approach

   (i) General vs. Specific Performance Standards

   Prefer general performance standards and few, if any design
   requirements.

   Prefer non-numerical health and environmental standard
   supplemented by technical design standards.

   Prefer total reliance on specific performance standards.

   Prefer total reliance on specific design requirements.

   Prefer combination of specific design and performance standards,

   Technical design requirements should be articulated in terms
   of the performance they were intended to produce, thereby
   allowing the permittee to substitute different but equivalent
   designs.

   It appears to us that a properly designed and operated
   hazardous waste landfill can provide 100% containment (i.e.
   no uncontrolled permeation of leachate from the confines of
   the landfill) and that such a design is subject to analysis
   and supporting field inspection during construction and
   operations.

   A containment strategy is the best approach to ground water
   protection.

   A better alternative to the proposed approach would be the
   classification of waste types and facilities to account for
   degree of hazard.

   Ibtal waste containment should be allowed as an option to the
   no adverse impact demonstration.

   EPA should consider an approach that requires containment
   within property boundries during the operating life of the
   site.  Once the facility ceased operations, closure and post-
   closure care plans would provide adequate assurances against
   further contamination.

   RCRA requires EPA (rather that the permittee) to assess health
   and environmental risks before adopting protective measures.

   The standard should be containment until ambient health and
   environmental criteria can be developed for state
   implementation.

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( ii) Burden on Permittee

The proposed approach imposes an undue burden on the permit
applicant in terms of the costs of generating the information
required to justify a variance and/or the technical feasibility
of producing the required data.

Limits must be placed on the permit writer's ability to demand
additional data and analysis.

How will EPA keep its approach from ballooning into a never-
ending quest for zero-risk data?

The burden of proof for protecting groundwater quality and
securing permission for limited groundwater degradation
should rest with the owner or operator.

The proposal appears to be less stringent than is necessary to
protect water quality.  Increasing the burden on permittees
to demonstrate the acceptability of facility procedures	
...is an acceptable approach only when coupled with regulatory
control to assure the quality of information developed.

EPA should establish a tiered set of data requirements so
that some findings or predictions may trigger the need to
produce greater detail but others will not.

Laboratory and field techniques to estimate potential hazardous
waste behavior do exist.  However, EPA should recognize that,
in many cases, information which can be assembled at the
present time, will not be absolutely conclusive.

(iii) Permitting Discretion

Vague, non-numerical standard leaves too much descretion to
the permitting authority and leaves the permit applicant in
the untenable position of investing in expensive geological,
hydrological and biological  testing without any assurance
that the data generated will be sufficient.

Suggested solutions:

     Specific quidance to the permitting authority on the
     use of non-numerical standards;

     More specific guidance  to permit seeker on  analytical
     tests, risk evaluation  procedures and acceptance criteria;

     Reduced  informational requirements on permit applicant;

     Providing permit seekers with the alternative of complying
     with specific design requirements rather than making  the
     required demonstration.

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The amount of discretion left to the permit reviewers will lead
to inconsistent results and excessive litigation.

The combination of permitting descretion left to Agency and
public opposition to siting of hazardous waste facilities
will create the situation of few, if any, permits being issued.

The burden on permittees, particularly small, single waste,
land disposal operations, is such that there will be very few
new land disposal sites (which we urgently need) established.

reservations were expressed over whether EPA has or will be
able to procure permit reviewers with the expertise required
to evaluate the type and amount of data required of permit
applicants.

States do not have and will not be able to procure enough
qualified engineers to make the permitting decisions required
by these regulations.  Additionally, there is no way to ensure
uniformity in decisionmaking.

As permit writers are prone to do, the non-numerical standards
will be converted into numerical guidelines for use in
evaluating an application.  These "guidelines" are indeed
regulations without benefit of the public participation process.

(iv) Miscellaneous

Either no  sites will be permitted because applicants will not
be able to prove "no adverse risk" or permit writers will
loosely interpret this approach and gloss over technical
inadequacies in the application.

Policy making will likely be done without effective public
participation because of the way EPA designed its approach.
It will be extremely difficult  for citizens to actively engage
in these highly technical proceedings.

If the proposed strategy is adopted, the closure and post-
closure reserve should be dropped from the regulations.   The
burden of  aquiring funds for the required research as  well as
the closure and post-closure reserves would be excessive  and
the integrity of the landfill well be so well documented
beforehand that there would be  little need for the reserves.

EPA should clearly address  the  subject of facilities that
handle only a specific hazardous waste, where that particular
hazardous  waste is under investigation for possible de-listing.

EPA should include at least a policy statement on the  storage
of hazardous wastes that serves  to deter the creation  of
facilities that only function as storage sites.

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 (2) Non-degradation

 (i) General Non-degradation Strategy

A non-degradation standard is overly rigid and unrealistic.

A non-degradation standard exceeds the statutory mandate of
RCRA and is therefore legally unjustifiable.

Any attempt by EPA to regulate groundwater prior to promulgation
of the final National Groundwater Protection Strategy is
premature.

Ground water protection is a state responsibilty. We must
voice serious objections to EPA's use of RCRA as its primary
vehicle in attemping to establish what it calls a "ground water
protection" scheme.

A non-degradation policy is inconsistant with the Safe Drinking
Water Act and/or other RCRA regulations.

 Regulation of groundwater should be done under the Federal
Water Pollution Control Act, not RCRA.

The groundwater strategy advanced by the concept paper failed
to give proper deference to state and local designation of
groundwater uses.

How are future water supply withdrawal points to be determined;
i.e., how many years into the future must be considered?

Any policy EPA should propose for the preservation of drinking
water should be in the form of guidance to the states rather
than mandatory regulations.

It is up to the states, not the permittee, to determine future
ground-water usage.

The proposed concept does not sufficiently take into
consideration existing groundwater contamination and background
levels or existing ground-water uses.

The non-degradation standard should be modified to require no
adverse effects on water quality at the nearest downstream
water supply intake.

Any land disposal will cause some impact on groundwater and
EPA must recognize this. It would be more realistic to say
that environmental degradation should be minimized, consistent
with available technology.

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We support the "presumption against any degradation".  Ibwever,
the proposal to apply such a standard to all points of
future potential use appears to be unworkable.  Further,  the
granting of any variance to allow limited degradation should
be subject to either a time limitation or limited by a clear
performance standard.

Because the nondegradation standard is impossible to
successfully meet, permissable demonstrations will become
the rule rather than the exception, causing unreasonable
delays in the permitting process.

A rigid, non-degradation policy must be relaxed to take into
account multiple groundwater uses as well as the particular
hazardous wastes involved.

Anbient ground-water quality must be included as an
informational requirement.

Without established contaminant levels determined to provide
acceptable risk levels, or without sufficient environmental
and health risk evaluation data, we agree the only safe approach
to ground water protection is non-degradation.

(ii) Definition of "Contamination" and "Degradation"

EPA should clearly define "contamination" and "degradation"
to recognize the distinction between the two terms.

Degradation means adding certain materials to the groundwater.
In contrast, contamination means making the groundwater unfit
for certain uses.  Thus, to some extent, degradation may be
an unavoidable result of industrial development, acceptable
so long as significant contamination does not result.

The regulations should adopt the definition of contaminant
used in the Sept. 13, 1979 Subtitle D regulations.

The definitions of contamination and degradation should or
must take into account existing groundwater contamination
and natural environmental contamination.

(iii) Miscellaneous

The regulations should address drilling and sampling techniques
to assure that sampling programs established to protect ground
water do not result in additional ground-water degradation.

The drinking water standards are not adequate to protect
human health and the environment.  They are too weak and too
limited in scope.

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It will be very difficult, if not impossible to set groundwater
quality limits as has been done with surface waters.

Where degradation of ground water is permitted, then biological
tests (e.g., the Anes test and the acute fish toxicity test)
ahould be specified as part of the ongoing monitoring of
groundwater downstream from the facility.

(3) New vs. Existing Facilities

(i) Basic Approach

In agreement with basic approach to new vs. existing facilities.

It is inappropriate to apply design standards, which would
require retrofitting, to existing facilities.

Retro-fitting existing facilities with liners or similar
equipment may not only be more costly than ground-water
purification plans but retrofitting liners poses potential
safety hazards to the installers.

In the absense of identified threats to existing water supplies,
any remedial measures imposed upon existing facilities
should be consistant with likely future development and use
of groundwater resources.

At existing sites regardless of the importance of the ground
water resource, EPA will not move to protect it until it
has been damaged. The extent of the damage will be entirely
dependent upon the efficacy of three monitoring wells in
detecting the presence of contaminants in the aquifer.  EPA
should propose regulations to regulate all existing facilities.

To acheive a permit, an applicant should be required to clean
up those dangerous cell or landfills contiguous to or on the
same site as the facility for which a permit is sought.

All existing hazardous waste facilities should generally be
required to use the ground water protection approach that new
facilities will be required to use. Further, EPA should continue
to its efforts on development of interim Suggested No Adverse
Response Levels(SNARLS) which can be used in evaluating the
ground water quality at existing sites.

( ii) Major Expansions

The definition of major expansion is overly broad.

Where an interim status facility does not cause the presence
of hazardous constituents in the underlying ground water, the
owner or operator should be permitted to expand the facility
without making the proof required by the agency.

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An expansion of an existing site within the scope of its
original design should not be regulated as a new facility.

The opening of a new cell at an existing facility should not
be treated as a major expansion.

TJie term "significantly expanded" as it is used in the
definition of major expansion, needs clarification in that
periodic construction of separate landfill trenches, areas or
impoundments may be a routine operation at an existing
facility.

We request that you exempt major expansions of any state
licensed facilities, whether or not the state has acheived
In term Authorization, from your intended policy. If not, a
shortage of capacity will be created in the Northwest United
States.

It should be made very clear that in no case can an existing
facility expand its operation in any way (either quantity
received or surface area) without first receiving a permit.

(iii) Monitoring Requirements for Existing Facilities

How will EPA determine, for existing facilities, whether an
aquifer is contaminated based on recent groundwater monitoring
data?

Current groundwater monitoring requirements are insufficient
to detect all ground-water contamination, thereby allowing
existing sites to continue operating while contaminating a
water supply source.  Tb remedy this, an expanded range of
parameters should be required for monitoring, as well as
quarterly, as opposed to annual, sample collections.

Regulations must protect groundwater quality from all sites
which have a known potential impact on usuable water.  S>w
will existing facilities, where little or inadequate data is
available to ascertain whether groundwater degradation is
occuring, be regulated?

It is unreasonable to require an owner/operator of an existing
site to perform an exhaustive demonstration if only trace or
insignificant contamination entered an aquifer.

(4) Other Issues

It is virtually impossible to design surface impoundments that
will not leak during their active life.

Surface impoundments should be subject to the same non-
degradation requirements as landfills

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0    Ground water regulations must adequately address  groundwater
     contamination resulting vertical migration of leachate from
     surface impoundments.

0    We support the separation of surface impoundment requirements
     from those of landfills.  There is no reason to  impede
     regulations on one management method simply because less is
     known about another.

0    Surface impoundments  often pose a more serious threat of
     polluting drinking water sources and the air, than do many
     landfills.  Therefore they should be subject to  similar
     technical design features.

0    Inasmuch as most facilities, including lined surface
     impoundments, will eventually leak,  will EPA exempt all surface
     impoundments with liners that it finds acceptable from the
     extensive review process, or only those impoundments that have
     not yet leaked?

0    At a minimum, new landfills should not be sited  on active fault
     zone, on important recharge area, over existing  water supplies,
     on 100 year flood plains, or near the critical habitat of an
     endangered species.

0    EPA should place an outright ban on the locating of facilities:
     in wetlands; within 300 feet of a 100 year flood plain; within
     one mile upgradient of any public drinking water supply; within
     the recharge area of  a sand or gravel aquifer; within the
     confines of a state or federal park; within the  confines of a
     designated wildlife santuary.

0    How will previously enacted State standards regarding ground
     water protection from hazardous waste disposal facilities (be
     they more or less stringent) relate to the proposed approach?

0    EPA should allow the  States to maintain more stringent
     regulations regarding the management of hazardous waste
     disposal.

0    Although we do not oppose the use of a non-numerical health
     and environmental standard, individual states should be allowed
     to establish technical design standards and ambient health and
     environmental standards, taking into account local physical
     conditions and local  groundwater quality.  States should be
     allowed to adopt standards less stringent than Federal.

0    We request that the rulemaking endorse state registration
     programs for professional geologists, who will play an important
     role in the success of  EPA's ground water program.

Note: Comments received on issues not directly or generically
      related to "EPA's intended approach" have been omitted.

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  C. Discussion
     The regulatory approach to ground-water protection embodied
in the proposed regulations is basically consistant with that
proposed in the 8 October 1980 supplemental notice of proposed
rulemaking.  In the notice, the standard was described under the
heading "Presumption against any degradation", and it was furthur
referred to as a "nondegradation standard".  The comments in the
preceding summary that are most pertinent to this discussion of
the ground-water protection standard may therefore be found under
the heading "Nan-degradation".
     The ground-water protection standard and the associated
performance standards and demonstrations of performance in 264.20
and 264.21 referenced in the ground-water protection standard as
proposed in 264.2 of the regulations are responsive to many of
the comments received on the ground-water endangerment standard
proposed on 18 December 1978 as a human health and environmental
standard.  Therefore, in this discussion and in the discussions of
the performance standards and demonstrations of performance in
Background Document ND . 9 - Performance Standards for Land Disposal
Facilities, reference will be made to those comments as well as
the comments received on the 8 October 1980 notice.
     As stated in the notice, the regulations start from a
presumption that it is unacceptable to allow [a land disposal
facility]  to cause any contamination of a downgradient water supply
used for any purpose (drinking water, agricultural, industrial,
etc.); and the standard would applied at all points where [ground]
water is or may be withdrawn for water supply purposes.  The Ajency

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has chosen this approach, in part, because it recognizes, based on
public comments and its own analysis, that containment of wastes
disposed of into or on the land is achievable for only a limited
period of time.  Moreover, in many cases containment does not
represent the most efficient, protective, and effective control
achievable.  Ultimately, containment designs [and locations}  act
only as a control on the rate of release.  As a result, the Agency
has chosen to control the adverse human health and environmental
effects which can occur through the ground-water medium by a
combination of design, operating, and locational standards.  This
approach relies principally on maintaining a physical separation
of the ground water affected by disposal or discharge and ground-
water withdrawn or collected for use.  Separation from and control
of exposure to users of affected ground water is possible because
not all ground water is used, usable, or needed for any use and
because ground water returns to the surface in a definable way.
     The basic goal embodied in the proposed regulations for the
protection of human health and the environment from ground-water
contamination is to rigorously protect all ground water, which is
now or will in the future be used, from the effects which will
result from hazardous waste disposal.  Furthermore, the regulations
ensure that the natural re-entry of ground water into the surface
environment does not cause unacceptable effects.
     A variance may be authorized where an absolute separation
from ground-water use cannot be achieved; however, the permit
applicant carries a heavy burden of proof to show that the effects
which will result from his disposal or discharge activities will

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not adversely affect human health or the environment.  In all cases
it must be shown that affected ground water will not adversely
effect the use of overlying land outside of the land disposal
facility for residential, agricultural, industrial, or commercial
purposes or otherwise adversely affect public health or the
environment [through exposure to affected land]; and it must be
shown that discharges of affected ground waters to surface waters
will not adversely affect existing or potential future uses of
such surface waters or otherwise adversely affect public health or
the environment [through exposure to affected surface waters].  The
means by which a permit applicant would make a showing of compliance
with the ground-water protection standard would be by complying with
the informational requirements of 122.25; and by showing through
the informational requirements that compliance with the performance
standards and demonstrations of performance required in 264.20
and 264.21 would be achieved.  These sections of the proposed
regulations are discussed in Background Document ND. 6 - Information
Requirements for Permitting Discharges and Background Document Na . 9
- Performance Standards for Land Disposal Facilities.  The Agency
believes that the approach in these proposed regulations provides
the flexibility to protect ground-water uses without curtailing
needed hazardous waste land disposal activities.
     Many commenters interpreted the "intended approach" described
in the 8 October 1980 notice as an absolute non-degradation standard
and, as such, felt that it was overly rigid and unworkable.  Others
claimed that a non-degradation standard exceeded the statuatory
mandate of the RCRA and was legally unjustifiable.  Other commenters

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                                (20)
requested clarification of the terms "degradation"  and
"contamination" as they were used in the Notice.
     The Agency realizes that the terms "degradation"  and
"contamination" are subject to a variety of interpretations and
inherently cause confusion when used as a regulatory standard.
Therefore, neither term was used in the proposed regulatory language.
The concept expressed in the notice and adopted in  the proposed
regulations for the protection of ground water is that no effect
should be allowed at any existing or potential point of use unless
and until the effect is determined or predicted, evaluated, and
found to be acceptable.  The standard for measuring acceptability
is the statutory standard of the Act, i.e., that no adverse effect
on human health or the environment will result from the disposal
activities; and the means is by demonstrating compliance as mentioned
above and discussed in Background Document tto. 9.
     For ground waters which are not currently used or potentially
usable, degradation (i.e., effects which would be adverse to use)
would not be precluded.  Additionally, effects may even be allowable
at points of use, where that use is not interfered  with and the
effect is not adverse (i.e., does not degrade the ground water with
respect to the use).  Where ground water is used for drinking or
any other use requiring high quality water, allowable effects will,
of course, be severely limited.
     The Agency agrees that an absolute non-degradation (i.e., no
effect) approach is neither feasible nor practical, absent a total
ban on land disposal of hazardous wastes.  The intent of the proposed
regulation is not to create such a ban.  On the other hand, the

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                                (21)
Agency belives that discharges from land disposal facilities should
not be permitted without adequate knowledge of the likely effects.
Hence, the proposed approach requires a permit applicant for a
facility with a discharge which will migrate to points of ground
water use to submit extensive information upon which decisions as
to the acceptability of the effects can be based.  The choice of
the term nondegradation to describe the "intended approach" for
the protection of ground water was probably an unfortunate choice.
The term has however taken on a common meaning by its use with
respect to water pollution control, and it is normally considered
(e.g. in Water Quality Standards) to represent a "lowering" of
water quality affecting use (or use class).
      Some conunenters felt that the intended approach described in
the notice was unworkable or that the standard could not be met.
Concern was expressed primarily over the cost of generating the
information required to justify a variance and the technical
feasibility of producing the required data.  Some of this concern
may have been generated by the inference in the notice that a
variance rather than surface water quality standards established
under the Clean Water Act would apply to hydrologically-connected
surface waters when there was downstream water supply use.  The
proposed regulations do not establish such a variance requirement.
     A variance from the ground-water protection standard is only
required under two senarios.  A variance is required first in
those cases where the discharge from the hazardous waste land
disposal facility will migrate to a well or a collection device
actively used to withdraw ground water for use; and second if it

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                                (22)
cannot be established that the ground water affected by the discharge
will not be used for water supply.  The Agency believes that there
are a large number of facilities which are not presently discharging
to actively used ground-water sources of supply, and that for
those that are the required demonstrations are proper, appropiate,
and necessary.
     One commenter on the 18 December 1978 proposed regulations
expressed the opinion that when ground water becomes contaminated,
it is essentially irreversible.  The Agency concurs, especially
with respect to aquifers that are slow moving.  Therefore where
discharges from hazardous waste land disposal facilities are
affecting ground water that may in the future be used for water
supply, it is extremely important that the fact and character of
the effects which would result be known.  The practical result of
such knowledge may well be a recognition that the aquifer is no
longer usable, and when that situation prevails such use should be
restricted.  As will be dicussed in Background Document ND . 9, the
Agency must assume, unless there is a positive showing that affected
ground water will not be used in the future, that all potentially
usable ground water may be used.
     Assuming that it is known whether or not an aquifer affected
by dicharge from a land disposal facility is or will be used, the
primary demonstration required of a permit applicant to establish
compliance with the ground-water protection standard is a showing
on the location of the migrating discharge plume.  If it is shown
that the plume does not and will not migrate to a point of actual
or future use, compliance with part of the standard is achieved.

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                                123)
Additional demonstations require showings that land use and surface
waters will not be adversely affected.  The information and types
of demonstations required to make these showings are discussed in
Background Document No. 6 and Background Document No. 9; and the
means of verifying performance within permit limits is dicussed in
Background Document No . 8 - Ground-water and Air Bnission Monitoring.
  D. Regulatory Language
264.2  Non-numerical health and environmental standard
        (Ground-water protection standard).
       The owner or operator of a land disposal facility shall not
dispose of hazardous waste into or on any land unless:
       (a)(l)  Leachate and other subsurface discharges that will
enter into and migrate within a ground water aquifer will not mingle
with and  thereby affect any ground water which is being or may in
the future be collected or withdrawn for domestic, agricultural,
industrial, commercial or other uses, or
       (2)  A variance is authorized in accordance with the procedures
of  Subpart A of Part 124 based on a showing by the owner or operator
as required in this section and 264.20, 264.21, and 122.25; and a
finding by the regional Administrator; that any ground water which
is being or may in the future be collected or withdrawn for domestic,
agricultural, industrial, commercial or other uses will not be
adversely affected for such uses and that public health and the
environment will not be adversely affected; and
       (b)  Affected ground water will not adversely affect the use
of  the overlying land outside of the land disposal facility for
residential, agricultural, industrial, or commercial purposes or

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                                (24)
otherwise adversely affect public health or the environment; and
       (c)  Discharges of affected ground waters to surface waters
will not adversely affect existing or potential future uses of such
surface waters or otherwise adversely affect public health or the
environment.
ISSUE: Ground Water Protection Strategy
  A. Proposed Regulation and Rationale
     N/A
  B. Summary of Comments
     See the Summary of Comments under the issue heading "Non-
numerical health and environmental standard (Ground-water protection
standard)".
  C . Discussion
     Several comraenters felt that promulgation of a ground-water
protection standard pursuant to RCRA was premature prior to EPA's
publication of its National Ground-Water Protection Strategy.  This
Strategy, which appeared as a proposal in the 18 NDvember 1980
Federal Register (after the deadline date for comments on the
October 8 Notice) , is the product of Ground-Water Strategy Meetings
sponsored by the Agency with the participation of representatives
from State and local governments, business and industry,
environmental, academic and public interest groups.  The Strategy,
as proposed, was intended to serve as EPA's policy framework for
the protection of ground water.
     The proposed Strategy recognized that the ground-water system
should be segmented with respect to all of its legitimate uses while
continuing to give priority to its use for drinking and irrigation

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                                (25)
to support life.  At the strategy meetings, participants recognized
that portions of the ground-water system would have to continue to
be used for waste disposal and other uses which would result in
ground water quality impairment.  There was nearly universal
agreement that the actual segmenting of the ground water system
should not be carried out by the federal government, and the proposed
strategy comtemplates that the major responsibility for ground-water
protection, evaluation and segmentation will be at the State and
local level.  The recommended approach, which evolved from the
meetings, involves ground-water protection strategies, developed by
each State and implemented through state ground-water classification
schemes.  Federal responsibilities would include the development
of minimum national requirements for selected high priority problems
through existing vehicles such as the underground Injection Control
Program and the RCRA hazardous waste regulations.  The Agency
would also coordinate and bring consistency among existing EPA and
other federal programs with ground-water protection authorities,
increase research and development, and provide technical assistance
where possible.
     The proposed Strategy directs EPA to continue its efforts with
respect to federal regulatory programs which affect ground water.
Additionally, pending the adoption of a ground-water classification
system, all ground water currently of drinking water quality would
be presumed to be a drinking water source and protected to ensure
that its utility for that purpose is preserved.  The ground-water
protection standard in 264.2 does not depend on the implementation
of the proposed Strategy on a nationwide or statewide basis.  It

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                                (26)
is based on factual determinations in the permit issuance process
that the ground-water affected or to be affected is not available
or useable as water supply.
     If the proposed Strategy were to be followed, State
classifications of ground-water uses, provided they are implemented
to preclude the use of ground water which would be adversely affected
with respect to the specific use designations, and binding on
federal as well as state and local actions, could be recognized in
the permitting program set forth in these proposed regulations.
In the  interim, EPA cannot neglect its responsibility to develop
the regulatory mechanism needed to protect ground water resources
from the adverse affects of hazardous waste disposal.
  D. Regulatory Language
     N/A
ISSUE;  Facility design requirements
  A. Proposed Regulation and Rationale
     The regulations proposed on 18  December 1978 were based, in
part, on facility design requirements for specific types of land
disposal facilities; notably landfills and surface impoundments.
As noted in the 8 October  1980 advanced notice of proposed
rulemaking, the agency has decided not to rely on such standards
as a means of ground-water protection.  As proposed, the regulations
would  have imposed minimum design requirements with respect to
facility liner systems, leachate collection and removal systems,
and  infiltration control covers.  The requirements, in substance,
established a facility containment requirement which by definition
was  temporal  in character.

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                                (27)
  B. Summary of Comments
     Commenters oppposed the proposed standards as inflexible; and,
noting the temporal nature of the requirements, insufficient to
protect ground water.  For a detailed summary of the comments
received on the proposed design standards, reference should be
made to Background Document No . 1 - Surface Impoundments and
Background Document ND. 4 - Landfills.
     Sbme commenters on the 8 October 1980 advanced notice of
proposed rulemaking continued to advocate facility containment
requirements expressing a preference for either partial or total
reliance on specific design requirements as a means of protecting
ground water.  One commenter even asserted that 100% containment
could be achieved in a landfill, but qualified the meaning of 100%
containment to exclude consideration of controlled releases.  A
full summary of the comments received on the 8 October 1980 advanced
notice of proposed rulemaking may be found under the issue heading
" Nan-numerical health and environmental standard {Ground-water
Protection Standard)".  That form of standard was expressed in the
notice as the key means that the agency intended to employ to
protect ground water, supplemented as appropiate by technical
design requirements and specific ambient health and environmental
performance standards.
  C . Discussion
     Based on comments received and its own analysis, the  Agency
has decided not to rely primarily on technical facility design
requirements to protect ground water.  Commenters who assert that
facility design requirements are adequate or sufficient for that

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                                (28)
purpose invariably presume specific prerequisite site conditions
and limit their analysis to specific types of land disposal
facilities (usually landfills or surface impoundments)  ignoring
the full range of land disposal activities which must be evaluated
for permit issuance.  The Agency has decided not to rely on technical
design standards since no generally applicable technical design
requirements have been identified which can be appropiately applied
to more than limited subsets of types of land disposal facilities
and often only to subsets so restricted by design and location as
to limit the commonly understood meaning of the terms which describe
the types of facilities they identify.
  D.  Regulatory Language
     N/A
ISSUE; Containment strategies
  A. Proposed Regulation and Rationale
     N/A
  B.  Summary of Comments
     In the 8 October 1980 advanced notice of proposed rulemaking,
the agency discussed two types of  "containment strategies".  The
first  type, namely  facility containment, is almost synonymous with
the design objective normally assumed applicable by those who
advocate reliance on facility design  requirements.  The essential
difference is that  advocates of facility design requirements usually
seek  to avoid any  consideration of leakage  from the  facility to  the
land  whereas advocates of a facility  containment strategies do
acknowledge the  fact of  leakage and suggest that the amount of
leakage will be  small and can be  ignored.

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                                (29)
     The second type, containment within a defined zone beyond the
facility itself is more commonly meant when the term "containment"
is used.  As used in the 8 October 1980 advanced notice of proposed
rulemaking, it was used in a more limited sense.  The type of
"containment strategy" described in the notice was based on the
assumption that the containment zone would be described with respect
to time rather than some fixed boundary.
     In the notice it was stated that the agency did not intend to
use a containment strategy.  That statement was accurate only to
the extent than the "containment stategy" concept was defined
exclusively by the two forms considered in the notice as will be
discussed below.
     There were commenters on the notice who supported the use of
containment strategies, however, they were not constrained in their
advocacy by the limitations of the term as used.  A number of
commenters expressed a preference for total waste containment and
one recommended a containment standard until ambient health and
environmental criteria could be developed.  One commenter suggested
containment within property boundaries during only the active life
of a facility thereby expressing another form of containment
boundary limitation in addition to the time constraint discussed
in the notice.
  C. Discussion
     As noted above, the "containment strategies" discussed in the
notice were limited to two specific forms and it was stated that the
agency did not intent to use either.  In fact, the ground-water
protection standard which has been proposed is a form of containment

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                                (30)
wherein the containment boundary is defined by the limits of the
migratory pathway that discharge (leachate) from the facility
will follow; or more accurately the lateral and vertical extent
of the partway in the unsaturated and saturated zones within which
the discharge will be contained as a condition of the permit issued
for the facility.
     Therefore the agency has adopted a form of a "containment
strategy" which, although not explicitly described as such in the
notice, is implicit to the "intended approach".  In the notice,
this intent was described under the heading "presumption against
any degradation".  The "presumption against degradation" was
explicitly described as "a presumption that it is unacceptable to
allow the facility to cause any contamination of a downgradient
water supply used for any purpose (drinking water, agricultural,
industrial, etc.)".  This "containment strategy" is more fully
discussed under the issue heading "Nan-numerical health and
environmental standards {Ground-water Protection Standard)" and in
Background Document No. 9 - Performance Standards for Land Disposal
Facilities.
  D. Regulatory Language
     N/A
ISSUE; Specific ambient health and environmental performance
       standards
  A. Proposed Regulation and Rationale
      In the 18 December 1978 proposal, the agency included a
provision that ground water which was an "underground source of
drinking water" would not be "endangered" beyond the property

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                                (31)
boundary of a facility; and that, without reference to property
boundaries, "sole or principal source aquifers" would not be
"endagered" .  The terms shown above in quotes were terras with
specific meanings established in regulations proposed to implement
the Safe Drinking Water Act.  The concepts embodied in those terms
included some specific performance standards expressed as maximum
contaminant concentration limits.  The concept of "endangerment"
has been been abandon as a regulatory element of the agency's
programs under the Safe Drinking Water Act and is not employed in
these reproposed hazardous waste land disposal regulations.  The
nature of this previously proposed ambient health performance
standard is discussed more fully under the issue heading "Human
health and environmental standard  (Ground-water protection standard)
     The 18 December 1978 proposal is significant with respect to
this issue because by referencing the maximum concentration limits
of the  Interim Primary Drinking Water Regulations, it would have
established specific numerical performance standards.
  B. Summary of Comments
     Many commenters on the 8 October 1978 advanced notice of
proposed rulemaking expressed a strong preference for performance
standards, but not necessarily for specific  performance standards
of the  type described  in the notice.  The discussion in the notice
was limited to specific performance standards expressed as
concentration limits whereas commenters  tended to use the term
(performance standards)  in  a much  broader sense.  A number of
commenters expressed their  preference for general performance
standards or performance standards in combination with or in lieu

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                                (32)
of technical design requirements.  Commenters indicated that it
would be difficult, if not impossible to set ground-water quality
limits as has been done with surface waters, and one commenter
emphasized that the drinking water standards are not adequate to
protect human health and the environnment noting that they are too
weak and too limited in scope.
     Commenters on the 18 December 1978 proposal expressed similar
views with respect to the use of the drinking water standards as a
basis for regulatory control of hazardous waste land disposal
facilities.  Comments were received objecting the apparent assumption
by EPA that the protection of ground water means the protection of
human drinking water, as was reflected by the Agency's reliance on
"endangerment".  It was strongly asserted that this was the wrong
approach and it was noted that the mandate of the RCRA was broader
than the protection of drinking water requiring protection of both
human health and the environment.  It was noted that the proposed
standard did not integrate ground water and surface water protection
and that ground water is surface water base flow.  It was asserted
that the drinking water standards were not adequate (i.e., not
sufficiently protective even with respect to the contaminants listed)
for surface water protection or even sufficient to protect the public
health since they are not representative of hazardous wastes.  It
was furthur asserted that allowing degradation up to the contaminant
limits of the  National Interim Primary Drinking Water Regulations
(limit beyond  which water is not considered usable as public drinking
water) is contrary to environmental protection policy.  Commenters
suggested that EPA add numerical standards to the ground-water

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                                (33)
endangerment standard based on drinking water Water Quality Criteria
published under 304 of the Clean Water Act, and that the coverage
of standards should include chemicals listed in both the Water
Quality Criteria publications and the chemicals listed with respect
to Hazardous Substance Discharge  (Notification) Limits under 311 of
the Clean Water Act.  One commenter suggested that  EPA should include
a listing of known carcinogens, mutagens, and teratogens as part of
the standard.  Finally one commenter suggested that EPA abandon the
"endangerment" approach, and adopt non-degradation as a basic program
concept.
     Certain comments on the 18 December 1978 proposal, although
directed primarily to the issue of design and operations standards,
are significant the the issues to be discussed in the section.
Commenters suggested that the standard  {i.e., design and operating
standards with the "endangement" override)  should not apply to
facilites located over non-drinking water sources or aquifers not
hydraulically connected to drinking water sources.  One commenter
suggested support for the concept of the "endangerment" standard,
but not  if it was interpreted  (suggesting that the  Agency was doing
doing just that) as a means of preventing (i.e., not allowing) any
discharge to ground water.  Comment was also made to the effect
that design and operating standards could not be relied upon, and
that, therefore, ground water  quality  standards were needed.  Also
along the same lines as the attitude expressed above with respect
to the  need for the standard when the  affect ground water was not a
drinking water source was the  comment  that  protection requirements
should  be geared to the use or importance of the ground water.

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                                (34)
  C. Discussion
     The above summary of comments repeats nearly all of the comments
listed in the summary of comments under the issue heading "Human
health and environmental standard {Ground-water endangerment
standard)".  Those comments are particularly germane to the issue
of this discussion, i.e., specific ambient health and environmental
performance standards.  In Section IV of the preamble to the
reproposed regulations it is noted that the Agency had considered
such standards and described the approach as having involved
establishing specific, often numerical ambient quality standards
for ground and surface waters .... which could not be exceeded
as a result of waste migration out of a land disposal facility.
Although the Agency concluded that it is not able/ at this time,
to exclusively use this approach to assure adequate health and
environmental protection, it should be noted that the effort was
serious, detailed, and based on technical conclusions that were
extremely consistant with the referenced comments.
     The effort involved a complete listing of all the hazardous
wastes listed in 261.24 and 261.33, and the hazardous constituents
listed in Appendix VIII to Part 261 published at 45 PR 33122-133;
and an attempt to identify criteria and standards applicable to
ground and surface water on the basis of which numerical standards
could be proposed .  Use was made of the background work done to
list the specific wastes as hazardous and especially the background
work referenced in that effort.   Extensive work has been done to
establish Water Quality Criteria  for the "65 Toxic Pollutants" listed
in Table I of Committee Print N3. 95-30 of the Committee on Public

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                                (35)
Works and Transportation of the ft>use of Representatives; and the
related "129 Priority Pollutants" studied by the Agency.  Water
Quality Criteria based on that effort were proposed on 15 March 1979
at 44 FR 16926, 25 July 1979 at 44 FR 43660, and 1 October 1979 at
44 FR 56628; and published on 28 November 1980 at 45 FR 79318.
These criteria supplement the earlier publications of Water Quality
Criteria by the Agency (or its predecessor the FWPCA) in 1968 -
the "Green" book, in 1973 - the "Blue" book, and in 1976 - the
"Bed" book; all of which were also used.  Other available agency
secondary reference sources including; referenced background
documents to support the proposed Water Quality Criteria and the
Agency report "Water-Related Environmental  Fate of 129 Priority
Pollutants" (EPA-440/4-79-029) were also used, and the conclusions
of EPA's Cancer Assessment Group (CAG) were referred to.  Reference
was also made to the National Interim Primary  Drinking Water
Regulations and the Agency report {EPA-570/9-76-003) of  the same
title j the National Academy of Sciences Report " Drinking Water and
Health" dated 1977 prepared for the Office of  Drinking Water in
accordance with the provisions of the Safe  Drinking Water Act; and
to the proposed Secondary Drinking Water Regulations and background
reference documents.  Based on these reference data, ground water
quality concentration limits were derived and  listed with respect
to seven designated water uses as follows:
0     At any point of actual or potential collection or withdrawal
      for use as human drinking water, for domestic (household)
      uses other than drinking or closed system heat exchange, for
      livestock drinking use, for contact use food processing, and
      any ground water which is exposed at the  ground surface which
      is not a surface water classified in accordance with Title
      III of the dean Water Act;

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                                (36)
0    At any point where the ground water affected by the discharge
     will contact structures occupied by persons or where gases
     released from such ground waters may migrate into such
     structures;

0    At any point of actual or potential collection or withdrawal
     for use as irrigation water on food chain crops and ground
     water available to the roots of food chain crops;

0    At any point of actual or potential collection or withdrawal
     for use as irrigation water on non-food chain crops and ground
     water available to the roots of nonfood chain crops or
     endigenous plants;

0    At any point of actual or potential collection or withdrawal
     for industrial and/or commercial use which includes direct
     contact by persons working in such industrial or commercial
     firms;

0    At any point of actual or potential collection or withdrawal
     for industrial and/or commericial process use which does not
     involve direct contact by persons working in such industrial
     or commercial firms;

0    At any point of actual or potential collection or withdrawal
     for industrial, commercial, or private use in closed system
     heat exchange.

     There was a paucity of data to support all but the first

designated water use, i.e., drinking water.  The majority of the

information from which ground water qualtity limits might be proposed

is that information available from published Water Quality Criteria.

The charge of the Agency under 304(a)(l) of the Clean Water Act

is to periodically review and publish criteria for water quality

reflecting the latest scientific evidence.  Data applicable to

ground water are to be included in the criteria.  Although, to

date/ the Agency has not often specifically identified ground

water as a category of water for which criteria have been proposed,

many of the published criteria are applicable to ground water,

especially that criteria published with reference to health effects

associated with drinking water use.  The criteria are therefore

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                                (37)
directly applicable to many judgements that might have to be made
with respect to ground water use.
     A draft regulation specifying the derived limits was prepared
and circulated for internal review in August of 1980.  It was on
the basis of this review of the capacity of the Agency to propose
limits which it could support as regulatory standards that the
above referenced decision was made.
     Many features of the draft regulations served as a basis for
the Agency1 s furthur considerations and are reflected in the
proposed regulations.  Although the Agency chose not to promulgate
regulatory limits, it does intend that the Water Quality Criteria
publications be used as appropiate in the permit issuance process.
     Certain of the limits derived in the above referenced effort
have been included in the reproposed regulations as minimum standards
applicable to a variance from the ground-water protection standard
for ground water used for drinking.  These requirements are discussed
in  Background Document No. 9.
  D. Regulatory Language
     N/A

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