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. ------- Transporter Standards (Part 263) C’ ------- 9461 - GENERAL STANDARDS Part 263 Subpart A ATK1/1 104/3kp ------- 9461.1983(01) RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY JANUARY 83 QU .STIONS ,’Z NS ’ .T.RS - RA Question: Can a trans ortar consolidate manifested shi ’nents of hazardous waste at a traas r facility by transferrilt) wastes in druns to a tan truck f* lI: delivery to a TSDE? All of the drums contain wastes with the sane DOT shipping oescriptiOfl. Arsder: If the ransporcer were co ibinin,j waste with differer t 3T shi.ppin aescriptions into a sirb jle container, e transporter culd be mixing wastes and must con7ly with the Part 262 rejuiations. Since in this instance no mixin,j of different r waste tyes occurs, there is r o re uir ’n2nt f r a nanifest. (The preamble to the Dec. 31, 19d0, iriter1.’ final rule on storaje by transpcrterS at transfer tecilit es soliciti o. carnents on whether regulatory controls over the consolidation o.f s”i nertts arid mixin.j of hazardous waste by transporters is : . If the containers are eripty accorCir to section t y are not sub3ect to further 1CM ra;ulations. Source: Carolyn Berley, lf iIill, and Claire lty Research: Irene Homer 19Ld .o1( 3 ------- 9461.1985(01) September 19, 1985 Mr. G. Thomas Manthey Operations Manager G W Inc. P. 0. Box 379 Cedarburg, Wisconsin 53012 Dear Mr. Manthey: This is in response to your letter of August 30, 1985, which concerned the bulking and consolidating of compatible wastes with different EPA hazardous waste codes. We recognize that transporters sometimes pick up waste from several generators in order to send full loads to treatment, storage, and disposal facilities. These transporters also may consolidate different bulk waste shipments in a tank truck or pump the contents of drums containing different EPA waste codes into a single tank truck. You asked whether this method of handling hazardous waste constitutes treatment. It is our interpretation that incidental changes in the characteristics of the waste that occur from consolidating shipments going to treatment, storage, and disposal facilities for handling under RCRA regulations would not be considered treatment. Treatment as defined in §260.10 “means any method, technique, or process...designed to change the physical, chemical, or biological character or composition of any hazardous waste ... to render such waste non—hazardous, or less hazardous; safer to transport, store, or dispose of....” Mixing listed waste does not render the wastes non—hazardous (40 CFR 261.3(c) and (d)). Mixing hazardous waste that is identified in 40 CFR 261 Subpart C on the basis of characteristics renders the waste non-hazardous if the waste no longer exhibits those characteristics after mixing (40 CFR 261.3(d) (1)). Although characteristic wastes mixed by transporters may exhibit fewer hazards, this incidental reduction of hazard is not considered treatment if the wastes are still sent to treatment, storage, or disposal facilities. The basis of this interpretation is found in the definition of treatment in Section 1004 of the Hazardous and Solid Waste Amendments, which states: “...‘treatment’ . . . includes any activity or processing designed to change the physical form or chemical composition of hazardous waste so as to render it nonhazardous.” The type of transportation you describe does not appear to be designed to This has been retyped from the original document. ------- —2— render the waste nonhazardous. This is the basis of our interpretation that the bulking is not regulated as treatment under RCRA. You should be aware that the blending of wastes by transporters is addressed by two other regulations. In particular, §263.10(c) (2) requires transporters to comply with generator requirements (e.g., issue a new manifest) when transporters combine wastes with different Department of Transportation (DOT) shipping descriptions in the same container. This occurs when combining two shipments of RCRA ignitable waste, when one is a DOT combustible and the other is a DOT flammable. Combining different RCRA waste streams that are both classified by DOT as “hazardous waste solid, n.o.s.” would not require a new manifest. You can obtain the proper DOT shipping descriptions in 49 CFR 172.101 or contact DOT’S Hazardous Materials Standards Division at (202) 426—2075. The policy of bulking and consolidating waste shipments is also addressed in the preamble to the December 31, 1980, Federal Register on transfer facilities (45 FR 86966). At transfer facilities, “shipments may be consolidated into larger units or shipments may be transferred to different vehicles for redirecting or rerouting.” Transfer facilities can store manifested waste shipments in DOT packages for up to 10 days without complying with §264 or S265 storage requirements, as described in 40 CFR 263.12. “These amendments relieve transporters who own or operate a transfer facility of the necessity of obtaining a RCRA permit and of complying with the substantive requirements for storage for the holding of wastes which is incidental to normal transportation practices (45 FR 86966) •1t Furthermore, this preamble later states, “These amendments do not place any new requirements on transporters repackaging waste from one container to another (e.g., consolidation of wastes from smaller to larger containers) or on transporters who mix hazardous wastes at transfer facilities (45 FR 86967).” In other words, this issue concerns storage, not treatment. The transfer facility preamble also requested comments on whether transporters need to have a regulation similar to §265.17 for handling ignitable, reactive, or incompatible wastes to prevent ignition or reaction. Prudent waste management practices would probably include voluntary compliance with many of these standards. This has been retyped from the original document. ------- —3— If you have any other questions about these issues, please contact Irene Homer of my staff at (202) 382-2550. Sincerely yours, Marcia Williams Director Office of Solid Waste (WH—562) This has been retyped from the original document. ------- 9461.1986(01) 1 1 PR iO 98ô Ms. Virginia EastwOOd Director, Hazardous Waste Division St. Joseph Motor Lines 5724 Mew Peachtree Road Atlanta, Georqia 30341 Dear Ms. EastWOOd: I am responding to your letter of inquiry dated March 31, 1986. As you stated correctly in your letter, the l0 day” regulation f or storaqe in transit of hazardous waste does not apply to the period of time that such waste is actually in transit between the pick—up and delivery points. This interpretation is consistent with the appropriate regulatOrY provision contained in 40 CFR Part 263 — Standards Applicable To Transporters of Hazardous Waste. More specificallY 40 CFR 263.12 states: “A transporter who stores manifested shipments of hazardous waste in containers meeting the requirements of S262.30 at a transfer facility for a period of ten days or less is not subject to regulation under Parts 270, 264, and 265 of this chapter with respect to the storage of those wastes.” Thus, the “10 day” regulation only relates to storage at a transfer facility. Furthermore, transfer facility” is defined in 40 CFR 260.10 as follows: “Transfer Facility means any transportation related facility including loading docks, parking areas, storage areas and other similar areas where shipments of hazardous waste are held during the normal course of transportation”. I hope that these regulatory citation’s provide you with the information which you requested. You must, however, remember that individull State hazardous waste regulations may be more stringent tha. these Federal requirements. Respectfully Bernard 3. Stoll Program Manager Financial Responsibility ar Assessment Branch ------- 9461.1987(04) RCRA/SUPERPUND MOTLINE MONThLY SUMMARY JULY 87 2. stic Sewaçe Excljsion A RA hazardous waste is t anspoeted b ’ t?.lCk acecin anied by Uniform Hazarcojs Waste Manifest to a p. blic1y-o ned treatn ent works ( IW). Cues the danestic sewage excl.ision apply to this hazaydo..is waste if it mixes with danestic sewage prior to treatment? Is the sludge generated fran teeating the CRA hazardous waste and the danestic sewage a nazaedo s waste d.ie to the “ wived—Fran Rjle” (40 CFR 261.3(c) and Cd))? The nestic Sewage Exclusion (“the excLzsion” or “the exølption”) found in RCRA Section 1004(27) and codified at 40 CFR 261.4(a)(1)(ii) applies to “datestic sewage and any mixt .i e of danestic sewage and other wastes that pass through a sewer systen to public1y- ned treatment works f or treatment. ‘ estic sewage’ means .intreated sanitary wastes that pass through a sewer system” (euphasis added). These wastes awe not considered to be solid wastes and thewe fore cannot be classified as a RA hazavdo..is waste. The exestption does not extend to wastes which awe transported to the YIW by way of trick, rail, or dedicated pipe and which do not mix with danestic sewage. The P01W wo.. ld be operating .znde, a NPDES permit and is s.ab)ect to weq.LlatLorls under the RCRA permit—by—w. le provisions (see 40 ( ‘R 210.60(c)). Even if the hazardous wastes which were transported frait off—site were nuxed with the infLient danestic sewage before any treaunent occ. rred, the excLision would not apply. As discussed in the May 19, 1980 Federal Register (45 FR 33097), EPA has interpreted that the intent of Congress was that the exeuption extend only to wastes which enter the system at or near the point of generation and act zafly ‘ nu.x with sanitary wastes in a sewer system leading to a )TW” (etiphasis added). As di.sc.issed in the J..ine 22 1987 Federal Register (52 FR 23478), if any listed WRA hazardous wastes denoted in 40 CFR 261 S.ibpart 0 are manifested to a P01W, the resultant treatment sL dge ld retain the listing per the “C rived—Fwan R.zle” (see 40 CFR 261.3(c)(2)(i)>. If the waste is characteristically hazardous .rnder 40 CFR 261 Subpart C, the si dge would be considered a hazardous waste only if the sLidge exhibited any one of the characteristics of hazardous waste. Source: ! v Weitman (202) 382—7700 Research: bo,ah McKie ------- ND jQiLiNE MOt4th £ SU)O A1 9461.1987(05) STEMBER 87 4. DOT tanifest e uirenents when filLing out a hazar ious waste manifest must the generator include the EPA hazardous waste identification number and hazardous substance reportable quantity under the Department of Transportation (DOT) shipping description’ In the November 21, 1.986 Federal (51 FR 42175), DOT’s Research and Special Programs Administration (RSPA) issued final hazardous materials regulations which incorporated CERCLA hazardous substances as DOT hazardous materials. In a later Federal Register dated February 17, 1987 (52 FR 4824), the RSPI published corrections to the November 21, 1986 regulations. Together, these regulations amended 49 CFR Parts 171 and 172 by placing additional iaf rmatiort requirements on shippers of hazardous waste (i.e., generators). Section 172.02 of the new DOT regulations requires the shipper (hazardous waste generator) to identify EPA waste streams by the EPA identification number and for wastes which exhibit an EPA characteristic of ignitability. corrosivity, reactivity or toxicity, by the letters “EPA” and the word “ignitability” or “corrosivity” or “reactivity” or “EP toxicity”, as appropriate. Section 172.203 and Section 172.324 of these regulations require the notation “RQ” on the shipping papers in association with the proper shipping description when a package (i.e., container) contains a reportable quantity or more of hazardous waste. However, the new DOT regulations do not require the “numerical reportable quantity” to be on the manifest (see November 21., 1.986 Federal (51 42175)). Source: Paul Mughovic (202) 475—7736 esearch: Joe Nixon —4-. ------- 9461.1988(01) Io S74I! _ V., UNITED STATES ENVIRONMENTAL PROTECTION AGENCY - WA$H NGTON. D.C. 20460 4 L ØI ORFICE Oc SOLIO WASTE ANO EMERGENCY RESPON! Richard A. Svanda, P.E. Director, Hazardous Waste Division Minnesota Pollution Control Agency 520 Lafayette Road St. Paul, Minnesota 55155 Dear Mr. Svanda: This is in response to your July 20, 1988, letter to Jeffery Denit, concerning regulation of hazardous waste recyclers. The responses to your questions are attached. Please note that the responses address the Federal regulations for generators of over 100 kilograms of hazardous waste, or 1 kilogram of acute hazardous waste. Most of the generators that responded to the July 1987 survey conducted by the EPA Small Business Ombudsman, referenced in your letter, were actually conditionally exempt generators under 40 CFR Section 261.5. As you know, regulation of this conditionally exempt waste, including regulation of recyclers who accept such waste, is a State matter. Please contact Michael Petruska at (202) 475-9888 if you have any questions on this response. Sincerely, 4- ‘ - Sylvia K. Lowrance Director Office of Solid Waste Attachment ------- vrAcIn ENT 1. Q: Can incoming listed hazardous wastes be stored at (a recycling] site for up to ten days and then be moved (on the same site] to the recycling process, where recycling begins immediately? What distinction is drawn between a transfer facility located on contiguous versus non-contiguous property in relation to the recycling operation? A: The transfer facility provisions of 40 CFR Section 263.1.2 apply to holding of waste in the normal course of transportation. Arrival of the waste at the designated facility constitutes completion of the transportation phase 1 so the 10 day limit is not applicable at the recycling facility. If waste is off-loaded from vehicles directly in recycling equipment at the facility, however, this off-loading area is not a storage facility. Each recycling facility has to be evaluated on a case-by—case basis to determine whether storage is in fact occurring. The distinction which is drawn between a contiguous transfer facility and a non-contiguous one is best described by stating that the Section 263.12 regulation was promulgated to account for normal transportation practices. A transporter who ships to a piece of property contiguous to a recycling facility has technically completed the transportation phase if no further “transportation” (as defined in Section 260.10——movement by air, rail, highway, or water) is to be conducted. Thus, a piece of property contiguous to a recycling facility must meet the definition of a designated facility. A piece of property that is not contiguous to the recycling facility technically could be a transfer facility provided further movement by air, highway, rail, or water will occur. There is potential for a transporter to deliver hazardous waste to a site close to the recycling facility, and still qualify for the transfer facility exemption; however, in an enforcement situation, this activity may not qualify for the exemption, which was intended to cover situations of limited in—transit storage. 2. Q: Is this (Question #1) a transfer facility as defined in Section 260.10? A: As explained above, designated facilities cannot have transfer facilities on their property. The recycling facility may or may not need a RCRA storage permit, depending on the factual situation at the facility. ------- —2— 3. Q: How should the definition of “storage” be interpreted? Is there a specific time limit on storage for this situation? A: The Agency has interpreted conveyance into a recycling unit as not regulated, while holding of hazardous waste for a matter of a few hours is a site—specific determination, and may or may not constitute storage. Each recycling facility that attempts to claim an exemption for their storage activities viii have to be evaluated individually, and the owner or operator must maintain all supporting documentation under Section 261.2(f). 4. Q: What has been the EPA’s and other State’s practice for addressing this issue for containerized hazardous wastes? A: Based on discussions with four authorized States, three of four stated that any storage prior to recycling is regulated. One stated that a recent policy was developed in which hazardous waste received from off—site and placed into the recycling unit by nightfall of the calendar day it was received at the facility would not be considered stored. 5. Q: Would such a facility be exempt from the hazardous waste permitting requirements (i.e., can the facility operate under transporter, transfer facility and generator requirements)? A: Such a facility could not operate under transporter and transfer facility requirements, although they may qualify as a designated facility under Section 260.10 if they recycle without prior storage. As explained above, however, holding of drums for a few hours may not be storage. Further, the facility could be constructed so that the conveyance to the recycling unit is the only holding which occurs prior to recycling, so that there would be no RCRA storage area. 6. 0: If a hazardous waste storage permit is required, this type of operation will most likely not continue, and new prospective recycling operations will be discouraged from starting. What other methods of encouraging recycling of hazardous waste could you suggest? ------- —3— A: EPA is currently evaluating how its regulatory structure affects recycling. You should note that a number of exclusions (i.e., Sections 261.2(e), 261.4(a)(6), (a)(7), (a)(B)), exemptions (i.e., Section 261.6 (a)(3)), and variances (i.e., Section 260.30) are available for recyclable materials. We are considering whether additional such mechanisms should be established 1 and whether some broader mechanism, such as a Special recycler permit (perhaps similar to the one created by Congress for used oil under RCRA Section 3014(d)) might be appropriate. You should be aware that a number of recycling facilities that provide storage of hazardous waste on site prior to recycling the waste have complained that their competitors are circumventing the spirit of our regulations by recycling directly from the transportation vehicle and not obtaining a RCRA storage permit. They have encouraged EPA to modify the regulations to state that such practices constitute storage and should be fully regulated under RCRA. ------- UNITED TATE$ ENVIRONMENTAL PROTECTION *GENCY 9461.1989(01) N3 989 MEMORANDUM SUBJECT: Regulation of Hazardous Waste Transfer Operations FROM: Sylvia K. Lowrance, Director Office of Solid Waite (OS—300) TO: B. G. Constantelos, Director Waste Management Division (5H—12) Region V We have evaluated the issues raised in your October 31, and November 9, 1988, memoranda regarding the need to regulate containers transferring waste directly to incinerators, boilers, or industrfal furnaces. You expressed concern about the Agency’s policy that trans- port vehicles are not considered storage vessels when located on-site for short periods during the transfer of hazardous waste fuel directly to a combustion device. Apparently, a number of facilities have used this policy to avoid obtaining a storage permit. Your concern is that, without a feed storage tank to enable continuous mixing and, if necessary, heating of hazardous waste fuels, steady-state combustion conditions cannot be main- tained. You suggest that we include in the proposed boiler and industrial furnace rules a provision requiring a fuel blending and storage tank. We agree with you that a blending and feed storage tank can be a useful approach to solving problems associated with assessing a- uniform feed. We are not sure, however, that a blending tank is needed in every case irrespective of the unloading time and properties of the waste fuel. Moreover, the trial burn should be used to determine if a facility can comply with the emissions performance standards without a feed storage tank. Nonetheless, we will request comment in the proposed boiler and industrial furnace rule on whether blending and storage tanks should be required to ensure a maintain uniform feed and a steady state operation of the waste combustion facility. ------- 99 f /q ,( 01 ) —2— Notwithstanding where we end up on that issue, we encourage you to establish-permit conditions as necessary to protect public health and the environment using the omnibus authority of Section 3005(c) (3) of RCRA. Controls may be needed to address the potential for spills, fires, and explosions during the transfer operations. Thus, it ay be appropriate to apply the storage facility standards to the transfer operation. We will discuss in the preamble to the boiler and industrial furnace rule the use of the omnibus authority to address the hazards posed by transfer operations. If you have questions or comments, your staff can contact Mr. Dwight Hiustick at (202) 382—7926. cc: Incinerator Permit Writers’ Workgroup Dave Bussard Joe Carra Dev Barnes Carrie Wehling ------- 9461.1989(02) RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY APRIL 89 A. RCRA 1. GeneratOr Standards Applicable To Transporters Are transporters considered generators when they mix wastes of different DOT descriptions? - No. Transporters who mix wastes of different DOT desaiptiotts are not considered generators of the waste, however, they must comply with 40 CFR Part 262, “Standards Applicable to Generators of Hazardous Waste” (Section 263.10(c)). The transporter does take on some of the responsibilities and duties of a generator when he mixes wastes that are in his custody, including making sure the wastes remain properly manifested in the manner required by Parts 262-263. When transporters combine similar wastes, this act does not “generate” a new waste. It might, however, necessitate a new manifest or an amendment to the manifest when the act of mixing wastes changes the accuracy of the information on the manifest, by altering the container types and/or volumes contained or by changing the chemical or physical nature of the waste, so that the DOT proper shipping name on the original manifest is no longer accurate. If a new manifest is necessary, previous manifests must be attached to, and conveyed with, the new manifest. Source: Emily Roth (202) 382 -4m Research: Joe Nixon (202) 488-1487 ------- • ENYIRONME$TM. PROTECTION AGENCY 9461.1989(03) 18 AUG 89 William L. Bider Manager - Environmental. Protection Trans World Airlines, Inc. P.O. Box 20126 Kansas City International Airport Kansas city, Missouri 64195 Dear Mr. Bider: This letter is in response to your letter of July 18, 1989. You ask if TWA’s St. Louis Airport facility requires one or more EPA Identification numbers. The determination in this case must be made by State and EPA Region personnel. However, we can provide you with a general description of the relationship between the EPA ID number and a facility location, or “site” requiring such a number. Generators and transporters of hazardous waste must obtain an EPA identification number from the EPA Administrator before they treat, store, dispose of, transport, or offer for tranportation, hazardous waste (40 CFR Section 262.12). The numbers are obtained by submitting a notification form, EPA Form 8700-3.2, to the Administrator. The numbers are issued to each generator en a by- site basis. Therefore, if TWA has facilities in various locations, each facility, by site, must have an EPA ID number. The definition of “on-sit.” a. referenced by you in your letter and as found in 40 CPP. 260.10, may be helpful in determining if TWA’s St. Louis Airport facility constitutes on. or more “sites.” - “•On —Sit.’ means the same or geographically contiguous property which may be divided by public or private right-of-way .“ From your description it appears that all of your airport facilities are on a singl. property. It is unclear, however, whether there are any rights-of-way to which the public has access. If there are, th. entrance and exit between the properties must be at a cross-roads intersection, i.e. vehicles may not carry ------- inmanifested waste along the public right-of-way. The information you gave us thus Seems to show that under EPA’S regulations you would only need one identification number. However, as stated previously, the State is the appropriate authority for making this determination. Also, you should be aware that State regulations may dictate a different result. If you have any further questions in regard to this letter, you may contact Emily Roth of my staff at (202) 382—4777. Sincerely, Devereaux Barnes, Director Characterization & Assessment Division Office of Solid Waste ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D C. 20460 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE July 20, 1989 9461. 1989(04) Karen M. Wardzinski Freedman, Levy, Kroll & Simonds Washington Square 1050 Connecticut Avenue, N.W. Washington, D.C. 20036-5366 Dear Karen I am writing in response to your letter of May 24, 1989. You asked me to confirm that a transporter may move waste from a large container into smaller containers at a transfer facility without obtaining a RCRA permit Under the federal RCRA regulations transporter may operate a transfer facility without a permit if he complies with 40 C.F.R. 263 including 263.12. As EPA explained in the preamble to the transfer facility regulation: These amendments do not place any new requirements on transporters repackaging waste from one container to another (e.g. consolidation of wastes from smaller to larger containers) or on transporters who mix hazardous wastes at transfer facilities. 45 Federal Register 86967 (December 31, 1980). The reference to repackaging from smaller o larger containers in the above discussion was simply an example and was not intended to limit the repackaging of wastes to such situations. Therefore a transporter may repackage wastes into smaller containers without obtaining a permit. Of course a transporter may not treat the waste as a part of this operation. As you know state regulations may be more stringent than federal regulations on this issue. If you need further assistance please call me at 382-7706. Sincerely, Diane Regas Attorney Solid Waste and Emergency Response Division (LE-1328) This document has been retyped from the original ------- This Page Intentionally Left Blank ------- 9461.1990(01) IO S 4 ,. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. 0 C 20460 JUN 11990 OFFICE OP SOLID WASTE AND EMEROENCY RESPONSE MEMORANDUM SUBJECT: Transportation FROM: Sylvia K. Office of Solid TO: Robert L. Duprey,Y Director Hazardous Waste Management Division Region VIII Thank you for your memorandum of February 26, 1990, in which you describe a situation of concern related to hazardous waste transportation. In the situation you describe (and described in the accompanying letter from the State of Utah) a hazardous waste transporter appears to be transporting hazardous waste unnecessarily through numerous transporters to “buy” time in which to accumulate a quantity of hazardous waste sufficient to fill a tank truck. The events as described raise the possibility that this chain of shipments is not consistent with a “normal course of transportation” as described in the Federal Register notice of December 31, 1980 (45 86966). Our response is based upon, and limited to, the facts as you have described them. In developing the hazardous waste transportation regulations, EPA differentiated between the storage of hazardous waste (requiring the obtaining of a RCRA permit) and the holding of waste for short periods of time during the course of transportation. EPA specifically stated that transporters who hold hazardous wastes for a short period of time in the course of transportation should not be considered to be storing hazardous wastes, and should not be required to obtain a RCRA permit or interim status and comply with the standards of Parts 264 or 265. EPA allows transporters to hold wastes at a transfer facility in the course of transportation for up to 10 days. This regulatory relief measure applies to the holding of wastes which is incidental to normal transportation practices. If the waste is held for more than ten days at a particular location, a RCRA permit is required, and the transporter must comply with the applicable storage standards and permit requirements. PP ’ —— ------- Violations of the transportation regulations may be occuring in Situations where State or EPA Regional enforcement authorities determine that a transporter has .held waste at one location for longer than 10 days, or has held waste in a manner which is not consistent with the normal course of transportation. Two examples of activities which ordinarily would be inconsistent with the normal course of transportation are: (1) waste not being transported from a site at all, but rather, possession of the waste is changing from one transporter to another while the waste remains at one site, or, (2) waste is routed to the same geographic location more than once during the course of transportation. Furthermore, the act of simply routing hazardous wastes to numerous transporters for extended periods of time may, at some point, no longer be consistent with the normal course of transportation. EPA noted at the time of promulgation of the transfer facility requirements that the transportation industry had indicated that shipments of hazardous waste normally take no longer than 15 days, including both on the road time and incidental temporary holding. While circumstances may occasionally justify periods significantly longer than 15 days, the 49-day chain identified in the documents from Utah strongly suggest that the intermediate purported transfer facilities were not holding the waste incident to the normal course of transportation. Of course, our interpretation of the situation you describe is based upon, and limited to, what you have documented in your letter, and does not mean that there cannot exist additional circumstances not described in your correspondenc. that would be material to any determination of a violation. We cannot discount the possibility that, sometimes, under particular circumstances, activities such as those described above may be consistent with the normal course of transportation. The enforcement authority, either the State or EPA Region, must determine, based on the factual situation, whether the circumstance, involved ar. in keeping with a normal course of transportation. We are planning to consider the other question you raised (regarding re-manifesting of wastes received froa multiple sources by transporters) as we discuss outstanding manifest issues as part of a project recently begun by a working group of states under an agreement between EPA and the National Governors’ Association. This project will evaluate th. current manifest system and provide input on potential improv .’ ts. EPA staff met in March of this year with the stats manifest coordinator. group to kick off the project. For information on this projat-, please contact Russ Brodie of the National Governor’s A .soaLat1 an at (202) 624—5305. Thank you for bringing this transportation situation to my attention. If you have any questions regarding this memorandum, please have your staff contact Emily Roth, at rrs 382—4777. ------- 9461.1990(02) eO S?dp . UNITED STATES ENVIRONMENTAL PROTECTION AGENC\ _____ WASHINGTON. D.C. 20460 pq tG OCT 30 1990 O F ICE OF SOLID w . SrI: AND EMERCENC R SPC SE MEMORANDUM SUBJECT: Transfer Facility Regulation Interpretation FROM: TO: David Ulirich, Acting Director Waste Management Division (5H-12) Thank you for your memorandum of July 19, 1990, requesting an interpretation of the regulations pertaining to “transfer facilities” in relation to designated facilities and permitted and interim status facilities. The first issue you raise concerns whether a permitted or interim status treatment and storage facility can function as a transfer facility and temporarily store hazardous waste destined for another facility (the designated facility) for processing. The answer to this question depends on whether the transfer facility is also the “designated facility” indicated on the manifest. A permitted or interim status facility that has not been designated on the manifest as the “designated facility” may serve as a transfer facility for shipments of waste awaiting further transportation to the designated facility. The limiting conditions are the definition of “transfer facility,” itself (Section 260.10) and the provisions of Section 263.12, i.e., storage not to exceed 10 days, and containers must meet DOT requirements. A permitted or interim status treatment and storage facility th’at is the “designated facility ” for a particular shipment of waste cannot function as a transfer facility with respect to that waste. “Designated facility” is defined in 260.10 as a hazardous waste treatment, storage, or disposal facility that is permitted or has interim status, that is regulated under 40 CFR 261.6(c)(2) or Subpart F of 40 CFR Part 266, or another facility allowed by the receiving State to accept such waste gj that has been designated on the manifest by the generator pursuant to 40 CFR 262.20. [ See 55 FR 2353, Januaiy 23, 1990 for recent EPA statement on the designated facility issue.] The term “transfer facility” is defined in 40 CFR 260.10 as “any transportation related facility including loading docks, parking areas, storage areas and other similar areas where shipments of hazardous waste are held during the normal course of trans- portation.” The key part of this definition is the phrase “during the normal course of transportation.” Arrival of a manifested shipment of w iste at the “designated facility” constitutes completion of the transportation phase, suc that the transfer facility provisions will no longer apply. That is, the manifested shipment cannot be stored for Pr raede Rd:.. F .. ------- 10 days or less under 40 CFR 263.12 once it arrives at the designated facility. This issue is discussed in the attached letter dated August 31, 1988 from Sylvia Lowrance, Director of the Office of Solid Waste, to Richard Svanda, of the Minnesota Pollution Control Agency. The second issue you address is the consolidation of wastes by a transporter at a transfer facility. Wastes are routinely combined at transfer facilities; often containerized waste is transferred to a tanker truck. However, you are correct that the December 31, 1980 Federal Register as well as subsequent notices on the topic of transportation do not place any additional requirements on transporters that consolidate wastes at transfer facilities. There are no EPA Federal standards or requirements that apply specifically to transfer facilities other than the storage time limitation of 10 days and other provisions of 263.12. There have not been any new policy or guidance documents on the topic of transfer facilities since the regulations were promulgated. However, you should note that transporters who store hazardous waste at transfer facilities must comply with all applicable requirements of the transporter regulations of Part 263 (e.g., Subpart C, Hazardous Waste discharges). Under certain circumstances, transporters are required to comply with the requirements that apply to generators of hazardous waste. A transporter who mixes hazardous wastes of different Department of Transportation (DOT) shipping descriptions by consolidating them into a single container must comply with 40 CFR Part 262, Standards Applicable to Generators of Hazardous Waste (40 CFR 263.10(c)(2)). The Agency does not intend to encourage transporters to combine wastes of different DOT descriptions. On the contrary, the imposition of the generator requirements should provide sufficient cause for the transporter to avoid such waste combinations whenever possible. The transporter who mixes hazardous wastes of different DOT descriptions is obligated to remanifest the waste. For example, a change in the DOT “proper shipping name” or hazard class would require the completion of a new manifest. The act of combining wastes may also result in changes in containers. Therefore. the container designations on the manifest would need to be changed as well. In a -situation involving only one or two minor changes, such as container changes, the original manifest could be marked to reflect the changes. In other cases such as the situation mentioned above involving a change in shipping description, a new manifest would have to be initiated. In any case, whether a new manifest is initiated or not, waste may only be delivered to the designated receiving facility as indicated on the original manifest by the original generator of the waste. In other words, transporters would not be able to combine waste (resulting in a DOT description change), and remanifest the waste to a designated facility that was not indicated on the original manifest by the original generator as the designated facility. In regard to the compatibility of wastes being mixed, I refer you to the document entitled “A Method for Determining the Compatibility of Hazardous Wastes,” order number 600/2-80/076, available from EPA’s Office of Research a d Development ((51 Y ’ 2 ------- 569-7562). An individual consolidating wastes in containers should also refer to Appendix V of 40 CFR Part 264. This appendix groups materials according to their potential incompatibility. With respect to your questions regarding notification, several issues require clarification. Under Subpart D of 40 CFR 266, facilities which qualify as marketers or burners are required to notify the Agency of their hazardous waste fuel activities, even if they had previously obtained an EPA identification number. See 40 CFR 266.34(b) and 266.35(b), respectively. Marketers are defined as generators who market hazardous waste fuel directly to a burner, persons who receive hazardous waste from generators and produce, process, or blend hazardous waste fuel, and persons who distribute but do not process or blend hazardous waste fuel. If the service centers fall into any of these categories, they are considered marketers of hazardous waste fuel and are required to renotify to identify their hazardous waste fuel activities. You are correct that the EPA identification number is location-specific. Under 40 CFR 263.11, a transporter is prohibited from transporting hazardous wastes without having received an EPA identification number. Currently, this number is assigned to the transportation company as a whole; all of the individual transporters (trucks) in a given shipping company have the same EPA ID number, the number that the transportation company was issued and which is issued to the company’s headquarters location. Your final question concerns the identification number that should appear on the manifest accompanying the waste at the transfer facility. Regardless of whether the transfer facility is acting as a transfer facility or a regulated storage facility, the identification numbers appearing on the manifest would be the EPA identification numbers associated with the generator of the waste, all the transporters who transport the waste, and the designated facility. In the situation you describe, in which one company transports waste to and from a transfer facility it operates, and the waste remains under the control of the transporter, no separate EPA ID number need be entered on the manifest specific to the transfer facility. However, you should note that waste must remain under the control of a transporter as designated on the manifest while at a transfer facility. As described in detail in the regulations, a transporter may only deliver wastes to: (1) the designated facility listed on the manifest, (2) an alternate designated facility, (3) the next designated transporter or, (4) a place outside the United States designated by the generator (40 CFR 263.21). Until the signature of the designated facility or subsequent transporter is obtained, the waste is considered to be in the custody of the transporter who last signed the manifest (45 ER 1 12739; February 26, 1980). As mentioned briefly above, transporters must comply with the generator standards of 40 CFR Part 262 when they mix wastes of different DOT descriptions (40 CFR 263.10(c)(2)). They must remanifest the waste to accurately reflect the composition of the waste. Although they may indicate on the manifest in box 15 the name of the original generator(s) of the combined waste, they must represent themselves as the generator of the new waste. Although by creating or generating a new waste they 3 ------- have taken on some of the generator requirements, the transporter should continue to manifest the waste to the designated facility as indicated on the original manifest by the origin -I generator. I realize that this letter contains an abundance of information. If you would like to discuss any of the topics further, please have your staff contact Emily Roth of my staff at Fl ’S 382-3098. Attachment 4 ------- 9461. 199L ui) RCRA/SUPERFUND IIOTLINE MOhinsY SWOIARY fransfer Facility as Central Collection Point A company generates small quantuies of hazardous waste at several separate field locations. The company does generate more titan 100 kilograms of hazardous waste per month a: each separate field location. May the company use a transfer facility as a central collection point to consolidate waste from these field locations? Yes. A company may consolidate waste from several locations or generation sites at a central point provided that certain requirements are met. First, each generation site must have an EPA Identi&ation No. and meet all applicable requirements under 40 CFR Part 262. In addition, each shipment of hazardous waste must be accompanied by a hazardous waste rnanifc t d the transporter must also have an EPA ificadon No. The transfer facility provision under §263 I may be applied to a situation such as this one under the following conditions. According tu §260.10, a transfer facility is defined as “any nansportation-related facility including loading docks, par ng areas, storage areas and other similar areas where shipments of hazardous ‘ .‘ .i’e are held during the normal course of transportanon.” The transfer facility is the place where transporters consoljda shipments or transfer shipments to different vehicles in order to redirect them; this activity usually takes place over a short period of tune. (45 , 86966; December 31, 1980) Section 263.12 allows a transporter to store manifested shipments of hazardous waste ax a transfer facility for up to 10 days without obt2ining a permit. During this time the hazardous waste must be held in containers which meet Depazunern of Transportation (DOT) packaging requirements. As long as the central collection point meets the definition of a transfer facility, the company may use itto consolidate shipments of hazardous waste from different generation locations. Note that if a transporter mixes hazardous wastes of different DOT shipping descriptions, §263.10(c) requires compliance with 40 CFR Past 262. Standards Applicable to Generators of Hazardous Waste. NOVEMBER 199]. ------- ç D S74 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON, D C. 20460 I 4. L p (Ø ’ OFFICE OF Jli 21 iss SOLID WASTEANDEMERGENCY PESPONSE 9461.1994(01) Mr. Kevin Igli Environmental Management Chemical Waste Management 3001 Butterfield Road Oak Brook, Illinois 60521 Dear Mr. Igli: Thank you for your letter of January 11, 1993, regarding the temporary holding of hazardous waste at transfer facilities while enroute to a designated facility. In addition, you requested a written interpretation on the use of multiple transfer facilities as part of the “normal course of transportation’. Nothing in EPA’s regulations specifically prohibits the use of multiple transfer facilities when they are used in the normal course of transportation. Determinations of what activities are ‘in the normal course of transportation” must be made on a case-by- case basis. However, we recognize that there may be exceptional situations where several days of unplanned shutdowns at the receiving facility or considerations of transportation efficiency would make the use of multiple transfer facilities part of the normal course. Of course hazardous wastes in this case could only be held for 10 days or less at any one transfer facility (otherwise a storage permit is needed as per §263.1 2). In addition, to be considered in the normal course, transportation should be completed in a timely manner. As you know, 40 CFR 262.42 recognizes that most hazardous waste deliveries to a TSDF are completed within 45 days. 1 This requirement helps ensure that the waste will not be held for lengthy periods by transporters and that the transport process will be completed in a timely manner. EPA, in a June 7, 1990 memo to Region VIII, provides further clarification of what constitutes timely shipment (a copy of the memo is enclosed). The memo discusses a case in which waste was being ‘According to 40 CFR 262.42, a generator must contact the owner or operator of the designated facility within 35 days if a copy of the manifest is not received. If, after 45 days, a copy of the manifest still is not received, the generator must file an Exception report. Ø r ReCyC Od/ReCyCIabIB (\ “ \ —I. conialri, at eaat 50% ecyclca ID e ’ ------- passed through numerous transporters to allow enough time in which to accumulate a quantity of hazardous waste sufficient to fill a tank truck. To summarize, EPA notej that at the time of romulgatjon of the transfer facility rules, the transportation industry cited 15 days as generally the maximum amount of time required to transport waste to a destination in the U.S. The Agency acknowledged, however, that circumstances occasionally justify periods significantly longer than 15 days, noting that determinations as to whether waste is being held in a manner inconsistent with the normal course of transportation are to be made on a case-by-case basis by the appropriate State or Regional office, based on the facts surrounding the individual circumstance. Please be aware that the transporter remains responsible for the waste while it is at the transfer facility, and Part 263 transporter standards, including Subpart C pertaining to hazardous waste discharges, continue to apply during this period. Thank you for your interest in the safe management of hazardous waste. Should you have any questions about this letter, please contact Ann Codrington in the Regulatory Development Branch at (202)260-8551. Sincerely yo r Michael etrus , Chief Regulatory Development Branch Enclosure ------- iCO S? 4 . , - UNITED STATES ENVIRONMENTAL PROTECTtON AGEN..Y \ j WASHINGTON. D.C. 20460 9461.1994(02) AUG I 7 rgg OFFICE OF SOL O WA .TE APdO EMERGENCY RESPONSE Charles Dickhut Chemical Waste Transportation Institute 4301 Connecticut Avenue, NW Suite 300 Washington, D.C. 20008 Dear Mr. Dickhut, Thank you for your letter of June 3, 1994, in wiich you request that EPA clarify and reaffirm its interpreta:jong and policies regarding the storage of hazardous waste at transfer facilities, the authorization of states for provisiois regulating this storage, and the preemption of such provisions y the Department of Transportation (DOT) under the Hazardo s Materials Transportation Act (HMTA). In your letter you request that EPA reaffirm sp cific previous interpretations of the 10-day storage limit tiori for transfer facilities. RCRA regulations at 4C CFR 263 12 state that “a transporter who stores manifested shipments f hazardous waste in containers meeting the requirements of § 26. .30 at a transfer facility for a period of ten days or less i i not subject to regulation under Parts 270, 264, 265, and 268 of t.his chapter with respect to the storage of those wastes.” These regulations do not restrict the use of multiple transfer facilit..es for one shipment nor do they place further restrictions on the number of days available at each facility (i.e., they do not 1:mit the total number of days spent at all transfer faci].itie , to 10) . Of course, each transfer facility must meet the definit:on found at § 260.10. A key element of the 5 260.10 definition is the “normal course of transportation.” Storage of manifested shipments of hazardous waste at a transfer facility must be withir the normal course of transportation. As the A gency has stated in the past, EPA can- envision situations in which hazardous waste may be stored at one transfer facility for 10 days, and ther be stored at a second transfer facility for an additional 10 dEys, and remain, within the normal course of transportation (see the attached June 7, 1990 letter from Sylvia Lowrance to Robert Duprey and the June 22, 1994, letter from Michael Petruska to Kevin Igli). ------- -2- Your letter also asked for clarification of the phrase “normal course of transportation.” The 10-day storaçe limitation at transfer facilities was based on information prov:ded by the transportation industry, which indicated that shipmex ts of hazardous waste normally take no longer than 15 days, including both the actual transportation and the temporary holding of the shipment (see 45 86966, December 31, 1980). Indi idual circumstances, however, may prevent shipments from bEing completed within this time period. EPA believes that what constitutes “the normal course of transportation” de ends on the particular facts of each case. Therefore, EPA does rot believe it is appropriate to set a generic time limit beyond which a shipment would automatically be outside the normal ccurse of transportation. You next inquire whether the authorization of a provision affecting the storage of hazardous wastes at transfe facilities under § 3006 of RCRA would make that provision no lorger subject to preemption under the H 4TA because it was “otherwiEe authorized by Federal law.” (See 49 App. u .S.C. § 1811(a).) EIA formulated its current position on RCRA state authorization and preemption under the HNTA during the 1992 authorization of Caliiornia for the base RCRA program. EPA does not believe that it is appropriate to use the RCRA Subtitle C authorization process to make specific determinations of possible preemption .nder the HMTA. Pursuant to the HMTA, the DOT has established procedures both for making preemption determinations and provid3ng waivers from preemption. A possible issue of preemption undsr } 4TA would not affect the program’s eligibility for RCR.A authorization where the preemption concern is unrelated to RCRA authorities. (See 57 32726, July 23, 1992, and the attached October 29, 1992, letter from t evereaux Barnes to Cynthia Hilton). Thts, EPA still believes that the RCRA authorization decisions provice no basis for shielding state regulations touching upon hazardcus materials transport from possible preemption challenges raised under the HMTA. Finally, you ask whether EPA has the authority to review a state’s interpretation of an authorized provision. ou cite the Arkansas Department of Pollution Control and Ecology’s (DPC&E) interpretation of the 10-day transfer facility storage limitation as a cause for concern. According to your letter, tFe DPC&E enforces a 10-day storage limitation that applies to the total storage time at all transfer facilities, not the stoxage time at each one. Although EPA has a different interpretaticn than what you have described for the DPC&E, the state of Arkansas is authorized for the transporter requirements, and thus has primary authority for implementing them. EPA’S response to a state’s interpretation of an authorized provision would deperd on how it was implemented in a particular situation, and factozs such as any relevant state court decisions or an enforcement action. EPA ------- -3- is currently not aware of any instance where this differing interpretation has been implemented. Further, EPA bElieves that the question of whether Arkansas’s interpretation de iateg from national HMTA transportation standards should be addiessed under the HMTA preemption process, rather than through RCRL state authorization. I hope that this clarification is of assistance to you. Further guidance regarding the issues you have raisec may be available in the future, as a result of EPA djgc g j s with DOT. If you have further questions regarding the authoriz tjon of states for the regulation of hazardous waste transpo terg and transfer facilities, please contact Wayne Roepe of m staff at 703-308-8630. If you have further questions regardirg the EPA regulations regarding the transportation of hazardous waste, please contact Ann Codrington of my staff at 202-260-4777. Michael Shapiro ’Ejrector Office of Solid Waste Attachments ------- This Page Intentionally Left Blank ------- CHEMICAL WASTE TRANSPORTATION INSTITUTE June 3, 1994 Michael Shapiro Assistant Administrator for Solid Waste and Emergency Response OS- 100 U.S. Environmental Protection Agency 401 “M” St., SW Washington, DC 20460 Dear Mr. Shapiro: On behalf of the Chemical Waste Transportation Institute (CWTI), I thank you for your timely reply to our letter of April 27, 1994 concerning EPA’s interpretation of the 40 CFR 263.12 ten-day limitation on storage at transfer facilities.’ We are compelled to write again because it did not respond substantively to all our concerns. The CWTI is a not-for-profit association that represents companies that transport hazardous waste throughout the United States and Canada, and in Mexico. In retrospect, we can see how your staff would have read our letter as a request to evaluate the Arkansas Department of Pollution Control and Ecology (DPC&E) authorized program pursuant to RCRA Section 3006 in terms of its administration of the 10-day transfer facility storage rule. In fact, our request concerning an interpretation of Section 3006 was only one of four related issues raised in our letter. I am taking this opportunity to attempt to clarify our concerns and request your indulgence to respond. As a reference, I am attaching our April 27th letter. By way of background, you correctly pointed out in your letter that DPC&E’s proposed rule revision limiting the time hazardous waste may be stored at one or more transfer facilities to ten days was not contained in the Department’s April 22, 1994 published final rule. 2 However, the provision was not pulled because the DPC&E had reversed or otherwise rescinded their position on the merits of the 10-day aggregate storage limit. Instead, the entire section concerning transfer facility regulation, including the 10-day aggregate storage limit, was pulled because DPC&E intends to address and clarify other aspects of the transfer facility provisions and republish the proposal later this summer. In the meantime, the DPC&E has Letter to Stephen C. Hansen, CWTI, from Michael Shapiro, EPA, dated May 23, 1994. 2 Enclosed is the text from the DPC&E fmal rule and responsiveness summary that explains the Department’s interpretation of the 10-day transfer facility storage limitation. See specifically page 55. The rules cover page is enclosed as a dated reference and page 54 because it begins the Department’s discussion of transfer facility issues. This document has been retyped from the original ------- affirmed to CWTI on two occasions that the Department’s proposed 10-day aggregate storage limit is a restatement of internal interpretive guidance of 40 CFR 263 12 and that the Department enforces 40 CFR 263.12 based on that guidance. 3 In short, whether or not the 10-day aggregated storage language is in a published rule of the DPC&E, the 10-day aggregated transfer facility storage policy is currently being enforced. Clarification of EPA’s Interpretation of the 10-day Transfer Facility Storage Rule Our primary reason for writing was to obtain reaffirmation of EPA’s interpretation of 40 CFR 263.12 to the effect that the ten-day limitation begins anew at each transfer facility that a shipment may be stored at in the normal course of transportation. If EPA’s policy has changed, we have had no notice of it. This issue was not addressed in the Agency’s May 23rd letter. EPA’s Interpretation of the phrase “Normal Course of Transportation ” Closely related to our request that EPA reaffirm it’s interpretation of 40 CFR 263.12 as it pertains to the ability of a shipment to be held at multiple sites for up to ten days at each site is the matter of EPA’s interpretation of the phrase “normal course of transportation. “ As explained in our letter of April 27, DPC&E cites EPA’s preamble to the transfer facility rule to the effect that EPA “set a ten day period for in-transit holding of hazardous waste [ and] that shipments of hazardous waste normally take no longer than fifteen days (including both the actual transportation and the temporary holding of the shipment).” 5 In view of this statement that “normal” is “no longer than fifteen days,” the DPC&E cannot fathom how EPA could interpret the 10-day transfer facility storage provision at 40 CFR 263.12 to begin anew at each such facility. In order for us to reopen discussions with DPC&E on the merits of their interpretation of the 10-day in-transit storage rule, we asked that EPA define what is meant by the phrase “normal course of transportation.’ This matter was not addressed in the Agency’s May 23rd letter. Telephone conversations between Tom Ezell, Hazardous Waste Division, DPC&E, and Cynthia Hilton, CWTI, April 22, 1994 and May 31, 1994. 40 CFR 260. 10. 45 ER 86967 (December 31, 1980). This document has betn retyped from the origmat ------- Reaffirmation of EPA’s Interpretation of Section 3009 Authorize Again to help frame the parameters of our discussion with the DPC&E and options we may use to pursue to resolve our differences of opinion, we requested that EPA advise us whether or not RCRA Section 3009 “authorizes”, within the meaning of 49 U.S.C. App. 1811(a), as opposed to ‘does not prohibit’ a state’s more stringent interpretation of EPA’s ‘10-day, in-transit storage” and “normal course of transportation” language. The U.S. Department of Transportation, under authority of §1811(a), has found that the fact RCRA does not prohibit a state from imposing more stringent regulations does not protect those regulations from preemption under the Hazardous Materials Transportation Act. 6 We had hoped to obtain a reaffirmation of DOT’s and prior EPA interpretations. The Agency’s May 23rd letter did not address this request. RCRA Section 3006 Implications We did ask if DPC&E’s interpretation of the 10-day in-transit aggregate storage limitation was acceptable within its authority pursuant to RCRA Section’ 3006. The Agency’s letter did address this issue stating that it was premature to ask the question prior to the Department formally adopting the policy as a rule. However, it begs the question presented by the situation in Arkansas of a state that, not by rule but by “interpretation,’ enforces policies that are at odds with EPA’s implementation of RCRA. Please elaborate on EPA’s authority to review a state’s requirements in terms of such requirements’ acceptability as part of a state’s authorized program when such requirements are imposed and enforced not by regulation but by interpretation. Conclusion Aside from writien response to these issues, we are not asking, at this time, for EPA to engage in any action or to assess whether action should or could be taken against DPC&E’s 40 CFR 263.12 10-day aggregate transfer facility storage limitation. Our only intent at the moment is to use EPA’s response to further our discussions with the DPC&E on the in-transit storage issue. 6 57 FR 58843, 58855 (December 11, 1992) and 59 FR 28913, 28920 (June 3, 1994). Also see EPA discussion of this matter citing “EPA agrees that a regulation preempted by any other Federal Law is invalid.” 57 FR 32726, 32728 (July 23, 1992). This document has been retyped from the original ------- Again, your attention to this issues is appreciated. Please contact me or Cynthia Hilton, CWT1, if further clarification is needed. Sincerely, Charles Dickhut Chairman enclosures This document has been retyped front the original ------- S7 .S ‘r UNITED STATES ENVIRONMENTAL PROTECTION AGENCY / WASF4INGTON, D.C. 20460 OFFICE OF 2 a SOLID WASTE AND EMERGEP. CV RESPON$ Mr. Stephen C. Hansen Chemical Waste Transportation Institute 4301 Connecticut Avenue, NW Suite 300 Washington, DC 20008 Dear Mr. Hansen, Thank you for your letter of April 27, 1994. In your letter, you raise concerns regarding a recent state of Arkansas rule notice that would place an aggregate 10—day limit on the time hazardous waste may be stored at one or more transporters transfer facilities (April 6, 1994, Arkansas Department of Pollution Control and Ecology (DPC&E) Regulations No. 23, page 61). In your letter, you request EPA to confirm or clarify its interpretation of the transfer facility storage time . limits under the federal regulations, and whether Arkansas may be authorized under RCRA to implement this provision. We have contacted the state of Arkansas regarding their transfer facility regulations and have been informed that the provisions of concern to you did not appear in the applicable final rule published on April 22, 1994 (DPC&E Regulations No. 23, page 170). However, we understand that Arkansas may promulgate regulations regarding transfer facilities in the future. If Arkansas adopts rules that go beyond the Federal requirements and submits them for authorization, EPA will then make a determination as to whether the rules may be authorized as requirements that are more stringent than Federal program requirements. Although the Arkansas transfer facility provisions you referred to in your letter were not finalized, EPA will continue to coordinate with the Department of Transportation and the states to discuss issues that have been raised regarding hazardous waste transporters and transfer facilities. I am particularly aware that RCRA regulation of transfer facilities has become a contentious issue, and we are examining the matter closely. If you have further questions regarding the ------- -2- authorization of states for the regulation of transporters and transfer facilities, please contact Wayne Roepe of my staff at 703-308-8630. ncerely Michael S api , Director Office of Solid Waste ------- HAZARDOUS WASTE MANAGEMENT ASSOCIATION INSTITUTION OF CHEMICAL WASTE MANAGEMENT CHEMICAL WASTE TRANSPORTATION INSTITUTE REMEDIAL CONTRACTORS INSTITUTE April 27, 1994 Michael Shapiro Assistant Administrator for Solid Waste and Emergency Response OS-100 U.S. Environmental Protection Agency 401 “M” St., SW Washington, DC Dear Mr. Shapiro: On behalf of the Chemical Waste Transportation Institute (CWTI), I am writing to reaffirm EPA’s interpretation of the 40 CFR 263.12 as it relates to the ten-day limitation of storage at transfer facilities. The CWTI is a not-for-profit association that represents companies that transport hazardous waste throughout the United States and Canada, and in Mexico. The Institute works to promote professionalism and performance standards to minimize risks to the environment, public health and safety; to develop educational programs to expand public awareness about the industry; and to contribute to the development of effective laws and regulations governing the industry. The CWTI is the only North American organization that exclusively represents companies engaged in hazardous waste transportation. Since 1980, federal regulations at 40 CFR 263.12 have provided that shipments of hazardous waste may be temporarily stored at a transfer facilities for a period of ten days or less without triggering the need for a RCRA Subpart C treatment, storage, or disposal permit. EPA has clarified that the ten-day limitation begins anew at each transfer facility that the shipment may be stored at in “the normal course of transportation.” EPA’s guidance acknowledges that repeated, extended delay in the transport of hazardous waste from the point of generation to the designated management site as a result of “storage” at transfer facilities may not be consistent with the normal course of transportation. However, such determination would have to be made on a case by case basis. In addition, this issue was discussed at the recently concluded Regulatory Negotiation on the Uniform Manifest. At that See attached memoranda from Sylvia Lowrance, former Associate Administrator for Solid Waste and Emergency Response, EPA, and Robert L. Duprey, Director Hazardous Waste Management Division, Region VIII, EPA dated June 7, 1990 and David Ulirich, Acting Director, Waste Management Division, EPA, dated October 30, 1990. The terminology “normal course of transportation” occurs in the definition of “transfer facility” at 40 CFR 260.10. This document has been retyped from the original ------- time, EPA officials reaffirmed the 10-day per transfer facility storage allowance interpretation. In spite of this guidance, the Arkansas Department of Pollution Control and Ecology (DPC&E) recently finalized revisions to regulations affecting the management of hazardous waste. As part of that revision, the DPC&E has placed an aggregated 10-day limit on the time a shipment of waste may be held at any number of transfer facilities. For example, the rule would hold a transfer facility responsible for illegal storage of hazardous waste if a drum of hazardous waste from California bound for South Carolina was held 5 days in California to consolidate drums from other locations, then held 3 days in Texas to change tractors, then held more than 2 days at the subject site in Arkansas (or any other State prior to delivery) to break/bulk the van’s load for transport on other trucks to various permitted facilities. After hazardous waste has been held at transfer facilities for more than 10 days while in- transit, the DPC&E claims that the waste is outside the scope of normal circumstances regarding its transportation and the exemption from RCRA permitting requirements is not longer applicable. This assertion is based, according to the State, on EPA’s preamble to the transfer facility rule which provided that “... the amended regulations set a ten day period for in-transit holding of hazardous waste [ and] that shipments of hazardous waste normally take no longer than fifteen days (including both the actual transportation and the temporary holding of the shipment.” 2 (Emphasis added.) The DPC&E claims that at the time the ten- day rule was promulgated that EPA gave no consideration to “the concept of multiple in- transit holdings of waste at different transfer facilities.. . . “ Thus, it rests its case on what it believes EPA intended by the phase the normal course of transportation . DPC&E’s interpretation of the ten-day rule has the potential to disrupt, delay and otherwise frustrate the transportation of hazardous waste. Consequently, we request a letter reaffirming and clarifying EPA’s interpretation of the 10-day per transfer facility storage rule, including a definition of or response to the State’s interpretation and use of the phrase “normal course of transportation.” Additionally, please advise us if the DPC&E’s action is acceptable within its authority pursuant to RCRA Section 3006 or if under RCRA the State’s regulation would “be viewed as ‘broader in scope’ and, therefore, not part of the authority program.” 4 Finally, please advise us whether or not RCRA Section 3009 “authorizes”, within the meaning of 49 U.S.C. App. 1811(a), as opposed to “does not prohibit” the State’s more stringent interpretation of EPA’s “10-day, in-transit storage” and “normal course of transportation language.” 2 45 E 86967 (December 31, 1980). Arkansas Department of Pollution Control and Ecology Regulations No. 23, Final Rule and Responsiveness Summary , April 6, 1994, page 61. 57 32728 (July 23, 1992) (citing EPA’s response to a CWTI challenge of various requirements imposed by the State of California on the transportation of hazardous waste). This document has been retyped from the original ------- Your attention to this matter is appreciated. If you require further elaboration on the issues raised above, please contact me or Cynthia Hilton, CWTI. Sincerely, Stephen C. Hansen Chairman enclosures This document has been retyped from the original ------- This Page Intentionally Left Blank ------- Az1 Depailnrnt of 1 Uution Control aixi Feology Reg a1ion No.23 (1-bzazdoi Waste I ’ i ement) 1993 Revision April 6, 1994 DEPARThIENT: Pollution Control and Ecology, Hazardous Waste Division ACflON: Final Rule and Responsiveness Summary SUM [ 4ARY : The Arkansas Department of Pollution Control and Ecology is today revising ADPC&E Regulation No.23 (Hazardous Waste Management). This revision of Regulation 23 changes from a format of”incorporation by reference” to “verbatim adoption” in most cases. In the past, the Department has relied heavily upon incorporating by reference the federal rules incorporated in Title 40, Code of Federal Regulations (40 CFR) Parts 260-266, 268, 270, and 124. This made it e emely difficult to determine when a specific rule want into effect, or was revised, without researching the original state and Federal rulemaking packages. it was not a simple task to determine whether a Federal provision or a substituted state nile was in effect without cross-checking both documents. The additional burden of needing to cross-check two separate regulations, each of different format, creamed additional confusion as to the exact wording of the rules in effect Most of the specific rules in 40 CFR ware thus invisible to the public and the regulated universe, many of whom did not take time to obtain or research the Federal rules. As of December 4, 1992, the Department has final Federal authorization for all rules and changes to the RCRA program promulgated as of June 30, 1991. Since in an authorized State such as Arkansas the state hazardous waste management program applies to the majority of situations in lieu of the Federal requirements, a single-sow e reference is acutely needed to minimize conflict and confusion between the two sets of requirements. In this revision to Regulation No. 23, the Federal rules as previously incorporated by refaence and Federally authorized have been reprinted in their entirety as previously adopted. References to the Dii tor (vice the EPA Administrator) and the Department (vice EPA) have been made where necessary, and specific Department requirements and points of contact listed where appropriate. Where a state rule applies and has been implemented and/or authorized in place of a Federal rule, the state rule is shown in its proper place in the full text of the regulatory requirements with the applicable Federal rule, or in lieu of the Federal language it replaces. The Department s intent behind this revision and its full-text format is to provide a stand-alone, easily accessible single-source reference for the Arkansas hazardous waste regulations and requirements currently in effect Once this revised regulation is in place, one should have only limited need to purchase and/or refer to a separate copy of 40 CFR to find the current requirements pertinent to his hazardous waste activities in Arkansas. incorporation by reference has been retained to a limited extent in the case of 40 CFR 261 Appendices IX and X, Appendix IX of 40 CFR Part 266, and portions of 40 CFR 124, Subpart A. Future Federal rule changes will be adopted and incorporated verbatim as they are applicable, or in specific cases may be incorporated by reference in a rule-by-rule manner. The reformatting of the regulation also dictated a major change in the organization of the previous section and paragraph numbers. Federal rules adopted from 40 CFR Parts 260 through 266, 268, 270, and 279 have been kept together to the maximum extent possible. To minimize impact in cross-referencing these rules, the entire text was adoptedinthesameforrnalasitappearSin 4 OCFR. Regulation 23 Section numbers: and all subparagraph numbers (e.g. paragraph citations following the right of the decimal point in the citation) ware left unchanged. 40 CFR Parts 260-266. 268. 270. and 279 ware renumbered as Regulation 23 Section numbers 7 through 17 respectively as described below. Mv reference to an adopted provision of the adopted portions of 40 CFR may be converted to a reference in this revision of Regulation 23 simply by ------- facility on the appropriate transporter permIt and to assist in traddng compliance with the regulatory requirements for transporters and transfer facilities listed in § 10.12. PUBLIC COMMF .W1 : None received. S TA if RESPONSE To COMME?,75: In liajit of the revised means of annotating which subsidiaries, facility, or locations affiliated with a specific transporter are addressed wider a transporter permit, the proposed revisions at § 10.11(c) are withdrawn, and the original Federal language restored in its place. (21) Section 10.12 originally proposed to expand the operating requirements for hazardous waste transfer facilities. This revision wvuld have established basic requirements for the operation of Usnafer facilities or lransportalion terminals which are similar to the 40 CFR 262 standards for generators in order to provide incteased safety and protection for human health and the environment by more closely controlling the manner in which these facilities may be operatert The proposed changes would requite transporters who operate transfer facilities where hazardous wastes are temporarily held for short periods of time during the normal course of transportation to mcet minimal notification, renxirdkeeping, preparedness and prevention, personnel training, contingency planning and emergency procedures necessary to protect human health and the environment at these facilities. The proposed changes would affect the activities of transfer facilities only and do not alter or affect current transporter requirements regarding, among other things, peiTnitsing, manifesting, labeling, marking, placarding, using proper containers, and reporting and response to discharges. Additionally, the proposed rule would elucidate current regulations by clarifying the limitations of storage and treatment activities allowed ax transfer facilities which do not hold storage or treatment permits. The Depaximent asserts that these changes do no; in any way, alter or restrict the movement, management. handling, or transportation of manifested shipments of hazardous waste in a way different or inconsistent with current EPA and DOT regulations for hazardous wastes which are transported and arc not stored in transfer facilities during transit For manifested shipments of hazardous wastes which are stored for a period of ten days or less in transfer facilities during transit, these proposed rules only affect activities related to such temporary storage and do not alter or restrict cwi it ru uirements related to the movement of such shipments. The Department flmher asserts that the proposed rules we n ssaiy to provide adequate protection of hwnan health and the environment at transfer facilities and that the prcpcscd changes, while having no impact on transporters who do not own or operate transfer facilities, does not siguificantly inorcase the economic, recordkeeping, and reporting impacts on transporters who do own or operate transfer facilities in that the proposed changes clarify current rules, add only “common sense” nianagennent reqwzements that prudent and well maintained facilities should already be conducting, and requires the minimum amount of iecxrrrlkeeping and reporting necessary for the Department to locate, identify, and monitor compliance at transfer facilities. ADPC&E Regulation No. 23 currently incorporates by reference most of 40 CFR 260-266. 268, and 270. The provisions of 40 CFR 263.12 Tr afer } ility R ire. as incorporated, state, “A transporter who stores manifested shipments of hazardous waste in containers meating the requirements of § 26230 at a transfer facility for a period often days or less is nor subject to regulation tinder pam 270, 264,265, and 268 of this chapter with respect to the storage of those wastes.” EPA first proposed this rule, prior to its adoption into Regulation 23, at 45 FR 86968, December 31, 1980. This rule was promulgated to clarify when a transporter handling shipments of hazardous waste is required to obtain a storage facility permit and specifically provides that transporters be allowed to store hazardous waste in approved containers at transfer facilities for short periods without first complying with standards applicable to hazardous waste storage facilities. At the tune EPA promulgated and ADPC&E adopted this rule, all available information regarding transfer facility operations and activities where considered in determining that these transfer facility requirements were sufficient to allow protection of human health and the environment. However. ADPC&E has become aware of additional transfer 54 ------- facility activities which are beyond the scope of those activities considered by EPA and ADPC&E at the time this rule was promulgated and adopted The Department contends that beIc2lLce these activities may result in hazardous waste being managed at transfer facilities on a continuing basis, rather than the incidental basis as considered by EPA, additional requirements aze necessary to adequately protect human health and the environment at these facilities. In determining that the cuxyent transfer facility requirements wese sufficient to protect human health and the environment, EPA based its opinion on two ontena First, EPA considered “Transporters have a natural incentive to move shipments quickly and efflciently their business, in most cases, is the movement of hazardous waste rather than the storage of such waste.” Secondly, EPA believed that requiring the use of DOT containers minimized the potential for release. Therefore, EPA allowed that such short term storage (less than 10 days) at a transfer facility if conducted to facilitate normal transportation activities and the waste was held in DOT containers did not pose a substantial threat to human health or the environment because of the minimal residency time waste would be held at transfer facilities. However, the Department believes that EPA did not consider that tiansfer facilities would operate in such a manner as to cause substantial quantities of hazardous waste to be present on-site on a continuing basis and that such activity poses the same management concerns as do similar activities at facilities which accumulate hazardous waste on-site (i.e., less-than-9Oday generator accumulation) or which store hazardous waste received from off-site. The Department has reason to believe that many transporters maintain large volumes of hazardous waste on-site continually at transfer facilities. Although specific shipments of hazardous waste may enter and leave the transfer facility wth a short residency time, the Large volume of waste being processed through such facilities allow that, at any given time, substantial volumes of hazardous wastes may be present on-site. Moreover the Department believes that EPA failed to anticipate that many transporters would operate transfer facilities in close coordination with generators, brokers, and treatment, storage, and disposal facilities for the purpose of using transfer facilities to supplement the storage activities of those facilities rather than to support the transportation-related activities of the transporter. The Department. therefore, believes that the present transfer facility requirements are insufficient to protect human health and the environment at such facilities and additional management requirements are necessary to insure the protection of transfer facility personneL as well as the health and safety of persons working or living in the vicinity of such facilities and to protect and prevent the accidental release of hazardous waste or hazardous waste constituents into the environment Wtile the Department disagrees with EPA that cuneat transfer facility requirements are adequately protective of htutian health and the environment, it agrees with EPA’s position that transfer facility activities should allow for limited in transit storage without a RCRA permit or interim status. In order to clarify these limitations, the proposed rule includes requirements which explicitly state the period of time that transfer facilities may hold a shipment of hazardous waste in transit, clearly defining the term “in transit”. The proposed rule clarified that the requirements would apply only to transporters who own or operate transfer facilities. None of the requirements would affect or alter the activities of transporters not engaged in the management of hazardous waste at such facilities. The proposed rule attempted to moie clearly state the cunently effective storage time limitations applicable to transfer facilities which do not have RCRA permits or interim status for storage. Although this interpretation does not change the cunent requirements pertaining to the period of time waste may be held at transfer facilities, the Department seeks to define in more precise terms that a shipment of waste may be held at transfer facilities acl 10 days while in transit The Department is aware that the wording of the cunent requirement has been frequently misinterpreted by some transporters to mean that a shipment of waste may be held at a number of transfer facilities for a period of 10 days at h transfer facility. The Department proposed to add additional requirements f c c the management of hazardous waste while stored at transfer facilities. For the reasons previously stated, the Department believes these requirements are necessary to be adequately protective of human health and the environment for waste which is held at transfer facilities. Sections 12.31, 12.32. 12.33. 12.34, 12.37 are equivalent to generator and TSD facility Preparedness and 55 ------- This Page Intentionally Left Blank ------- MONTHLY HOTLINE REPORT June 1996 9461. 1996(01) 1. Tank Storage at Transfer Facilities A transftr facility is a place where transporters temporarily hold shipments of hazardous waste during the normal course of transportation (40 CFR §260.10). A transporter storing manifested shipments of• hazardous waste in containers meeting DOT packaging requirements at a transfer facility for less than 10 days is not required to obtain a permit and is not subject to the requirements of Parts 264, 265, or 268 ( 263.12). May a transporter store hazardous.waste in starionaty tanks at a transfer facility and still remain subject to the reduced transfer facility requirements of §263.12? A transporter may not store hazardous waste in stationaxy tanks and still remain subject to the reduced transfer facility requirements because such tanks are not portable. To store hazardous waste at a - transfer facility without a permit or interim status, the transporter must meet three criteria. First, the transporter may store only manifested shipments of hazardous waste. Second, waste must be held in containers (including tank cars and cargo tanks) which meet DOT packaging requirements. Container is defined to mean any portable device in which a material is stored, transported, treated, disposed of, or otherwise handled (40 CFR 260.10). Finally, the waste may only be held for 10 days or less ( 263. 12). The transfer facility provisions, therefore, apply to storage in portable containers (to accommodate the normal and routine activities of the transportation industry). Storage of waste in stationary tanks at a transfer facility would not be a normal or routine activity of the transportation industry and thus is prohibited unless the facility has a permit or interim status (45 86967; December21, 1980). ------- This Page Intentionally Left Blank ------- MONTHLY HOTLINE REPORT November 1996 9477.1996(01) 4. Financial Statement Requirement for the RCRA Subtitle C Financial Test For purposes of complying with the financial assurance requirements, treatment, storage, and disposal facilities (TSDFs) may demonstrate liability coverage by use of the financial test. As evidence that the TSDF satisfies the financial test requirements, the owner or operator is required to submit a cert fied public accountant’s report on the latest completed fiscal year ‘sfinancial statements ( 264.147(f)(3)(ii)). If the owner or operator does not have financial statements from the latest compleied fiscal year, • y estimated financial statements be used as substitutes for this requirement? No. If there are no finanbfàl statements for .the latest completed fiscal year, the financial test mechanism cannot be used to demonstrate financial assurance. In addition, estimates of financial statements may not be used as substitutes for full statements. This is applicable not nIy to new companies, but to companies that have recently separated from parent companies. Although such a recently separated company may have the ability to accurately estimate their financial statements using the parent company’s statements, it must nevertheless rely on its own financial statements to qualify to use the fincial test. This allows the certified public accountant to fairly predict the financial coiidition of the company in conformity with generally accepted accounting principals. ------- This Page Intentionally Left Blank ------- 2. Tangible.Net Worth Requirements for RCRA Subtitle C Financial Assurance Owners and operators of treatment, storage, and disposal facilities subject to Subtitle C regulation are required to demonstrate liability coverage for bodily injury andlor property damage to third parties resulting from accidental occurrences arising fromn facility operations (53 & 33938; September 1, 1988). This requirement can be demonstrated using one or a combination of financial mechanisms, including afinancial test. The financial test for liability coverage requires the owner or operator to possess net working capital and tangible net worth each at least six times the amount of liability coverage to be demonstrated by this test, and a minimum tangible net worth of $10 million (p264. 147(J)(1)(i) (A) and (B)). How does an owner or operator calculate th required amount of tangiblenetwth-th whenusing the financial test? The owerbt fl jhe.financiaJ test must possessal nftangible net worth of at least $ lOlii Eyen if six times the amount çf liabfhtycoverage to be demonstrated by this testis less than $10 million, the owner or operator must still have at least $10 million in tangible net worth (see Example 1). If, on the other-han&six times the amount of liability coverage to be demonstrated by the financial test is more than $10 million, then that six times multiple is the minimum tangible net worth necessary to qualify to use the financial test (see Example 2). Amount demonstrated by the financial test: $500,000 Six times the:amount demonstrated: $ 3 million Minimum tangible net worth: $10 million Example 2: Amount demonstrated by the financial test: $2 million Six times the amount demonstrated: $12 million Minimum tangible net worth: $12 million MONTHLY HOTLINE REPORT December 1996 9477.1996(02) Example 1: ------- This Page Intentionally Left Blank ------- 3. Annual Payments Into A Standby Trust Fund When Using A Letter Of Credit Subpart H of 40 CFR Parts 264,265 requires an owner or operator of a permitted treatment, storage, and disposal facility (TSDF) to establish financial assurance to satisfy closure nd post-closure care of the facility. A letter.bf credit is one of the - financial mechanrszns;hat the owner oi operator mqy éhbose demonstrate financial assurance ( 264.143(d)f264.145(d)). A letter of credit allows aflndncial institution, that is authorized by afederal or state agency to issue letters of credit, to extend credit on beha fof a TSDF. The letter of credit must be irrevocable, issued for a period of at least one year, and in an amount at least equal to the current closure and post-closure cost estimates, unless used in combination with other financial assurance mechanisms ( 264. 143(g)1264.145(g)). An owner or operator using a letter of credit for closure or post-closure financial assurance must also establish a standby trust fund to accompany the letter of credit ( 264. 143(a)/264.145(a)). If au owner or operator is demonstrating financial assurance through the use of a letter of credit, must annual payments be made into the standby trust fund? No. Under the federal regulations, the owner or operator is not required to make annual payments into the standby trust fund. The standby crust fund merely facilitates’ drawing on the letter of credit in the event that the owner or operator cannot pay for closure or post-closure care. A standby trust fund (as opposed to a trust fund established under § 264. 143(a)/264. 145(a)) cannot be used as a stand alone financial assurance mechanism under RCRA: The standby trust fund documentation must be worded exactly as the documentation for a trust fund, except for a few requirements: the annual payments into.the fund are waived; schedule A of the trust agreement need not be updated; and annual vaIuation by the trustee or notices of nonpayment are not required. These provisions for establishment of a standby trust fund also apply to an interim status TSDF that is using a letter of credit to establish financial assurance for closure and post-closure care. ( 265. 143(c)/265.145(c)). MONTHLY HOTLINE REPORT December1996 9477.1996(03) ------- This Page Intentionally Left Blank ------- 9462 - COMPLIANCE WITH THE MANIFEST RECORDKEEPING, AND REPORTING Part 263 Subpart B ATKearney 1/3590/3 cr ------- 9462.1935(01) 29 Mr. avid ou1t.r tLSn Dir.ctor, Maine Department of nvironn.ntal Prot•ctinn Bureau of Oil and Hazardous Materials Control Stat. Hou • Station 017 Augusta, Main. 04333 Dear r. Boultirs On February 6, 1945. Transport Canada publish.d new regulations for the transport of hazardous materials. These r.gulattons, which became effective cm July 1, recogniz, the Uniform azardous Waste Manifest (UNWPI) for those ship..nts originaetn in the United State. and destined for Canada. Thus, under U i. Canadian regulations, U.S. ç en.rstors are only required to prepare and transporters only need to carry the Ii. . manifest for asardcus waste shipments to Canada. I have been asked by Environment Canada it this Agency would consider recognizing the Canadian manifest for tPio• hazardous waste sntpm.nts moving tr i Canada to tn. Uniteo states. Refor. discussing this subject turtt .r with nviron-. m•nt Canada, I first wanted to solicit comments from those States which are most directly involved in Canadian trans boundary movements. Toward this end, I have enclosed a copy of the Canadian manif.st form for your review and comment. Irs particular, I would appreciat, your Cc’mosnts On whether th, format, number of copi.s, and information requirerents on the Canadian manifest term meet your State’s manifest mt or— 3ation requirements. Specifically, do you au .port the initiation of a e•eeral rulemaking action which would allow the use of the CanaGian .an&t.st form for any hazardous vast. shipment originating in Canada. Of course, I also welcome an other comeents you may have on this avb3.ct. ------- “2 ” I plas to discuss this isat. vith Mr. Vie Ihantora of Iaviroc :nt Canada .arly next uonth. fh.r.t are, I would .ppr.ci.t. your ci.nta by Dscs.bsr 5. In order to c iv. tias, I suggest that your stat t contact MS. Carolyn Bsrl•y on 2D2’382—2217 to discuss your csnt•. Thank you for your h.lp. inc.r.1y yours, ftrvce K. W.dd]. Director Pernits and Stats Progrias Division Inclosur e cc: PicMrd Bker (Maine) $ii• Mor•land (ASTIMSO) lobert Malpass (A TumO) Tic Shantora (Bnviron..nt Canada) WE—563zC3:cc: 382—2117: 1O—25—85 :CC’ $ disk .doc1 ------- Sad. .. —— Sn I aSSI %5 a • IS Si kvdioi,. ia . &aa HAL . — Iw m i 1 • 1 • a S SIo-ua-s.. SSSI P INS • 1Ul• — . — — — . — a. — — _ .I. p t- - . - . 5 . 5 I3GI SI4 4115 IPIN-PPZ 1015 - a.. .. # 5050 141 114 13-4 1 1S _____ •ioa p Pam . _______ 5 — sa . ------- 9462.1987(02) RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY OCTOBER 87 2. Manifesting Requirements 40 CFR Section 263.20(a) requires that a transporter only accept waste which is accompanied by a manifest signed by the generator. Section 263.20(b) requires a transporter to sign and date the manifest, acknowledging receipt of the waste as it is described in the manifest. A generator loads his waste directly into a bulk tank railcar. The rail transporter will then distribute the load among three trucks. How would the manifesting requirements be handled? The generator would cut three manifests and on each the total volume transported would be indicated with a notation that the waste will be split into thirds. Each manifest would require original signature of the generator and the rail transporter. The signed manifests would be mailed to the trucking company which would then give each of the three truck drivers one of the manifests. Source: Paul Muschovic (202) 475—7736 Research: Laurie Huber This has been retyped from the original document. ------- , L z o i 9462 1993(Ol) 4 Nr ’s,C, 2 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 FEB g 3 O FICEOF SOLID WASTE AND EMERGENCY RESPONSE Honorable Patsy T. Mink U.S. House of Representatives Washington, D.C. 20515—1102 Dear Ms. Mink: Thank you for your letter of November 21, 1992, to Administrator Reilly regarding the Environmental Protection Agency’s (EPA’S) evaluation as to whether the recent shipment of petroleum-contaminated soil from Unocal Hawaii to the Republic of the Marshall Islands satisfied all of the Agency’s requirements for such shipments. We have since learned that the government of the Marshall Islands has refused to allow the petroleum- contaminated soil to be used for its original purpose (i.e., landfill in a causeway between two islands). As a result, the contaminated soils will return to the United States. Regarding the regulations covering the movement of these contaminated soils from the U.S. to the Marshall Islands, current regulations under the Resource Conservation and Recovery Act (RCRA) (40 CFR 252.50—60) require any U.S. exporter of RCRA regulated hazardous wastes to notify and obtain consent from any receiving country prior to shipping hazardous wastes to that country. However, wastes not regulated by RCRA are exempt from the notice and consent procedures prior to export. The burden of determining whether or not a waste shipment is subject to RCRA export regulations rests with the generator of the waste. In the case of the shipment of petroleum-contaminat.d soil from Hawaii to the Marshall Islands, the notification of intent to export sent to EPA by South Pacific Environmental (SPE) claimed that the shipment was exempt from RCRA regulation and therefore from export controls under RCRA. Should SPE’s determination be found to be incorrect, EPA could take appropriate enforcement action, including the assessment of penalties. To date, no such finding has been made by EPA or th. State of Hawaii. petroleum-contaminated soils from the cleanup of underground storage tanks (USTs), such as those to which you refer in your letter, are currently exempted from regulation as hazardous waste under RCRA and are therefore not subject to RCRA export Pnnted on Rç ç P , ------- regulations. The only exception to this exemption is in cases where petroleum-contaminated soils excavated during the cleanup of USTs fail EPA ’s toxicity characteristic test for one or more of 13 contaminants (see 40 CFR 261.4(b)(]0)). In such cases, the contaminated soil is considered hazardous under RCRA and subject to the RCRA export requirements. Please let me know if I may be of any further assistance to you regarding this matter. Sincerely yours, Lowrance, Director of Solid V ste ------- Sr 4 , UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 +?4 9462.1994(01) OFFICE OF SOtJO WASTE ANO EMERGENCY NOV 9 !99 RESPONSE Jean N. Beaudoin, Chairman Envirorunenta 1 Committee Battery Council International Weinberg, Bergeson & Neuman 1300 Eye St., N.W. Suite 1000 West Washington, D.C. 20005 Dear Ms. Beaudoin: Thank you, for your letter to the Administrator of August 16, 1994 concerning the transportation of certain recyclable hazardous wastes. Specifically, you requested a modification of 40 CFR Parts 262 and 263 to allow recyclable hazardous wastes identified in Appendix X I of 40 CFR Part 266 to be transported under a new recyclable materials tracking document instead of the Uniform Hazardous Waste Manifest. The materials would then be regulated principally under the Department of Transportation’s hazardous materials regulations (40. CFR Parts 170—179), to which they are currently subject. As you may know, EPA’s Office of Solid Waste (OSW) had a Definition of Solid Waste Task Force which recently recommended changes in the Agency’s regulation of hazardous waste recycling under the Resource Conservation and Recovery Act (RCRA). The recommendations are contained in a report entitled “Reengineering RCRA For Recycling” (September 1994). One of’tlie recommendations of the report is that recyclable hazardous wastes should be transported under a system similar to the one suggested by your organization. ..,.The recommendation was based in part on the high transportatQâr1 costs incurred by transporters using the Uniform Hazardous Waste Manifest, which some parties believe may not be necessary for’all hazardous wastes destined for recycling. The Task Force recommendations will be presented to the Assistant Administrator for Solid Waste and Emergency Response for his review in November 1994. Your suggestion will receive full consideration as the Agency evaluates the range of possible changes in how recyclable materials are regulated. f j’ R.cycIed/RecyC able & sayi nols trnt a ,’ it lull 50% recyded fiba, ------- We appreciate your interest in this important issue, and I hope this letter has addressed your concerns. If you have any further questions, please call Marilyn Goode of my staff at 202— 260—6299. Sincerely, - . Ia:. Michael Shapiro, Director — Off ic,* of Solid Waste L ------- Battery WMSHINGTON OFFICE: Council Weinberg, Bergeson & Neuman _____ ye treet, N.W. ii ii idi Suite 1000 West Washington, D.C. 20005 (202) 962-8585/ FAX (202) 962-8599 August 16, 1994 Carol M. Browner Administrator U.S. Environmental Protection Agency 401 M Street, S.W. Room W1200 Washington, D.C. 20460 Dear Ms. Browner: This is a petition for a modification of the Environmental Protection Agency’s (“EPA”) hazardous waste transportation regu1ations.. ’ The petition requests limited changes that would allow certain recyclable materials to be shipped in commerce using a new recyclable materials tracking document and not the Uniform Hazardous Waste Manifest. This change would advance recycling, eliminate unnecessary costs and fully protect public health, safety and the environment. The proposed modification also is fully consistent with recommendations adopted by EPA’s Definition of Solid Waste Task Force after numerous meetings and months of study on ways to remove burdens on recycling without jeopardizing the integrity of the solid waste program. Specifically, the Battery Council International (“BCI”) seeks a modification of EPA’s transportation rules (40 C.F.R. Parts 262 and 263) to allow recyclable hazardous wastes identified in 40 C.F.R. Part 266 Appendix XI (“Appendix XI wastes”) to be transported in commerce under a new recyclable materials tracking document. In addition, because the materials could be shipped without a hazardous waste manifest, they would not be subject to EPA’s transportation requirements and would not have to be shipped by a hazardous waste transporter. See 40 C.F.R. § 263.10. Nevertheless, the new tracking document BCI is proposing would require disclosure of the same information as required by a hazardous waste manifest and thus, no data collection or tracking capabilities would be lost. Moreover, all substantive transportation requirements in EPA’s rules would still apply. The source of the requirements, however, would be the Department of This petition is submitted in accordance with Section 4 (e) of the Administrative Procedure Act, 5 U.S.C. §553(e). ------- Carol M. Browner August 16, 1994 Page 2 Transportation’s Hazardous Material Regulations (“DOT’s HMR”), 49 C.F.R. Parts 170 to 179, not EPA’s regulations. From an environmental standpoint, recycling undoubtedly is the best way to manage the Appendix XI wastes. Yet, because the existing hazardous waste transportation requirements have become unjustifiably expensive, the present system, requiring the use of hazardous waste manifests and hazardous waste transporters, is an impediment to recycling. Indeed, the costs of transporting Appendix XI recyclable wastes to the recycling facility under the existing system often exceeds the net value created from recycling the materials. Where this is the case, the current system creates economic disincentives for handling the Appendix XI materials and is unjustifiable in light of the fact that an alternative, less burdensome but equally protective transportation scheme is available. Accordingly, BCI requests that the EPA amend sections of the hazardous waste management regulations, 40 C.F.R. Parts 260 to 299, so that (a) recyclable hazardous wastes identified in 40 C.F.R. Part 266, Appendix XI, may be transported in interstate and intrastate commerce for recycling accompanied by a tracking document other than the Uniform Hazardous Waste Manifest (40 C.F.R. Part 262, Subpart B) and (b) these same wastes can be carried by an authorized hazardous materials transporter other than a transporter meeting all of the requirements of 40 C.F.R. Part 263 and any related requirements imposed by various states. 1 BACKGROUND BCI is a not-for-profit trade association representing commercial entities involved in the manufacture, distribution, sale and recycling of lead-acid batteries (“lead batteries”) . BCI’s members include manufacturers and distributors of lead batteries and the secondary smelters that reclaim or recycle lead batteries once they are spent. BCI’s membership represents more than 99 V Not all of the wastes listed in Appendix XI are hazardous wastes when being reclaimed. The transportation of non- hazardous wastes, while not subject to the requirements of the Solid Waste Disposal Act (“RCRA”) set forth in 40 C.F.R. Parts 262 and 263, may be subject to similar state transportation requirements, i.e., California’s transportation rules. Accordingly, this petition is intended to cover all Appendix XI wastes whether or not they are RCRA hazardous wastes subject to the manifesting and transportation related requirements in 40 C.F.R. Parts 262 and 263. ------- Carol M. Browner August 16, 1994 Page 3 percent of the nation’s domestic lead battery manufacturing capacity and more than 84 percent of the nation’s lead battery recycling or secondary smelting capacity. BCI strongly supports lead battery recycling. BCI actively promotes the enactment of mandatory recycling laws, sponsors campaigns to encourage recycling and, through its members, is directly involved in the recycling of lead batteries. In part as a result of BCI’s efforts, thirty-seven states have adopted comprehensive lead battery recycling laws and five additional states have adopted disposal bans that have the practical effect of forcing recycling. Due to these measures, the U.S. battery lead recycling rate has been at or above 94 percent for the last three years. - In addition to batteries, BCI’s members also collect and recycle other lead bearing materials. For example, virtually all of the by-products generated in the course of producing a battery (e.g., baghouse dust, waste water treatment sludge, plant scrap, dross, floor sweepings and others) have recoverable lead values and are collected and sent to secondary lead smelters for recycling. All of the recyclable materials coming to, or produced at, a secondary lead smelter are recycled, including first-run slags, baghouse dust, treatment sludge and plastic casings. Recyclable materials handled by BCI’s members are identified in 40 C.F.R. Part 266 Appendix XI. This appendix lists those recyclable wastes that are so similar in character to primary materials that they are considered feedstock, not wastes, when reclaimed. See 40 C.F.R. Part 266, Subpart H. Appendix xi materials are generated by manufacturers, assemblers and other entities in the lead processing and affiliated industry. Once generated, the materials either are collected by or sent to secondary smelters for reprocessing. Certain Appendix XI materials also are generated by secondary smelters who send them to other smelters for further reprocessing and recovery of lead. pI sIo A. The Ieeue Some Appendix XI materials are regulated as hazardous wastes when reclaimed. When these materials are transported from one location to another, they must be accompanied by a Uniform Hazardous Waste Manifest and the generator and transporter must comply with the relevant portions of 40 C.F.R. Parts 262 and 263. These regulations require that shipments meet the applicable packaging, labeling, marking and placarding standards in DOT’s HMR. ------- Carol M. Browner August 16, 1994 Page 4 Transporters also must comply with all applicable requireme in the HMR, must have a valid EPA identification number, and must respond to any discharge or release occurring during transportation. See 40 C.F.R. §5 262.30 to 262.33. Notably, with the exception of the transporter’s obligation to have an EPA identification number, the packaging, labeling, marking, placarding and other transportation related requirements imposed under EPA’s rules (Parts 262 and 263) are identical to those required for common carriers of hazardous materials under the HMR. That is, the requirements that presently apply to shipments of Appendix XI materials would still apply by. virtue of the HMR even if EPA’s Parts 262 and 263 rules did not exist. See 49 C.F.R. § 172.101. While there is no difference in the substantive requirements involved in handling Appendix XI materials under EPA’s Parts 262 and 263 rules or the DOT’s HMR, the costs associated with shipping under the two schemes are significantly different. RCRA hazardous waste must be transported by a licensed hazardous waste hauler. The cost of shipping a RCRA manifested hazardous waste in a hazardous waste hauler is much higher than the cost of shipping essentially the same material in a common carrier licensed to carry hazardous materials. In an informal survey conducted by one BCI member, the costs of shipping RCRA manifested hazardous wastes were more than double the cost of shipping DOT hazardous materials even though in all instances the materials being transported were fundamentally the same. The cost differential between shipping under RCRA’s rules and the HMR is attributable primarily to additional requirements imposed by various states on transporters of materials requiring a RCRA hazardous waste manifest. These extra state requirements include such things as special training or equipment, higher limits for liability insurance, local taxes or fees and additional reporting requirements. See, e.g., Pennsylvania Code, Title 25, § 263.23 (imposing a hazardous waste transportation fee on transportation of manifested wastes paid into the State Hazardous Sites Cleanup Fund); Alabama Hazardous Waste Management Regulation, § 335-14-4-04 (requiring applicants for transporter permits to submit a performance bond guaranteeing compliance with, among other things, the regulations, permits, orders and corrective action measures); Arkansas Hazardous Waste Management Code, §5 16, 11(r) (charging $2.00 per manifest issued); Maryland Hazardous Waste Rules § 26.13.04 (requiring hauler certificates, performance bonds, special training for drivers and instructor’s of drivers, annual registration fees on cabs, containers and trucks, vehicle inspections); New York Waste Transport Permits Regulations § 364.5 ------- Carol M. Browner August 16, 1994 Page 5 (requiring $5,000,000 in liability insurance for vehicles carrying 10,000 pounds or more of wastes requiring manifest; federal requirements are $1,000,000 in liability insurance) States impose additional requirements .either because they perceive a need for tighter restrictions on hazardous waste transporters than on common carriers or, as is evident from some of the state schemes, because they see this area as a potential source of additional revenues. The motive in some cases may be both. Regardless of the reason, BCI is confident that no state has focused on the adverse impact these added transportation rules have on legitimate recycling. Moreover, neither the DOT nor EPA have concluded that the vast array of additional requirements imposed by states are - necessary to protect the public health, safety or the environment. To the contrary, EPA’s Definition of Solid Waste Task Force found that the high costs arising from the added state requirements adversely affect the waste management system. The added cost eliminates competition between carriers as fewer carriers are willing to compete in the hazardous waste transportation market with the added requirements and associated increased burdens and cost of doing business. Further, the fact that requirements vary from state-to-state adds to the complexity and cost. And, as noted above, the higher costs of transportation create a disincentive to recycling where the recyclable materials have a low recovery value relative to the high cost of transporting the material to the recycling facility. Because it is impracticable to seek changes on a state- by-state basis, BCI requests a federal response. B. The Solution Transporting Appendix XI hazardous wastes destined for recycling under EPA’s rules costs twice as much as shipping the same materials under the HMR. The substantive requirements of EPA’s rules and the HMR are virtually identical, and no added protection to health, safety or the environment is gained by the additional costs. Yet, the added cost of EPA’s rules affects the efficiency of the hazardous waste management system by reducing competition and impeding a preferred method of managing certain recyclable wastes. EPA could eliminate these disincentives to recycling by adopting a rule applicable to Appendix XI materials that would allow those materials to be shipped in commerce with a “Recyclable Materials Tracking Document” and not a hazardous waste manifest. ------- Carol M. Browner August 16, 1994 Page 6 The Recyclable Materials Tracking Document would require the same information as a hazardous waste manifest with the exception of certain information that is relevant only to shipments under Parts 262 and 263, e.g.. a transporter’s U.S. EPA ID Number, waste minimization certification and land disposal restriction notification) ’ Like the manifest, the tracking document would follow the shipment to its destination and the receiving entity would be required to acknowledge receipt, noting any discrepancies. Because Appendix XI materials would not be required to be transported with a manifest, transporters of these materials would not have to comply with 40 C.F.R. Part 263. See 40 C .F.R. § 263.10. Nevertheless, as noted above, all of the- requirements that would have applied (e.g., labeling, placarding) will stil l apply pursuant to the HMR. Finally, under BCI’s proposal, a state or EPA’s ability to track shipments and the substantive shipping requirements will not change. What will change, however, is that the state requirements applicable to shipments requiring a Uniform Hazardous Waste Manifest will not apply to Appendix XI materials unless the states, after notice and open debate, determine such requirements are needed for this limited class of recyclable materials. BCI appreciates your attention to this matter and stands ready to provide whatever additional information you may need in conducting your evaluation of this request. Very truly yours, 2. 4& Jean M. Beaudoin, Chairman BCI Environmental Committee cc: RCRA Docket 249 16 OSL.tOO1. The waste minimization certification would not be applicable to materials shipped under a Recyclable Materials Tracking Document because it would be understood that these materials were to be recycled and the generator thus was engaged in waste minimization. For the same reasons, a land disposal restriction notification would be unnecessary. ------- January 1995 RCRA 2. Manifest Requirements for Imported Hazardous Waste Any person who imports hazardous waste into the United Stares must comply with all applicable generator requirements and the special requirements for importers in Par: 262, Subpart F (5262.60(a)). This includes preparing a man fesr with a generator EPA identification number before transporting the imported hazardous waste within the United States. Because waste generated in another country will no: have an EPA identification number, the importer’s identification number should be used on the ma’ufesr. Any parry who helped arrange for the importation (e.g., a broker, a transporter, a TSDF), however, may be considered an importer (June25, 1985, menzo from Skinner to Seraydarian). In cases where there is more than one importer, each with an identification number, whose number should be used on the marufest? EPA does not require any particular identification number to be used on the manifest. The Agency recommends that the parties to the movement decide among themselves who will act as the importer. The importer’s responsibility includes providing an identification number on the manifest ( 262.6O(b)(l)). Regardless of who performs the importer dunes, EPA reserves the right to enforce against any of the involved parties if the requirements of the RCRA hazardous waste regulations are noc adequately met. HOTLINE QUESTIONS AND ANSWERS 9462.1995(01) ------- This Page Intentionally Left Blank ------- HOTLINE QUESTIONS AND ANSWERS March 1995 RCRA: 1. SignIng the Manifest as an Agent When Importing Hazardous Waste A waste broker in Mexico arranges to collect hazardous waste from several different Mexican generators, and exports 1500 kilograms of hazardous waste for disposal at a US.faciliri. The RCRA regulations under Parr 262, Subpart F require an importer to initiate a manifest when hazardous wasre enters the United Stares. Since the broker from Mexico accepts all responsibility for the : hazardous waste from the generator facilities and handles the hazardous waste/or the US. disposalfacility, can the broker sign the Uniform Hazardous Wo.ste Manifest as an agent of the U.S. disposalfaci lily that is importing the waste? The regulations for imports of hazardous waste allow the importer or his/her agent to sign the generator certification statement on the manifest in place of the generator ( 262.6O(b)(2)). The only requirement for an agent signing the manifest is that the agent must be somehow legally affiliated with the EPA identification number used on the manifest. The Mexican broker could sign the manifest certification only if the broker’s company has a U.S. EPA identification number (requiring a U.S. address) or the broker is legally related to the importer (e.g., a subsidiary). A broker signing as an agent because of a legal relation to the importer must place the U.S. address and U.S. EPA identification number of the importer on the manifest. 9462.1995(02) ------- This Page Intentionally Left Blank ------- O S i : 4 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 • MAR 7 1996 9462.1996(01) OFFICE OF SOLID WASTE AND EME CENCY RESPONSE Mr. Charles Dickhut, Chairman Association of Waste Hazardous Materials Transporters 2200 Miii Road Alexandria, Virginia 22314 Dear Mr. DickhUt: - I am pleased to respond to your October12, 1995, letter, in which you request clarification of federal policy on several issues related to the use of the hazardous waste manifest by hazardous waste transporters. Transfer Facilities and the Manifest First, your letter asks me to clarify when an operator of a “transfer facility” must sign either the transporter blocks of the manifest, or the corresponding blocks on the manifest continuation sheet. This issue appears to have arisen from conflicting interpretations of the transporter signature requirements offered by two RCRA authorized states. According to your letter, one state requires operators of transfer facilities to sign a transporter block only in those cases where the operator also is involved in transporting the waste to or from the transfer facility. The other state, however, requires that the operator of the transfer facility sign a transporter block of the manifest to reflect the handling of the waste at tile transfer facility, even though that transporter may have already signed another transporter block in connection with transporting the waste to or from the transfer facility. Thus, in the example of the second state, the same transporter company may be required to sign multiple transporter blocks, to reflect its various transport and transfer operations. RCRA regulations generally require consistency in the use of the hazardous waste manifest, particularly with respect to the entry of federally required information. Indeed, consistency in the use of the manifest is one of the exceptional areas in RCRA where the usual rule acknowledging the States’ latitude to operate more stringent programs must at times yield to the interests of national uniformity in the transportation of Q J Recycled/Recyclable r) (‘ Printed with Soycanola mb on paper that containa at leest 50% recycled fiber ------- hazardous materials. EPA explained the balancing of the “state stringency” and “consistency” interests when it promulgated jointly with DOT the Uniform Manifest as a final rule on March 20, 1984. See 49 FR 10490 at 10492 et seq. In addition, the federal hazardous materials transportation laws include express authority under which the DOT may preempt State laws which touch upon the preparation, content and use of shipping papers used in conjunction with the transportation of hazardous materials in commerce, unless the State laws are “substantively the same” as the federal requirements. 49 U.S.C. 5125(b)(1). DOT has ruled that state manifest requirements that vary from the joint EPA/DOT regulations prescribing the manifest system are subject to its HNTA preemption scrutiny, and such state laws are preempted when they “significantly alter the information supplied on the manifest.” See 60 FR 62528 at 62537 (December 6, 1995). In the December 6, 1995, notice, DOT’S Research and Special Programs Administration issued a preemption decision that invalidated a state regulation that required the use of a second transporter block to record the transfer of waste from one vehicle to another at a transfer facility. Id. at 62538. Our response which follows addresses only the issue of federal EPA policy on the use of the manifest transporter blocks. Since your letter raises an issue similar to the one addressed in the recent preemption decision, you may also wish to consult with DOT to determine whether these particular state requirements pose issues under their statutes and regulations. The federal manifest regulations currently do not require the use of a transporter block (a federally required data element) to record the handling of hazardous wastes at facilities meeting the definition of a transfer facility. Rather, the instructions in the Appendix to Part 262 clarify that the transporter blocks (Items 5 and 7) should be used to identify the company names of transporters “who will transport the waste.” Further, the provisions in section 263.20 dealing with obtaining transporter signatures emphasize that it is the delivery of a shipment o hazardous waste from one transporter to another that is the event triggering the next transporter’s obligation to sign the manifest. These requirements illustrate that the overarching purpose of requiring handler IDs and signatures on the manifest is to demonstrate custody of and accountability for the hazardous waste at any point in time during its shipment. By definition, transfer facilities described in 40 CFR section 263.12 must be owned or operated by transporter companies. Because they are owned or operated by transporter companies, they may be required to be identified on a transporter block (and sign a transporter’s acknowledgment of delivery) when their receipt of a hazardous waste shipment reflects an actual change in the custody of the shipment. Thus, where a transfer facility is required to be identified on a transporter block, it is because there is a delivery (with a shift of custody) to a new transporter, and not merely because that transporter engages in transfer activities. ------- If, however, the transporter who in fact transports hazardous waste to a transfer facility is understood to retain responsibility for the waste while it is stored at a transfer facility, there is no change in custody at the time the waste is placed in temporary storage at the transfer facility. In this case, the transfer facility operator should n be identified on an additional transporter company block (block 5 or 7), nor •should it sign a transporter acknowledgment (blocks 17 or 18) when the waste is received at the facility. Likewise, it is unnecessary to identify a transporter company on multiple transporter blocks (e.g., 1 block for a transporting segment and a 2nd block for transfer activities) if the same transporter company conducts the activities, and there is no interruption in that company’s custody and control. In this case, the same transporter company is still conducting transportation related activities throughout the period of its handling the waste shipment, and it would serve no purpose to require signatures to reflect a transfer of custody to itself. This clarification is consistent with transfer facility guidance issued by Sylvia Lowrance on October 30, 1992. In that detailed guidance, the Office of Solid Waste explained that the entities and identification numbers that must appear on the manifest correspond.tO the “generator of the waste, all of the transporters who transport the waste, and the designated facility.” As-explained then, when a transporter company transports waste to and from-a transfer facility which it operates, and the waste remains under the control of the transporter., no separate entry specific to the transfer facility must appear on the manifest. Thus, today’s guidance expands on the 1992 guidance slightly, by clarifying that a transfer facility should be identified as a transporter on the manifest only when it is accepting custody and control of the shipment from another transporter company that delivered the shipment to the transfer facility. We recommend that state programs follow this guidance to minimize confusion and foster greater consistency under the circumstances which you identified in your letter. I emphasize, however, that authorized State programs generally have latitude to impose more stringent requirements, and I am not making specific R RA consistency findings regarding the particular state programs which you reference in your letter, since I do not have sufficient information in hand about the statutes, regulations, or interpretations affecting those states. Transporter Requirements and Imports Your letter also suggests that there is a potential conflict in the transporter regulations that address imports of hazardous waste into the U.S. As you point out, the import regulations (Subpart F of Part 262) impose requirements on importers to comply generally with the Part 262 generator standards, as well as more specific directions for completing the manifest for the ------- imported wastes. See 40 CFR section 262.60(a) and (b). The latter directions require the importer to substitute its name, address, and EPA ID number, as well as the name and address of the foreign generator, for the generator information normally entered on the manifest for a domestic shipment. On the other hand, in the transporter standards of Part 263 (and also on the printed manifest instructions), there is the direction that a transporter of hazardous waste must assume a generator’s responsibilities under Part 262 (such as originating the manifest), when it transports hazardous waste into the United States from abroad. 40 CFR section 263.10(c) (1). EPA does not believe that there is a conflict between the generator requirements and the transporter requirements with respect to shipments of hazardous waste from abroad. Section 263.10(c) requires transporters that transport hazardous waste from abroad into the United States to comply with the relevant generator requirements, i.e., the importer requirements at section 262.60. Section 263.10(c) basically serves to cross- ref erence section 262.60 requirements and is intended to indicate that a transporter that meets section 263.10(c) conditions may be subject to “importer” obligations. Section 262.60 imposes certain generator requirements on “any person who imports hazardous waste from a foreign country into the United States.” EPA has not defined “importer,” but has interpreted the term broadly to potentially include numerous parties such as hazardous waste brokers, TSD facilities, or transporters, among others, depending on the situation. There could possibly be several different “importers” involved in a particular shipment. As EPA explained in a June 25, 1985, memorandum (attached), where there is more than one importer involved with a shipment, EPA requires only one of the parties to perform the section 262.60 importer duties. Therefore, in such cases, the parties can agree among themselves (e.g., through a contractual agreement) as to who will perform the importer duties. (As the 1985 memo notes, however, if the designated entity fails to perform the importer duties, all of the parties could be subject to EPA enforcement for the failure to comply). With respect to your Association’s members, where the transporter is one of several parties who may be importers of a shipment, it may be helpful to have the transporter arrange with the other parties to assume the importer responsibilities for the entire group. This arrangement would avoid unnecessary and duplicative compliance activities by the transporter and other parties. Expedited Consent to Alternate Cosignees in Canada . Third, you raise a concern that there may be some. irregularities occurring with respect to rejection by Canadian consignees of shipments of hazardous waste originating in the U.S. According to your letter, the rejected shipments are ------- frequently rerouted to other Canadian consignee facilities, upon the U.S. generator and Canadian facility obtaining permission from Environment Canada. Your letter appears to agree that this is an expedient response to the rejection 1 but out of concern for potential liabilities, OU ask whether the practice conforms with EPA’s export regulations. The regulations provide that alternate arrangements for an exported shipment shall not proceed (except in circumstances not relevant here), until there has been renotificatiOn to EPA of the proposed changes, and the exporter has obtained an Acknowledgment of Consent to the changes from the import country. 40 CFR section 262.53(c). While this regulation provides the general standard for exported shipments, transboundary movements between the United States and Canada are governed by a specific bilateral agreement that was executed in 1986, and amended in 1992. The 1986 agreement enables Envir’)nmeflt Canada, under its domestic laws, to agree to changes in the terms of a transboundarY shipment, without invoking the more formal, diplomatic process described in the above regulation. EPA believes that this expedited form of “consent” from Environment Canada would, as a practical matter, satisfy the general requirements in section 262.53(c) that an exporter obtain “consent” to proposed changes from the importing country. Thus, the rerouting to alternate consignee facilities in Canada, under the consent process described in your letter, does not violate U.S. law or policy. I note, however, that the U.S. exporter must still provide renotification to EPA of the proposed changes, notwithstanding any expedited “consent” from Environment Canada to the changes. We assume that these two communications would ordinarily occur simultaneously, to avoid unnecessary delay. Your additional comments on the North American Manifest concept, and the ongoing efforts to reduce the burden of the manifest system, are acknowledged and appreciated. Thank you for your continuing interest in the RCRA generator and transporter regulations. Should you need more information on these issues, please contact Richard LaShier on 202-260-4669. Sincerely yours, cc: Richard LaShier Ann Codrington — Shapiro, Director of Solid Waste ------- 2200 Mill Road, Alexandria, VA 22314 (703) 838-1703 Fax (703) 549-9570 A m” October 12, 1995 jiichael Shapiro Director Office of Solid Waste Mail Code - 5304 u.s. Environmental Protection Agency 401 “M” St., SW Washington, DC 20460 Dear Mr. Shapiro: I am writing on behalf of the Association of Waste Hazardous Materials Transporters to request your interpretation of rules concerning the Uniform Manifest. The AWHMT is affiliated with the 2 xnerican Trucking Associations’ federation. The AWHMT represents companies that transport, by truck .and rail, waste hazardous materials, including industrial, radioactive and hazardous wastes, in North America. The Association is a not-for-profit organization that promotes professionalism and performance standards that minimize risks to the environment, public health and safety; develops educational programs to expand public awareness about the industry; and contributes to the development of effective laws and fé lations governing the industry. All members of the Association transport shipments required to be accompanied by the Uniform Manifest. Recently, several practices involving the processing of the Uniform Manif st and related issues have come to our attention. Some of these practices are potentially burdensome. Others appear to be COnL UiLLL)i -Y. You.r cL ijticati jfl of federal CP policy on th e matters would be most appreciated. When. if ever, must an operator of a transfer facility sign the Uniform Manifest ? At least two states are rendering different opinions about the duty of transfer facility operators to sign the Uniform Manifest. Texas does not want operators of transfer facilities to sign the Uniform Manifest unless the operator also provides a transportation segment to or from the facility, or both. In this 35 Jj- \1 Affthat?4 walh the American Th icJ ang Assoczatwns, Inc ------- 2 case, the signature would appear in item 17 or 18 of the Uniform Manifest (or item 33 or 34 of the continuation sheet) . However, the signature would not be intended to indicate that waste had been held in temporary, in-transit storage. Rather, the sole purpose of the signature would be to indicate the identify of the entity providing the actual transportation of the waste. On the other hand, Louisiana contends that the operator of a transfer facility must sign the Uniform Manifest in item 17 or 18 (or item 33 or 34 of the continuation sheet) 2 even if the facility operator is or will be the transporter of record listed on the Uniform Manifest because the facility operator provides either the transportation segment to the facility or from the facility. This practice could result in the same company being listed on the Uniform Manifest three times as transporter 1, for bringing the hazardous waste to the transfer facility, as transporter 2, for holding the waste at the transfer facility, and as transporter 3, for moving the waste from the transfer facility. We believe that the signature of the transfer facility operator is not necessary if the operator is already listed as a transporter on the Uniform Manifest because the facility operator also provides the transportation segment that delivered the hazardous waste to the transfer facility or will provide the transportation segment removing the hazardous waste from the facility, or both. In all cases, the Uniform Manifest chain of custody is preserved, conversely, we believe that the signature of the transfer facility operator j required by federal rules on the Uniform Manifest if the operator performs no on-vehicle movement of the waste. In support of our position we note that the ability to store manifested shipments of hazardous waste at transfer facilities for periods of ten days or less is reserved to transporters. 3 Transporters are prohibited from delivering hazardous waste to anyone but another transporter when the waste has not reached its designated destination. 4 Beyond the letter of the aw. we hefl.eve i’.h spirit of the law demands a demonstrated chain of custody of all entities assuming control of 1 By extension, information of the signatory would have to appear in items 5 through 8 or the Uniform Manifest or items 24 through 27 of the continuation sheet. 2 By extension, information of the signatory would have to appear in items 5 through 8 or the Uniform Manifest or items 24 through 27 of the continuation sheet. 40 CFR 263.12. 40 CFR 263.21. ------- 3 the waste from the point of generation to the receipt at destination . Who is to be listed as the “generator” on the Uniform Manifest when hazardous waste is imported into the United States ? EPA’S rules applicable to transporters provide that “(a] transporter of hazardous waste must also comply with 40 CFR 262, Standards Applicable to Generators of hazardous Waste, if he transporters hazardous waste into the United States from abroad.” The Association has always interpreted this regulation to require the transporter providing the first segment c f travel in the United States to be listed as the “generator,’ t completing items 1, 2, 4 and 16 ot the Unitorm Manifest, as well as being listed as “Transporter 1” in items 7, 8 and 17. We have always felt this policy was unfair to transporters and attempted to raise our concerns about the equity and merit of requiring a transporter to assume generator status simply because travel involved a cross-border movement during the RCRA Manifest Regulatory Negotiation (Reg/Neg). Nothing said by EPA during these negotiations suggested an interpretation of the rules other than that which appears above. Regrettably, the Reg/Neg came to closure without resolution of this matter. Rather, the final Reg/Neg agreement provides that “(a] definition of importer will be addressed by EPA in its work on the Basel convention, and thus the issues raised in the manifest reg neg may be addressed in In an interpretation, EPA notes that in situations where, :Ione company transports waste to and from a transf’er facility it operates, and the waste remains under the control o the t.ransporter, no separate EPA ID number need be entered on the manifest specific to the transfer facility. However, ... waste must remain under the control of a transporter as designated on the manifest while at a transfer facility.” It could be inferred from this statement that if the waste at a transfer facility does not remain under the control of the transporter which delivered or removed the waste from the site that another transfer who has control of the waste at the transfer facility must enter its EPA identification number. Memorandum from Sylvia Lowrance, Office of Solid Waste, EPA, to David Ulirich, Waste Management Division, EPA, October 30, 1990, page 3. 6 40 CFR 263.10(c) (1) ------- 4 that forum.” On the other hand, it was recently brought to our attention that EPA rules at 40 CFR262.60 appear to contradict the requirement that the transporter assume generator status for imports. This rule provides that: “ [ w]hen importing hazardous waste, a person must meet all the requirements of §262.20(a) for the manifest except that: (1) In place of the generator’s name, address and EPA identification number, the name and address of the foreign generator and the importer’s name, address and EPA identification number must be used. (2) In place of the generator’s signature on the certification statement, the U.S. importer or his agent must sign and date the certification and obtain the signature of the initial transporter.” 8 If may be in some cases that a transporter is indeed the importer. However, in cases where the transporter is not the importer, we do not believe the transporter should have to sign the Uniform Manifest as implied in 40 CFR 263.10. MaY exported loads which are relected by the designated TSDF be received by another TSDF without modification of the Intent to Extort Notification ? As in the United States, shipments of hazardous waste are rejected at foreign-based TSDFs for a variety of reasons. If such rejection occurs in the United States, the U.S. generator is given as option of redesignating another TSDF to receive the waste. However, the ability of a U.S. generator to redesignate alternate foreign-based TSDFs without providing EPA with a renotificatiOn of the change and obtaining the receiving country’s approval appears to be prohibited. Although the Intent to Expt rt Not&fiC& iOP allows the U.S. generator to designate an “alternative consignee,” if such alternative consignee is not designated, the EPA rules provide that: “the primary exporter must provide EPA with a written renotification of the changes. The shipment cannot take place until consent of the receiving country to the changes ... has been obtained &nd the primary RCRA Manifest Regulatory Negotiation, Final Agreement, page 3, item 1.3.4. 40 CFR 262.60(b) ------- 5 exporter receives an EPA Acknowledgement of Consent reflecting the receiving country’s consent to the changes. “9 It has recently come to our attention that rejected shipments of U.S. exported hazardous waste at facilities located in Canada are frequently rerouted to other Canadian-based facilities after the Canadian TSDF with the U.S. generator obtain permission from Environment Canada. Typically, renotification of U.S. authorities is not made because the time delay would not be tolerable in a transportation setting. If a renotification is the only option for the foreign delivery of rejected shipments, these shipments would simply be returned to the United States. Such unnecessary transportation incurs its own environmental impacts. However, unless EPA is able to clarify its policy to allow redesignation of TSDFs without renotification more return transportation will be the result. Not only must a transporter and generator be concerned about possible enforcement by states with manifest programs when discrepancies between the TSDF listed on the Uniform Manifest and the TSDF listed on the Intent to Export Notification are compared, but what enforcement action might be expected from federal EPA as well. North American Manifest Inasmuch as this letter is devoted to Uniform Manifest issues, we would also like to bring directly to your attention our strong support for a North American Manifest form and system. We believe such international cooperation is well within the spirit of NAFTA and would surely reduce regulatory burdens on those involved in the transboundary movement of hazardous waste. Manifest Burden Reduction We hear much these days about the “burden” of the Uniform Manifest and the possible advantages of converting manifest information to EDI format. While it may be technically feasible to reduce the Uniform Manifest to EDI transmissions, we are not wholly convinced of the merit of such proposals. We believe a tremendous regulatory burden would be eliminated simply by e1 .minatiflg the option for states to require their own version of the Uniform Manifest form. At minimum, EPA manifest rules must accomplish three objectives: establish chain of custody, provide on-vehicle hard-copy U.S. Department of Transportation-required information, and prohibit non-federal jurisdictions from imposing duplicative different or additional manifesting requirements. We hope these are principles that you can support. 40 CFR 262.53(c) ------- 6 Conclusion These questions together with one wc submitted to your staff on August 21, 1995 concerning the definition of “transporter” for purposes of completing the Uniform Manifest represent Uniform Manifest issues that have been brought to our attention in recent months. Members of our Association do not want to be at odds with EPA policy and rules. Your written interpretation of policy concerning the issues raised above will be most appreciated. Thank you for your attention to these matters. We look forward to your reply. Sincerely, — ‘3 - Charles Dickhut Chairman ------- This Page Intentionally Left Blank ------- HOTLINE QUESTIONS AND ANSWERS March 1996 ;= 3. Generators and Designated Transporters - In the normal course of transporiation, a designated transporter is unable to deliver a manifested shipment of hazardous wâ:e to the designated facility. To complete deliverj of the waste shipment, the transporter would like to hire a second carrier. Must the transporter seek the approval of the generator who - initiated the shipment in order to make these changes to the chain of transportation? Yes. Choosing the sequence of transporters that will deliver a waste to the designated facility is the o1e responsibility of the hazardous waste generator, and changes to the chain of iransportation require the approvaj of the generatàr. The regulations for hazardous waste transporters do not authorize haulers to make unapproved changes to the chain of transportation delineated on the manifest. In accordance with the manifest, transporters must deliver waste solely tq the designated or alternate facility, the next designated transporter, or the designated e port destination ( 263.2l(a)). Transporters who cannot deliver waste according to the generator’s designation must cdntact the generator for instructions and must revise the manifest to reflect the approved changes to the prescribed chain of transport ( 263.2l(b)). Generators alone are iesponsible for identification of the complete chain of transportation and must, therefore, be apprised of and approve of all deviations from that plan. A properly completed manifest identifies the full sequence of transporters that will conduct hazardous waste to a designated facility. The directions for the Uniform Hazardous Waste Manifest, found in the Appendix to 40 CFR Part 262, specifically instruct geiierators to provide the name and EPA identification number of the first transporter (Items 5 and 6), and if necessary, of the second transporter (Items 7 and 8). The instructions further direct generators to use a continuation sheet to identify additional transporters as necessary (Item 8, Note). ii FIT 9462.1996(02) ------- This Page Intentionally Left Blank ------- 9463 HAZARDOUS WASTE DISCHARGES Part 263 Subpart C ATKI/1 104/30 kp ------- 9463.1980(01) June 18, 1980 Subject: Questions on DOT’s role in the Transportation of Hazardous Waste From: Bruce Weddle, Deputy Director State Programs and Resource Recovery Division (WH-563) To: Janet DeBiasio Hazardous Waste Section Region I The following are our responses to the questions you raised in your memorandum of May 8, 1980 on the above subject: Question Since U.S. DOT is broadening its authority to control intrastate commerce, who in DOT will be responsible for inspection, compliance and enforcement of the federal transportation regulations in Region I? Answer DOT’S hazardous materials regulations will not apply to intrastate motor carriers operating in a state which has interim authorization. However, DOT’s regulations will be applicable to intrastate motor carriers when that State receives final authorization. In states where EPA is running the program, the DOT hazardous materials rules will apply beginning on November 20th (the effective date of those rules). DOT and EPA are developing a plan for implementing the DOT/EPA Memorandum of Understanding which will include intrastate inspection, compliance, and enforcement. This plan will identify the specific offices within DOT responsible for enforcement activities. For further information on DOT’s responsibilities for enforcement, I suggest that you contact Bill Nalley, DOT headquarters (755—5893). Question When a state submits an application to EPA to manage a hazardous waste program, it is assumed that U.S. DOT will allow the enforcement of the Federal Transportation Regulations, 49 CFR 100-199, to be carried out on the state level. Who makes the determination as to whether the state’s transportation legislation and regulations are substantially equivalent and consistent with the Hazardous Materials Transportation Act and 49 CFR 100—199? This has been retyped from the original document. ------- —2— Answer In terms of intrastate transportation, DOT specifically stated in the promulgation on May 22, 1980 that the regulations do not apply to intrastate motor carriers in those states with interim authorization. Final authorization will only occur at the state level when state regulations are equivalent to DOT regulations. For interstate transportation, DOT and EPA may step in when HW transportation procedures ar not in compliance with DOT HW transportation regulations. The determination of whether a State’s transportation legislation and regulations are substantially equivalent with the Federal program will be made by EPA. The RCRA State Interim Authorization Guidance Manual, which will be available this month, will provide the guidance necessary to make that determination. The Agency has not negotiated who will make the determination of equivalence with DOT since we are focusing attention on matters related to interim authorization. Since this subject relates to final authorization, a decision as to who will determine equivalency between State and Federal regulations will be dealt with at a later date. Question When there is a hazardous waste spill during transit, the hauler submits a report to DOT. DOT, in turn, notifies EPA of the incident. Who in DOT will be receiving the report for the New England area and where in EPA does DOT intend to transmit copies of the incident report? Answer In the event of a hazardous waste spill during transit, a transporter must submit a written report as required by 40 CFR 171.16 to the: Associate Director for Hazardous Materials Regulations Department of Transportation Washington, D.C. 20590 DOT will then provide copies of the incident reports to Headquarters. The forthcoming plan for implementing the DOT/EPA MOU (as discussed in the first answer) will address this particular issue. This has been retyped from the original document. ------- —3— Question I have read the draft Memorandum of Understanding between EPA and DOT. Would you explain difference in jurisdictions and responsibilities of the Bureau of Motor Carrier Safety (BMCS), Federal Highway Administrationts Washington office (FHWA) and DOT? When will we know who will be Region I’s contact in these different agencies? Answer The Bureau of Motor Carrier Safety (BMCS) is a part of the Federal Highway Administration, (FHWA) which is a part of the Department of Transportation. (See organizational chart attached.) BMCS’s primary function is to reduce fatalities, injuries and property damage, as well as increase public safety in the highway transportation of hazardous materials. The BMCS and the FHWA field staff enforce the Federal Motor Carrier Safety Regulations pertaining to the transportation of hazardous materials by the highway mode. The Federal Motor Carrier Safety regulations govern qualification of employees whose work affects safety of operation, maximum hours of service of such employees, safety of operation of commercial vehicles; and vehicle safety, including performance requirements, parts and accessories, and maintenance of vehicles. The Hazardous Material Regulations, among which are requirements for shipping papers, placards, containers, labels, etc., concern the safe transportation of hazardous materials. The field programs of BMCS are administered by FHWA’s nine regional offices. The contact person for each Region, as well as for each state in that Region, is provided in the office of Motor Carrier Safety’s “Field Roster.” A list of the FHWA contacts. I hope these answers are sufficient, but, if you need further clarification or information, please contact Wolf R. Gill or Carolyn Barley (755-9145). Attachments cc: Regional Generator/Transporter Coordinators WI attachments This has been retyped from the original document. ------- 9463.1980(02) - UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON, D.C. 20450 \ 25 2O PIG 81—8 ( 2(,- M 4ORANDVM SUEJEC?: Program Inpl.m.ntation Guidance On Issuanc, of Provisions]. EPA Identification umb.rs FROM z Stsffe nW.Pl.h n for Solid waste (W 2) R. Sarah Compton Deputy Assistant inistrat.r for Water forceusnt (EN-3 35) TO: PIGS Addresses’s and Ragi onal &otification Contacts S) uld the Agency establish a naw procedure to facilitate rapid issuance- of EPA identification numbers to generators or transporters during spills or other unanticipated events? Discussion : Tb. final RA Subtitl. C regulations eff.ctive vember 19, 1980 include r.qu.trements for hazardous waste generators and transporters to obtain EPA identification numbers • Generators and transporters wt did sot obtain an EPA identification number during the sotification period nay obtain one by applying on EPA I rm 8700—12. Concern has been expressed by son. EPA Regional Offices and some members of the regulated coemunity that the regulations do not provid, for rapid issuanc. of identification n rs during spills and other unanticipated incidents wher. a person may becom . a hazardous waste generator or transporter. Tb. following scenario illustrates this type of situation. A spill of gasoline, which met the ignitable characteristic of hazardous waste, occurred at a gasoline filling station. The station did sot have an EPA identification number • Once the spilled material was containd La barrels, the station operator judged that keeping the barrels on—site for several weeks while waiting for an identification number could be ------- dangerous. The transporters he contacted u1d r t pick up the wast. to take it to a facility unless the station operator produced a manifest bearing the generator ‘s identification number. m. operator called his EPA Regional Office to obtain a number but was told that the regulations do t provide for their issuance over the phone, and that application uld have tO be made on Form 8700 —12. Obviously, that sol.ution was unworkable, for it prevented timely and safe handling of the waste • Later that day it was resolved that the R.gional. Of fic. would issue a special. identification number ovr the phone to the operator, thus enabling him to have the waste transferred to ai ther location without delay. This is one of s•vsra.1. examples brought to our attention, indicating a need for rapid identification number issuance. In response to this need, the Agency will, publish- a Notice in the Federal R ister as soon as possible rinuncing that EPA Regional Off ces may in certain instances and at their discretion issue provisional EPA identification numbers. The R.gionai. Notification ntacts will be listed as contact points. I urge those individuals to plan for implementation of this new procedure. At this tin., we have identified a general set of circumstances wber• issuancs of a provisional identification number would be appropriat.. As th. hazardous waste program matures, other applications will, probably becom. apparent. Officials may waive the EPA identification number requir .nts. for generators and transporters engaged in i.diat. hazardou, vests resoval. following a. discharg. incident. (S.. 40 R 263.30(b) and EPA Readquarters guidance to Regional Offices on emergency response, 11/19/80. ) For a. variety of reasons a waiver may be authorized, or if a. waiver is authorized, the generator or transporter may still identify a practical need for obtAi ning an identification number before transporting the waste. In such a case, an oral or written provisional identification number may be issued by a Regional Office. Decision : Region.]. Offtc. personnel should be prepared to issu. provisional numbers on a 7-day, 24-hour basis. Preparations should also be mad. to issue thase numbers ora.t1 _either over the phon. or in person, as well as in writing. Recomuended procedure. for issuing a provisional. identi”. ficatfon number are as follows: a) Ascertain the need for a provisional number from the applicant. b) If a decision is made to issue the number, collect as much of the information r.quir.d for !Orn 8700—1.2 as possible. 2 ------- e) Issue the n ber • We suggest this ha done by asing a syst devised intsrna.Uy in each Region. A r.enended fornat, s 4 1 ar the standard EPA identification n*ber farsat, uld have the t letter stat. abbreviation. follow.d by the letter P r followed by a seriaLly ‘creasing nm. digit ends for each subsqu.nt ni er issued. e.g., V&P000000428. These niabers will ent be part of ths and .dstre.t syita. and wilt ent be enter.d into the nstioaal en atar data base.) 4) Explain what enaditions, if any, apply to the use or diaation of the saber. Inform the applLcant of raqu.tri.nta for of completed rm 8700-la within 10 days of receipt of a blank foss from EPA. A final. identification naber may then be issued. e) c .nt aLt proceedings and follow through as appropriate. We intend that the provisional identification saber be a practicaL alternativ, in situations vhecs the standard pro c.d . for issuing EPA identification saber. u.td be i .asonably tia.-consia.tsg. A regulation change is cot necessary in. order to lapl.nt this psocedime, i..vag. est. ensn ents to the generator and an.port.r regulation, will. clarify and discus . other rsquir ent , which say apply to par.oaaw receive provisionaL sabers. ft. establ.ishasnt of this proc.d . La pert of a larger effort by the Agency to ad u. the application of the Subtitle C ula ns . to hasardous vests discharge. an other circ tance. r.quigLnç rapid. rss nes. er ent , and . suggestions er. velix a.. 3 ------- 9470 TSDF ADMINISTRATIVE REQUIREMENTS Parts 264 & 265 AT Kearney 1/3590/4cr ------- 9470.1985(01) RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY FEBRUARY 85 4. Section 213 of the RCRA amendments requires that owners/operators of land disposal facilities operating under interim status submit Part B permit applications certify compliance with applicable groundwater monitoring and financial responsibility requirements by November 8, 1985. If these requirements are not met, interim status is terminated. Would an owner/operator with a treatment surface impoundment operating under interim status fall under the requirements of section 213 and, therefore be required to submit a Part B and an appropriate certification by November 8, 1985? Yes; the owner/operator of a treatment surface impoundment must comply with the requirements of Section 213. The definition of land disposal units includes all land based hazardous waste management units. Therefore, owner/operators of facilities with landfills, surface impoundments, waste piles, and land treatment units must comply with Section 213. Source: Bryan Wilson (202) 382—4534 This has been retyped from the original document. ------- General (Subpart A) ------- 9471 - GENERAL Parts 264 & 265 Subpart A ATK1/1104132 kp ------- 9471.1983(01) JUL 121983 Mr. 7.5. Sassy, Plant Manager M Is WCBLGO3I4 broyles, Insorporatsd P .O. Box 2U bock Head Burlington, N.J. 08016 Dsar r. Seavys This l.tter is writt•n in reference to the exclusion petition submitted by Hercu].s, Incorporated of Burlington, P4ev Jersey. I4ercules reguest.d an exclusion for the vastwater streem generated at its Burlington facility, presently listöd f t ntainLng methanol, a spent aolvent This waste is producel when the solvent (EPA Razardous Waste No. P003), which is used in the manufacturing operation, is dtscharg.d to the plant. vastewater treatment system for treatment. On November 17, 1951, EPA am.nd.d th. hazardous waste r.gulations und•r the R.sourc. Conservation and Recovery Act to •xe ipt certain cat.gories of mixtures of solid wastes and hazardou. wastes from the p;.sumpt ion of hazardousness (see 46 VR 56582). In on. caee’certain wastes are listed in Subpart D sT.iy because they exhibit one or more of the characteristics of hazardous waste identified in Subpart C of the r.gulations. Mixtures of any of these wastes and other solid wastes, prior to the .ndment, were preswupttvely hazardous by application of th. mixture rules and rsaain.d hazardous unless the waste mixtures war. •xcludd pursuant to 40 CPR 260.20 and 260.22. The Agency has, owev.r, •xempted mixturss of solid (non- hazardous) vast.. and listed (hazardous) wa.t.s that ar. listed solely for exhibiting a charace.ristic frem the pr..sption of hasardousosse since these masts mixtures can be tisted to 4.t.rmis. *sther they still •zhibit Ui• hazardous waste charsct.ristics. Therefore, mixtures of this. wastes listed solely for e ibitLng a characteristic sod other solid wastss ar• so losgor constd•red to bi prss ptiv.ly hazardous. Hercules has stated that they have rsvievsd thi treated vast. str..t g.nerat.d a their facility in light of th November 17, 1981, emendmsnt to the mixture rule and ha,. concluded that this waste would no longer be considered hazardous. The Agency has not made an independent evaluation of your situation but, rather is acc.pting your statement as fact. ------- —2— As a r•sult, it is no longer necessary for you to petition th• Agency for exclusion of your vastes. Therefore, thi, letter ii to indicate to you that, based on your interpretation, vs are •l.sing your Li i.. I .iv•g, if the uanufacturtng or vastsvatsr tr.a .nt .y.t at o facility undergo.. any oc.s. change., this vast• .o ld csc. again b. oonsid.r.d • hazardous waits. Sach i.a.rat.r issaltiast.ly responsibi. for detsrRining whether his wait. exhibits any of th. characteristic, of a hazardous waste (L,. .. igoLtability. corrosivity, reactivity, and IP toxicity) •aid.scrib.d in 40 CPR 261, Subpart C. If th. vast. st b sna;ed in aceordanc. with the hazardou. waste .anag..ene r ulation.. If I can be of any further assistant to you in this .atter, please do not h•sitate to contact Mr. Matthew Straus or Mr. wiiii Sproat of wy staff at (202) 382—4770. Sincerely your., !il.en B. Claussen Dir•ctor Office of Managsa.nt, Infozi atton, and Analyst. cc Me. Sonyo Shashoua N.J. b.par .nt of nviror .nta1 Prot•ction Division of rnvtror ental Ouslity Solid waste Adsinistration 32 f Hanover street Trenton, N.J. 08623 corrsctsd:PS1$ 7 / 8 / 83 ------- 9471.1984(01) RCRA/SUPERYTJND HOTLINE SUMMARy MARCH 84 — C. n leac ate f n a land: i1i.or 1 td hazardc s waste be ,iewed as waste— water so that the wastewater tanks handlirç these waste stre are excluded fran reçulatiYi by 265.l(c)(L0)? Wastewater has no reulatcry definitiat, but a resortable inter reta— tion culd be a r cess waste fran an industrial ocess contajnjn approxiaately 1% or less CCflt3mir%afltS. Trea nt tanis for 1eachate or liuid wastes sich as sent solvents or içnitable liquids shculd not be excluded trait reulation under 264.1(c)(lO). It 1d be inccnsistent to closely control wastes in 3 landfill and not c ntrol manaç nt of t.te hazardous catstituents in the leachate fran then. Source: Steve Lirçle and Fred Lindsey ------- 9471.1984(02) RCRA/SUPERFUND HOTLINE STJ)O(ARY MARCH 84 I 0 — pctt.3t1e txea lent units c nr%ece to a prcess unit et the tota11 , enclosed treat.i nt excius ton? yes, if the unit t en cnnectad to a x3cess is in c 1iance with the eulatc y Interpretive Letter ( 1t. 34) wflich specifies the arr eter of a totally enclosed rea ent f ciltty. Thus, crta Le treatt nt units could be used at lti le facilities ar be excl. ded fr’ n reçt lation by 265.](c)(fl. S zce: fred Lindsey ------- 947 1.1984(03) • SEP — Tu otny A. Taylor Wan; Laborator eS, Inc. Mail Stop 02G2 41 bellman Street Lowell, Massachusetts 01851 Dear Mr. Taylor; This is in response to your letter of August 2, 1984, Lfl wnicn you requested an interpretation of RCRA regulations regarding tanks used for emergency secondary containment. It snoulo be understood that this interpretation applies only to the Federal regulations promulgated in 40 CFR Parts 260—265. In states with EPA—authorized hazardous waste programs, the state regulations will apply. As provided under 4UCFR 5264.l(g)(8) and S265.l(c)(ll), emergency structures (includi.ng tanks) are exempted from the regulatory standards of 4UCFR Parts 264 and 265 (except for the preparedness and prevention and contingency. plan require- ments of those standards). To qualify for the exemption a unit must be intended exclusively for immediate responses to discharges of hazardous wastes, such as burst pipes, ruptured containers or tanks, breached dikes, and the like. Structures used for responding to discharge events which occur periodically or repeatedly, or in which containment or treatment extends beyond the immediate response period, do not qualify for the exemption. - The applicability of the exemption to the three example “secondary containment” tanks describ. d in your letter must be - determined based on a site—specific assessment of each unit against the above criteria. For example, taking the case of the tank used to contain spilled resicue fra’t a truck loading! unloading area, the exemption would apply to the t nk only if it could be cemonstrated that such spills were extremely rare and unpredictable events. . I hope this a equately answers your questions. Please let me know if I can be of any further assistance. Sincerely, Peter Guerrero Special Assistant to the Division Director ------- 9471. 198 4(04) RCRA/SUpEpp ( HOTLINE SU) (ARIES AUGUST 84 7. A new landftfl will have a separate owner and operator. While both parties will sign the permit, a) Is one party chosen as the permittee? b) whiCh party is flable 1) durtny the operating life? ii) during closure/post—closure? a) Both the owner and operat3r are the permlttees on the permit; however, It is c mon for the operator to assume responsibility for meeting permit conditions. b)i) Both the owner and operator are liable during the facility’s operating life. II) Bath the owner and operator are liable during closure/ post-closure of the facility, unless the closure/post-closure plans specify that the owner of the facility Is becoming the operator as well as the owner. This action would be accon anied by a permit modification and relieve the original operator from liability (under RC A) during the closure/postclosure period. Source: Chaz Miller Research: Tom Gainer ------- 9471.1985(01) RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY DECEMBER 84 —2— 2. If a facility’s thterim status is ter:ninated, t ust the ner/oper t3r of the facility still ieet the 526S interim status standards for closure, post— losur.a, and f nanc al responsibility? Yes; a facility which has had its interim status terninated ‘Tust meet 3263 sdards, includir those for closure, post-closure, and financial responsibility. A technical ien ent to the interim status standard -s which was published in the November 21, 1984 Federal Reqister (49 FR 46094) clarified that interim status standards are applicable to facilities whose interim status is terminated until their closure and post-closure require- ments are fulfilled. Source: Libby Scopino (202) 475—8731 Research: Hilary Soiivner ------- 9471.1986(01) i9 Sr 4 ._ UNITED STATES CNVIRONMENTAL PROTECTION AGENCy WASHINGTON D.C. 20460 L i. .ji% SEP 2 9 1986 OFF.I E 3 SOLID WASTE A O E .IE C 1C% ?( . F Mr. Fred Hansen Director Department of Environmental Ouality 522 S.W. Fifth Avenue, Box 1760 Portland, Or qon 97207 Dear Thank you for your August 21, 1986, letter regarding accidental spills of listed or characteristic hazardous wastes. Enclosed is the Agency’s response to the eight questions and issues that you raised. Please note that we have referred one of your questions to the Superfund Office and will forward a response to you. I hope this clarifies the Environmental Protection Agency’s regulation of spills and spill cleanups. If I can be of further assistance, please let me know. S cerely, A istant Ad inistrator Enclosure ------- 1. Accidental spills of listed or characteristic hazardous wastes .which are cleaned up within a reasonably short time, The Resource Conservation and Recovery Act (RCRA) regulations in 40 CFR Parts 264 and 265 Subparts C and fl reaujre immediate actions to minimize hazards to human health and the environment from any unplanned, sudden or non—sudden releases of hazardous waste or hazardous COnstituents, Sections 264 .l(q)(8) and 265 .1(c) (11) provLde a regulatory exemption from interim status and Permitting standards for treatment and containment activities hazardous waste discharges and imminent and substantial threats of discharges (under §260.10 the term discharge includes both accidental and deliberate spills). •The effect of this exemption is to promote hazardous waste discharge prevention and control by relieving persons enqaged in immediate response to discharges and serious threats of discharges from time Consuming requirements. Under this exemption, treatment, storage and disposal facilities regulated under RCRA must continue to meet the applicable requirements of Subparts C and P of Parts 264 and 265. Treatment and containment activities conducted after the initial response period are subject to interim status and Permitting standards, A facility may qualify for an emergency permit under S270.6], for such treatment and contain- ment activities occurjng after the immediate response period, Accidental spills should be addressed immediately and in accordance with the facility’s contingency plan. Sections 264.51 and 265.51 require owner/operators of treatment, storage and disposal facilities to have a contingency plan describing actions faci]jtv personnel must take in response to any unplanned sudden or non—sudden teleases, Under section 262 .34(a)(4), generators are also required to have such contingency glans as a Condition of obtaining a oermit exemption for 90 day on—site accumulation. Generators are subject to interim status and Permitting requirements for treatment and containment activities conducted after the accumulation period. 2. Accidental spills not cleaned up within reasonably short time. As stated above, treatment and containment activities conducted after the initial response period are subject to Permitting and interim status requirements, In addition, if cleanup activities do not begin Promptly, the spill is considered a land disposal site subject to permitting requirements. The Environmental Protection Agency (EPA) has not established a definition of what constitutes an immediate response to a spill situation. The timeframes and extent of immediate response must be judged by persons responding to discharges on an individual basis. Extended responses which are not judged to be immediate in nature may result in: (1) a modification to the facility’s contin- gency plan; (2) an enforcement action for an inadequate contingency plan or permit violation; or (3) enforcement action for illegal disposal. ------- —2— 3. Spills where cleanup requires on—site treatment. As explained in the response to questjo c264.l(g)(A) and §265.l(c)(l1) provide a regulatory exenrntion from interim status and permitting standards for treatment activities Conducted in immediate response to discharges or threats of discharges. 4. Transportation spills cleaned up within a reasonably short time. §263.30 requires the transporter to take appropriate, immediate action to protect human health and the environment. Under S263.30b), an authorized official may authorize removal of the spill by transporters Without an EPA ID number or manifest in an emergency. When an emergency no longer exists, all applicable requirements of the RCRA regulatjo once again apply to all of the transporter’s activities. The Department of Transportation has also issued rules regarding spills occurring during transport. 5. Transportation spills not cleaned up within a reasonably short time. As discussed above, EPA has not established a definition of what constitutes an immediate response to a spill situation. The timefraines and extent of immediate response must be judged by persons responding to discharges on an individual basis. Extended responses which are not judged to be immediate in nature may be subject to enforcement action for illegal disposal. ------- 1. When does a spill become a Superfund candidate versus cleanup under RCRA? Question has been referred to our Superfund Office for response. 2. When does a spill become a facility as defined in RCRA? As discussed above, if cleanup activities do not begin promptly, the spill is considered a land disposal site subject to permitting require encs. In addition, spill areas where hazardous waste is treated, disposed or stored past the immediate response phase are subject to all applicable interim status and permiccing standards for hazardous waste management facilities receiving waste after 11/19/80 as outlined in Parts 264, 265 and 122. 3. Are there any situations where che cleanup standards are different than background? RCRA regulations do not specifically identify a level of clean-up required in spill situations. Under §263.31, a transporter must clean up any hazardous waste discharge so that the discharge no longer presents a hazard to human health and the environment. Under the edergency procedures provisions of §264.51 and §265.51, generators, treatment, storage and disposal facilities must take those actions, as outlined in the contingency plan, necessary to minimize hazards to human health and the environment. ------- UNITED S .ES ENVIRONMENTAL PROTECTION A . 1 Cy 9471.1987(02) DEC 2 MEMORANDUM SUBJECT: RCRA Subtitle c Exemption for Wastewater Treatment and Elementary Neutralization Units FROM: Marcia E. Williams - Director, Office o f lid Waste (WH-s 2) TO: William A. Whittington Director, Office of Water Regulations and Standards (WH—55 1) James R. Elder Director, Office of Water Enforcement and Permits (EN— 335) On November 17, 1980, EPA promulgated amendments to Subtitle C of RCRA that suspended the applicability of the hazardous waste regulations to owners and operators of wastewater treatment and elementary neutralization units (45 FR 76074) (see 40 C.F.R. sections 264.l(g)(6) and 265.l(c)(l0)). Since then, EPA has been asked to respond to numerous inquiries regarding the intended scope of these exemptions. Because the overwhelming majority of inquiries are with regard to the exemption for wastewater treatment units, this memo will focus on these units. Several attempts have been made to address the ambiguities of this exemption. On more than one occasion, the EPA responses have offered Conflicting guidance. The Office of Solid Waste is again receiving a flurry of inquiries on the scope of this exemption, apparently prompted by the July 14, 1986, promulgation of more stringent revised standards for hazardous waste storage/treat en tank systems (including sumps). Obviously, numerous individuals are hoping to qualify for the wastewater treatment unit exemption as a means of avoiding being covered by the revised tank system standards. Thus, I feel that it is important that we review and clarify the scope of this exemption. The purpose of this memorandum is to obtain your concurrence with our reading of ------- the current exemption so that we could send a Policy Directive to the Regions regarding this matter and/or prepare a Federal Register notice of clarification. In order for the exemption to be applicable to a wastewater treatment unit, these conditions, as listed in the definition of wastewater treatinent unit under 40 C.F.R. Section 260.10, must be met: 1) The unit must be part of a wastewater treatment facility Which is subject to regulation under either section 402 or 307(b) of the Clean Water Act; and 2) The unit receives and treats or stores an influent wastewater which is a hazardous waste as defined in section 261.3, or generates and accumulates a wastewater treatment sludge which is a hazardous waste as defined in section 261.3, or treats or stores a wastewater treatment sludge which is a hazardous waste as defined in section 261.3; and 3) The unit meets the definition of tank in section 260.10. Most of the inquiries regarding the wastewater treatment unit exemption are directed towards interpretation of Condition 1) above. Thus, our clarification of the intended meaning of the term “wastewater treatment facility” is the primary factor regarding the applicability of the exemption to a specific wastewater treatment unit. It is our position that in order for a wastewater treatment unit to be covered by the exemption, it must be part of an on-site wastewater treatment facility. In this scenario, any hazardous waste tank system that is used to store or treat the wastewater that will be, or has been, managed at the on-site wastewater treatment facility with an NPDES permit (or one that discharges to a POTW), is exempt from the regulations. Also, the means of conveyance of the waste between storage/treat e units does not affect the applicability of this exemption. Assuming the conditions discussed above are met, no distinction will be drawn whether the wastewater is piped, trucked, or otherwise conveyed to the wastewater treatment facility within the on-site boundaries of the facility generating the wastewater. Likewise, any tank system at a facility with an NPDES permitted wastewater treatment facility (or one that discharges to a POTW) that is used to store/treat wastewater that is brought on—site from another facility, is covered by the exemption. ------- However, any tank system that is employed in managing wastewater at a facility prior to its off-site transfer to another location, whether or not the off-site location is an NPDES permitted wastewater treatment facility (or one that discharges to a POTW), is Covered by this exemption. Another scenario that needs to be clarified is that situa- tion where a facility with an On-site wastewater treatment facility has no discharge, direct or indirect, to surface water. The wastewater treatment unit exemption is intended to cover only systems that 1) produce a treated wastewater effluent which is discharged into surface waters or into a POTW sewer system and, therefore, is subject to the NPDES or pretreatment requirements of the Clean Water Act, or 2) produce no treated wastewater effluent as a direct result of such requirements. This exemption is flQ intended to apply to wastewater treatment units that are not required to obtain an NPDES permit because they do not discharge a treated effluent (45 76078; November 17, 1980). As a result, we anticipate that some facilities will apply for a zero-discharge NPDES permit in an attempt to qualify for this exemption and thus avoid RCRA regulation. Please note that the above reading is based on our assumption that all storage/trea me tank systems covered by this exemption will be subject to regulation by NPDES authorities. If you agree with this general approach, please designate someone to serve as a contact person for the Office of Water’s review of our draft policy statement. We have been working with staff from the Office of General Counsel and the Office of Water Enforcement and Permits in developing the rationale to support our preferred reading of the current regulations. We have their tentative concurrence on this approach. I look forward to hearing from you regarding our efforts to clarify the wastewater treatment unit exemption. If you have any questions, please contact me at 382—4627 or have your staff contact Bill Kline or Bob Dellinger of my staff at 382-7917. cc: Gene Lucero, WH-527 Ron Brand, WH-562A Bruce Weddle, WH-563 ------- UNITEL .(AYES ENVIRONMENTAL PROTECTION INCV 947j• 1988(02) APR29 Mr. Bruce P. McLeod, P.E. Senior Specialist Environmental Control Monsanto Chemical Company P.O. Box 12830 Pensacola, FL 32575 Dear Mr. McLeod: The purpose of this letter is to reply to your letter of July 24, 1987, to Bob Dellinger, requesting an interpretatjoj . regarding application of the elementary neutralization exemption to Monsanto’s Pensacola plant. First, please accept my sincere apology for the delayed response to your letter. As previously mentioned, your letter involves difficult issues regarding the scope of the elementary neutralization unit exemption, and was further delayed by our inadvertent loss of your original letter. I would like to address your concerns in the same order as discussed in your letter. You first questioned whether the Pensacola plant sumps are indeed sumps since the waste is not ultimately transported to a R RA storage, treatment, or disposal facility as specified in the definition of sumps in 40 CFR 260.10. Since the various wastes with differing pH values, that meet the definition of hazardous waste only due to corrosivity, are introduced at various points upstream to a system of sumps and piping, the collection and treatment of such wastes seemingly occur more or less Concurrently. Accordingly, such Sump(s) and associated a çillary equipment (e.g., piping, pumps) would indeed be consider .a hazardous waste sump and be subject to the standard f hazardous waste storage/trea en tank systems. Your second question requested clarification of whether the Pensacola plant wastewater collection system would qualify as a elementary neutralization and/or totally enclosed treatment facility, thus qualifying for those respective exemptions. ------- —2— Based on your description of this particular operation, we believe that the totally enclosed treatment facility exemption would be unhikelyto apply. We believe the sumps and their associated ancillary equipment would qualify for the elementary neutralization exemption under the Federal regulations because the sump and its ancillary equipment meet the criteria defining an elementary neutralization unit in 40 CFR 260.10 since it is used to neutralize hazardous wastes only exhibiting the corrosivity characteristic and it meets the definition of tank system. Thus, the elementary neutralization exemption, as allowed in 40 CFR 264.1(g) (6) and 265.1(c) (10), would seem to apply to this Pensacola plant wastevater system insofar as the neutralization sump and ancillary equipment are located within the boundaries of this facility. Since the ultimate decision for determining the regulatory status of a specific unit at your facility is the responsibility of the State of Florida, please contact them at the address/ telephone number indicated below. If necessary, please feel free to refer them to me. Again, please accept my apology for not sooner addressing your letter. If you have any further questions, please call Bill Kline of my staff ør me at (202) 382—7917. Sincerely, • Robert W. April, Chief Capacity and Storage Section RWD/bw cc: Bob Delhinger, WMD Bill Kline, WXD Carrie Wehling, OGC Chet Oszman, PSPD R RA Branch Chief, Region 4 Administrator, Florida DER Solid and Hazardous Waste Section Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Phone: (904) 488—0300 ------- 9471.1988(03) RCRA/SUPERFUND HOTLINE MONTHLY SUM?thRY JULY 88 3. Elementary Neutralization Units A generator produces large volumes of corrosive waste. It is pumped directly to a tank which is an elementary neutralization unit. However, this waste (corrosive only) remains in the tank for two months before it is actually neutralized. Is this waste counted for purposes of determining generator status? Is the corrosive waste that is stored in the neutralization unit prior to treatment included in the scope of the exemptions in Sections 264.I(g)(6), 265.1(c)(10) and 270.1 (c)(2)(v)? No, this type of waste is not counted for determining generator status. As stated in the March 24, 1986 Federal Register (51 f , 10146) wastes treated in elementary neutralization units are included in the general category of exempted or excluded wastes that wouid not be counted in determining generator status. Also, this waste is not counted because it is not subject to substantive regulations in 40 CFR Parts 262 and 263 as long as it remains in the neutralization unit (51 , 10152). Source: Bob April (202) 382-7917 Emily Roth (202) 382-4777 Research: Mary Stevens ------- 9471.1988(04) ID $ 4, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20480 +J qL fl 27 ! OFFICE OF SOLID WASTE A, O EMERGENCY RESPONS MEMORANDUM SUBJECT: RCRA Regulation of Pesticide insate Treatment/Recycling System I ‘ifft FROM: Sylvia K. Lowrance, Diredt 4 p*j Office of Solid Waste TO: David A. Wagoner, Direc*r Waste Management Division EPA Region vii This memorandum is in response to your September 15, 1988 memorandwn requesting clarification of the RCRA regulation of certain tanks in a pesticide Container washing operation. As I understand the process, the rinsewater from the container washing is Collected in a sump, is then pumped to a settling tank, and subsequently treated with activated carbon. The treated rinsevater is reused for Container rinsing, but the pesticide residues are discarded. Your interpretation that the used rinsewater is a ‘spent material’ is correct; as a spent material going for treatment (or reclamation), it is a solid waste. If the used rinsewater contains a pesticide listed in 40 CFR 261.33 that was not derived from an ‘empty’ container as defined in Section 261.7, the used rinsewater is a hazardous waste. If the pesticides do not meet a listing, the used rinsevater is a hazardous waste if it exhibits a characteristic (Section 261.20-261.24). Although the system does have certain characteristics of a reclamation operation, it is more clearly defined as a wastewater treatment unit. As stated in your memo, this unit would be subject to RCRA permit requirements unless exempted under the wastevater treatment unit exemption at 40 CFR 264.l(g)(6) or 265.l(c)(lO). In a September 2, 1988 Federal ------- —2— Register notice, the Agency clarified that this wastewater treatment unit exemption is intended to cover only tank Systems that are part of a wastewater treatment facility that U) produces a treated wastewater effluent which is discharged into surface waters or into a POTW sewer System and, therefore, is subject to the NPDES or pretreatment reaujrements aOf the Clean Water Act, or (2) produces no treated wastevater effluent as a direct result of such reguirem t This exemption is not intended to apply to wastewater treatment units that are not required to obtain an NPDES permit because they do not discharge treated effluent (see 53 FR 34080—81). As your memo explains, the treated rinsewater is completely recycled back into the operation and no discharge occurs. I cannot conclusively determine whether the unit would be eligible for an exemption as a wastewater treatment unit; that determination must be made by the authorized State or Regional office. In making this determination, the authorized State or Regional office must determine whether the facility is subject to regulation under Sections 307(b) or 402 of the Clean Water Act. Regarding the regulatory status of the “reclaimed” rinsate, you cited the January 4, 1985 Federal Register preamble (50 FR 634) discussion of products from recycling operations losing their status as a waste. While the regulatory language allows for flexibility in determining whether a reclaimed waste may be considered a product (thus losing its status as a waste), the preamble indicates that reclaimed wastevaters are not to be considered products. The reasons for this approach (i.e., that wastewaters are not ordinarily Considered to be commercial products and are often discharged, and that the Agency did not intend to allow facilities to exempt their wastewater treatment surface impoundments from regulation by being classified as “recycling” facilities) are not necessarily applicable in this case. When reused, the reclaimed rinsate would lose its status as a solid waste as Provided in 40 CFR 26 l.2(e)(1)(j 1 ), provided it is truly reclaimed as an effective substitute for what is typically used to rinse the containers. Until it is reclaimed and fit for reuse, the rinsate would remain a solid waste, and, if applicable, a hazardous waste. ------- —3— If-you have any further questions or need any additional clarification, you should contact Mitch Kidwel], at FTS 475—8551. Cc: Michael Peeley Chief, Waste Programs Branch EPA, Region IX Karen Schwinn Chief, Waste Compliance Branch EPA, Region IX Waste Management Division Directors Regions I—X ------- 9471.1988(05) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 pg 0 it NOV 30 OFFICE OF SOLID WASTE AND EMERGENCY RESPONS Mr. Fred Smith Institute of Makers of Explosives 1120 19th Street, N.W. Washington, D.C. 20036 Dear Mr. Smith: EPA has been requested by the Institute of Makers of Explosives to render an opinion on the application and interpretation of the immediate response exception as set forth at 40 C.F.R. secs. 264.l(g)(8), 265.l(c)(l1), and 270.1(c)(3). It is the Agency’s view that the treatment of leaking or damaged explosives, or undetonated explosives left after an initial firing attempt will, in many instances, fall within th..e circumstances contemplated by the cited provisions. The Agency recognizes that the use of commercial explosives is subject to many non-EPA governmental regulations, including a prohibition by the Department of Transportation against the transportation of “leaking or damaged packages of explosives” (49 C..F.R. sec. 173.51). According to the Institute of Makers of Explosives, these regulations affect the handling of explosive waste and reinforce the obligation of members of the explosives industry to consider safety as a paramount concern. Such wastes, if not treated promptly and properly, can present an imminent public safety and environmental hazard, e.g. , unplanned explosions or leaching of materials to the soil. The immediate response exception applies in those instances where treatment of the explosive waste through open burning/open detonation is taken in immediate response to a discharge or an imminent and substantial threat of a discharge of a hazardous waste. Examples in which the immediate response exception would apply to t disposal of explosive waste by open burning/open detonation Eould include, but not be limited to, the following situation* .- A. Land is cleared, with explosives and an amount of damaged or unusable explosive waste remains that, for safety reasons, cannot be stored or transported off-site. B. An explosives distributor has a temporary or permanent magazine at which undetonated (but, for safety reasons, unusable and not transportable off-site), leaking or damaged explosives are found, usually at the end of the period of explosives use or during a periodic check on the stored explosives. ------- 2 C. An exp osives distributor operates an on-site magazine for a project with a changing location (e.g., road building, pipeline) at which undetonated (but, for safety reasons, unusable and not transportable off—site), damaged or leaking explosives are found. D. A mining operation detonates large amounts of explosives and a small percentage remains undetonated after the initial firing attempt but, for safety reasons, cannot be reused or transported off-site. The Agency notes that a guidance manual is currently being prepared that will discuss the permit requirements for facilities which store, treat, or dispose of explosive waste in circumstances not qualifying for the immediate response exception. Yours truly, 3y Sylvia Lowrance Director Office of Solid Waste ------- 9471.1988(06) RCRA/SUpERFUND HOTLINE MONTHLY SUMMARY 1. Closed Loop Recycling DECEMBER 88 In a production process a manufacturing facility generates a secondary material that consists of 90% ignitable liquids and 10% ignitable gases. From the production process the material is piped to a storage tank where the ignitable gases are separated from the ignitable liquids. The gases are then piped back into the production process to be used as raw materi tl. The remaining ignitable liquid is discarded as a hazardous waste. Is the liquid and gas mixture exempt from being a solid waste under the closed loop recycling provision in Section 261 .4(a)(8)? 1. Closed Loop Recycling (Cont’d ) I Raw L Material I I Manufacturing Facility 0 2° Material (90% liquids 10% gas) Gases r “i Storage Tank Hazardous Waste Liquid - - - - ‘U 0 ------- According to Section 261.4(a)(8) secondary materials are not solid wastes if they are reclaimed and returned to the original process or processes in which they were generated where they are reused in the production process provided: (1) Only tank storage is involved and the entire process through completion of redamation is closed by being entirely connected with pipes or other comparable enclosed means of conveyance; (ii) Reclamation does not involve controlled flame combustion (such as occurs in boilers, industrial furnaces or incinerators); (iii) The secondary materials are never accumulated in such tanks for over twelve months without being reclaimed; and, (iv) The reclaimed material is not used to produce a fuel or used to produce products that are used in a manner constituting disposal. Provided the reclamation process meets all requirements of Section 261.4(a)(8L the portion of the secondary material that is returned to the production process to be used as a raw material (the ignitable gas) is not a solid waste. However, the remaining portion that is discarded (the ignitable liquid) is a hazardous waste and being such is not exempted from the definition of a solid waste per Section 261.4(a)(8). Since the generator is handling a hazardous waste, he/she must comply with the applicable provisions of Parts 262 through 270. Source: Chester Oszman (202)3824499 Research: Joe Nixon ------- 9471.1989(01) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY L WASHINGTON. D.C. 20460 ‘P L 01 C MPR 20 1989 O cICE O SOLID WAS€ AND EMERGEp cv PESDc Mr. Robert H. Elliott, Jr. Zerpol Corporation 1300 Schwab Road Hatfield, Pennsylvania 19440 Dear Mr. Elliott: This letter is written in response to your Correspondence of January 10, 1989, regarding the applicability of permit requirements under the Resource Conservation and Recovery Act (RCRA) to your zero discharge wastewater treatment system. As I understand the Zerpo]. Zero Pollution System, industrial wa tewater discharge to ground water, surface water and sewer Systems is eliminated by a process that returns treated water to the production area for reuse. You have previously confirmed that a National Pollutant Discharge Elimination System (NPDES) permit issued under section 402 of the Clean Water Act (CWA) is flOt. required for a zero discharge system. In your January 10, 1989 letter, YOU requested a statement from EPA confirming that a RCRA Part B permit is also not required for your system. In responding to your letter, I am assuming that you are referring to an exemption from a RCRA Part B permit requirement based on the wastewater treatment unit exemption found at 40 CFR 2 64.1(g)(6) or 265.l(c)(lO). There has been some Confusion, which I will clarify, regarding the regulatory interface between the NPDES permit of the CW and the exemption for wastewater treatment units at 40 CFR 264.l(g)(6) or 265.l(c)(1O) of RCRA, Particularly where zero discharge is involved. To understand this interface, it helps to note that one of the reasons for the wastewater treatment unit exemption is to avoid the overregijlatjon of such units by requiring both a NPDES permit and a RCRA Part B permit for the same unit. To qualify for the wastewater treatment unit exemption, one of the criteria which must be met is that the unit must be part of a wastewater treatment facility which is subject to regulation under either section 402 or 307(b) of the 0Th. This means that the facility must have a NPDES permit under section ------- —2— 402, be subject to an effluent guideline issued under sections 301 and 402 of the CWA, or be subject to the pretreatment requirements of 307(b) of the CWA (i.e., protection of human health and the envirorupent is ensured by regulation u.nder the CWA rather than RCRA). While it is true that a zero discharge system does not require a NPDES permit, the absence of this permit (or an applicable effluent guideline or pretreatment standard specifying zero discharge) necessitates a CRA Part B permit. Otherwise, a wastewater unit treating hazardous wastes could escape regulations developed to ensure protection of human health and the environment. Although this approach may, at first, be viewed as a disincentive to developing zero discharge systems, a MPDES permit that specifies “zero discharge” may be the most appropriate alternative to a RCRA Part B permit in industries without zero discharge effluent guidelines, encouraging zero discharge systems while being consistent with the Agency’s mandate to protect human health and the envi roninent. I should also respond to a statement you made in your request for confirmation that a RCRA Part B is not required. You asked EPA to send you a statement that a Part B permit is not required for a “completely closed loop system.” I assume you are referring to the exemption for a totally enclosed treatm tit facility found at 40 CFR 264.l(g)(5) or 265.l(c)(9 . As defined at 40 CFR 260.10, a totally enclosed treatment facility is one which is directly connected to an industrial process and which is constructed and operated in a manner which prevents the release of any hazardous waste, or any constituent thereof, into the environment during treatment. A zero discharge system under the CWA does not automatically qualify for this exemption. For example, a system that uses tanks without covers may not qualify because it would not restrict the escape of hazardous constituents to the air. However, I did not receive sufficient information on your system to evaluate it. You should be aware that State environmental regulations are also applicable and that. the State may regulate such facilities differently under the State program. Therefore, whether a RCRA Part B permit is required for your system may be determined by the appropriate State agency. A point source discharge which is operating without a valid NPDES permit is also “subject to” section 402 of the CWA (albeit in violation of that section). ------- —3— Should you have any further questions, you may contact Robert Dellinger or Mitch Kidwell, of my staff, at (202) 475—8551. Sincerely, ‘k. Sylvia K. Lowrance, Director Office of Solid Waste ------- 9471.1993(01) ,IOS?4% I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY J WASHINGTON. D.C. 20460 jtj 4 -2 t993 OFFICE OF 501.10 WASTE AND EMERGENCY RESPONSE Mr. Alan Phillips Air Quality Laboratories 928 7th Street Santa Monica, CA 90403 Dear Mr. Phillips, Thank you for your letter dated May 1, 1992, concerning separator water and the use of evaporators at dry-cleaning facilities. I apologize for not replying to your letter sooner. In your letter, you inquired about the regulatory status under the Resource Conservation and Recovery Act (RCRA) of your Zerowaste machine. In general, EPA Regions and authorized states answer inquiries about the hazardous waste regulations. However, we understanä that you have already consulted with Region IX on this issue, and they referred you to us for further clarification. Your letter stated that dry cleaners are classified as conditionally exempt small quantity generators (CESQGs) under the RCRA hazardous waste regulations. I would like to clarify that a facility’s generator category under RCRA is determined by the total amount of RCRA hazardous waste generated per calendar month at that facility . We cannot, therefore, draw any conclusions that all dry cleaners fall within only one generator category or another. If certain dry cleaners meet the definition of CESQG, they must comply with only the requirements outlined in 40 CFR 261.5. Based on the information received from you, as well as other information from dry cleaner trade associations and other interested parties, we feel that the separator water evaporators meet the definition of “wastewater treatment unit” under RCRA. Tanks that meet the definition of wastewater treatment unit are exempt from RCRA permitting under 40 CFR Sections 264.1(g)(6) and 270.1(c)(2)(v). Therefore, these units would not require RCRA permits, provided the criteria for qualifyi4 as a wastewater treatment unit outlined in 40 CFR Section 260.10 are met (see discussion below). The definition of wastewater treatment unit consists of three parts enumerated at 40 CFR Section 260.10. First, the evaporator unit must meet the definition of “tank” or “tank system” also found in Section 260.10. The descriptions you provided indicate these units are tanks. Second, the evaporator must be receiving and treating or storing an iniluent wastewater (or wastewater treatment sludge) that is a hazardous waste. We are assuming the separator water is hazardous waste either by application of the derived- —- 0— — ------- from rule (e.g., derived-from P002), or the toxicity characteristic (e.g., perchioroethylene). Finally, the dry-cleaning facility must be subject to Sections 307(b) or 402 of the Clean Water Act; this includes wastewater treatment units at facilities that 1) discharge treated wastewater effluent into surface waters or into a Publicly-Owned Treatment Works (POTW) sewer system, or 2) produce no treated wastewater effluent as a direct result of such requirements. We understand that some dry cleaners are eliminating discharges due to concerns over sewer pipe leakage, not CWA discharge limits per Se. However, given the rela iveIy small amounts of wastewater involved, we have concluded that this situation is similar enough to warrant equal consideration under the wastewater treatment unit exemption. Please note that the wastewater treatment unit exemption applies to the storage and/or treatment of wastewater , not concentrated wastes. This exemption would not be available to anyone placing free-phase perchloroethylerle 1 for example, into an evaporator. Thank you for your interest in solid and hazardous waste management. If you need further information, please contact Ross Elliott of my staff at (202) 260-8551. Sincerely, ffice of Solid Waste ------- General Facility Standards (Subpart B) ------- 9472 - GENERAL FACILITY STANDARDS Parts 264 & 265 Subpart B ATK1/1104/33 kp ------- 9472.1983(01) RCRA/SUp p’UND HOTLINE MONTHLY SUMMARy JULY 83 Iow detailed must the analysis 0 f my waste be for simple storage at my interim status facility? The caller Is referred to §265.13 (General waste analysis). The aftalysis must, at a ‘intimum, contain all the Information necessary to store the waste In accordance with Part 265. Adequacy is deternined on a case by case basis by the Regional EPA office or the State (If the State has Interim authorization). Further guidance can be found In Permit Appflcant’s Guidance Manual for General Facility Standards (Liraft June 19R3) which Is currently available In the EPA Regional libraries. ------- 9472.1983(02) RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY JULY 83 — 4OCFR 264.12(b) requires the owner/operator of a hazardous waste management facility to inform a generator in writing that the facility has the appropriate permit(s) for an6 will accept a generator’s wastes. Is a generatOr required to receive this written notice prior to transport? No, 4OCFR 262.20(b) stateS that wasteS transported offsite rust be sent to a facility permitted to handle that waste; a generator is not required to ask for or receive a written notice from the facility owner/operatOr. However, a written notice would assure the generator that he is in compliance with 4OCFR 262.20(b). A written notice would also avoid the potential problem of a generator sending waste to a facility which has the proper permits but which has not agreed to accept the waste. Source: Rolf Hill ------- 9472.1985(01) RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY MAY 85 Waste Analysis 2. Pursuant to 40 R H265.13 aid 264.33, rlners aid erators (0/0) of hazai- d s waste trea t, storage, aid disp al (Ta)) fw’illties nust a ain a waste analysis. Itist ailnez/cperators use “Test Met) for Evaluating Solid stes ” (S4-846) for this waste analysis? Curr atly, A does r t require the use of ‘I-O46 for the required waste analysis pirsuant to 265.13 aid 264.13. A. ) ver, reo t1y 49 FR 38786) to in the t er 1, l984 ,E deral jster( require the nardatory use of analysis, and test.thg required der 40 ‘R Parts 260-271 1ess otherwise specified. Sourcesi Bar ra Pace (202) 382—7703 ------- 9472.1985(02) [ [ RCRA/SUPERFUND/OUST HOTLINE II MARCH MONTHLY REPORT QUESTION 1985 Waste Analysis Plan 4. If an owner/operator of an interim status or permitted treatment, storage,. or disposal facility (TSDF) accepts hazardous waste from small quantity generators, must he address that. waste In his waste analysis plan requireb under §265.13 (for Interim status facilities) or §264.13 (for permitted facilities)? No; the owner/operator would not have to address the wastes from small quantity generators In his waste analysis plan. Sections 265.1(b) and 264.1(b) state that all of the Part 265 and 264 standards do not apply if otherwise excluded In Sections 265.(1)(c) or 264.(1)(f) and (g) or in Part 261. Section 261.5(b) states that a small quantity generator’s hazardous wastes are not subject to regulation under Parts 262—265 and Parts 270 and 124 if the small quantity generator complies with the §261.5 standards. Hence, hazardous wastes from small quantity generators in compliance with §261.5 are not subject to Part 265 or 264 standardS, including § 265.13 and 264.13 for waste analysis. ------- - — . 9472.1986(02) Dr. 3. F. Dudenbostal, Director New Jersey DEP CU— )28 436 Easte State Street Trenton, r4ew Jersey 08625 Dear Dr. Uudenbostals The Office of Solid Waste and ergency Response has an ongoing laboratory evaluation program for EPA laboratories and contractors. This program entails the geriodic analysis of performance samples using specified methods selected fr those published in ‘Test Methods for Evaluating Solid Waste (SW—846). As we promised last summer, EPA is expanding the program and inviting the solid waste testin laboratories of State regulatory agencies to participate. This is a voluntary program designed to allow laboratories to evaluate their car*bility to analyze RCRA/CERCLA samples using SW—846 methods. We feel that a valuable side benefit of the program is the information, the Agency obtains, on how well the test methods perform in routine use and where method improvements are needed. The program is structured so that it is a self—auditing operation. Samples are periodically sent to the desiqnated laboratory contact along with specific instructions and analytical standards necessary for the analyses. The sar ples range frau very simple aqueous solutions to more complex matrices character- istic of wastes. Participating laboratories receive four sets of samples per year. Each set consists of two samples, one inorganic and on. organic. Results are submitted to EPA for evaluation against referee values. A report is then prepared, and sent to you which shows both how well your laboratory perfo md and how the other participating laboratories did. No laboratory is identified to any other laboratory. If your laboratory encounters problems in performing a specific test, EPA is pr.parsd to assist you in resolving the problems. ------- If you would like to your 1a oratory to Darticj, at#, in thte evaluation pro ra; , please contact Florence Richard y or me at (2J2) 332—4770 for more det j1s, David Fried, an flan 5gev Methods Progran (WU—562 ) ------- 9472.1986(04) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20400 rr 4 JUN 86 I ri JJ OFFICE OF Li L Lj L JLJIJ SOLID WASTE AND EMERGENCY RESPONSE Mr. John Richard Slate City Attorney Suite 204 10551 Allen Road Allen Park, Michigan 48101 Dear Mr. Slate: This is in response to your April 30, 1986, letter to Congressman John Dingell regarding the Crystal Mines in Detroit, Michigan. Mr. Dingell has requested that we keep you informed of any developments pertaining to this matter. The Resource Conservation and Recovery Act (RCRA) allows the placement of hazardous wastes, other than bulk liquids, in salt mines if a RCRA permit is issued. Crystal Mines, Inc. (CMI) thus could apply now for a RCRA permit for the placement of containerized or solid hazardous waste. You should be aware that neither EPA nor the Michigan Department of Natural Resources (MDNR) has yet received an application from CMI. Depending on site—specific factors, however, it may be more appropriate to consider permitting the Crystal Mines facility under new, special regulations for miscellaneoug hazardous waste management units. These rules are likely to be used for permitting most placement of containerized or solid hazardous waste in underground mines. The rules will be proposed this summer for public comment and will be issued in final form early in 1987. Once a permit application is received, EPA and MDNR would consult with .ach other during careful review of the application. The consultstion process provides assurance that all the RCRA permitting requirements designed for the protection of human health and th. environment are satisfied before the permit is issued. These requirements include monitoring, corrective action, closure and post—closure care, and financial assurance. Because of the many new requirements imposed by the Hazardous and Solid Waste Amendments of 1984, it is likely that any permit issued to CMI would be issued jointly by EPA and MDNR. ------- The RCRA permitting process also includes public participa- tion through comments on a draft permit. Usually, the notice of intent of a permit decision and opportunity for public comment is provided in local newspapers, on radio, and to local groups on EPA or MDNR mailing lists. The schedule for public input to the permitting process in this case is uncertain, since we have not yet received a permit application from CMI. Thank you for your interest in this important hazardous waste issue. Sincerely, 3. Winston Porter Assistant Administrator cc: Honorable John D. Dingell Richard Traub, Region V James Roberts, MDNR WH—562/D.Zeit lin/bc/6—2 —86/Contro l No: 601581/Due Date: 6/4/86 382—4646 ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY :, 9472.1986(06) 8 JUL 86 Mr. Richard 7. Gimello Executive Director State of New Jersey Hazardous Waste Facilities Siting Commission (CN 406) Trenton, New Jersey 08625 Dear Mr. Gimello: Thank you for your June 5, 1986, letter regarding the Environmental Protection Agency’s (EPA’ .) activities on location guidance. You raised six major issues that I will address. I understand that you discussed several of these issues with Christopher Daaqett, Regional Administrator for Region II, his staff, and Arthur Day of my staff in a meeting on June 20, 1996. lou requested conies of the Phase I and Phase II documents. I have attached the Phase I document entitled The Permit Writers’ Guidance Manual for Location of Rasardous Waste Land Treatment, Storage, and Disposal Facilities —— Phase I —— Criteria for Location Accentability and Existing Applicable Regulations . However, the second document entitled Guidance Criteria for. Identifying Areas of Vulnerable Hydrogeoloqv is currently under internal Agency review and not available for external distribution. When this review is comDleted, the document will be issued as an ‘interim final’ guidance tr, provide the public with the onportunity to comment. We will send you a copy at that time. I have attached a summary of these two documents (Attachment I) to clarify any confusion that exists about the various drafts that were circulated. In addition, I have attached Criteria for Identifying Areas of Vulnerable ffydroaeoloay —— Anpenciix D —— Develonment of Vulnerability Criteria Based on Risk Assessment and Theoretical Modeling and an Executive Summary which provides the detailed rationale for why selected the ‘time of travel’ (TOT) along a 100—foot flow line (TOT 100 ). Your major concern centered on EPA’s rationale for pro- posing the TOT. We selected T0T 100 for three reasons: (1) it identifies locations where plume ii .. viii be minimized: ------- (2) it identifies areas that minimize notential for exposure to releases occurrlnr in the absence of monitoring and response; and (3) it is useful in recognizing three potential. exposure pathways. You also questioned how the TOT method applies to coastal states like New Jersey. EPA is currently developing a •trater y to decide how the numerous RCRA regulatory provisions pertainin i to ground water should interrelate. One of the qu.stions the strategy will address is how the vulnerable hydrogology guidance should be used, i.e., how vulnerability undsr the TOT method should affect a siting decision. The strategy should be completed by this fall and will be publicly available. i want to stress, however, that the vulnerable hydrogeology guidance is not location autdartce in the sense that it prescribes where facilities may be sited. The document only describes a method by which vulnerability can be assessed; it does not dictate what siting decision should be male based on the results of the assessment. You asked if the comoendium of ettina criteria is completed and if so was it used to develop the Guidance Criteria for Idantttvtng Areas of Vulnerable Hydrogeolojy . We have completed the comoendium and produced a report entitled Review of State Siting Criteria for the Location of Hazardous Waste Land Treatment, Storage and Disposal Pacilities . I understand my staff provided you with a copy of this report earlier. This reoort states that there seems to be no consensus among states that use a ‘TOT concept; aoprooriate values for travel time ranged from 3 years to reach off—site wells to 1000 years to reacb an environmental oathway. Also, states empha- sized that disposal units shou’d be located in low permeability soil (examples ranged froi’ 10— to 10_S cm/eec). These two points indicated to us that our vulnerability criteria were well within the scope of many state siting criteria. Finelly, you suggested that we conduct a manage’”ent- level review of the suitability of New Jersey’s siting criteria. Te are currently reviewing the New Jersey Siting Criteria document you enclosed and will provide you with comments by late July. Please understand that our vulnerable hvdroaeoloqv guidance is ‘ust that, guidance. Our next sten, in resnonse to RCRA Section 3004(O)(7), is to develop location regulations anolicable to new anti existing hazardous waste treatment, storage, end disposal facilities. We will keep you Lnforr ed as these standards are developed, proposed, and finalized over the next two years. ------- I hone this letter addresses the issues you raised. If you have any further questions, please feel free to contact JohnLehman, Director, Waste Management Division, at (202) 302—7919. Sincerely, _. —. —— —— — j . Wjngton Porter Assistant Administrator Enclosures WH562/MCMMtJS/D.ZEtTLtN/s1d/7—2 B6/Contro1 Mo: SWER—09159 382—4651/Due Date: 7—8—86 ------- ADTACHMENT 1 I. The Perrit Writer’s Guidance Manual For Location of Hazardous Waste Land Treat ’%ent, Storarle and flisDosal Facilities — — Phase I o Published in draft final in February of 1985 o written prior to the Hazardous and Solid Waste Amendments (H SWA) o Describes five criteria for an acceDtabie location and cites existing applicable requlations undir RCRA and other Federal laws it. Guidance Criteria for Identifying Areas of Vulnerable HvdroQeolOqY o FormerlY known as Phase It Guidance o Satisfies the statutory requirement (3004)(0)( ) of RCRA as amended by HSWA that EPA develoD Guidance Criteria that defines Vulnerable Hydrogeologies o AssesseS site vulnerability by applying the time—of— travel (TOT) of around water along a 100—toot flow line (TOT 100) ortginatinq at the base of a hazardous waste unit. ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9472.1987(01) Ji’1 241987 MEMORANDUM SUBJECT: Determination of Operator at Government—Owned Contractor-Operated (GOCO) Facilities FROM: Gene A. Lucero, Director 6 Offic, of Waite Prograws Enforcampnt Marcia E. l.Ulj . Director “- Office of Solid Waste TO; Waste ? anagement Division Directors Regions I — X The purpose of this memorandum is to clarify who Should sian as the operator on Dermit applications for Government— Owned contractor—operated (GOCO) facilities. Earlier guidance (see attached memo) had recommended that the Regional office consider the role of the contractor in the operation of the facility before determining who should sign the permit appli- cation. We also noted that in some cases where the contractor’s role is less precisely defined the Region should exercise judcpnent given the factual situation. It appears that there is still some confu i r re’iariirw’ si’ natorjes for permit arrljcatj n . v.henevcr a contractor or contractors at a govsrItJ,ent —3w , facility, are responsible or partially responsible for the t peration, managelPent or oversiaht of hazardous waste activities at th. facility; they should sign the permit as the operator(s). In some instances both the Federal agency and th• Contractor(s) are the operators and multiple signatures to that •ffect would be appropriate. A review of th• facility’. operating records, contingency plans, personnel training record., and other documents relating to waste managem.nt should indicate who the operator(s) are. As a general rul•, contractors will meet this test and therefore in most situations ov1d be r.quir.d to sign th. p.rmit application. ------- —2— I you tave any cuestjons Dlease c’ ntact Ji n Mic eJ. Ortic c i1 jc t ‘T 3P2—223i or P nna L’ur c rt. O t ice nf :a te Prr - Enf rce ’ rt at FT 3€2—482 .. ittac ”menP cc: I zuce Wddle, OSW Flame Stenle. • Chris G u 11.t, OS ’:!R flatt flaIs PSPD Feoerel Facility Coordinators, Pegion I—x bcc: Jim Michael, OSW Anna Duncan. OWPF Suzanne Rudzinski, PSPD ------- UN’’O STATES ENVIRONMENTAL PROTECT’- W AGENCY 9472.1988(01) JUN 2 988— Thomas 3. Dolce, P.E. Principal Engineer Applied Environmental Technologies Corp. 7 Belver Avenue, Suite 210 Quonset Point, Rhode Island 02852 Dear Mr. Dabs: Your letter of April 18, 1988 asks for a regulatory interpretation regarding the security requirements of 40 CFR 264.14(b). I will provide you with the Federal interpretation, however, I also want to refer you to the States where your facilities are located, for the States’ interpretation. The RCRA/Superfurid Hotline was correct in indicating that if all hazardous waste storage and treatment occurred within a facility’s building, then the walls of the building would constitute compliance with the artificial barrier requirement in 40 CFR 264.14(b)(2)(j). Further, 40 CFR 264.l4(b)(2)(i ) is satisfied when all entry doors are locked at all times with entry strictly controlled through the main plant entrance, as you suggest. However, the phrase “strictly controlled” should be fully described, with examples relevant to the facility, if you are preparing a Part B permit application. The “Permit Applicants Guidance Manual for the General Facility Standards of 40 CFR 264”, SW-968, August 1983 (availabl, through the Hotline), supports our regulatory interpretation by stating that “214.14(b) i satisfied if the activ, portion is located within a facility or plant which itself has a surveillance system, or a barrier and a means to control sntry.” The guidanc. goes on to say that “the requiru.nts for sign, in 264.14(c) would still be applicable.” I u eui you to also ask the State hazardous waste agency which —...4n, jurisdiction over the facility(ies) of concern to you-1 r i interpretation of the State security requirem.nt,, using the same description as was included in your April 18th letter. The Stat., in most likelihood (especially in New England), is the authorized permitting ------- authority who will be issuing the facility’s permit. In some cases, the State’s hazardous waste regulations are more stringent or broader-in-scope than the Federal requirements. A list of State hazardous waste agencies is attached for your use. If you have any further questions about the Federal RCRA requirements, please contact Chester Oszman at (202)382-4499. Sincerely, Bruce R. Weddle Director Permits and State Programs Division Attachment cc: Chester Oszman, OSW ------- 9472.1991(01) NOTE SUBJECT: Location Standards for Hazardous Waste Management Facilities TO: Bob Knox You recently requested information on our hazardous waste facility siting requirements in response to a request by Gordon Binder, who is concerned about potential environmental equity issues in the siting process. The following is a summary of our current siting requirements and an overview of new standards that are being developed. Both current standards and those under development are based on technical suitability of a site; economic or other factors are not considered. Historically, hazardous waste units have been associated with industrial manufacturing plants. The siting of these plants is controlled by local zoning requirements. EPA currently has limited regulatory restrictions for the siting of hazardous waste treatment, storage, and disposal facilities (TSDFs). These siting restrictions are based on the sensitivity of the environment; they restrict TSDFs from locating in 100-year fioodplains and areas prone to severe earthquake damage in certain parts of the western United States. The Agency, however, is currently developing more restrictive siting criteria for TSDFs. These more restrictive criteria will also be based on the sensitivity of the environment. Certain very environmentally sensitive locations will be subject to absolute siting prohibitions. New and expanding TSDFs will be prohibited from siting in wetlands, in historic migration zones of rivers and coastal waterways, and directly over active seismic faults. The proposed location standards wili also place additional conditions and restrictions on TSDFs in unstable areas, areas susceptible to earthquake p-damage anywhere in the United States, karst terrane (limestone areas prone to sinkhole development), hydrogeologically complex areas, and areas over high-resource-value ground waters (e.g. drinking water areas). Additional requirements in these sensitive locations include either technical or health-based demonstrations by the owner or operator of the TSDF. Technical demonstrations would generally involve engineered modifications to the environment or to the unit that would mitigate against the location- specific hazard. EPA is not alone in recognizing the need for TSDF location standards in certain sensitive locations. To date, 38 states have either proposed or promulgated location standards that are more stringent than the Agency’s current siting standards. Some of the States’ siting standards are even more stringent than what the Agency is proposing. For example, the State of South Carolina also requires TSDF siting setbacks from schools and waterways. ------- The specific location selected for a TSDF is a local decision. However, because EPA regulations are based on the technical suitability of a Site and not on economic or other factors, they ensure that the selected TSDF site is protective of the environment. Furthermore, the EPA and State permitting process ensures public participation in establishing the conditions for the TSDF, including its location, design and operation. Jeff Denit ------- HOTLINE QUESTIONS AND ANSWERS December 1994 9472.1994(01) 2. Elementary Neutralization Units Generating and Storing Non- Corrosive Hazardous Wastes The operator of an electroplating facility neutralizes corrosive DC%.)2 wastewarers with lime 14 an on-site tank. The neutralization process causes a sludge to accumulate at the bottom of the tank. Although it does not exhibit the characteristic of corrosivuy, this sludge from the treatment of electroplating wastewaters meets the definition of F(X)6 listed hazardous waste (40 CFR §26131). The neutralization process thus causes a non- corrosive hazardous waste to be generated and stored in the treatmne,u tank. Can this tank meet the definition of an elemnentaiy neutralization unit? This ueataient tank at the electroplating facility meets the definition of an elementary neutralization unit, because the waste originally treated in the tank is hazardous only due to corrosivity. According to 40 CFR §260.10. an elementary neutralization unit s a device which: (1) is used for neutralizing wastes that are hazardous only because they exhibit the corrosivity characteristic, or are listed only because of corrosivity; and (2) m is the definition of a tank, container. tr.in ’ ’rt et1!cle, or vessel. As long as the original influent waste is hazardous only due to corrosivity, generation of a new, non.’ corrosive listed orcharacteristic hazardous waste during the neutra1ii non process does not automatically bar the tank from the elementary flCUU Ii72t1On unit definition. This tank is therefore eligible for the exemption for elementary neurraliiarion units found at 40 CFR **264.l(g)(6), 265.1(c)(lO), and 270.l(c)(2Xv). Units qualii ing for this exemption are not subject to permitting, generator on-site accumulation time limits, weekly inspections, or other technical RCRA standards. Since the elementary neutra1i rion unit exemption applies only to the tank and does not attach to wastes that are removed from the unit, the RX)6 sludge formed during the neutr li,ition process is subject to full regulation as a hazardous waste once it is removed from the tank for neannenc and ------- This Page Intentionally Left Blank ------- IO S7 .t) _____ UNITED STATES ENVIRONMENTAL PROTECTION AGENC.Y. REGION 5 C VE L 77 WEST JACKSON BOULEVARD CHICAGO, IL 60604-3590 JUN f99 -‘ 08 9472.1995(01) CS-29A RECEIVED Rosemary Cantwell, Chief Hazardous Waste Enforcement Section JUN 14 1995 Office of Enforcement Indiana Department of Environmental Management ENvIRONMENTAl 100 North Senate Avenue , PJ Ot1S A 1 M( ’lT Indianapolis, IN 46206-6015 --. .. Re: Regulatory Assistance Dear Ms. Cantwell: The U.S. Environmental Protection Agency (U.S. EPA) is in receipt of the April 11, 1995, letter from Mr. Matthew Klein, of your staff. The letter requested guidance on the legal significance of “comments” in the Code of Federal Regulations (CFR), specifically in 40 CFR §265.176 [ 329 IAC 3.1-10-1&2]; whether generators who store ignitable or reactive waste in containers must post “No Smoking” signs pursuant to 40 CFR §265.17(a) [ 329 IAC 3.1-10-l&2]; and whether permitted treatment, storage and disposal (TSD) facilities which employ a facility- wide “Tobacco-free” policy are exempt from posting “No Smoking” signs, as required by 40 CFR §264.17(a) [ 329 IAC 3.1-9-1&2]. The Region’s interpretation of the issues raised in Mr. Klein’s letter are as follows: (1) Significance of “comments” in CFR : Existing case law confirms the status of “comments” and “notes” in zz z ze a co :; en a y, nd not a legal require e’it. as would be the rule itself. A court may look at comments or notes to help interpret a provision, but the comments or notes are not themselves binding. See United States v. Marathon Development Corp. , 867 F.2d 96 (1st Cir. 1989); Motorola. Inc. v. United States , 729 F.2d 765 (C.A. Fed. 1984). See also In re Valentine , 146 B.R. 945 (Bkrtcy. E.D.Va. 1991); In re Taylor , 45 B.R. 643 (Bkrtcy.Pa. 1985); Omaha Pollution Control Corp. v. Carver- Greenfjeld Corp. , 413 F.Supp. 1069 (D.C. Neb. 1976) (latter cases discussing significance of comments in the Uniform Commercial Code]. Thus, on the basis of existing case law, the Indiana Department of Environmental Management (IDEM) cannot use the comment following 40 CFR §265.176 [ 329 IAC 3.1-10-1&2] to require a generator to comply with 40 CFR §265.17(a) [ 329 IAC 3.1-10- 1&2], if it would not otherwise be subject to that requirement. P::ntea on Recy 1eo Paper ------- 2 (2) Are aenerators who store ignitable or reactive waste in containers for less than 90 days subject to 40 CFR §265.17(a) ? Pursuant to 40 CFR §262.34(a)(l)(i) [ 329 IAC 3.l-7-l&2], a generator may accumulate waste on-site for 90 days or less without a permit or without having interim status provided that the waste is placed in containers and the generator complies with Subpart I of Part 265 (329 IAC 3.l-l0-l&2]. Pursuant to 40 CFR §265.176 of Subpart I [ 329 IAC 3.l-l0-1&2], containers holding ignitable or reactive waste must be located at least 50 feet from the facility’s property line. A comment in this section directs the reader to additional requirements found at 40 CFR §265.17(a) [ 329 IAC 3.1-].0-1&2]. The applicability of the requirements of 40 CFR Part 265 is found at 40 CFR §265.1(c)(7) [ 329 IAC 3.1-10-l&2]. Pursuant to this section, the requirements of Part 265 do not apply to generators accumulating waste on-site in compliance with 40 CFR §262.34 (329 IAC 3. 1-7-1&2], except to the extent that such requirements are included in 40 CFR §262.34. Pursuant to 40 CFR §262.34(a) (4) (329 IAC 3.l-7-1&2], a generator who accumulates hazardous waste on site for less than 90 days need not seek a permit or have interim status if it meets several requirements, including compliance with requirements for owners and operators in Subparts C and D in 40 CFR Part 265, with §265.16 (in Subpart B), and with 40 CFR §268.7(a) (4). Note that 40 CFR §265.17 specifically is not mentioned. Thus, 40 CFR §265.17(a) [ 329 IAC 3.l-l0-l&2] is not included as one of the applicable sections for a generator meeting the requirements of 40 CFR §262.34 [ 329 IAC 3.l-7-l&2] Can IDEM reauire a generator to post a siqri advising that there should be no ignition sources near combustible material ? According tO 40 CFR §265.31 of Subpart C (329 IAC 3.1-10-1&2], with which a generator must comply pursuant to §262.34 (a) (4) [ 329 IAC 3.1-7-1&2], a facility must be maintained and operated to minimize the possibility of a fire, explosion, or any unplanned releases of hazardous waste or hazardous waste constituents which could threaten human health or the environment. Region 5 believes that 40 CFR §265.31 [ 329 IAC 3.1- 1O-1&2] is broad enough to allow IDE ? ’ ! to request (for example in a compliance order) that a generator post a sign near combustible waste advising that there is “no smoking” or there are “no ignition sources.” ------- 3 (3) Are oermitted TSDFs with a “Tobacco-free” policy which store ignitable or reactive waste required to post “No Smoking” signs pursuant to 40 CFR 264.17(a) ? For both permitted and interim status treatment, storage, and disposal facilities (“TSDFs”), 40 CFR §264.17(a) [ 329 I1 C 23.1 -9- l&2] and 40 CFR §265.17(a) (329 IAC 3.1-10-1&2], respectively, require that a “No Smoking” sign must be conspicuously placed wherever there is a hazard from ignitable or reactive waste. There is no exemption for a facility with a “Tobacco-free” policy. The fact that a facility has a “Tobacco-free” environment may not fully address the human and environmental safety concerns stated in the regulation. The text of both these provisions clearly spells out that the purpose of the provision is to prevent the exposure of ignitable wastes to “Open flames, smoking, cutting and welding, hot surfaces, frictional heat, sparks. . , spontaneous ignition. . , and radiant heat.” 40 CFR §264.17(a) and 40 CFR 265.17(a) specify that when ignitable or reactive waste is being handled, the owner or operator must confine both smoking and open flame to specially designated areas. The regulations absolutely require posting at least a “No Smoking” sign. Based on the information provided, the facility’s argument that posting a “No Smoking” sign would encourage smoking is not viewed by the Region as a valid excuse for failing to comply with 40 CFR §265.17(a). In our view, IDEM is justified in arguing that the facility is free to post a “No Smoking or Ignitable Sources” sign, but the facility must, at a minimum, post a “No Smoking” sign. We hope that the above comments are responsive to the issues raised in the April 11, 1995, letter. Should you have further questions, please do not hesitate to contact Barbara L. Wester, Assistant Regional Counsel, (312) 353-8514, or Michael cunningham, RCRA Thchnical Enf rce ten Section: at (312) 886-4464. Sincerely yours, I T. Leverett Nelson Thad Slaughter Acting Chief, Acting Section Chief Solid Waste Emergency Response Technical Enforcement Branch Section 1 cc: Matthew Klein, IDEM ------- This Page Intentionally Left Blank ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460. 9472.1997(01) J14 10 1997 OFFICEOF SCUD WASTE AND EMERGENCY RESPCNSE Mr. Robert J. Tierney United Technologies, Pratt & Whitney 400 Main Street East Hartford, Connecticut 06106 Dear Mr. Tierney: Thank you for your letter of May 21, 1997 regarding the Environmental Protection Agency’s (EPA’s) personnel training requirements under the Resource Conservation and Recovery Act (RCRA). You request concurrence on your interpretation of the requirements for annual training found at 40 Code of Federal Regulations (CFR) 264.16 and 40 CFR 265.16 as they apply to employees of treatment, storage, and disposal facilities (TSDFs). These requirements also apply to large quantity generators subject to 262.34 (a) (4). - Specifically, you ask whether your system of annual training comports with the federal requirements. Based on the description provided in your letter, the Agency believes that your training program meets the federal requirements for training found at 40 CFR § 264.16 and 265.16. As you know, under Section 3009 of RCRA (42 U.S.C. Section 6929), states retain authority to promulgate regulatory requirements that are more stringent than the federal regulatory requirements. Therefore, you should contact the state(s) in which you operate for a more site—specific determination. In general, EPA requires TSDFs and generators of more than 1,000 kilograms per month of hazardous waste (or more than 1 kilogram per month of acutely hazardous waste) who accumulate waste on site to comply with the personnel training requirements outlined at 40 CFR 264.16 and 40 CFR 265.16. The requirement at 40 CFR 264.16 and 40 CFR 265.16. requires facility personnel to “take part in an annual review of the initial training...” The purpose of this requirement is to ensure that facility personnel maintain expertise in the areas to which they are assigned thereby. reducing the potential for mistakes that might threaten 100% Roqvdod Paper (40% Posiconsumor) ------- human health or the environment. This requirement also ensures that personnel are able to respond effectively in emergency situations. The Agency is aware that companies may have many employees, and must organize training so that groups of employees can take training together. As stated in your letter, United Technologies, Pratt & Whitney requires employees to take refresher training within a 90—day window before the one-year anniversary of the original training. Under this system, employees who receive training during the beginning of the 90-day window in one year, and at the end of the 90-day window in the next year, may have as many as 15 months between training courses. While it may be infeasible for companies with many employees to train each employee exactly one year after the last training, the Agency does expect companies to attempt to provide training so that personnel are trained every year. While United Technologies, Pratt & Whitney’s program may allow as much as 15 months to pass between training courses, an employee would, over the course of four years for example, receive 4 annual training reviews. Therefore, United Technologies, Pratt & Whitney’s training system as described in your letter would meet the requirements of the federal regulations at 40 CFR 264.16, and 40 CFR 265.16. As stated previously, states may interpret the regulatory requirements more stringently than the federal regulations and should be consulted for an interpretation on this matter. Thank you for your interest in the safe management of hazardous wastes. Sincerely, 446 f24kL lizabeth Cotsworth, Acting Director Office of Solid Waste ------- lAY 21’97 17:18 FR PtJ EtIVR1’IMNT HLTT SFTV 03 565 3324 TO 82022603527 P.02 03 UNITED 400M. In8U,st TECHNOLOGIES PRATT&WHITNEY FAX COPY May21, 1997 Lynda Wynn. Office of Solid Waste Environmental Protection Agency Washington, D.C. Re: Employee Training Dear Ms. Wynn: The purpose of this letter is to seek EPA’s concurrence with UTC, Pratt & Whitney’s understanding of the requirement on 40 CFR 264.16(c) and 40 CFR 265.16(c) for annual review of training. The training regulation, like many of the RCRA regulations, is susceptible to multiple interpretations. UTC, Pratt & Whitney has established an extensive program for training over 15,000 employees in accordance with the requirements of RCRA. Under that system, each employee has an environmental training anniversary and all refresher training would be conducted with reference to that aTrniversazy 1 . Refresher training is conducted at any time within a 90-day period before the anniversary date (the “90-day enrollment window). Thus, in any year, by the time the employee’s 2nniversaly date occurs, the employee will have received refresher training. While this system ensures that training occurs annually , before the anniversary date, it is possible under this system for an employee to go as long as 15 months between training. This could occur if, for example, an employee with a Iraining anniversary date of June 1 reóeives refresher training on March 1 (the beginning of the 90-day enrollment window) in one year and not until June 1 (the end of the 90-day enrollment window) the following year. We believe our system complies with the regulation requiring annual training because training will always occur before the armiversaiy date . Furthermore ------- __,_ —— ——— MAY ?1’97 17:18 FR PU ENURNPINT HLTT SFTY 83 565 3324 TO 82022603527 P.03 ’03 we believe this system will provide for the most efficient and ordcñy lr2ining of a large population of RCRA trainees and will result in a simple and clear system of record keeping to demonstrate compliance. However, given the multiple possible interpretations of the phrase “annual review of initial training” in 40 CFR 264.16 and 265.16, we seek your concui ence that.our pro am, as described above, will meet the requirements of the applicable regulalions. Thank you for your attention to this matter. If you would like any further information concerning our irzi ning system, please do not hesitate to contact me at (860) 565-0982. Your response can be FAXed to me at (860) 565-3324 or nmiled to: UTC, Pratt & Whitney 400 Main Street, M/S 105-11 East Hartford, CT 06108 Sincerely, Q 4 J j- Jd Robert J. Tierney, Manager, Group Environment, Health & Safety 1 This anniversary is established as the date of the employee’s 1993 RCRA training (either initial or refresher) or, for new employees or transfers, as the date of their initial training in years after 1993. This date would remain with the employee for as long as he or she held a position requiring tr inin 8 RJTI. i.It ** TOTAL PPG .003 ** ------- Preparedness And Prevention (Subpart C) __________ ------- 9473 - PREPAREDNESS AND PREVENTION Parts 264 & 265 Subpart C ATKI/1 104(34 kp ------- Contingency Plan And Emergency Procedures (Subpart D) ------- 9474 — CONTINGENCY PLAN AND EMERGENCY PROCEDURES Parts 264 & 265 Subpart D ATK1/1 104135 kp ------- 9474.1984(01) PERMIT POLICY Q & A REPORT CONTINGENCY PLAN SEPPENSER 10, 1984 G. neral St r’ 5 1. Cuestion: For a ncw facility, can inforrtation for the contingency ;lan, sucr as arrance!’ents with local authorities, be subnitted at a d ite 1a er than sutnisston of the rest of the Part ? 40 CF Su part D, 27U.l4(b)(7). Answers flo. If the a p1icant has done enough planning tq support obtainlnrj a kC .A peri it, he should nave sufficient inferr atLon to att r ,t to nake arrange ’ients with local authorities and draft an adeçuato continçency plan. Only those arrançemonts agreed to by local authorities need to be described in the contingency plan. If trio aprlicant’a efforts were unsuccssaf al, those mist be ocur ented separately, according to 5162.37(b), and, in this caso, the cnntiriçency plan does not need to addrsas arrange .nts with local authorities. Also, under 5264.51(4), inferitation regarding t ie specific energency coordinators nay be aubnttted after the tiae of application. / ‘f’f1’( M (bi ) ------- Manifest System, Recordkeeping And Reporting (Subpart B ) A ‘4 U i ------- 9475 - MANIFEST SYSTEM, RECORD KEEPING AND REPORTING Parts 264 & 265 Subpart E ATKI/1104/36 kp ------- .1984(o1) RCRA/SUPERFUND HOTLINE MONTHLY SUNMI RY APRIL 84 2. a) Is a generator required to keep copies of biennial reports and manifests at the - site? The RCRA definition of generator is site specific. b) Is a TSDF required to keep copies of manifests and biennial reports Ofl Site? a) 262.40 does not specify that a generator mist keep copies of manifests and biennial reports on site. Copies of both can be kept at corporate headquarters. It ‘mist be noted, however, that 3007(a) of RCRA states that a generator ‘mist be able to provide to EPA or duly designated personne information on or access to records regarding waste management. — b) 265.71(a)(5) requires TSDF’s to retain copies of manifests on sit é for at least three yeers from the date of delivery. 265.74(a) states that all required records mist be furnished upon request and made available for Inspection by EPA personnel. Biennial reports are required ------- 9475.1985(01) RCRA/SUPERFW(D HOTLINE MONTHLY SUMMARY SEPTEMBER 85 Waste Minimization Certification 3. A shi nt of hazar oas waste is initiated on cc after Septe ber 1, 1985. y a fully—regulated generator. Th. manifest does not contain the waste mini nizat certification as equirad by Section 3002(bUi) of . The ner/operatoc of the designated tea eent, storeg. or disposal facility (T F) eceives en. waste shipTient unaccaiçanied by the waste minimization certification. May t.ie ner/operacor accept the waste shiptient? te the ner/operatcr required to notify the State or Region ab at the inca çlete manifest? Section S265.72(b) requires the ner/cperatx of a TSC1, upon discoverirx a significant (manifest) discrepancy, to first attetçt to reconcile the thsce- pancy with the generator. If the discrepancy cannot be reconciled i t t fifteen days, then the ner/cparatcr ‘mast notify the Regional inistator. Howaver, significant discrepancies as defined in 5265.72(a) ar. ‘(1) for bulk waste. variations greater than 20 percent in waiijht and (2) for batch waste, any varia- tion in piece c jnt.N The n.r/cperatcc’ mist notify the Regional inist ator only far unr.u nciled significant discrepancies. The n.r/op.ratcc need not notify tM Regional inistatcc since waste shipi nts unac çanied by a waste minimization certification are not significant manifest discrepancies. So.irce: Mark Gceen .vod (202) 382-7703 ------- 9475.1985(02) OCTOBER 85 8. assil Quantity Generators, 100—1000 k ,iiiorth generators, and the Manifest A TIall quantity generat (S ) of less than 100 kg,1i nth sends the waste to a facility which is registered by the State to manage (store) solid wastes. This State-registered storage facility accepts wastes fran other snail quantity gersratocs of less than 100 kgflnonth and after collecting eno qh waste for a bulk shipnant (over 1000 kg), sends it to a facility for disposal. (a) s nifesting required at all UI this scenario? f SO, at what (5) Must the fLnal disposal site d RCR permitted disposal fri lity? (c) Lf the snail quantity generators ger ra beewaen 100—1000 kg.4nontr , hcy *OL the ecenario be affected? (a) o manifesting is required ifl this ecenario. The hazar ous waste ttself is eich.ded fran regulation under Parts 262 to 265. 270, arid 124, so t at manifesting is not required of any party wro stores, treats, or disposes of the waste. (b) The final disposal Site need not be a CRA permitted disposal facility. section 261.5(g)(3) all s s to send their waste to a facility which s registered by the State to manage solid wastes arid still r nairt exenpt f ran full regulation. (C) If the waste was generated by 100—1000 kg,iI nth generators, manifesting ou1d be required to the State—registered solid waste stor e facility as wall as to the State—registered disposal facility. In addition, until March 31, 1986, th waste may be disposed of in a State—registered di sal facility. After March 1986, the final disposal site must be a RC P 1 permitted (or interim Status) facility. Soirce: Barry Stoil (202) 382—4761 ------- 9475.1986(Ola) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY I WASHINGTON. D.C. 20460 ‘p4L CC -F 30 : F.CE OF 3 _ ) N$T E GE Cv RESPOp s Honorable Rudy oSchwjtz United States Senator 210 Bremer Building 419 1. Robert Street St. Paul, Minnesota 55101 Dear Senator BOschwjtz: Thank you for your September 16, 1986, letter regarding your constituent, Mr. Win Sabatka, President of Finishing Equipment, Inc. In the correspondence which you enclosed, Mr. Sabat a raised several Questions about the application of Minnesota’s hazardous waste program to Finishing Equipment’s operations. Minnesota has been authorized to implement and enforce the Federal Resource Conservation and Recovery Act (RCRA) program in lieu of the Environmental Protection Agency (EPA) since Esbruary 1985, Mr. Sabatka’g concerns, therefore, are most appropriately addressed by the Minnesota Pollution Control Agency (MPCA) with whom he has been corresponding. Nevertheless, we have spoken with EPA Region V and MPCA representatives to try to clarify the situation. With respect to Finishing Equipment’s manifests, Mr. Sabatka stated in his letter to you that the waste was “properly manifested as (wastej FOOl”. While the waste was correctly identified by the FOOl category, MPCA has infor”eed us that it was incorrectly described as waste oil, rather than as still bottoms. Mr. Sabatka also stated that he does not believe Finishing Equipment’s operations are subject to the financial assurance regulation.. From the information we have obtained, it appears that Finishing Eauioment is a storage facility, as defined in both the EPA and MPCA regulations. Consequently, the owner or operator of the facility must comply with the financial resporisjbi]ity reaulations (among others). The Federal financial regulations were published in large part on April 7 and 16, 1982. Copies of these rules, along with a s munary of them, are enclosed. EPA also made minor changeg to the rules on May 2 and July 11, 1986, but these are not yet effective in Minnesota. Otherwise, Minnesota’s financial rules are subtantially equivalent. ------- I hooe this response is helpful. Dlease feel free to contact Matthew Straus on (202) 475—8551 or Carole Ansheles on (202) 382—4761 of my staff if you have any further auestions on manifesting or financial responsibilities, respectively. Sincerely, 3. Winston Porter Assistant Administrator ------- 9475.1987(01) RCRA/sUpEpyij j HOTLINE MONTHLy SU)OIAR APRIL 87 1. Storage Prior to Recycling According to the hazardous waste recycling regulatior pron lgated as part of the January 4, 1985 rule (50 FR 614), ner or operators of facilities that recycle materials without prior storage are subject only to Section 3010 notification requiremants and 5265.17 and §265.72 manifest regulations per S 26 1.6(c) (2•). - .I the two foll ing recycling operations involve storage prior to recycling? (a) Truck drivers with bulk shipirertEs or druire of spent solvent pour the solvent into a receiving bin at a recycling facility. The receiving bin is directly hafd—piped to the distillation unit, such that the receiving bin feeds the distillations unit. t en the distiller is non—operational (at night), sare waste solvents may re in in the feed tank. (b) As in the first situation, bulk shiprents or dr .gn of spent solvent are poured into a receiving device at a second recycling facility. The receiving device is essentially a tank with a pimp in the bottan which is connected to a large tube that directly feeds into the distillation unit. The punp is in operation whenever there is waste in the tank. Therefore, the tank never contains solvent when the distillation unit is not in operation. (a) Although there is no tiire limit for storage, the two recycling facilities are fundanentaIiy different. The first recycler uses the receiving bin to store waste when the distillation unit is not operating. Per 5 2 6l.6(c)(1), he is subject to the storage standards. (b) In the case of the second recycler, he does not use the receiving bin for storage. His receiving bin is nore clearly used only for conveyance, not storage. The bin is r ore directly tied to the operation of the recycling unit and indeed, could be vie d as part of the recycling unit. Hence, the second recycler would only be subject to S261.6(c)(2 (i.e., getting an EPA ID nuir er and caplyirig with the manifest standards.) Source: Matt Straus (202) 475—855j Research: Kim Gotwa].s ------- FEB 9 g 475.19a9(o1) Dear Facility Manager: As required by the Resource Conservation and Recovery Act (RCRA), the U.S. Environmental Protection Agency (EPA) must submit a report to Congress on the generation and management of large-volume solid wastes from mineral processing facilities. Within six months after submission of the report EPA must then determine which of these wastes will remain exempt from RCRA hazardous waste management (Subtitle C) regulations. We are asking for your assistance in gathering the necessary information for the preparation of the report to Congress and the subsequent regulatory determination. We have enclosed EPA’s National Survey of Solid Wastes from Mineral Processing Facilities. Please complete and return the questionnaire within 45 days of the date you receive it. Your response to the survey is required under Sections 3001 and 3007 of RCRA. Failure to respond may result in a fine or other penalties under Section 3008 of RCRA. We have included some important details about Confidential Business Information as an addendum to this letter. Please read this information carefully before responding to the survey. Secti n 8002(p) of RCRA directs EPA to study various factors as part of the report to Congress on large—volume mineral processing wastes, including sources and volumes of wastes, current waste management practices, alternative waste management practices and their costs, and documented damage and potential risk to human health and the environment from waste management practices. Consequently, the questionnaire requests information on the large—volume mineral processing wastes (which are called SPECIAL WASTES in the questionnaire) from the point of generation to their ultimate onsite or offsite disposition, including all intervening steps. The survey is composed of three booklets. The first booklet contains instructions and definitions for use in completing the questionnaire. The second booklet contains the questionnaire itself. The third booklet contains extra sets that you may need to complete. Please read the instructions thoroughly and carefully before attempting to complete the questionnaire. ------- —2— The questionnaire itself contains nine sections: Section 1, general information on the entire facility. Section 2, processing units that GENERATE a special waste. Section 3, processing units that RECEIVE a special waste (or its residue). Section 4, wastewater treatment plants that RECEIVE a special waste (or its residue). Section 5, surface impoundments (including tailings ponds and lagoons) that RECEIVE a special waste (or its residue). Section 6, other waste management units that RECEIVE a special waste (or its residue). Section 7, environmental monitoring in proximity to special waste management units that RECEIVE a special waste (or its residue). Section 8, general information on waste management units not covered in Sections 5 and 6. (Since any facility subject to Subtitle C requires corrective action at any onsite solid waste management units causing environmental problems, an inventory of each facility’s solid waste management units is necessary for assessing the economic impact of such a designation.) Section 9, contact person at the facility in case follow—up information is needed, and instructions on returning the completed questionnaire. At the end of the questionnaire are lined pages labeled “FACILITY NOTES” for you to use in clarifying or explaining your answers, if necessary. EPA appreciates your efforts to provide timely and accurate information and looks forward to your response. If you have any questions about the survey, please call the toll-free survey helpline (1—800—635-8850). If you are unable ------- —3— to get through on this number, you may call Bob Mall of my staff at (202)475—8814. Sincerely, Sylvia K. Lowrance Director Office of Solid Waste Enclosures ------- HLE CCPY 0’ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C 20460 ,— r 1 4 A ‘ 4 SEP u 9475.1995(01) OFFICE OF SOLID WASTE AND EME CENC V RE SPONSE Mr. Donald S. Berry Goodwin, Procter, and Hoar Counsellors at Law Exchange Place Boston, MA 02109-2881 Dear Mr. Berry: I am pleased to respond to your August 8, 1995 letter, which requested confirmation that the Environmental Protection Agency’s manifest discrepancy requirements would not apply to certain shipments of waste initiated by one of your clients. As related to me in your letter, your client’s manufacturing process generates a waste which exhibits the characteristic of corrosivity. The client ships these wastes to permitted treatment facilities under manifests which indicate the corrosive characteristic of the hazardous waste. However, in some instances, the receiving treatment facility finds that the pH of the waste has changed, such that it no longer exhibits the RCRA corrosivity characteristic. According to your letter, one or more of these treatment facilities has responded to these circumstances by initiating the M maiufest discrepancy procedures described in 40 CFR sections 264.72 and 265.72 (for interim status facilities), or in corresponding State regulations. Your letter asks whether these facts were intended to be covered by the manifest discrepancy requirements. With respect to the requirements of the Federal regulations, our view is that these facts need not give rise to the filing of a discrepancy report. Manifest discrepancies are defined in sections 264.72(a) and 265.72(a) as differences between the quantity or type of hazardous waste designated on the manifest and the quantity of type of hazardous waste a facility actually receives. When there is any variation in piece count in a batch shipment, or a variation of more than 10% by weight in a bulk shipment, the Federal regulations classify the variation as a significant discrepancy, which must be reconciled with the generator within 15 days of receipt of the waste, or failing that, reported to EPA or the authorized State. See 40 CFR sections 264.72(b) and 265.72(b). We believe that the manifest discrepancy regulation was intended to cover those situations where there is in fact a quantity of hazardous waste that is unaccounted for at the time of receipt. Under the facts described in your letter, there is not really a deviation in the waste quantity; rather, the quantity of waste identified on the manifest is in fact received, R.cycI.dIRICyeI$ble P d wttt Soyi nita vt on ospir t tut rtw it i.sst so’s v,cyit.ø tt s ------- but at the time of receipt, does not exhibit the hazardous characteristic. Thus, the issue is really one of waste characterization, and not an issue of accountability for the waste quantities shipped and received. So, our view is that the manifest discrepancy requirements should not extend to these facts. While we believe that this is the better view of the Federal manifest discrepancy requirements, we also acknowledge that it is a close issue. The regulation itself does not specifically exclude those situations where the waste is subsequently shown not to be hazardous, and in those cases where the treatment facility does handle the situation as a discrepancy, it would seem that the “discrepancy would be easily reconciled by a phone call or other communication with your client. In addition, if an authorized State were to interpret these facts to require discrepancy resolution or reporting under its Corresponding regulation, the.. the treatment facility would be required to comply with the more stringent interpretation of the State. Under RCRA section 3009, it is permissible for authorized States to administer more stringent programs. I do wish to emphasize that your client would appear to be in compliance with the manifest requirements when it designates the wastes as corrosive and ships it to the treatment facility under the hazardous waste manifest. The manifest was not intended to act as a certification that all shipped materials are indeed hazardous wastes. The regulations allow a I’enerator to characterize its waste based on process knowledge, and it is understood that generators may at times characterize their wastes conservatively, rather than incur the costs of testing every batch or stream. If you have additional questions about the manifest discrepancy requirements 1 please contact Richard LaShier on 202-260-4669. Sincerely, ,, ,/_ . ‘ L’ Michael I. Petruska, Chief Regulatory Development Branch ------- GOODWIN, PROCTER & HOAR A PA TNCPSM P INCLUDING PRo CSSIONAL CORPORATIONS COUNSELLORS AT LAW EXCHANGE PLACE BOSTON MASSACHUSETTS 02109-2881 TCLC MONC 6171 570-1000 rELECOPER 16171 327-659’ DONALD S BE R R V P C CABLE • GO0DP 0CT BOSTON (617) 570-1344 August 8, 1995 Mr. Michael J. Petruska U.S. Environmental Protection Agency Regulatory Development Branch 401 M Street, SW. Washington, DC 20460 Re: Application of Hazardous Waste Manifest Discrepancy Requirements to Certain Waste Shipments Dear Mr. Petruska: This letter is submitted to seek confirmation that EPA would consider the hazardous waste manifest discrepancy requirements set forth at 40 C.F.R. § 264.72 and 265.72 not to - apply to certain shipments of waste generated by our client as described below. As you and I recently discussed, this firm represents a company whose manufacturing process generates w .. hibiting the characti IC of corrosi iSy . These wastes do not exhibit any other hazardous waste characteristic and do not constitute listed hazardous wastes. The wastes are shipped from the generating facility to licensed hazardous waste treatment facilities located in a number of states, and t manifests for the wastes are properly completed to indicate - that the wastes nsi. Jpsome cases, by the time the wastes reach the treatment facility / thei pH has changed and they no longer exhibit the corrosivity characteristic. As a result, the treatm t facility concludes that there is a difference between the type 01 waste esignated on the manifest and the type of waste actually received, and the facility then submits a discrepancy report under the aforementioned regulations or the parallel state regulations. Sections 264.72 and 265.72 refer to discrepancies between the quantity or type of hazardous waste designated and the quantity or type of hazardous waste received. Based on or discussion, it is my understanding that EPA would consider these provisions to be inapplicab where the waste shipments, as described above, no longer constitute hazardous waste. As a result, the filing of a discrepancy report would not be appropriate, and the treatment facili’ receives the waste either could sign and return the manifest to indicate receipt of the shir could take no action with respect to the manifest. It is also my understanding that EP consider our client’s designation of the above-described wastes as corrosive to consti ------- GOODWIN, PROCTER & HOAR Mr. Michael J. Petruska U.S. Environrnernal Protection Agency August 8, 1995 Page 2 compliance with the manifest requirements for hazardous waste generators as set forth at 40 C.F.R. § 262.20-262.23 because such designation is accurate at the time the waste is shipped from the site of generation. I would appreciate it if you could provide me with written confirmation that the foregoing is EPA’s .,osition on this issue and that no further recordkeeping or reporting is required in such a situation. Please call me at 617-570-1344 if you have any questions regarding this matter. Thank you very much for your assistance. Very truly yours, && L Donald S. Berry, P.C. I 17233.bI ------- L HOTLINE QUESTIONS AND ANSWERS October1995 9475.1995(02) 1. LocatIon of Operating Records at Treatment, Storage, and Disposal Facilities The owner or operator of each hazardous waste weat,nent, storage, or disposal facility (TSDF) must keep a written operating record a: the facility. This record retention requirement applies to both facilities operating under permits and facilities quol fring for interim status (40 CFR 552641 265.73). The operating record must include a sigr4flcara number of records ranging from waste analysis results to closure cost estimates to tank integrity assessment records. Must TSDF owner/operators maintain all of the different docwne,Us making up the operating record in one central location? No, the federal RCRA regulations do not require owner/operators of 1 ,ardous waste TSDFs to maintain all of the documents m2king up the operating record in one designated area. Compliance with the operating record requirements of li2641 265.73 demands only that the specified information be mnintained on site at the facility; other records can be kept at remote locations. In addition, for the records that must be kept on site, the various documents making up the operating record need not be consolidated in one office as long as they are available for review somewhere on the facility grounds (this might be more practical in the case of a large facility with multiple buildings). Ii i order to improve accessibility to and control over these key documents, however, EPA recommends that, where possible, all of the contents of the operating rec d be retained in a cenual area under the supervision of one designated individual. L RCRA ------- This Page Intentionally Left Blank ------- Closure And Post-Closure (Subpart G) __________ ------- 9476 - CLOSURE AND POST-CLOSURE Parts 264 & 265 Subpart G A1XI/1 104137 kp ------- OSWER DIR rIvE # 9476.Q —l2 iIo S ? 4 $ UNITED STATES ENVIRO?MENTAL PROTECTION AGENCY _____ WASHINCTCN, D.C. 20460 FEB 2 1988 OFrICE OF SOLtO WASTE AND EMFRGEN v’ MI5PPfdSL r F MoRANDu?1 SUBJECT: Closure Requirements FROM: Marcia E. Williair s Director Office of Solid Wa TO: David A. Wagoner Director Waste Management Division EPA, Region VII This memorandum is in response to your memorandum of December 17, 1987, which posed a number of questions rela,. .ea to imI 1ementatjon of the closure iegulatiofls. As you know, we have discussed the issues over the phone with you several times since receiving your memo, both in the context of general policy, and also in the context. of applying these policies to specific situations. w have responded to each point in turn. Response to point 1: Your queS ion concerns the consistency between the new tank system regulations (51 R 25422, July 14, 1986), which include post-closure, care, and the closure requirements fo ’ container storage units. Since we have flOw revised the tank system standards as of July 14, 1986, we recognize that th’ re are inconsistencies with the present container standards. We agree that the container storage requirements in Subpart I . f 40 CFR Part 264 and 265 should be revised so that the Agen-y will flave ’a consistent overall policy for closure of stora e and treatment units. Response to point 2: You requested çuidance or: vhether the clean closure policy for surface impoundiTents conta:. ed in the March 19, 1987 Federal Register notice can bt applied to all hazardous iste management units in (which does not have final RCRA 63) “ ------- OSWER DIR TIVE * 9476.00—12 —2— authorization .. The clean closure policy that was contained in the March 19, 1987 Federal Register should be applied to closures by removal of wastes from any RCRA regulated unit. Regulated units include landfills, surface impoundments, waste piles, and land treatment units. The regulatory language governing the level of cleanup described in each of the following-sections, 26 ’ 197, 264.228(a), 264.258(a), 265.l ’7, 265.228(a), and 265.258(a), is identical. Since the consequences of achieving clean closure are the same, regardless o.f type of-unit, the general policy contained in the March 19,1987 notice, and the specific details regardirtg the setting of cleanup levels in each medium that are contained, in the’ upctming. “Surface Impoundment Cleaf Closure Guidancc’ Manual”,- should be applied consistently to all units that close by removal .of wastes. Another guidance document, “Clean ‘ Closure of Hazardous Waste Tank Systems and Container Units”, is currently being developed. It is consistent with the ma.- ual for clean closure of surface impoundments; differing only ‘ncre necessary because of the unique nature of tank systems and containers.. As stated in the March 19, 1987 preamble, clean closure cleanup levels a -eto be based on Agency-approved health based limits, rather than background, except where no such Agency-approved limit exists, and then background may be used as the basis for settir cleanup levels. Response to point 3: As current1 env’isioned, the proposed changes to the ciosufe regulations would allow a landfill to defer closure to manage non-hazardous wastes only if certain demonstrations are made. Key among these is that managing non-hazardous wastes will not be incompatible with prior management practices. ‘The preamble will include a discussion of potential incompatib..e or detrimental effects which are to he considered in evaluatirçt a request to defer closure. For landfills these concerns include: subsidence, increased leachate formation, cap settlement and gas production. These potential detrimental effects could support a finding of incompatibility, which ‘iculd be grounds for disapproving a ceferred closure request. This rule change will not affect enforcement actions. The opportunity to defer closure will be afforded to both permitted and interim status units. Facilities with units which have lost interim status can receive an operating permit which includes the LOIS unit. Waste. receipt would not be allowed in the LOIS unit prior to permit approval. ------- OSWER DIREXTIVE 9476..J—12 3— Response to point 4 You have requested guidance on the issue of whether changes may be made at faciliti’?s operating without a permit or interim status and LOIS .(loss of interim status) facilities under Section 270.72 i i nece se ry to comply with corrective action .and closure plans. This issue was raised in the context of the ule, proposed on August 14, 1987, 40 CFR Parts 265, 270 and 271 entitled .“Changes to Interim Status and Permitted Facilities for Hazardous Waste Management; Procedures for Post-Closure Permitting; Proposed Rule”. We are currently considering this.issue and will address it in the final rul9 scheduled for Summer 1988. Response tO pOint. .5 Your first question, in 5a and b, concerns your interpretation of 40 CFR Part 261 and the March 19, 1987 Federal Realster notice, as they apply to wastes resulting from c1osure. ’Your interpretation is correct. As you stated, a characteristic waste must be managed under Subtitle C unless the material no longer exhibits any of the four characteristics specified in Part, .261, Subpart C. It would not be sufficient to merely demonstrate tl’at the E’ ateria1s no longer exhibit the one or more characteris .iCS that had origInally brought the waste under Subtitle C regulatory control. A waste that is listed as hazardous iinder Part 261, Subpart D, and any waste residues or contaminated soil or debris that are removed from a unit during closure cperatiO s, are considered to be hazarcous, unless the wastematerials have been delisted, in accordance with S ction 2 1.3. Your first bullet point within point 5 referred to flow DOD/DLA (Department of Defense/Defense Logistic Agency) recommends, in their “Conforming storage Model RCRA Permit Application” (which accompanies their model permit), to determine whether or not decontamination washwater at a site is hazardous. As mentioned above, the determination should be based on whether or not the waste exhibits any of the four characteristics specified in Section 261.20. TOC and TOX are indicator parameteis only. Therefore the DOD/DLA Model Permit Attachment forClosure is incorrect when it implies that the concentrations of TOC and TOX define whether or not washwater is hazardous. EPA has commented on this closure plan application extensively. DOD, however, has, not responded to all of our comments on the model permit. Therefore, as we said in thi’ August 8, 1987 cover memo to the model permit, EPA may request different or additional information if a permitting author_ty ------- OSWER DIREXTIVE * 9476.00- .2 —.1— finds part or al], of the model permit application to be inappropriate. , Copies of both the cover memo and EPA’s comments on DLA’s conforming model permit application are attached for your refer ce. Please note EPA comments regarding waste analysis and the closure plan. We recommend that you use the recent draft report, “Clean Closure of Hazardous Waste Tank Systems and Container Units” instead as a guide to ‘closure. Your second bullet point within point 5 asked why, in certain situations, non-hazardous material must be removed from a landfill for clean closure, but then could conceivably be re-deposited legally in a sanitary landfill’ ’- We share your concern that this could be viewed as an inconsistency within our regulatory program. Two regulatory efforts, however, are currently underway which should address this potential problem. You alluded tO the first effort, redefining hazardous waste, in.your memo. As we’ move more towards concentration-based listings, inconsistencies may occur less often. You shouldinote, however, that the basic reason why action levels in the clean closure situation are nc, . consistent with hazardous waste identification levels is that action levels in the clean closure situation are based cn the more protective of two possible scenarios: the direct ingestion of soil and ingestion of contaminated grounâ water, assuming no attenuation in the unsaturated zone or dilution in the ground water. The delisting levels, On the other hand, are based strictly on ground water ingestion, and are derived from a generic model that aceounts f t vertical and horizontal spreading of contaminants over a 500 foot distance in the aquifer. This difference may well remain even if changes are made in how hazardous wastes are listed. The answer to the problem is to complete the Subtitle D regulations for municipal landfills and surface impoundments. The result of these more stringent regulations should be that if waste is removed from a landfill for clean closure and re—deposited in a sanitary landfill, that the new landfill viii be more protective of the environment than the original One. We hope you viii find this memo to be useful to you in interpreting these issues related to the implementation of regulations regarding closure. Please contact Hope Pillsbury of my staff at FTS 475—6725 if you have any questions r garding this memo. ------- attachments cc: Luetta Flournoy, Region VII Matt Hale QSW Margaret Schneider, OSW Jim Bach3naler, 05W ChetOszman, OSW Bill Kline, OSW MikePetruska, OSW Chris’Rflyne, OSW OSWER DIRfX’TtVE # 9476.OC—12 ------- O ’iER DIR TIVE # 9476.00—13 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 SOLID S! 1E C;’. v C MEMO RAND U N SUBJECT: Regulatory Interpretation of the Closure Performance Standard , ,,‘l 1._i FROM: Marcia Williams, Directo4d ’ 4Ji Office of Solid Waste / if I j / 1’, / I TO: William Miner, Chief Solid Waste Branch, Region V In your memorandum of December 31, 1987 you requested our views on whether the closure performance standard (264.111 and 265.111) could be used to require source control at two particular surface impoundments which the owner/operator wishes to close as landfills. Our response to your question first addresses the issue in a general way and then turns to your specific question concerning the two surface impoundments. The general performance standards and the technical standards complement each other, and both must be complied with (See 51 16424). Where the unit-specific technical standards provide detailed instructions, those procedures should be followed. In exceptional cases where unit—specific standards may not be enough to minimize or eliminate post-closure escape of hazardous constituents, you should look to the closure performance standard for authority to require additional control measures. In addition, the preamble to the March 19, 1985 Proposed Rule for Standards Applicable to Owners and Operators of Hazar us Waste Treatment, Storage, and Disposal Facilities (a Final version of the Rule was published on May 2, 1986) states, in 51 11070, that “the amendment explicitly requires owners or operators of TSDFs to comply with both the general performance standard and the applicable process-specific standards. Owners or operators must close their facilities in a manner that complies with applicable process-specific requirements where specified; the general performance ------- LS’J DI1 IVE * 9476.00—13 —2— -standards apply to activities that are not otherwise addressed by the process-specific standards but are necessary to ensure that the facility is :losed in a manner that wiJ .j, ensure protection of human health and the environment.” The final rule for Closure, Post-Closure and Financial Responsibility Requirements (May 2, 1986) further states, in 51 FR 16424, that TSDFs must “comply with both the general performance standard and the applicable process-specific standards.” These authorities support your position that the Closure performance standard can be used as a basis for requiring source control when necessary to achieve this Standard. 40 CFR Subpart G, Sections 264.112 and 265.112 requires a description of how each unit and facility will be closed in accordance with Sections 264.111/265.111. (see Sections 264 .l12/265.1].2(b )(1) and (2)). Section 265.112(b) in particular, requires that the closure plan include “a detailed description of other activities necessary during the partial and final closure period to ensure that all partial Closures and final closure satisfy the closure performance standards, including, but not limited to, ground-water monitoring, leachate collection, and run-on and run-off control.” Your memorandum indicates that hazardous Constituents may migrate into ground water because the water table may come into contact with the bottom of the unit. The closure requirements at 264.228/265.228 were designed to minimize infiltration through the cap. Therefore the problem identified in this case is not addressed by the design-specific requirements, and the 264.lll/265.].11 performance standard can be invoIced to require additional actions. It is also important that the closure process is consistent with any corrective action process that may be required in the future. In the case of these two surface impoundments, your memorandum indicates that releases are currently occurring and that these releases would not be minimized if closure were performed with significant amounts of waste in place. Corrective action to address such releases could necessitate removal of the waste. If this occurred after capping, the action would be seriously complicated and substantial resources would have been wasted on the cap. Pin alternative approach to using the closure performance standard as a tool for obtaining environmentally Sound closure and to address releases, would be to use a post-closure permit and/or a 3008(h) order issued in conjunction with closure plan approval. ------- 0 r DI rIvE * 9476.00—13 —3— In Conclusion, it is the Region and/or the state’s Choice (depending on which level of governinefl is authorized to implement RCRA) as to Which tool is used. Clearly the regulations allow the use of the general performance standards, post—closure permits or 3008(h) orders to ensure that facilities Close in a way that is protective of human health and the environment. CC: Robert Swale, Region v Lee Tyner, OGC Chris Rhyne, OS 4 Jim Bachmaiez-, OSW Lauris Davies, 05W Regional Division Directors ------- 476.oo._13 ( 1tacj- j entj UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION V DATE: 31-DEC 1987 SUBJECT: Regulatory Interpretation of the Closure Performance Standard For Surface Impoundments At GM 9 , Harrison Radiator, Dayton, Ohio FROM: William Miner, Chief . ‘/ 4$%q’f7’ Solid Waste Branch v_4, j 4J TO: Marcia Williams, ctor Office of Solid Waste The Closure Performance Standard under §40 CFR Part 265.111(b) calls for the Owner/Operator to close the facility In a manner that Controls, minimizes or elimlnates....post closure escape of hazardous waste, hazardous constituents, leachate, contaminated run—off, or hazardous waste decomposition products to the ground or surface waters...” GMC Harrison Radiator has proposed the closure as a landfill option for their regulated surface impoundments; which, we contend, will not meet the closure performance standard as defined above. We believe that proposed method of closure will not provide adequate protection against the release of hazardous constituents to the groundwater underlying the facility; and, as such, does not provide adequate protection for human health and the environment, as called for under the Closure Performance Standard. The facility has two surface impoundments which received a variety of hazardous wastes beginning with the South Lagoon constructed in 1966, and the North Lagoon which was constructed In 1972. Both lagoons accepted wastewaters containing halogenated solvents, which In the case of the North Lagoon, has compromised groundwater quality to a signifi- cant degree. Recent groundwater quality assessment data for the North Lagoon has revealed concentrations of halogenated solvents which exceed the Maxi- nwu Concentration Limits for drinking water by an average of twenty times. It Is also believed that the South Lagoon Is affecting ground- water quality as well, but It is unknown at this time the concentra- tions of any specific hazardous constituents. The Exposure Information Report (EIR), completed for the regulated units at the GNC facility, concluded that the proposed method of clo- sure may not minimize the production of leachate which will occur as a result of groundwater Infiltration into the stabilized wastes. In particular, page 47 of the EIR states, 9t Is assumed that water levels will rise when pumping of (the) county wells is discontinued, with gradients and water levels returning to near historic (prepumping) conditions. Water levels may rise to elevations above those of the bottoms of the lagoons... ------- OSW Policy Directive o. 9476.00- 1.4 uNIrED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON O.C. Z0460 ?4qg 3 1 i9 OF CE SOLIO WASrE * Q EMER EICv ESPOA MEMORANDUM StJBJCCT: ‘Ground—Water Monitoring at Clean-Closing Surface mpoun4m I ar d Waste Pile Units / t r / FROM: 4 inW 1tør A9sistant Administrator TO: Regional Administrators Regions I-X Several provisions of HSWA have made it necessary or desirable for a number of owners or operators to close their land disposal units. Many of these units are going through “clean closure”; that is, removal of all waste residues, contaminated containment system components, contaminated subsoils, and structures and equipment contaminated with waste and leachate. Several Regions have questioned whether a clean closure demonstration requires ground—water monitoring before the unit is declared clean for the purposes of closure under sections 264.228(a), 264.258(a), 265.228(a), or 265.258(a). The purpose of this memo is to reiterate and clarify Agency policy in this regard. It has been the Agency’s policy for som. time that owners and operators must not be allowed to “walk away” from units with inadequate ground—water monitoring systems or with ground-water contamination at closure. This policy has been described in my August 27, 1985 memorandum regarding RCRA policies on ground—water quality at closure, in the FT 1987 and 1988 RCRA Implementation Plans (RIP), and in the clean closur• policy outlin.d in th. preamble to the final “conforM ;cbanges ” rule concerning clean closure of surface impound -pubLlsh.d in the Federal Re ister on March 19, 1987 (52 fl $714). If an adequate groun —water monitoring system iiTu. place, it is still the Agency’s policy that as part of the clean closure certification process EPA must review ground-wet.: monitoring data to verify that there is no ground-water contamination from the unit(s). ------- OSh Policy Directive io. 76.OO—l4 —2- There exists, however, a universe of land disposal units that nay not have a ground—water nonitoring systems or may have an inadequate ground—water monitoring system in place at closure. These include interim status waste oiles, interim status surface impoundments that contain corrosive—only hazardous waste that are eligible for a waiver under section 265.90(e), inter m status units exempted from ground—water monitorLr g on the basis of the self—implemented waiver found in section 265.90(c), or unitS simply failing to comply wi th the Subpart F requirements. Many of these units have already closed by removing waste and certifying “clean closure” without assuring clean ground water. Congresa has made it clear that ground—water contamination at treatment, storage, and disposal units must e addressed. Section 3005(i) of RCRA requires all units receiving hazardous waste after July 26, 1982 to comply with ground—water monitoring standards established under Section 3004, regardLess of their current active or inactive status. Any closed interim status unit covered under Section 3005(i) that does not meet the 40 CFR 264 clean—closure standard must be issued a post—closure permit implementing the appropriate Subpart F program. In order to avoid post—closure permit responsibilities, interim status facilities that have “clean closed will need to present evidence that the “clean closures is in complianc, with the Agency’s clean-closure rules found in sections 264.228 and 264.258. (This position is clearly presented in the Final Codification Rule, 52 FR 45788, December 1, 1987). Reexamination of all prior clean closures should be performed as suggested by the 1988 RIP and in concert with individual Regional priorities. We recognize, however, that under certain circumstances for units that “c1ean—closed under interim status a demonstration that ground water is uncontaminated might be made without a ground—water monitoring system in place. In order to preclude the need for ground—water monitoring at a clean closing unit the owner or operator’ would need to meet the decontaminat ion standard as codified in section 270.1(c) (3) and (6) and make a demonstration in accordance with applicable waiver requirements found in section 264.91(b)(4). For clean—closing units at least the fol]. & CritSXia would need to be met to assure compliance with the eral closur, performance standard (sCction 264.111): 1) Accurate historical data on wastes handled at the unit have been carefully r•cord.d, zncluding a complete analysis of vast, composition and characteristics; 2) The properties of the waste constituents together with the geochemical environment of th. soils show no potential for migration to ground—water during the active Life and any post-closure care period; and ------- 0Sh Policy Directive No. 9476.00-14 —1— 3) Other Supportive data (e.g., an alternative monitoring - system or other geophysical verification) needed to ensure protection of human health and the environment. We recognize that these criteria for not requiring ground-water monitoring are stringent. However, these restrictions are necessary because the Part 264 clean—closure demonstration may ultimately relieve the owner or operator of further Subtitle c responsibilities at the closing unit or facility. For those units authorized to operate under Section 300 5(e) that stopped receiving waste prior to July 26, 1982, several tools exist for obtaining confirming data. Where the Administrator has determined, based on any information, that there has been a release of hazardous waste (or hazardous waste constitueflts) from a facility into the environment, Section 3008(h) may be used to perform studies (including ground wa e monitoring) and/or corrective measures, as necessary to protect human health or the environment. Where imminent and substantial endangerment can be established, studies and corrective measures can be required under Section 7003. Section 3013 could be used to collect data and to implement ground-wa g monitoring, where the presence or the release of hazardous waste “may present substantial hazard” to human health or the environment. Where a permit for the facility is otherwise required, corrective action (including ground—water monitoring) for improperly “clean closed’ units may be effected under Section 3 004(u) during the permit process. In cases where an adequate ground-water monitoring system has not been installed and there is no valid ground-water monitoring waiver, and/or where other Subtitle C requirements have been violated, attempts at clean closure, whethet successful or not. should not preclude the imposition of enforcement authorities, for example under Section 3008(a) to obtain remedies and/or penalties under Section 3008(g). Shoe -ys have any questions regarding the content of this memoraadu —p ,.e contact Chris Rhyne of my staff at PTS 382—4695 • cc: Waste Management Division Directors, Regions I—K RCRA Branch Chiefs, Regions i—x Permit Section Chiefs, Regions i—x Enforcement Section Chiefs, Regions I-X ------- —2- As such, it Is possible that some of the recompacted sludges contained within the closed facilities may be below the water table. This could result in leaching of the wastes...” We do not believe that GMC can adequately demonstrate that they can minimize or eliminate the post-closure escape of hazardous constituents to the groundwater (as required by the Closure Performance Standard) simply due to the expectation that the stabilized wastes will lie within the aquifer after closure has been completed. Also, the presence of groundwater contamination from the Impoundments leads us to believe that simply capping the impoundment will not alleviate the problem. We propose that GMC has only two options for the regulated impoundments: 1) GMC must remove the wastes presently in the Impoundments and dispose of them off-site or; 2) Remove the wastes from the present units and construct a doubly-lined landfill unit in its place, and construct the unit at least one meter above the highest expected groundwater elevation. We believe that these methods of closure will adequately meet the closure performance standard, since they will demonstrate that the post-closure escape of hazardous constituents to the groundwater has been thoroughly minimized. We request that a determination be made by your office concerning our argument that the intent of the closure performance standard precludes closure as a landfill. In any event, we will be pursuing corrective action either in a postclosure permit or with a 3008(h) order. However, If we can require excavation through the closure process, appropriate action can be started much more quickly. Approval of this closure plan Is a 3rd Quarter FY ‘88 conunltment by the Region, and we have tenta- tively scheduled a meeting with GNC to discuss these closure concerns for mid- January 1988. Therefore, we request that you respond to this memo by January 1988, so that we can be prepared when we meet with the facility. Specific questions concerning the facility can be answered by Robert Swale, the closure plan revi er for this facility. Mr. Swale can be reached at FTS 886—6591. cc: Anthony Sasson, OEPA Randy Meyer, OEPA Richard Robertson, OEPA—SWDO ------- Djzect4 No, 9476.00.16 it O UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 I RqOitc, OFFICE OF SOLID WASE NO EM€RGENc ESPCNS r&R I I MEMORANDUM SUBJECT: Effective Dates for Characteristic and Listed Wastes per March 19, 1987 Clean Closure Regulation FROM: Sylvia K. Lourance, Directo L I L Office of Solid Waste (WH-562) TO: Waste Management Division Directors Regions I-X Several regions have raised questions about the effective date of the Clean Closure Conforming Changes Rule of March 19, 1987 (52 FR 8704) and, in particular, have asked whether the clean closure standards discussed in the preamble to the rule (52 FR 8705) apply in authorized states. The purpose of this memorandum is to clarify the applicability of the March 19, 1987 rule. As you know, the Clean Closure Conforming Changes rule made several conforming changes to the Part 265 closure and post-closure regulations for surface impoundments. Additionally, the Agency set forth its interpretation of these regulatory requirements in the preamble to the rule. In particular, the rule changed the closure by removal standards under Part 265 to be consistent with Part 264 standards. A key feature of this change was to amend the 265 closure by removal standards for characteristic wastes. Under the old closure by removal standard, “clean closure” could be achieved if the owner or operatoL-damonstrated that remaining materials did not exhibit ths characteristic that first brought the unit under control. er amended S265.228(a), however, surface impoundm ts containing characteristic wastes as well as those containing listed wastes must “remove” all waste residues, including hazardous waste constituents derived from the waste. The preamble to the Conforming Changes rule provides guidance on determining when “removal” of waste residues has been achieved. According to the preamble (52 FR 8706), “removal” under S265.228(a)(l) means removal of all wastes and liners, and the removal of leachate and materials contaminated with the waste or leachate (including ground water) to levels that are protective of human health and the environment. Owners/operators must ------- C$ J Dir tive No. 947600-16 —2— demonstrate that any hazardous Constituents left in the soils, subsoils or groundwater would not cause unacceptaj,le risks to human health or the environment. These demonstrations must document that the contaminants do not contaminate any environmental media in excess of Agency-recommended limits. The Agency-recommended limits include water quality standards and criteria and health—based limits based on verified reference doses (RfDs) and Carcinogenic Potency Factors (CPFs). If no Agency-recommended limits exist for a hazardous constituent, then the owner/operator must remove the constituent down to background levels, submit data of sufficient quality for the Agency to determine the environmental and health effects of the constituent, or follow landfill closure and post-closure requirements. The March 19, 1987 rule became effective in unauthorized states on September 15, 1987. The date on which the clean closure policy outlined in the preamble may be applied in authorized states will depend on whether the wastes in question are listed or characteristic. For characteristic wastes, the policy would not apply until the authorized state had adopted the new regulation at S265.228(a)(l) — - until that time facilities could continue to clean close by demonstrating that remaining materials did not exhibit the characteristic that brought the waste into the system (i.e., the demonstration required under the former rule). The deadline by which authorized states must incorporate the March 19, 1987 regulatory changes is July 1988. For listed wastes, on the other hand, the policy may be applied in authorized states immediately, since the preamble interprets regulations that should already be adopted as part of the authorized state program. Regardless of whether a specific state has adopted these regulatory changes, owners and operators should be reminded of the statutory requirements of 53005(i) of HSWA. Units which clean close pursuant to Part 265 standards will not be relieved of post-closure care obligations until they demonstrate “equivalency” with Part 264 clean closure standards (see 52 F.R. 45788). AcqQ dingly, owners and operators of facilities who wish to clean close should be encouraged to perform such closures in accordance with Part 264 standards. If you have any questions, please call Sharon Frey at FTS 475—6725. - cc: Region Counsel, Regions I-X ------- MAY I 2 89 0SWER Policy Directive # 9476.00—18 SUBJECT: Guidance on Demonstrating Equivalence of Part 265 Clean Closure with Part 264 Requirements PROM: Sylvia Lowrance, Director “ Office of Solid Waste TO: Regions I-X I. PURPOSE This memorandum provides guidance to Regional RCRA permits staff concerning the review of Part 264 equivalency demonstrations for interim status surface impoundments and waste piles that certified clean closure under the Part 265 standards prior to March 19, 1987. The Agency discussed the requirements for submitting equivalency demonstrations in the preamble to the December 1, 1987, Codification Rule (52 45788). This memorandum expands upon that discussion by providing further guidance on the Agency’ s expectations for the review and approval of these demonstrations. II • AUTHORITY Section 3005(i) of the Hazardous and Solid Waste Amendments of 1984 (MSWA) requires all landfills, surface impoundments, waste piles, and land treatment units that received waste after July 26, 1982, to comply with the ground-water monitoring, unsaturated zone monitoring, and corrective action requirements applicable to new units • EPA implemented thi, provision in the December 1, 1987, Codification Rule. 40 CFR Section 270.1(c) requires that units which received vast, after July 26, 1982, or which certified closure after January 26, 1983, obtain a post- closure permit unless they successfully demonstrate compliance with the Part 264 requirements for closure by removal. III • CLEAJI CLOSURE REQUIREMENTS UNDER PARTS 264 AND 265 Prior to March 19, 1987, the Part 265 regulations governing interim status clean closures differed significantly from the Part 264 requirements pertaining to permitted units. In March of 1987 (52 8704), the Agency issued conforming changes to the Part 265 regulations to bring them into conformance with the Part 264 requirements. A. Part 264 Clean Closure Reauirements The Part 264 provisions ( S 264.228 and 264.258) require the owner/opsrator to “remove or decontaminate all waste residues, contaminated system components (liners, etc.), (and] contami nated ------- 4W7 1 .a —/ ’ 2 subsoil....” The Agency interprets the terms “remove” and “decontaminate” to mean “...removal of all wastes and liners, and the removal of all leachate and materials Contaminated with the waste or leachate (including ground water) that pose a substantial present or potential threat to hu *?t health or the environment” (52 at 8706). To meet this standard, owner/operators must demonstrate that no Part 261 Appendix viii constituents remain in the soils, vadose zone, or ground-water above Agency—recommended limits before certifying clean closure. These Agency-approved limits or factors include water quality standards and criteria, health-based limits based on verified reference doses (RfDs) and Carcinogenic Potency Factors (CPFs), or site-specific Agency-approved health advisories (52 f at 8706). When assessing potential exposures to constituents released from the unit, the owner/operator must establish the points of compliance directly at or within the unit boundary for all routes of exposure (surface water contact, ground—water ingestion, inhalation, direct contact, and soil ingestion). In setting these points of compliance, consideration of contaminant - attenuation between the unit and potential exposure points is not allowed. Further discussion of these requirements is provided in the preamble to the March 19, 1987, conforming changes regulation (52 ra 8704), and in a subsequent Notice of Clarification issued on March 28, 1988 (53 7 9944). Pending the up-coming issuance of the clean closure guidance mentioned in the March 19, 1987, preamble, these two sources provide the fullest interpretation of Agency policy concerning the requirements applicable to units undergoing clean closure. B. Previous Part 265 Interim Status Clean Closure Reauirements The pre—1987 Part 265 interim status clean closure requirements differed from the Part 264 requirements in several significant way.. First, these standards allowed owner/operators to discontinue removal activities and certify closur. if they were able to demonstrate that residuals associated with the unit were no longer hazardous. This provision allowed owner/operators of surface impoundments containing solely characteristic wastes to meet the clean closure standard by demonstrating that wastes no longer exhibit the characteristic that first brought the impoundment under regulatory control. In this, situation, owner/operators could have clean closed without evaluating the presence of additional Appendix VIII constituents that could pose a threat to hn an health or the environment. Secondly, the interim status ground-water monitoring requirements applicable to these units only required ------- 94’ 7 . ‘O— I? 3 owner/operators to monitor for indicator parameters and hazardous waste constituents for which a waste wa. listed. Owner/operators did not hay, to demonstrate that a].]. Appendix VIII constituents that could pose a threat to human health or the environment had been removed in order to certify clean closure. Finally, interim status facilities were not required to demonstrate that all releases of Appendix VIII constituents to soils, surface water, air, or ground water posing a threat to human health or the environment had been removed at closure. IV. EQUIVALENCY DEMONSTRATION INFORMATION REQUIR NTs A. General Information Reauirementg for Eauivalencv Demonstrations 40 CFR Section 270.1(c) now affords owner/operators who closed under the Part 265 requirements the option of demonstrating that the units had actually been closed in accordance with the Part 264 requir m*t ts, by submitting an “equivalency demonstration”. This equivalency demonstration is outside the Part B post-closure permit application and review process. The Agency expects owner/operators to submit sufficient information in their equivalency demonstrations to allow the Agency to determine whether the clean closures fully comply with the Part 264 requirements. The Agency does not intend, however, that owner/operators submit the same quantity of information required when submitting full Part B permit applications. The demonstration submitted by the owner/operator must include, at a minimum, sufficient information for identifying the type and location of the unit, the unit boundaries, the waste that had been managed in the unit, and the extent of waste and soil removal or decontamination undertaken at closure. Relevant ground-water monitoring and soil sampling data should also be submitted to demonstrate that any Appndix VIII constituents originally in the unit and that remain at closure are below levels posing a threat to human health and the environment. These levels are those discussed in the March 28, 1987 preamble, i.e., water quality standards and criteria, health—based limits, carcinogenic potency factors, or ATSDR site-specific Agency- approved advisories (52 at 8706). Owner/operators can submit information demonstrating that the closure certified under Part 265 complies with the Part 264 standards using existing data developed at the time of closure. If insufficient data are available to support this demonstration, owner/operators may collect new data to demonstrate that the Part 265 clean closure meets the Part 264 clean closure requirements that were in effect at the time of closure. If upon review, the Agency determines that the closure does not meet the Part 264 standards, the owner/operator will be required to submit a Part B ------- 9t,’74, 4 permit application containing all the applicable information required in Part 270, including ground-water monitoring information. B. AcceDtabilitv of S ecific Information SupDprtjnp EauivalencM Demonstrations Five potential issues concerning the acceptability of specific kinds of data used in an equivalency demonstration have been identified. These issues are discussed below. 1. Accentabilitv of Previously Collected Data Many facility owner/operators will have generated considerable amounts of data during their original closure activities. To the extent that these data represent the conditions at closure and provide sufficient information to determine compliance with the Part 264 requirements, they may be used to support an equivalency demonstration. Regional staff should evaluate the information for the extent to which it fulfills the requirements of Part 264, and for it. overall quality, reliability, and accuracy. While previously collected data may be used, in many cases owner/operators will need to collect some additional information on hazardous constituents that may remain in the soils, vadose zone, or ground water to demonstrate equivalency. 2. Use of Existina Soil and Ground-Water Sam linp Data as Proxies for Miss inc Data The Agency believes that in limited cases owner/operators may use existing soil and ground-water sampling data as proxies for missing data. In the first case, soil sampling data can serve as a proxy for ground-water monitoring data when these are not available. In the second case, ground-water monitoring data can be used to demonstrate the acceptability of a soil or vadose zone cleanup. In such cases, the Agency may consider these data when reviewing equivalency demonstrationg. For example, some owner/operator. may wish to use previously collected soil sampling data as a surrogate for actual ground-water sampling data in order to demonstrate complianc, with the Part 264 ground- water clean closure levels, or facility owner/operators may wish to demonstrate that soil contamination was remediated sufficiently by submitting ground-water monitoring data demonstrating no migration of contaminants from the soil. It is more likely that EPA will accept soil sampling data as a proxy for ground—water monitoring data than the converse. One such example of where soil sampling and vadole zone data might be used as a surrogat. for ground-water sampling data is in a hydrogeo]ogic setting where the water table is located at ------- qq7(,, ôô-/ê 5 significant depths from the surface or where ground-water monitoring is not feasible. Demonstrations using soil sampling data will, however, generally require assumptions of contaminant fate and transport in the relevant subsurface media. As stated in the preamble to the March 19, 1987, conforming changes rule, the Agency does not believe it is appropriate to consider assumptions about subsurface attenuation when approving clean closures, given the uncertainty involved in such assumptions and the fact that all further regulatory control ends upon certification of the closure. 3. Reauirement for Full Aoiendix VIII Samb ljrtp The Part 264 clean closure standards require a demonstration that all Appendix VIII constituents originally in the unit have been removed or decontaminated. As with the 40 CFR Section 264.93 monitoring requirements, however, the Agency believes that it may be possible to exclude some hazardous constituents from consideration based on knowledge of past activities at the unit. Equivalency demonstrations that consider all the hazardous constituents that may reasonably be expected to be in or derived from the wastes managed in the unit may be acceptable in lieu of the full list of Appendix VIII constituents. The Regions may decrease the list of constituents that must be evaluated to the extent that information submitted by the owner/operator is complete relative to the wastes disposed and demonstrates that these constituents could not reasonably be present in environmental media affected by the unit. In evaluating such demonstrations, Regions should also evaluate closely the potential that additional Appendix VIII constituents may be present in the soils or ground water beneath the unit. 4 • Is. of Data from Previously Exietina Ground-Water Manitorina Systems The Agency will consider equivalency demonstrations based on data from previously existing ground-water monitoring systems provided such ground—water monitoring systems were in compliance with the applicable requirements. At a minimum, such systems must have met the Part 265 Subpart F ground-water monitoring requirements. To the extent that these systems were located, screened, and operated properly to gather representative ground- water information, the Agency believes that they can be used to support an equivalency demonstration. In order to determine whether monitoring systems were in compliance with Part 265, Regions should examine available records and documents, such as old inspection reports, enforcement record., reports, or Ground-Water Task Force reports. ------- 44’7 . O-/? 6 5. Praetieabiljtv of Obtaining New Data Some facilities will have certified clean closure several years ago, and subsequently may have constructed structures on top of clean closed units, making it difficult to obtain new data for the equivalency demonstration. For example, a building with a concrete floor or Wastewater treatment unit constructed on top of a clean closed hazardous waste management unit could obstruct the collection of new sampling data. Collecting new soil or ground-water data at such a site might require either drilling through the concrete floor of the building or using angled drilling techniques. The Agency recognizes the difficulties associated with data collection in these cases. In reviewing the quantity of such data submitted, the Regions may consider the technical difficulties involved in collecting such data. The standard of protection against which equivalency demonstrations will, be evaluated will not, however, be different depending on the technical difficulties of data collection. Accordingly, the Agency will require owner/operators to submit representative existing data and/or to collect those data necessary to - demonstrate compliance with the Part 264 requirements. V. APPLICABILITY TO LANDFILLS EPA interprets its regulations to allow landfills from which wastes have been removed at closure to accomplish “clean closure” and, if closed under 40 CFR Part 265 standards, to allow an equivalency demonstration to be made under 40 CFR Section 270.1(c) (5) and (6), through redefinition of the landfill as a waste pile, surface impoundment, or land treatment unit. It is most likely that the redefinition, or change in process, will be to a waste pile, pursuant to 40 CFR Section 270.72(c). Clean closures or demonstrations of equivalency with clean closure, are governed by the applicable Part 264 closure requirements (e.g., 40 CFR Section 264.258 for waste piles). As an alternative to making an equivalency demonstration pursuant to 40 R Section 270.1(c) (5), the owner/operator of a landfill fr which all vast. has been removed and for which the owner/operator can provide evidence that the level of contamination is such that it no longer poses a threat to human health and the environment, may request that the Regional Administrator shorten the post-closure care period (40 CFR Section 264.lll(a)(2)(i)3. The term of the post—closure permit should then be modified to a minimal period in accordance with 40 CFR Section 270.42. ------- c? /76. zi-/9 7 V i. co r ’s op EQUIVALENCY DEMONSTRATION AND PROCEDURES FOR sun’a ,rAL No ep. ific format for an equivalency d nstration is required. For ease of review, the Agency suggests that equivalency demonstrations include three basic sections: 1.) a Unit Description, 2) a Description of Closure Activities Conducted, and 3) a Demonstration of Compliance with Clean Closure Levels. The first section, Unit Description, should provide information on the size and location of the unit, the wastes managed by the unit (EPA hazardous waste numbers and quantities), any liner system and leachate collection system, containment system, and run-on and run-off control systems. In addition, owner/operators should present a description of the hydrogeology of the immediate area, including descriptions of ground-water and soil conditions, ground-water monitoring systems, detection programs, and any corrective action activities undertaken. For land treatment units, information concerning application rates should also be included. The second section, the Description of Closure Activities Conducted, must identify, in detail, all removal and decontamination activities completed at the unit during closure. This description should include information on the quantity of waste removed (by waste type), the quantity of leachates and contaminated containment liquids removed, the quantity of bottom sludges/residues removed, the quantity of contaminated soil removed, the methods us.d for removal of inventory (i.e., waste, sludge, residue, liquid, and soil), and the procedures used for decontaminating and/or disposing of inventory. Specifically, the description of the decontamination and disposal activitie, should identify the method of decontamination of equipment/structures, the treatment or disposal of cleaning agents/rinsevater, and the demolition and removal of containment systems (..g., liners, dikes) and other quipsent/structures. The previously approved closure plan should provide the majority oi the descriptive material required for sections 1 and 2 of the damenstration. The ovner/operator should not assume that the closure plan has been retained by the Agency; relevant portions of the plan should be resubmitted. A copy of the closure certification should also be provided. The third section, Demonstration of Compliance with Clean Closure Levels, should present sampling data supporting the owner/operator’s equivalency demonstration. This section should specify where samples were taken in each relevant medium, when the samples were taken, what parameters were examined, and the analytical results. The information should specify the sampling protocols and analytical methods used during the sampling ------- 4z/7 . e9O-/2 8 activities, along with available quality assurance/quality control in2or atjon. Th. raw sampling data should be presented in an appendix to th. report, whil, the results should be summarized in a clear manner in th. body of the report. In cases where surrogates or proxies are proposed for use, the owner/operator should fully explain the reason for the use of such proxies and any analytic assumptions which were made. Where data from all Appendix VIII constituents are not submitted, section 2 of the submission should support the assertion that such constituents were not and are not present in the unit. Finally, the demonstration should include a narrative discussion su ’ rizing both the results of previously collected data and new data collected for this demonstration. In the conclusion, the section should compare the results of sampling data to the applicable clean closure levels for the relevant parameters. The December 1, 1987, Codification Rule presented procedures and timeframes for th. submittal, review, and approval of equivalency demonstrations. The timeline presented below summarizes the critical dates and activities that must be followed by owner/operators and the Agency upon receipt of an equivalency demonstration. ---a. 30 50 ys 0 180 ------- 9476.1983(02) JAN 1 11983 Dr. Reva Rubenstejn Director Institute of Chemical Waste Management - National, Solid Wast.s Management Association 1120 Connecticut Avenue, N.W. Washington, D.C. 20036 Dear Dr. Rubenitein: This letter is in response to your letter of December 6, 1982, requesting interpretation of closure and post-closure requirements regarding land disposal facilities. I bave responded to your questions in the order presented in your letter and attachment. 1. Recontouring the final cover material and/or adjusting inpiace waste in the same unit a. required to maintain the function of the final cover as a result of. subsidence and settlement, does not conseitue. receipt of hazardous waste after January 25, 1983.’:Thes. actions must be described in each facility’s closur, and post—closure plans which must be approved by the Regional Administrator. ‘4odifica - . tions can be made to these plans as necessary with Agency approval. 2. The controlled Irrigation of the vegetative cover is allowed in order to .stabliai vegetation duripg the closure period or to maintain it during prolonged dry spells in the post- closure period. But the regulations requtre the final cover to provide long-term minimization of migration of liquids through the closed landfill (S2 4.3l0(a)(l)). and to function with minimtmi maintenance (c264,3l0(a)(2)). Thus, the guidance documents recoemend that the plant species chosen be indigenous, require minimal or no additional moisture, and be ‘elected based on anticipated moisture, light, temperature, elevation, and cuupetitiv. cohabitants, etc. ------- The closure and post—closure plans sPjould Contain a descrip-. tion of why and when the irrigation ay h deterilinedi to be necessary (e.g., recomraended by local agron jst to establish vegetation during a dry period), the amnunt and frequency of water application, and water balance analysis showing the effect of the irrigation water on total annual liquid input through the final cover., EPA has available two reports that provide technical information on this subject, entitled ‘Evaluating Cover Systems for Solid and Bazardous Waste’ SW —867, September 1982, which discusses irrigation of plant cover and other plant requirements; and (2) ‘Hydrologic Simulation on Solid Waste Disposal Sites’ SW’-868, Septernber 1982, which is a computerized water balance model, to evaluate the probable hydrologic performance of •xisting or proposed landf ill d.signs. Both of the reports are available from the Governm.rtt Printing Office (SW - 67 is Stock No. fl55. - 000—0022 5—2 S54.75, Sw—868 is Stock No. 055—000—00225—8 “$6.00). PA is currently revising the model for Hydrologic Simulation on Solid Waste Disposal Sit..’ tO enable its use in estimating seepage through the liner as well as through the cover. The revised modal should be available early in 1983. Your statement that 40 CFR Parts 264 and 265 prohibit the addition of bulk liquids to the vast. mana .men unit is not quit, accurate. Bulk liquids ’ t—1t Ti b . sit. is lined and ha. a leachate collection and emoval system. Liquids in the leachats collection system muse be removed during operation, closure, and post—closure. In general, the addition of liquids into the unit during closure would be p.rmitt.d only if by doing so th. facility and vase. will be stabilized sooner. As you know, the objective during end after closure is to remove liquids iind keep them out . If liquids are add.d during closure, the closure period would need to be extended until th. addition stopped. ro further cla rify th. above explanations I must emphasize \ four points. Pirst, any liquid applied to the final cover of a landfill to sustain vegetation cannot be a hazardous waste (e.g., cannot be leachate unless it is no longer a hazardous waste), cannot plarm the v.getatio ,, and cannot oth.rvjs. impair the integrity of the final coyer (e.g., caus. increased infiltration because of damage caueed by pH). Second, liquids may not be injected into the waste after closure (e.g., l.achate recirculation by injection), since this is contrary to the post-closure objective of keeping liquids out . Third, as stated above, liquids.. could he allowed during closure, including leachate ------- recirculation, if: (a) therø is a liner and leechate collection system. (b) leachate is removed from the leachate collectjon_. ri, Cc) the addition of 1iquid5 erVf s .. nhin e g. • accelerates subs idence -end .tabilizationr, -ra. ! er tj an merely serves as aconvenjeAt way to dispose of th liquids, T 1the liquid add t,ion atnedi justItled in tbe C1Q5u _p n. Such cTh ure would not be completedunti]. !fFircula j.pD_ceases . so, reci IitióröFihazardous wast.1l.iTchate) after anuary 26, 1983 would make the unit a regulated unL subject to h!_ rements of Part 264. I should point out that recirculatiânof a hazardous waste (lasehate) can occur during operation.... a4 . would normally be considered an operational ra Xör than closure activity. Closure activities are those which jest_to stabilIzationorthe unit in a_• timely ,anner nfter receipt of wastes has ceased. F urtb, the characteristics and purpose of any liquids o be added o the landf ill or to the cover during or after closure. must be specified in the closure or post—closure plans and approved by the RA (or authorized State), including any extension of the closure period. Such purpose and extension must be consistent with the environmental objectives specift d u Part 264 or 265. - 3. LandfilLs that are currently engaged in co—disposal of hazardous and non—hazardous wastes could continue to accept non—hazardous vast., after January 25, 1983, in order to complete a partially filled hazardous waste unit and close under •ither 40 CFR Part 265 or Part 264 requirements. This assume, that the owner or operator complete. th. cell in a timely manner, which generally means within the 180 day closure p.riod. If th. closure cannot be completed .ith-in the 180 day . the n.r or a rator must apply to have the âlosurs period extended b&yon months, for a specified time period, as provided in 40 C?P 265.IX3jbtpr 264. lI31b),. to allow the wast, to be filled until the designed elevation is reached. - This type of closure could b approved if it provides for a more .nvirou entally sound closure , and not merely for the economic convenience of the owner or operator. iach extension will be considered on a case-by-case basis. The regulatory concern is closing the landfill in as expedient a time a. is pract$cal (i.e., achieving final contour and final cover) so as to prevent additional rainfall infiltration and oth.r environmental expoeure.J Pertinent factors include use of earth materials ahd1.d.eigning th. final contoars. The Regional Administrator or approved Stats, permitting authority could approve a closur, plan or modification to the closure plan allowing the unit or c.ll to b completed with non—hazardous waste after January 25,-l983, and possibly ext.nding the closur, period (more than 6 month.) after January 25, 1983 upon such a shoving. Conditions for accomplishing this would be in any approved closur. plan ------- or closure permit (e.g., time period, final Contours, type of waste), 4. For the situation where a surface inpoun’ ment •closes as a landfill’ before January 25, 1983, I presume you maan no “sore hazardous wastes received after January 25, 1983, but closure (e.g., dewatering, etc.) has not yet been done. The waste will be removed from the surface impoundment, solidified and replac.d in the sam. impoundment, to ensure that it will bear th. weight of the cover. EPA does not consider this replacement of waste after January 25, 1983, to be ‘receipt’ of hazardous waste which would constitute a ‘regulated unit’. This decision assumes that the solidifying material is not a hazardous waste. 5. For your last question you described the case where multiple hazardous waste trenches will cease to rsce.iye haärdous waste on or before January 25, 1q83, and where the closure plan provides for a delayed closure of a half— filled trench for the deposit of solidified hazardous waste from closed and capped trenehee.. In ;— sraL 1 such placement of- eeLJdiftvl ha kr u. wasta train the clot tr,’ch.. -into th . r.sarvsd_ ag g 4_t.rsrsch., even at the same facility, will be considered ‘receipt’ of hazardous waste such as to constitute a ‘regulated’ unit. icause the waste is received and disposed at the facility unU after January .26, 1983 , I refer you to the July 26, 1982 Federal Register preamble discussion at 47 PR 32289 which describes the concept of a waste management unit. Where landfills consist of a series of trenches which are separately lined, each trench is a s•parate waste management unit. The transfer of hazardous waste from one unit to another after January 26, 1983 therefor. makes the receiving trench or unit a regulated unit. As a side note, I should mention that th. closure performance standard for int.rim status and for permitting facilities is the same (40 CFR 264.111 and 40 CFR 265.111). The final cover or cap for landfills closed under Pert 264 or 265 standards should be ‘ iailar. Significant lifferences in the design of the cap should result from sit, specific factors rather than the type o p.rmit a facility has. Thus, many of the above comments apply to !,oth Part 264 and 265 closure requirements. I hop. the above ,*plan.tions help clarify the regulations for you. Should you have any further questions with regard to ------- how this regulation eff.cts NSW A mmhers please contact me or Fred Lindsey of my staff (382—475€). Sincerely yours, John H. Skinner Acting Director Office of Solid Waste cc: Regions I — X (With tnco”Ung) Mike Cook Eil•en Claussen John Lehman Brucs Weddi,. Lisa Friedman ark Greenwood Fred Lindsey Gene Lucero Ken Shustsr ------- 9476.1984(03) RCRA/SUpERFTjND HOTLINE MONTHLY SUMMARy MARCH 84 — es a 265 closze 3ve to use the 527O.1( ) certiftcatjcn? No, the c1cs ze is not a pernit a p1iaticn a permit rep t. S rce: etty eller ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 2 947 _____ WASIIINGTON. 0 C 20460 .1 8 4(04) AUG 07 1984 Oc ICE O SOi ’D *AS?E ArdO E AE CE ESPCP 4 S MEMORANDUM SUBJECT: Closure Issues Related to Wood Preserving Plants FROM: John H. Skinner, Director Office of Solid Waste TO: James K. Scarbrough, Chief Residuals Management Branch, Region IV In your June 26, 1984 memorandum you posed three questions regarding closure activities and the use of unproven technolo- gies for closure at wood preserving plants. Several questions regarding the definition of KOOl hazardous wastes generated by these facilities were also raised; these latter questions have been partly answered in my July 25, 1984 memorandum.!! First, the maximum time allowed for closure after final receipt of waste is 180 days as specified in S264.113(b) unless the Regional Administrator grants the owner or operator an extension. The grounds for extensions are strictly limited to instances when: (1) of necessity , it takes longer than 180 days to perform closure, or (2) a new owner or operator will recommence operations at the site and closure would be incompatible with continued operation. It seems that the first criteria could be argued in the case of wood preservation plants. However, if the owner or operator could use a proven technology to complete closure within the 180 day period, an extension may not be justified. In addition, I agree with your assessment on this issue and reaffirm the guidance in the preamble to the May 19, 1980 regulations: ‘A variance procedure will allow a longer period, where it can be justified, although in no case may closure take more than three years. 1/ A question was raised regarding contaminated rainwater run—off from treated wood storage areas. We hope to resolve this issue along with the regulatory status of spray irrigation fields in conjunction with EGD. We expect to get back to you on these points in the near future. ------- 9476.1984(05) S 1 8 1984 ;F IL ø ’ Subject: Steam Te r Corwtents, Cruciblo Steel, Syracuse, NY Fror : Chris Rhyne HO ?er tit Assistance Tea t To: Ja’ es Reldy, Chief RC A Per ita Section, Region II Rac r. unt1 Crucible Corporation operates a speciality steel mill on the west side of Onondaga Lake approximately 2 i iles northwest o Syracuse, new York. Since 1973 Crucibl. has t een operating a 20 acre landfill to dispose of Its steel mill waste. The o wastes, including CAP and AOD dust3, waste caustic solids, anti acid picklincj sluaçes, are spread over the surface of an inactive Solvay Process Wastebed that is 60 feet deep and 365 acres in ar a extent. Tne Solvay Process astobo’i was for .d as a by—product fren the production of Soda Mh (sodiu” carbonate) dating back to 1 31 and is cc tprised of Calciu t Carbonate, Calciw’ Silicate, 4agne!lut’ Hydroxide. and lessor amounts of other compounds. The average Il is a .roximately 12.0. i fter spendincj tire with the State of New York in an tte T t to obtain a permit to dis o3e of their hazardous waste, Crucihie ecjded to halt the disposal of hazardous waste at this site in t arcn of 1982. jnc. Crucible was no longer disposing of hazardous waste, they a reed to subs’iit a closure plan to the Region II oftico. In this plan, Crucible proposes to continue operating the landtill as a non—hazardous waste landfill, applying non—hazar uS waste over tha in—place hazardous waste. Final cover would be appliedin stages as the landfill, Is cci — pleted. Crucibl. anticipates. coi p1etion in eight years. ------- - 2- Second, we agree with you that closure techniques should be based on proven techniques and not concepts still in the R and D stage. For example, if the owner or operator wishes to use land spreading of hazardous waste at closure, he must demonstrate the effectiveness of the technique in his permit application in accordance with Subpart M (land treatment) in S264.272..aI In this instance, more details are required to determine the specific nature of the technology. However, if an interim status facility wishes to add a land treatment technique, these new processes must be allowable under S270.72 as changes to interim status. If these processes cannot be justified under S270.72, a RCRA permit is required before they can be used at the facility regardless of whether it is to be used during the operating life or at closure. Third, the addition or creation of new processes at the facility during interim status may be allowable under 5270.72. If the facility is permitted, however, process changes are not allowed as minor modifications; therefore, the new process would require a RCRA permit. I hope this memorandum addresses your concerns. Please contact Carole Ansheles at 382—4761 if you have any further questions. 2/ As explained in my 3uly 25. 1984 memorandum, we are currently — investigating the regulatory status of spray irrigation technologies to determine if they meet the definition of a land treatment unit, a surface impoundment, or a landfill. ------- 1 • av the rei;uireoent for Cover at closure he delayod for an exteade pcr od of tii ’e? • ? ur inc3 the r gul tions aUow delayed cover, do Cruclhlo’s ar p rents for c 1ayed cover e’-.cr trate that the faeil1t ,r will rev• nt. threat to hur’an health and the envlronrene? • ‘ay the final cover be covered hy non—hazardous waste after inst.alldtion? N sr ’j q ion Tne first issue is whether there is a lecjal basis for de1ayir cj place” ent ot the cover. T e owner or operator must generally cc — plete closure activities within 190 days after clo3ure plan arproval. The re ulations do provide in sore caqes for a lor or than 191) clay closur ’e period; however, the conditions outlined in C215.1 13(h) are 3 ecific and nusrbe met !y the applicant. That ii, thn closure activities gust, of nocoiitv , take hi longer than 180 c2ays to cor ri1ete; or closure woul.1 be incni patlble with continued o ;er tion, there is a reasonable Likelihood that operation will t;e recor enced by a person ether than the owner or op.ratrr, and the facility has the capacity to receive additional waste. In addition, the owner or operator .ast take all steps to pre nt tnreats to huran health and the envlronrcnt. If the Rr gional Administrator finds that the above ondttions have been flet, Crucible ray delay closure for a period longer than ibo lays. Ci ciisaiov s with 0S1’ staff and witr ‘ ;c staff have concluded, however, that the lon ,er period rust be relatoi to a nooc for extra time to coriplete leçitimate c1r sute activities or to a likely transfer of the operation to new parties, not to the adoition or non—hazardous waste disposal e;erations at the sane site, by the sare owner or operator. 2e have not hoen 1nfor ed of any likelihood that someone other than the current ner viii take over operations at this site. In addition, the preai ble to the May 19, 1920 regulations (45 33197) provides that ‘..in no case may closure take more than 3 years. Therefore, rho Cruci l. closure plan must contain only that tip’.’ neevI.ci to complete lecjitiriate closure activities and must reflect a closure tire of less than 3 year3. The second issue is whether or not Crucible’s arru ents for doleyintj final cover are environri nta11y sound. Cruci.hle has indicated that an ii permeabl nerbrane ever their waste would cause excess settlement and subsequent Sblvay Waste dike insta t — lit 1 . They reference a report by Ray 4. Teeter, P.?., acdresslng settlenent and stability of th. Crucible Landfill. Mr. T etor states that if the water table within the Solvay Wa3te w.re —2- ------- lowered (as would hs the case if the landfill wer, covered with irçerr e. 1e lirer), this would incr as. the effectivo stresses in the So1vay ’.aste, resulting in increased Sett1e ent. Nowhere does Mr. Teeter indicate that the increased eett]ei’ egt would create instability in the dike. Crucible’s other environriental argu ent for delaying cover is t1’at the Solvay Waste adsorbs th chromiu ’i being leached from the hazardous steel mill waste. This argument is based om Section 4 of the Engineering Report and Plan of Operation accompanying the application for a State of New York pe it. In this docurent lab scale ariø field scale test results are reported. The rerort, however, does not surport Crucible’s conclusion. Th .fo11owing questions and observations are included for your use: 1. signiiicant arounts of chro iun were leached from the ?ilot column liaching test (see tables 4—4, 4—5, 4—6, and 4—7 for examples). 2. The •Multirle 2 Colui’ n Tests’ did not indicate how much tap water was leached through the columns or what the ccx osition of the leacheata was at the c pletion of the test. This information is critical to proper evaluation of the data. 3. Hexavalent Chrortiun is readily leached from both Air Pollution Dust and Waste Caustic Solid. (S.. Table 4—8, page 4—12.). 4. Crucible indicates that Caustic Sludge and Acid Pickling Sludge do not leach chremate with n*utral p water, but do leach chromate during the EP toxicity test at pH 5.0. They then conclude that these wastes could not be expected to leach Mezavalent Chromium in the Crucible Landfill (see page 4—13). This is not necessarily true since acid rain deposited in this region can be expected to have a pH of (5.0 (see pages 4—7 and 4—10). 5. Field Scale tub leaching tests showed a high level (17.6 r /L) of Chroin iurt in the leachate when Solvay haste was used as an adsorbane (see table 4—35, page 4—24). 6. Trivalent ane Hexavalent Chromium tests are not thoroughly reported since the quantity of leachate passed through the Solvay Process Waste has not been stated. Results do, however, indicat, that Hexavalent Chromium is not well adsorbed by the Solvay Waste. ------- 7. Hexavale ’t Chrcw’ittn Ad c rption Tests show that C r ate is nct well atsorte i (350 ng/L) an is easily le3ched tap water (see page 4—2ft). n the quentjal Ad orptinn Colu np test the 1 exavalent Ch or iur” content of the Solvay Process waSte waq verj lo (.5r /L). Crucihi , incajcatog that thia 13 du” to th# reduction of !5 xavalont Chrc,mjuit to Trivalent Chroniur . Our •review ine icates that this is unlikely —. to happen. Since the chror ate content of the leachate wag not reported, no reliable c!eductions can he r ade. Their theory of reduction of the Hexavalent Chromiun to Trivalent Chrornium with Ferrous Iron as the reducing agent is unsubstantiateri (see page 4—29), The third issue is whether the final cover can be covered by ac cjtjonal non—hazardous waste. It is distinctly the intent of the regulations that final cover be fir al’. (This is clearly implied by the reference to the vegetative layer in rule, preanbie, an guidance). Moreover, c265.117(c) states that post—closure use of the prd perty on or in which hazardous wastes remain after clo T ure Piust never be allowed to disturb the integrity of the final cover. The only exception is if tho owner or operator can demonstrate that the disturbancet (1) Is necossary to the proposed use of the property, and will not increase the potential ha:ard to hur.an health or the environrtent; or (2) Is necessary to reduce a threat to huz an health or the environment. Obviously, the first test would be the one that night be used at this site. To meet 1! eet this test, Crucible would still have to show how disturbance of the cover would not only satisfy the requirements of S265.117(c)(l) but must denonstrat. specifically how, this disturbance will still provide for control of pollutant migration and surface water infiltration (S265.310(b) and other a;plicable conditions outlined in c265.3l0. Rt’con,ienda t ions Crucible’s request for an extended period of tine for installation of a final cap should be denied. First, it is doubtful that continued operation of the nonbazardcus landfill is ‘necessary for th completion of closure activities. P ven if it could be construed as such, 3 years would be the limit outlined in the regulatory preamble. Secondly, the purely environr’ental arçunents outlined in Crucible rerorts are not technically sub- stantiateø. In fact, the underlying Solvay Process %iaste is —4— ------- apparently a significant contributor to the poor quality ground water underneath the site. Crucible’s steel, i1l waste i ere1y exacerbates the prcble by i aking its own Pta:ardcus waste con- tribution in the form of Mexavalent Chro iur , and by providing a conduit for increased infiltration into the underlying Solvay Process Waste. Covarin of the final cap with additional non—hazardous soli’i waste r ight be allowed if Crucible can denonstrate that this disturbed cap will function as well a. a norrnal exposed final cap as per 5265.117(c) and 5265.310, and that periodic inspections viii not be necessary. In any event, the currently proposed cap configuration should not be approved. Since it is a soil-only cap, it will allow significant arnounts of precipitation to enter the under- lying Solvay Process Waste. An iriporvious cap design will not only ritigato the threat posed by the chroi’ iuz —containjnq steel nih wastes but will 1so lower the contaninant loading contri- buted by underlying Selvay Process Waste. If the Region should allow the interii cap, it should take another lookat subsidence, since it appears to be significant. Tb. prob1ei with slope- stability should not be increased by the addition of the i per— %edble cap. Contaet Region XI — CatherLne Massirino FTS 264—1717 Headquarters — Chris Rhyne FTS.382—469S cc: Terry Crogan Peter Guerrero Bruce Woddi. Frnie Regna Ron Ney Dov Ieit an Nancy HUtz.l Art Day - - —5-, ------- 9476.1965(01) RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY JUNE 85 Partial Closure 3. The owner/operator (0/0) of a permitted facility plans to ren ve a tank f n service. His permit does not address r ic’al of the tank. Must the permit be iicdified to reflect this tank re icva1? Reeoving the tank would constitute partial closure of the facility. The closure plan should address this situation accordir to $264.112(a)(I). Since the permit does not cover partial closure, the 0/0 must mend hil plan. Sectio3 264.112(b) requires the o/o to amend his plan whenever thariges in eratirig plans (e.g., tank re val) affect the closure plan. T amend the closure plan to address partial closure, the 0/0 must caiply with the standards for major i difications for permits under S27041. The 0/0 should xi id his pla.i to address al ]. antici- pated partial closures so that he need only ncdify his permit once. Source: Susan Hughes (202) 382-4790 ------- Regional Administrators Regions I—X 9476.1985(02) I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 JG 21 L98 OFFICE OF SOI.ID WASTE AND Eh ERGENCY RESPONsE round—Water Quality at Closure To: Background As a result of the Hazardous and Solid Waste Amendments of 1984, we expect that an unprecedented number of facilities will close one or more hazardous waste management units during the coming months. Moreover, many of these units viii close because they are unable to certify compliance with applicable ground—water monitoring and financial responsibility requirements on November 8, 1985. Overall, perhaps one half of all existing surface impound- ments may close before the effective date of the retrofitting pro- visions in 1988. Given the number and significance of these closures, it is essential that EPA and the States take steps to ensure proper implementation of RCRA requirements as these facil- ities close. This memorandum is intended to provide general guidance on RCRA closure policies as affected by the 1984 Amend- ments, especially in terms of ground—water quality at closure. The Amendments generally confer broad authority on the Agency to assure that hazardous waste management units are operated and closed in a manner that protects human health and the environment. In paFticular, the Agency now has several authorities for ensuring ground—water quality and conducting corrective action at and after closure, in addition to the pro—Amendment closure process. We intend to make full use of these authorities to be sure that improper closures do not occur. Close attention to closures follows from practical concerns as well. In many cases, closure is the last time that a facility comes under the close scrutiny of RCRA. Lack of attention to environmental problems at the time of closure may lead to an increase in the number of Superfund sites several years in the future. Subject: From: stant Administrator ------- —2— New Closure Policies In the past, there has been some uncertainty regarding what level of clean—up is required at closure. Facilities were allowed to close in some cases without an adequate ground—water monitoring system in place or without a plan to respond to con— taminat ion. We must be clear that ground—water quality is an integral aspect of RCRA closure. Owners and operators must not be allowed to walk away from units with inadequate monitoring systems and ground—water contamination at closure. In many cases, the interil status regulations (Part 265, Subparts F and G) can and should be used to address ground—water quality issues at closure. Post— closure permits, corrective action orders (RCRA 53008(h)), and corrective action authority under RCRA 53004(u) can and should be used when applicable and necessary to supplement these regula- tions to address contaminated soils or ground water at closing facilities. For example, approval and completion of a closure by removal under S5265.228 or 265.258 does not preclude the Agency’s ability to use 3008(h) orders, 3004(u) authority, or other appli- cable RCRA provisions as necessary. For facilities with closing land disposal units, the facility management process (as described in the F! 86 RIP) will be used to determine the most appropriate course of action. The strategy for each facility will depend upon the specific facts of each case. All closures, however, should be guided by the principles outlined in this memorandum. New Authorities Several new tools are available to the permitting and enforcement programs to supplement the closure process of Part 265. These new authorities should be used (when applicable and within the context of overall Agency priorities) to assure that adequate ground—water monitoring and protection are imple- mented at closing facilities. The following provisions of the 19B4 Amendments give the Agency broad new authority to address potential soil and ground—water contamination at closure: 3005(i) changes the definition of regu]ated Unit’ in S264. 0(a) to include units that received waste after u1y 26, 1982 (from the current date of January 26, 1983). This expands the universe of facilities that is subject to the requirements of Part 264, Subpart F, through a post—closure permit. S3004(u ) requires corrective action for releases from solid waste management units, and from regulated units (for releases ------- —3— other than ground—Water releases), at facilities seeking RCRA permits. This authority may be used when a closed or closing unit is located at a facility which is receiving either an operat- ing or post—closure permit. 53008(h ) allows corrective action to be required at any interim status facility with a release of hazardous waste into the environment. This authority may be used in tandem with the closure process to require corrective action during or after closure. Additional Guidance This is the first in a series of guidance memos that will be issued regarding the closure of hazardous waste management facilities. Future guidance will address in detail the issues raised in this memo, including technical and policy guidance for closure by removal and post—closure care. I encourage you to contact my staff to discuss any of the issues regarding closure and to identify any areas in which Headquarters should be preparing additional guidance. cc: John Sk.inner Gene Lucero Bill Hedeman OSW Senior Staff Peter Cook Lloyd Guerci Waste Management Division Directors, Regions I—X RCRA Branch Chiefs, Regions X—X Permit Section Chiefs, Regions I—X Enforcement Section Chiefs, Regions I—X Mark Greenwood ------- 476.1985(O3) f UNIT C STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON. B.C. SEPIl 8 5 O PICE OP SOLID WASTE AND ENI GIP4CY tBPQ iIE MEMORANDUM SUBJECT: Units Cr for Facility Closure FROM: Bruce R. Weddle, Director permits and State Programs Division (WB-563) TO: Hazardous Waste Division Directors and Branch Chiefs Regions I-X This memorandum addresses the question of whether hazardous waste management units built specifically as part of the closure process must by covered by RCRA permits. Sos. facilities have proposed closure schemes which involve the creation of a new tank, impoundment, pile, or incinerator to manage hazardous wastes exhumed and/or transferred during closure. A number of owners/ operators have argued that creation of .th.se new units is a necessary and temporary measure to accomplish closure of regulated units. They have sought to have the new units approved in their Part 265 closure plan rather than through the permit process. Alternatively, the addition of new units may constitut. an allowable change to a facility during interim status. According to 5270.72(c), changes in processes or addition of processes may be allowed if a revised Part A and justification are submitted, and the Director approves the change because of an emergency situation or because it is necessary to comply with F•deral regulations or State or local laws. In the case of adding a new unit for closure, this section could be applicable if the Director agrees that the additional unit is necessary for the owner/operator to comply with Part 265 closure requirements. In no case, however, may the cost of adding these units exceed 50% of the cost of building a comparabi. entirely new facility (5270.72(e)). cc: Permit Section Chiefs, Regions I-X Peter Gu.rrero Terry Grogan Carole Anshe lea Amy Mills Dave Pagan In all cases, the addition closure plan approval. In some Part 264 standards apply to new well as to new operating units. a means for exempting new units simply because they are used in of new units requires more than cases it requires a permit. The units added during closure as The regulations do not provide from the p.rmitting standards the closure process. ------- 9476.1985(04) Ø UNITED STATES ENVIRONMENTAL PROTECTION AGENCY I WASHINGTON. D.C. 20460 OFFICE OF ç0 ‘ c SOLID WASTE APdD EMERGENCY RESPONSE .1 MEMORANDUM SUBJECT: Applicability of Post-Closure Permitting Requirements to Non—Regulated Units -. FROM: Marcia E. Williams, Director /‘#f 4 c ..i._ ( “ Off ice of Solid Waste TO: Charles E. Finley, Director Hazardous Waste Division, Region X In your memorandum of May 20 (attached) and in phone conversations with 3eff Webb of your staff, you requested clarification on several points regarding closure for disposal facilities that stopped receiving waste prior to July 26, 1982. Outlined below is a discussion of those points. We agree with your interpretation that land disposal units that stopped receiving wastes prior to July 26, 1982 and closed after January 26, 1983 are subject to the post—closure permit requirements of 270.l(c), but not ground—water monitoring requirements of Part 264 Subpart F. We do not agree with your conclusion, however, that such a permit could require compliance with Part 265 ground—water monitoring requirements. Part 265 is applicable only to interim status units and cannot be incorporated into a permit. If the unit described above is the only unit at the facility subject tO permitting, issuance of a post—closure permit would have little benefit since ground—water monitoring requirements cannot be applied. Th. unit/facility in this case should be closed under interim status, and thus subject to the general closure perfor nce standards of Part 265 and post-closure ground- water monitoring (ç265.117), as applicable. If the unit has caused ground—water contamination, enforce” ent action to compel corrective action under g3008(h) should be initiated. Alternatively, if the unit ii located at a facility which has another unit(s) requiring a permit, the 3004(u) corrective action authority would apply when the permit is issued since the unit is a “solid waste management unit.” ------- —2— If you have any further questions regarding this issue, please contact Dave Fagan, Acting Manager, Permits Policy Program at 382—4740. Attachment cc: RCRA Branch Chiefs Permit Section Chiefs ------- •,.1ø I14 • ____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY \, / Seattle, Rf 8n 98101 • M/S 533 MAY20 85 ATTII o. MEMORANDUM Applicability of 40 CFR Part 264, Subpart G SUBJECT: to Non-Regulated Units Charles E. Findley, Directol? FROM: Kaurdous Waste Division John H. Skinner, Director TO. Office of Solid Waste (WH-562 B) The purpose of this correspondence is to confirm our interpretation of 270.1(c) which states that all owners and operators of hazardous waste management units nust have permits during the active life (including the closure period) and for units which close after the effective date of the Part 264 standards for any post-closure care period required under 264.117. We are interpreting this to require permits for the closure and post—closure care of any unit not closed (including certification of closure) prior to permit issuance. If the unit ceased receipt of wastes prior to July 26, 1982, the permit would not require con liance with Subpart F of Part 264, but with the ground water monitoring requirements of Part 265 interIm status. All other applicable requirenents of Part 264, partIcularly the closure performance standards of Subparts G, K, L, M, and N, would also be Imposed through the permit. Such an interpretation would subject the facility to the provisions of the 1984 Mendments, particularly Section 3004(u). We would appreciate confirmation of this interpretation. ------- 9476.1985(05) i 1985 :is. Ellen E. Eagan URS t.ngineers 3500 North Causeway Boulevara ;etairie, Louisiana 70002 SuDject Lana Disposal Unit Closure Clarification of Proposed and Prc iulgated Rules URS No. 520—02—96 Dear t s. Eagan: Thank you for your letter of October 10, 1985, in which you requested clarification of several issues relating to land dis- posal units. We are responding to your questions in the order orcier in which they were detailed in your letter. It a land aisposal unit contains no waste curre t1y listed or characterized as hazardous, and completes all closure acti- vities prior to the effective date of any regulation listing, or characterizing a waste contained in the unit as hazardous, the unit would not be regulated under Subtitle C of the Resource Conservation and Recovery Act, as amended (RCRA). If the subject land aisposal unit is located at an interim status facility or a facility seeking a permit under RCRA, certain requirements under the Hazarcous and Solid Waste Amendments of 1984 (HSWA) may apply. Your letter did not contain sufficient information to make a determination on this j. oint. A land disposal unit not regulated unaer Subtitle C of RCRA would not be required to comply with the specific regulations referred to in your questions numbers 2 through 6. In response to your question number 7, Section 3004(o)(l)(A) mandates that a permit issued to a landfill or surface impoundment after November 8, 1984, must require the installation of two or more liners and a leachate collection system and ground—water monitoring. Section 3005(j) of RCRA prohibits surface impound— nents in existence on November 8, 1984, and which qualify for interim statue, from receiving storing or treating waste after November 8, 1988, unless the surface impoundment is in compliance witt the liner, leachate collection system, and ground—water monitoring requirements of Section 3004(o)(1)(A). If a surface impoundment becomes subject to these requirements after November 8, 1984, due to the promulgation of additional listings or characteristics for the identification of hazardous waste, the ------- —2— surtace impoundment must comply with the requirements of Section 3uu4( )(l)(A) four years fror, the date of promulgation of the accitional listings or characteristics. A land disposal unit not required to obtain a RCRA permit, including a Post—closure permit, and not otherwise subject to the HS A would not be required to retrofit under Section 3004. since you mentioned in your letter that the Subject land cisposal units are in authorized States, you should contact each appropriate State agency for applicable State ‘.iles and statutes. Currently, no States are authorized for the HS A. Any applicable requirements under HS JA also must be complied with in addition to the authorized States’ regulatory program. Sincerely, Marcia kil],iams Director Office of Solid Waste cc: Col Ansheles Peter Guerrero Terry Grogan Dave Fagan Lillian Bagus benjamin Smith Dov 4eitman ------- 9476.1986(01) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 4 Y 81986 OP. IC! OP SCUD WASTE AND EMIRGEPICY RESPONSE Ms. Deborah Self Student Environmental Health Project Center for Health Services Station 17 - Vanderbilt University Nashville, Tennessee 37232 Dear Ms. Self: This is in response to the questions you submitted in April 1986 at the Cincinnati meeting. Your questions address both the particular situation of the partial closure of Chemical Waste Management’s nelle facility, and the general requirements of the closure/post—closure regulations promulgated under authority of the Resource Conservation and Recovery Act (RCRA). In regard to the Emelle facility, my staff spoke with the appropriate staff in our Region IV (Atlanta) office. My under- standing is that the situation has changed somewhat since last July, when Region IV held a public hearing on their closure plan. Region IV staff said they had processed the closure plan without a formal post—closure plan submittal because it was a partial closure and they were attempting to work out a new ground water monitoring system required for the facility. The remaining active hazardous waste management units will obtain an operating permit. Regional staff say that post—closure care will begin at final closure of th. facility and will continue for 30 years. However, Chemical Waste Management will be required to conduct post—closure activities for th. partial closure, as well. In addition, permit condition. will need to be developed. If you have further questions regarding the elle facility, you should contact Craig Brown in our Region IV office (404 347-3067). The farmer procedural requirements for closure arid post- closure car$ .r. somewhat unclear regarding partial closures and subsequ.nt post—closure responsibilities. We proposed amended regulations on March 19, 1985, that attempted to clarify those requirements. The final regulations were published on May 2, 1986 (51 FR 16422), and will become effective on October 29, 1986. I am enclosing a copy of them for your information. ------- 2 The final regulations clarify the definitionof partial closure, hazardous waste management unit, partial closure noti- fication requirements, and how partial closure and the initiation of post—closure responsibilities interact. I believe these regulations will result in better protection of human health and the environment at all hazardous waste management facilities. Thank you for your interest in these issues. Sincerely, I jii,rL 1-’ Mar ja E. Williams Director Office of Solid Waste Enclosure ------- 94 76. 1986(Ola) RCRA/sup pTJ MOTLINE MONTHLY SUMMARY AUGUST 86 5. Closure Plans - A ea1s The o ner/cçerator (o/o) of an interim status facility has subnitt& his written closure plan at least 180 days before he expects to begin closure as required by 40 CP 265 .112(c). The EPA subsequently ncted deficiencies in the plan and retu ed it to the 0/0 for revis ion accordi.n to 40 CP 265.112(d). After the 0/0 has subnitted his plan a second tine, the EPA again rz ted deficiencies. t irq the authority given in 40 CFR 265.112(d), EPA n difjed the plan and sent it back to the 0/0 as a final closure plan. * at avenue of a ea]. is available to the o/o if he wishes to test the n jfjc .j made to his final closure plan? At the present tine, there are r pro isions *der A t ith ild allow the 0/0 to a eal the final 1 oeure plan issued by the gional Mininistrator. The 0/0 ild have to pursue other legal recourse outside of the RA regulations to a eal the prowisions in his final closure plan. Source: , itnen (202) 382—7703 Researth: Kris h ersen ------- 9476.1986( 2) RCRA/SUPERFUND HOTLIIIE MONTHLY SUIQIARY SEPTEMBER 86 3. Hazardous Waste Tank Closure and Post-Closure The ovner/oçerator (o/o) of an interim status underground hazardous waste storage tank plans to close the tank. ring the o eratir life of the tank, hazardous waste leaked and contmninated under- lying soils. t at regulations apply in this situation? EPA piblished a final rule regulating tanks holding hazardous waste in the July 14, 1986 Federal ! !r (51 FR 25422). E A revised the standards for hazardous waste tanks, effective Jari.iary 12, 1987. ‘A stated that if an a/c d nonstrates that all contaiunated soils cannot be actically re cved or decontaniriated as required in 40 CFR 265.197(a), then the 0/0 dust close the tank systen as a landfill (5]. FR 25484). The 0/0 n ast rfom t st-clcsure care in accordance with the closure and st-clcsure care requiranents that apply to landfills (40 CFR 265.310). The tank 0/0 nLst zeet all of the requir nts for landfills s cified in Sub rts G and H of Part 265 with regard to closure, st—closure, and financial res nsibility. Under the landfill closure and st—closure require nts (40 CFR 265.310), the a/c t p1y with all st-closure requira nts contained in 40 CFR 265.117 through 265.120 including maintenance and n nitoring through- out the st—closure care riod. Not. that the above mantioned requir ents for closure of hazardous waste tanks as landfills do not beccma effective until January 12, 1987. Tank closures ocourring ior to January 12, 1987 ni.ist c np1y with zior regulaticris which may include 40 CFR 5265.197 and S265.1I0 through 5265.115. D e latter sections ware etended on May 2, 1986 (51 FR 16422). Section 265.11(b) requires the 0/0 to control, minimize eliminate, to the extent necessary to otect htiiiart health and the envircrm nt, p stcLosure esca e of hazardous waste, hazardous constitu- ents, leachate contaninated r off or hazardous waste de n csition groducts to the ground or surface waters or to the ateosl±%ere. Since the May 2, 1986 ener nts ware not gr algated p.mrsant to RS . they are effective in authorized states only if the states have edo tec2 revisions to their gr o rans to incorjxrate these requir nents. Also, under Section 3008(h) of the Solid Waste Dis eal. Act, whenever the EPA Mninistrator dete minee that there is or has been a release of hazardous waste into the envircntmnt a facility authorized to og rate under Section 3005(e), the Adeirtistrator may issue an order requiring corrective action or any other resp nse “e sure necessary to gr otect rian health or the erir ent. Source: Bill Kline (202) 382—7917 Ginny Steiner (202) 475—9329 searth: Carla Rellergert ------- UNITED STATES r4VIRONMENTAL PROTECTION AGENCY 9476.1985(O 8 OCT 86 Honorable Rob Wise House of Representatives Washin ton, D.C. 20515 near 9r. %ise: Thank you for your Seotember 4, 1986, letter reaarcljriq closure requirements for surface impoundments under the Resource Conservation and Recovery Act (RCRA). fl ‘lay 2 of this year, the Environi’tental Protection Acency ( Ph ) Dromulgated final requlations reauirinq hazardous waste facilities to beam closure activities within a cneci ied tine after they ceased accepting hazardous wastes. rpp. ronulaated this rule based on the belief that expeditious closure of hazardous waste dls osa1 surface impoundments, after they are no longer receiving hazardous waste for disposal, would ir’orove the protection of human health and the environment. The oa1 of EPA’s current requlations is to minimize the for’r ation and ni ration of leachate to the adjacent subsurface soil, around water, or surface water. This goal is achieved, in r art, through design and operating standards that reauire placement of final covers on closing units. EPA relies rincina11y on the final cover to provide post—closure protec- tion of ground water. Many older units are not lined, so early placei ent of the final cover is important to reducing leachate generation from the unit. The ‘nion Carbide facility referred to in your letter is affected by this rule since they 1an to cease acceotinq hazardous wastes rather than installing a double—liner system in accordance with the requirements of Section 3005(j) of the Hazardous and Solid Waste Amendments of 1984. As you may he aware, we are currently involved in litigation with Union Carbide on this issue. ------- I ho ’,e that this clarifies EPP’c rationale in deterrjnjnci whether a facility he allowe 1 to remain or en. If I can he of further assistance, please let me know. Sincerely, I 3. Winston Porter Assistant Administrator JP4—5 2/ RO’1 1/T.MC9ANUS — 4 7 5—8613/sld/9—22—R6/Control No:kL6O29ll/T)ue T)ate: 9—23—R6/COPJTROLLED CORRESPOP:r)ENCE *5 ------- 9476 • 198 6 (04) RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY OCTOBER 86 8 Retrofitting Surface Im un nents RCRA Section 3005(j) states that exce for specific cases for which variances are granted a surface ngiundn rtt shall not receive, store, or treat hazardous waste after November 8, 1988 unless it is in canpliance with Section 3004(o) (l)(A), the minimum technology standards for new surface Lm xiunct ents. Section 3004(o)(1)(A) requires new surface in ound— ments to have t or tcre liners with a ].eathate llect ion system between the liners and ground water mnitoring. Hence, the 3 mer/operator Cob) must either close or retrofit his surface im undments to meet the minimum technology standards if he wants to operate the units after November 8, 1988. Since storage in a surface impxandnent not meeting minizTn. technology standards is rchibited after November 8, 1988, rmast the 0/0 who wishes to close his ün zunó nts, cceiplete closure by Novemtter 1988? No; EPA inter ets the statute to require the facility to stop accegting waste by November 8, 1988. The statute does not require closure by that date. Therefore, the amer or operator must cattply with appLicable closure regulations. The “Interim Status of Surface Im xxzndments — Retrofitting Variance” (OSWER Policy Directive #9484.00—1) states that closure activities can occur after November 8, 1988, ovided that the recej of hazardous waste st.ope on or be fore November 8, 1988 • There fore the c ner/opera t0 is required under 40 CFR 265.112(d)(2) to begin closure within 30 days after the last date on which wastes are received. According to 40 CFR 265.112(d)(1) the QrJner/ogerator must also suthdt a written closure plan to the Regional ministrator at least 180 days £xior to the date on which closure is expected to begin. Therefore, notification of closure of an interim status surface ia x*zndnent is required by June 8, 1988 unless the imp un nt is retrofitted or a variance is obtained (51. FR 1644). Source: Barbara Pace (202) 382-7703 Research: Betty Wilson ------- 9476.1987(0].) June 9, 1987 MEMORANDUM SUBJECT: Applicability of Section 3005(i) of RCRA to Surface Impoundment Closed by Blue Bird Midwest Pursuant to 40 CFR §265.228(b) FROM: Marcia Williams, Director Office of Solid Waste (WH-562) TO: David A. Wagoner, Director Waste Management Division Region VII This is in response to your May 13, 1987 request for a statutory interpretation regarding the applicability of Section 3005(i) to closure conducted at the Blue Bird Midwest facility pursuant to 40 CFR §265.228(b). We have reviewed the information accompanying your request and concur with Region VII’S interpretation that unless Blue Bird Midwest can demonstrate compliance with the standards for closure by removal in 40 CFR §265.228(a), a post-closure permit implementing applicable Part 264 standards, including Subpart F ground—water monitoring and corrective action, is required. The post—closure permit is required regardless of whether Blue Bird has satisfied the closure requirements of 40 CFR §265.228(b). Your information indicates that Blue Bird has not clean closed the swale and has not demonstrated through an adequate ground- water monitoring system that all contaminated subsoils have been removed or decontaminated, as required by §264.228(a). Therefore, it appears that RCRA Section 3005(i) applies to the closed surface impoundment at Blue Bird. Your memorandum did not include information indicating that Blue Bird Midwest upgraded the ground—water monitoring system in accordance with comments in the Region’s December 29, 1986 letter. For your information, we expect the final codification rule based on the March 28, 1986 proposed rule to be issued within the next two months. The draft final rule now in Red Border states that the requirements of Section 3005(i) (i.e., ground-water monitoring, unsaturated zone monitoring and corrective action requirements applicable to new units) are applicable to all land disposal units which received waste after July 28, 1982 or had This has been retyped from the original document. ------- —2— not closed by January 26, 1982. The rule clarifies that land disposal units that close by removal under interim status are subject to post-closure permitting. An exception to the post-closure permit requirement would be the case where surface impoundments closing by removal or decontamination met the requirements of §264.228(a). The forthcoming rule will allow the owner/operator to submit a petition to demonstrate to the Regional Administrator that a post-closure permit is not required for units that closed according to Part 265 standards. The petition must contain ground-water and soil analytical data and other information sufficient to demonstrate the applicable Part 264 standards for closure by removal or decontamination can be met. If the “equivalency” of Part 264 closure by removal can be demonstrated, a post-closure permit would not be required. Public notice of Agency actions on these petitions will follow the closure plan public notice procedures of §265.112. If you have additional questions about this memorandum or the codification rule language, please contact Natthew Hale, Chief, Permits Branch at FTS 382—4740. cc: Terry Grogan, OSW This has been retyped from the original document. ------- 9476.1987(03) RCRA/SupEpyuN ROTLINE MONTHLy SU)O( RY JUNE 87 4. Clean Closure Section 265. 2 28(a) of the recently pra ulgated amen t rit to the surface ii ouzx nt closure and post—closure care rule, published in the Federal Register on March 19, 1987 (52 FR 8704), states tha’ various facility ele nts (e.g., contaminated bsoi1s, liners, and st .zctures) r ist be r rcved or decontaminated before Clean-closure can occur. Contaminated groundwater is r t listed ancng those elenents. Must affected groundwater also be re ved or decontam nared before clean closure is possible? In the preamble to the final rule the ency stated that it interprets the term “contaminated subsoils” to include contaminated groundwater (52 FR 8705). The preamble also states (52 FR 8706) that ners and operators rrn.ist r ove all wastes, lineri and all materials contaminated with waste or leachate (including groundwater) that pose a threat to human health or the envirorIr . Source: Ossi t’ yn (202) 382—7597 Research: Kurt Patrizj. ------- 9476.1987( 05) RCRA/SUpERp D HOTLINE MONTHLy SUMM y SEPTEMBER 87 2. Certification of Closure The owner/operator of a hazardous waste management unit is conducting closure and hires a contractor to certify the Closure. 40 CFR 264/265.115 state that certification of Closure must be made by an independent, register , professional engineer. Can the engineer who iS employed by the contractor Performing the Closure, Certify the closure of the facility? Yes, the “RCRA Guidance Manual for Subpart G Closure and Post-Closure Care Standards and Subpart H Cost Estimating Require en g” clarifies that an “independent” engineer cannot be directly employed by the owner or operator of the unit. Also, the May 2. 1986 Federal Regist (51 FR 16433) states that, “... the certification should be made by a person who is least sub ect to COflSCiOUg or subconscioug pressures to certify to the adequacy of a closure that in fact is not ifl accordance with the approved Closure plan.” Source: Sharon Frey (202) 475—6725 Research: Chris Bryant ------- 9476. 1987(07) RCRA/SUPERPUND HOTLINE MONTHLY SUMMARY NOVEMBER 87 4. Closure Plan Public Comment Period As specified in Section 265.112(d) (4), the Regional Administrator has ninety (90) days to approve, modify or disapprove the closure plan for an interim status facility once it has been submitted for consideration by the owner operator. The section also provides for a 30 day public comment period on the content of the plan, which is to be carried out during the 90 day term. It is initiated via a notice in the local newspaper. It is unclear as to when this public comment period would begin. Is it immediately upon receipt of the plan without an initial approval by the Regional Administrator? Or would it begin only after a preliminary screening by the Region? Section 265.112(d) (4) provides for a 30 day public comment period on the content of a proposed closure plan for an interim status facility and does not state when this period is to be initiated. The Agency has not issued any specific guidance, because the practice will vary from site to site depending on the detail and complexity of the individual plan. Owners and operators may request public hearings in addition to comment periods. The Regional Administrator also may schedule a hearing at his own discretion. The Regional Administrator may schedule the hearing with or without the benefit of the response from the public comment period; regardless, the hearing must be noticed 30 days prior to its occurrence. It is therefore conceivable that, within the framework of the 90 days allowed, the time required to fulfill both regulatory requirements could be as long as 60 days, or as short as 30 days (for current notice of the hearing and the comment period). The Regional Administrator will review the plan prior to offering the contents for public review, and will approve, modify or disapprove its contents within 90 days from the date of submission. Source: Chris Rhyne (202) 382-4695 Research: Andy O’Hare This has been retyped from the original document. ------- 9476.1987(08) , itO 14pp UNITED STATES ENVIRONMENTAL PROTECTION AGENC WASHINGrON 0 C. 20460 ‘p 4 0 t OFICE _l 7 so o WASTE AND EM ‘ICY Rp N 5 MEMORANDUM SUBJECT: Closure and Post-Closure Issues - FROM: Marcia E. Williams, Director Office of Solid Waste (WH-562) TO: Robert E. Greaves, Chief Waste Management Branch (3HW30) Region III Thank you for your November 1, 1987 memorandum in which. you requested clarification ot several issues relating to closure of interim status surface Impoundments. The clarification f these issues follows the same format as presented in your memorandum. The answers to questions one and two are der’., a1 from the draft guidance, “Surface Impoundment Clean Clc,s.:t Guidance Manual” (October 12, 1987). 1. For an interim statue surface impoundment hat is closing by removal under S265.228(a)(1), tiut has lot triggered ground-water assessment under §265.93(d , it is not necessary to monitor ground water for the full list of Appendix VIII (or IX) constltuent;s. A ground-water evaluation conducted as part of thr clean—closure demonstration should establish the chemicals that may be reasonably adsociated with the wastes managed at the impoundment, including any decomposition products. While the most convincing means of demonstrating the absence of such chemlca’.s is by performing an Appendix VIII analysis of the waste, this is not required if it can be demonstratea that only a subset of these constituetita could reasonably be expected to exist at the impoundment. On the other hand, If the Interim status surface impoundment has triggered ground—water assessment under §265.93(d) and ground—water contamination 13 ev nt, clean closure Is probably not a feasible option. However, should it be determined to be feasible (see issue 3), the same rationale should be used to determine constttuent of concern as was used when ground-water assessment was not triggered. ------- q4f7 /9S 7 Ca ?) —2— 2. As stated above, Appendix VIII (or IX) analysis of groIlnl— water samples is not necessary for a clean closure demonstration. As you suggested, a combination of analyses for what is likely to be present in the waste coupled with an explanation of the basis for not anal tng the remaining hazardous constituents would be appropriate In most Instances. 3. The general closure regulations (S265.113(b)(1)(1)) allow the 180 day closure period to be extended if’ the closure period will, of necessity, take longer then 180 days to complete. This rule allows for flexibility In complex closure situations, and in other situations where the owner or operator cannot pra!tlcably complete closure expeditiously. However, we generally believe that ground—water contami- nation should be addressed under a corrective action program——preferably in the context of a permit, since ground-water contamination clean—up usually Involves an extended clean—up period. Most operators attempting to close units that have ground-water contamination wily need a post—closure permit and therefore are not 1I’c y to be able to clean close. We recognize, however, tiat under some limited circumstances an owner or operato ’ may be able to demonstrate that clean closure is pos .ihle after a very short ground—water corrective action erfort (perhaps less than one year). Should this be the case, the Regional Administrator has the option under §265.113(b)(1)(j) of extending the closure period to implement such an extort. Protracted or Indefinite closure periods designed solely for the purpose of ground—water clean—up are not acceptable Under these circumstances a post—closure permit containing corrective action schedules of compliance should b used or a S3008(h) corrective action order. 4. The Final Codification Rule published In the Pederal R later on December 1, 1987 (52 FR 45788) addressee t a esue directly. In essence, the rule states that units closing by removal under Part 265 standards must obtain a post—closure permit unless the owner or operator can demonstrate to the Regional Administrator that tre closure met the standards for closure by decontamIna:ion in section 264.228, 261.280(e) or 264.258, respectively. The rule further outlines approaches for making the demonstration. A copy of the rule Is attached for your information. ------- 9’17& /qz7 ) —3— 5. When FPA has issued guidance that interprets a perrljt or closure requirement, States Should follow that guidance for coriparable State requlreme or be hle to explain why their approach is equivalent or fore stringent than the Agency’s approach. tn overview1n State permits and closure plans the Region should rollow the approach outlined in the pernit quality and clo l re plan protocols which cross reference regulatory require— rients and applicable guidance; the State administrative record should be Consulted to determine how the State has interpreted those State regulations (comparable to the Federal) for which we have issued guidance. Of course, if a “more stringent” EPA regulatory anendment or rule clarification requires the State to amend its regulations, the State should follow the procedures and timefranes in Part 271 for progran revisions. Should you require further clarification of these issues please contact Chris Rhyne of my staff at PTS 382— l695. Attachment cc: RCRA Branch Chiefs, Regions I-X ------- p rr 9476 1988 (0 1) tDIZ% UNITED STATES ENVIRONMENTAL PROTECTION AGENCY % WASHINGTON. D.C. 20460 J)tN 29 t988 OFFICE oc JAN 2 9 ?988 SOi ..IO WAS1E AP4O EMERGENCY RESPONSE Mr. John Rafl sey Environmental Engineer Bureau of Waste Management Kansas Department of Health and Environment Forbes Field Topeka, KS 66620—0001 Dear Mr. Ramsey: This letter is in response to your December 29, 1987 inquiry regarding closure requiteflents at facilities having delisting exclUSiOflS revoked. specificallYt you requested guidance Ofl the applicable closure requtr fleflt5 for units at facilities whose state_issued final delisting decisions granted before the enactment of HSWA) were being revoked based on re_evaluations of their petiti0flS using HSWA criteria. To date, we have not revoked a Federally_issued final del.istiflg exclusion. We have, however, denied final exclusions (as a result of HSWA re_evaluations) for wastes that had been issued t porarY exclusions based on pre—HSWA criteria. This letter, therefore, only provides insight to policies concerning the regulatory status of Federally_issued final excluSiOfl5 and temporarY exclusionS that have been revoked. Since the state of Kansas has been authorized by EPA to administer and enforce hazardous waste management prografliS pursuant to Section 3006 of RCRA, 42 U.S.C. Section 6926, the closure requirements for the waste units at the sub)eCt facilities should be determined by State authorities. The Federal policies discussed in this letter may be helpful as guidance in determiniw the closure requirements for the units at those facilitis$ where state—issued final excluSi° S are being revoked. Tb. regulatOrY status of wastes that have been granted exclusion from Subtitle C regulation is dependent on the retrosPectivitY given to the type of exclusion granted. For wastes that are granted final exclusion 3 , the Federal policy is that these excluSiOflB are fully retrospective the waste is assumed to have always been non_hazardous). In these cases, the units handling wastes that were issued final exclusions are not subject to SUbtjtLC c regulation unless the unit also contains or had contained other non_excluded hazardous wastes. ------- —2— - Some Federal temporary exclusions were granted based on pre—HSWA criteria evaluations and later denied final exclusion after re—evaluations using post—HSWA criteria. In these cases we have adopted a Policy which, in short, states that these wastes were non—hezardous only during the time that the temporary exclusion was in effect. The regulatory status of the units containing such wastes is, therefore, dependent on whether those units accepted the temporarily excluded wastes before the temporary exclusion was in effect and/or whether the same unit continued to accept these wastes after the temporary exclusion was revoked and a final denial issued. Attachments t and II address the Federal regulatory status of units and the interim status of facilities that handled wastes that were temporarily excluded and then denied final exclusion. Your letter makes reference to Section 3005(j) of RCRA and the possible implications for State implementation Please note that Section 3005(j) is a HSWA PEOVisjo and as such is implemented by EPA until a state is specifically authorized for that provision. Also, please note that the key “trigger” under Section 3005(j) is receipt of hazardous waste after July 26, 1982. It may be beneficial to consult your legal office to determine if Kansas has a State requireme which parallels Section 3005(i) and if so, what consequences the State equivalent regula jo may have on the regulatory status of revoked final exclusions. The applicability of a State equivalent to 3005(j) and its effect on revoked exclusions may be dependent on the retrospectivity given to State—granted final exclusions. I hope this letter has provided some guidance to assist you in developing closure policies for the subject waste units. If you have any further questions, or wish to discuss our delisting or closure policies in more detail, please feel free to contact me at FTS 382—4206. I will be Acting Branch Chief for Suzanne RUdzi kj until March. Sincerely Elizabeth Cotsworth, Acting Chief Assistance Branch ------- 2 9476 .l 98 8(02a ME MO SAN ‘ U M SUBJECT: Cleanup Levels for Lead and Cadmium jn Soils for RCRA Clean Closures FROM: Jeffery D. Denit. Acting Director Office of Solid Waste TO: David A. Wagoner. Director Waste Management Division Region VII In your memorandum or December 29. 1987. you requested guidance on setting soil cleanup levels for lead and cadmium at RCRA facilities that intend to achieve clean closure. As you knew, the preamble to the March 19. 1987. final regulation (conrorming 265.228(a) to 264.226(a)) stated that verified Reference tioses (RfDs) and Carcinogenic Potency Factors (CPFs, could be used as Agency-recommended limits for contaminants such as lead and cadmium, where appropriate, to set soil cleanup levels. The verified RfD would be the most appropriate criteria for setting a soil cleanup level for contaminants that are not known to have carcinogenic effects, and the CPFs would be the most appropriate limit for carcinogens. The preamble also states that. in cases where no EPA recommended limit exists for a specific contaminant, a soil cleanup level may be based on either: 1. background levels; or Z. data developed by the owner or operator to support a health-based limit. When neither of the above is feasible. clean closure cannot be achieved and the unit must be closed under the landfill closure requirements. Presently, the Office of Research and Development is investigating recent data on the toxicity of lead and cadmium. Over the n•xt several months. decisions will be made on an RfD for cadmium and an RfD and a CPF for lead. The Office of ------- —2— Drinking_Water wil.l soon propose a Maximum Contaminant Level oai MCLG, for cadmium. and may oe revising tne current Maximum Contaminant Level MCLi rot lead. It is apparent. thererore. that the toxicological information on leac and cadmium is undersoir extensive Agency review. ana decisions on relevant healttl-oased standards -are currently being made. Altnou n tne RrD Workgroup has not formally approved tne RrD rot cadmium, it is likely that a value or 0.0005 mg/kg/day wili be approved as an RfD tot cadmium when the Workgroup meets in March. Since this value is the same as the one proposed in the r1icgok study. I recommend that it be used to set a soil cleanup levei at the Frit Industries site in Humboldt. Iowa. The cleanup leve: rot cadmium is. therefore. 9mg/kg. which agrees with tne level stated in your memo. as calculated by Region VII. Presently. the Carcinogen Assessment Group (CAG) of ORD is evaiuating lead as a potential human carcinogen via -the oral route or exposure. 05W has requested that CAG estimate a CPF rot lead based on current toxicity studies. and has requested that an 1 RrD be developed by the RfD Workgroup on the basis or new toxicological data on the non-carcinogenic. neuro-behavioral errects or iead exposure. It is not likely, however, that the CPF or trie RrD will be developed and approved soon. Therefore, I am recommenaing that soil cleanup levels for lead should be based on iocal background soil lead levels. (ou can use either or the tol lowing approaches to determine the background levels for lead in soils: a. Take soil samples at uncontaminated areas of the racilitv and at various depths to ensure representativeness and random distribution. Analyze the sample for total lead. Rerer to Mason. B.J., 1983 and Barth. S.. et. al.. 198 ror guidance on soil sampling and quality assurance procedures; or b. Consult the open literature rot published data on lead levels in soils of similar origin and chemical characteristics as the soils in the immediate area or the facility. Using the U.S. Department of Agriculture’s Soil Conservation Service classiricatlon system, it should be possible to Identify similar soils and corresponding levels of naturally-occurring lead that could establish background levels. One publication Connor. J.. et. al.. 19751 reports average lead concentrations of 30 mg/kg or less in surficial soils across the United States. ------- —3— Attached for your information are comments marked on a cop’ of the i ckok report by Lisa Ratciifr or O U s Technical Assessment Branch. as well as a fact sheet on lead ore areo by tne Ofrice of Waste Programs Enrorcement ‘for internal EPA use only.. These materials summarize the Agency’s current recommendations on the errects of exposure to lead and cadmium. The Surrace Impoundment Clean Closure uidance Manual that .‘as prcvtoed to your start on October 12. 1 67. ror review. provides aeditiorial information on adjusting soil levels to accou.nt rot certain site-specific factors. Although this guidance has not been cleared through the Agency review process. you can use the inrormation contained in Chapters ‘4 and 5 or the october 12. 1987. draft until such time that the final guidance manual is available. These chapters provide inrormation on trie removal or wastes. contaminated soils, ground water. and other materials, and on rot low-up monitoring and sampling to ensure that the cleanup levels have been met. If there are any further questions on clean closure, please contact Jim Bachmaier of the Lana ‘isposal Branch at FTS 475-8859. Any questions regarding toxicity stuaies should be directed to Lisa Ratclifr or the Technical Assessment Branch-at FTS 382-M781. Attachments cc: Joseph Carra Robert Tonetti Alessi Otte James Bachmaler Lisa Ratet it t ------- e r e nc. : Barth, S., et. al.. 1 8’ . SotI Sampling Quality Assurance User’s uioe- EPA/6OO/4-8’ ’O4. ’ USEPA-Las Vegas, Nevada NTlS: PB 8’ -19d-62l Connor. J.. et. al.. 1975. Background Geochemistry or Some Rocks. Soils. Plants. and Vegetables in the Conterminous United States. iGeologicat survey Professional Paper 57 e-F,. U.S. Government Printing Office. Qashington. D.C. Mason. B.J.. 1983. Protocol rot Soil Sampling: Techniques and Strategies. EPA/600,54/83,020’ USEPA - Las Vegas. Nevada tNTlS: PB 83-2O6-979 ------- MAR 2 9476.1988(02a ME MO SAND U M SUBJECT: Cleanup Levels ror Lead and Cadmium in Soils for RCRA Clean Closures Jeffery D. Denit. Acting Director Office of Solid Waste TO: David A. Wagoner. Director Waste Management Division Region VII In your memorandum or December 29, 1987. you requested guidance on setting soil cleanup levels for lead and cadmium at RCRA facilities that intend to achieve clean closure. As you know, the preamble to the March 19, 1987, fInal regulation (conrorming 265.228(a) to 264.228(a)) stated that verified Reference Doses (RfDs) and Carcinogenic Potency Factors (CPFs. could be used as Agency-recommended limits for contaminants such as lead and cadmium, where appropriate, to set soil cleanup levels. The verified RfD would be the most appropriate criteria for setting a soil cleanup level for contaminants that are not known to have carcinogenic effects, and the CPFs would be the most appropriate limit for carcinogens. The preamble also states that, in cases where no EPA recommended limit exists for a specific contaminant, a soil cleanup level may be based on either: 1. background levels; or . data developed by the owner or operator to support a health-based limit. When neither of the above is feasible, clean closure cannot be achieved and the unit must be closed under the landfill closure requirements. Presently, the Office of Rssearch and Development is investigating recent data on the toxicity of lead and cadmium. Over th. next •ev•ral months. decisions will be made on an RfD for cadmium and afi RfD and a CPF for lead. The Office of ------- t 24) —2— Drinking_Water will soon propose a Maximum Contaminant Level coat (MCLG) for cadmium, and may ce revising trie current Maximum Contaminant Level .MCL, ror lead. It is apparent, thererore. that the toxicological information on lead and cadmium is undersoin extensive Agency review. ano decisions on relevant health-oased standards-are currently oeing made. Altnou n tne RrD WorkgrouP has not formally approved tne Rr [ ’ ror cadmium. it is likely that a value or 0.0005 mg/kg/day wili be approved as an RfD for cadmium when the Workgroup meets in March. Since this value is the same as the one proposed in tne Hickok study. I recommend that it be used to set a soil cleanuo levei at the Frit Industries site in Humboldt. Iowa. The cleanup levet ror cadmium is. therefore. 9mg/kg. which agrees witn tne level stated in your memo. as calculated by Region VII. Presently. the Carcinogen Assessment Group (CAG) of ORD is evaluating lead as a potential human carcinogen via the oral route or exposure. OSW has requested that CAG estimate a CPF rot lead based on current toxicity studies. and has requested that an RrD be developed by the RfD Workgroup on the basis or new toxicological data on the non-carcinogenic. neuro-behavioral erfects of iead exposure. It is not likely, however, that the CPF or tne RrD will be developed and approved soon. Therefore. I am recommerioing that 5011 cleanup levels for lead should be based on local background soil lead levels. i’ou can use either or the tollowing approaches to determine the background levels ror lead in soils: a. Take soil samples at uncontaminated areas of the facility and at various depths to ensure representativeness and random distribution. Analyze the sample for total lead. Rerer to Mason. B.J., 1983 and Barth. S.. et. at.. 198ii for guidance on soil sampling and quality assurance procedures: or b. Consult the open literature rot published data on lead levels in soils of similar origin and chemical characteristics as the soils in the immediate area or the facility. Using the U.S. Department of Agriculture’s Soil Conservation Service classification system, It should be possible to identify similar soils and corresponding levels of naturally-occurring lead that could establish background levels. One publication ‘Connor. J.. et. al.. 1975i reports average lead concentrations of 30 mg/kg or less in surficial soils across the United States. ------- - - ?‘/7 . i1 s (o Attached for your information are comments marked on a cop” of the Hickok report by Lisa Ratclifr or OSU’s Technical Assessment Branch. as wel I as a fact sheet on lead oreparec by the Office of Waste Programs Enforcement tfor internal EPA use only.. These materials summarize the AgencY’s current recommendations on the errects of exposure to lead and cadmium. The urrace Impoundment Clean Closure Guidance Manual that as previoed to your staff on October 12. 1 87. rev review. provides aoeitional information on ad.iusting soil levels to accou.nt rot certain site-specific factors. Although this guidance has not been cleared through the Agency review process. you can use the inrormation contained in chapters ‘ and 5 or tne october 12. 1987. draft until such time that the final guidance manual is available. These chapters provide inrormatron on the removal or wastes. contaminated soils. ground water. ana other materials, and on rollow-up monitoring and sampling to ensure that the cleanup levels have oeen met. If there are any further questions an clean closure, please contact Jim Bachmaier of the Land C’is osal Branch at FTS 475-8859. Any questions regarding toxicity studies should be directed to Lisa Rateliff of the Technical Assessment Branch at FTS 382- 78L. Attachments cc: Joseph Carra Robert Tonetti Alessi Utte James Bachmaier Lisa Ratclifr ------- £74e7 / P,(’O2 ) Ref erences : Barth, S., et. at.. 198’i. Soil Sampling Quality Assurance User’s Guiae- EPA/6DO/48 4 /O4. ’ USEPA-Las vegas. Nevada NTi5: PB 84-198-621., Connor. i.. et. al., 1975. Background Geo hemistrv or Some Rocks. Soils. Plants, and Vegetables in the Conterminous United States. (Geological Survey Professional Paper 57 -F.. U.S. Government Printing Office. washington. D.C. Mason. B...., 1963. Protocol ror Soil SamplLrtg: Techniques and Strategies. EPA/6OO,54/63,O2O) USEPA - Las /egas. Nevada ‘.NTIS: PB 83-2O6- 79 ------- 9476 . 1988 (03) RCRA/SUPERFUND HOTLINE MONTHLY SU)O(ARY APRIL 88 3. Post Closure Plans for Hazardous Waste Tanks According to Section 264.197(c) an owner or operator of a tank system that does not have secondary containment meeting the requirements of Section 264.193(b) through (1) and is not exempt from the secondary containment requirements in accordance with Section 264.193(g), must have a contingent closure and post-closure plan that meets all closure, post-closure and financial responsibility requirements under Subparts G and H of Part 264. If the facility’s permit for an underground tank system specifically states that no post-closure care is required, must a contingent post-closure plan still be prepared and submitted as required by Section 264.197(c)? No, the facility’s permit would shield the owner or operator from the requirement to prepare and submit a contingent post-closure plan. According to Section 270.4(a), compliance with a RCRA permit during its term generally constitutes compliance for purposes of enforcement with Subtitle C of RCRA. However, the facility would also be required to dean dose. Alternatively, the Director (in either the Regional Office or the State, as appropriate) could modify the permit under Section 270.41 to require post- closure care and the submission of post-closure plans for cause, such as new informa- tion or new regulations. For instance, if the permit was issued before the hazardous waste tank regulations were revised to require post-closure plans (July14, 1986) and the tank system cannot be dean dosed, the Director may modify the permit tore uire st- dosure care as required by Section 264.197(b). q po Source: Chester Oszman (202) 382-4498 Research: Joe Nixon ------- 9476 .1988(cJ3a) j UNITED STA S ENVIRONMENTAL PROTECTION AG rscy WASHINGTON D.C. 20460 MAY 27 OFFICE OF SOLID WASTE AND €MERGEPiCV ESPoN$ MEMORANDUM SUBJECT: Interpretation of the Use f,Soi Background Levels as Clean Closure Standards i’ - i(, I .: FROM: Sylvia K. Lowrance, Dire4 o 1 Office of Solid Waste (WH—5 2) TO: William Muno, Acting associate Director Waste Management Division, Region V (5HS-13) The purpose of this memorandum is to provide an interpreta- tion, as requested by you in your May 9, 1988 memorandum, on the use of soil background levels as clean closure standards under RCRA. Please note that we have recently responded to a similar request from Region VII. The attached memorandum from Jeff Denit to David Wagoner dated March 2, 1988 presents our position on when soil background levels should be used as clean closure standards. This interpretation is based on previous discussions on this topic included in the preamble to the March 19, 1987 final regulation (conforming 265.228(a) to 264.228(a)) and in the subsequent notice of clarification to the final regulation (March 28, 1988). The March 19 preamble states that exposure levels, or clean closure levels, must be based on Agency-recommended exposure levels or factors that have undergone peer review by the Agency. If no Agency-recommended •xpo.ur. limit exists for a specific hazardous constituent, the clean closure level must be based on either a backq ound level or an exposure level submitted by the owner or operator based on toxicity data of sufficient quality for the Agency to determine the environmental and health effects of the constituent. In response to th. issues raised in your memorandum regarding the Burnham Corporation foundry in Zanesvilla, Ohio, I want to emphasize two points raised in the March 2 memorandum. First, the toxicity data for lead and cadmium are still being reviewed by the Office of Research and Dvelopment. However, vs expect a verifi- cation of the cadmium reference dose (RfD — 0.0005 mg/kg/day) by the RfD Workgroup in the near future. Aa a result, I would continue to recommend that the soil clean closur, level for lead ------- ‘1’f 76 /9trcO m) -2— be based on background soil levels and the level of 9 mg/kg be used as the clean closure level for cadmium. Also, the March 2 memorandum States that two approaches can be used to determine background levels for lead; either by taking soil samples at uncontaminated areas of the facility or by using published literature data on lead levels in similar soils. It should be noted that background soil samples should be taken from an area(s) that has not been affected by routine operations of the unit, by accidental or emergency incidents, or by other operations at the facility. Your statement describing the selection of background samples appears to fulfill this requirement. If you have any questions regarding the above comments and recommendations or require further assistance, please feel free to contact Mark Sales of my staff at (FTS) 382—4755. Attachment cc: Regional Division Directors 7eff Denit, 05W Bruce Weddle, PSPD Joe Carra, WMD Dev Barnes, CAD ------- —2— Your third question asked if the interim status closure plan has to include all units that are listed in the Part A or solely those that have actually been Constructed. Your interim status closure plan must account for all units that have been constructed. According to 40 CFR S265.112(b)(1), the closure plan must include a description of how each hazardous waste management unit at the facility will be closed (51 FR 16422); it is not required to address closure of units planned in the future. Of course, before further units or cells are put into service, the plan must be revised in accordance with applicable regulations. Please be reminded that the above responses are based on the Federal RCRA regulatory requirements at 40 CFR Part 265. States authorized to implement the RCRA program may have adopted more stringent requirements. Should your facilities be located in authorized states the applicable state law applies. If you have any further questions, please call Sharon Frey at FTS 475—6725. Sincerely, Jeffery D. Denit Acting Director Office of Solid Waste cc: Robert Greaves, Region iii Kenneth D. Feigner, Region X ------- TD $TATB IP , diY L . PIOTICTWN AG1 ? 476. 1988(o4; M Y 3 MEMORA UM SUBJECT: Guidance Ofl Deadlines Applicable to Proposed Delay of Closure Regulation FROM: Sylvia K. Lowrance, Director Office of Solid Waste TO: Hazardous Waste Regional Division Directors Regions I—X Attached you will find a copy of the “Delay of Closure” regulation, to be published in the Federal Register in about two weeks. Many questions have been received, both from the Regions as well as industry, on how this proposed rule might affect facilities which will cease the receipt of hazardous wastes to comply with the November 8, 1988 statutory requirement for retrofitting of surface impoundments. The purpose of this memorandum is to provide guidance on these issues, particularly the timing for closure plan submittals and approvals in light of the proposed Delay of Closure regulation. Statutory and Reaulatory Reauirementg According to statute, interim status surface impoundments that have not been retrofitted or have not received a retrofit waiver must cease the receipt of hazardous waste by November 8, 1988. By current Federal regulation the final receipt of hazardous waste triggers initiation of the closure process for the unit (40 CFR 264/265.113). Furthermore, under current regulations, a facility owner/operator without an approved closure plan who intends to close an interim status surface impoundment rather than retrofit must submit a closure plan to the. Regional Administrator by no later than June 13, 1988 (180 days before the “expected date” of closure — which is December 8, 1988, i.e., 30 days after the last receipt of hazardous waste). See 40 C.F.R. S265.112d)(l) and (2). An owner/operator with an approved closure plan who intends to close a permitted or an interim status surface impoundment must notify the Regional Administrator 60 days prior to the time closure is expected to begin. Since the “expected date” of closure must be no later than December 8, 1988, notification must occur by October 10, 1988. See 5S264.l12(d)(l) and (2) and 265.112(d) (1) and (2). ------- - These requirements and timeframes are more fully described in OSWER Policy Directive # 94 $ 4 .OO-5-a, October 15, 1987. These requirements are Currently unaffected by the proposed Delay of Closure rule, Since the existing regulations remain in effect until the proposal is finalized and adopted in authorized States. However, once finalized, this rule would allow landfills, and in more limited circumstances, surface impoundments to postpone closure to receive non-hazardous wastes after the November 8, 1988 retrofitting deadline. Some owner/operators of these types of units may wish to avail themselves of this alternative. However, such units are still subject to all closure plan submission deadlines. Svno sjs Q. . Proposed Reaulatjon Briefly, the proposed rule allows owner/operators to delay closure of surface impoundments and landfills to receive non-hazardous waste after they cease receiving hazardous waste. (Units which have lost interim status are ineligible.) The rule contains general requirements imposing a set of conditions that are applicable to all owners/operators who wish to defer the closure process, regardless of the unit type. These general requirements are basically the same for permitted and interim status facilities. There is also an additional set of requirements for surface impoundments that do not satisfy the minimum technology requirements. The proposed regulation is not a means for facilities to circumvent closure; rather, it is designed to allow units with existing capacity which are operating in an environmentally protective manner to use their remaining disposal capacity. The proposed requirements are stringent and we believe that most existing, non-MTR surface impoundments will find it difficult to meet the criteria to delay closure to receive only non-hazardous wastes, We emphasize that all units that meet the criteria for delaying closure will remain subject to Subtitle C requirements, including final closure requirements when they stop receiving non-hazardous waste. General Remiirenients All units wishing to delay closure must obtain a Subtitle C permit and comply with applicable permit requirements. As part of the permit modification or Part B permit application, the owner/operator must include demonstrations showing that the unit has the existing design capacity to manage non-hazardous wastes and that the non-hazardous wastes are not incompatible with any remaining wastes in the unit. The permit modification or the Part B permit application must include revised facility plans, including waste analysis, ground—water monitoring, and closure and post-closure plans, and, if necessary, closure and post-closure cost estimates and financial assurance to reflect changes associated with operating the unit to receive only non-hazardous wastes. ------- —3— SDecif ic Reauirements for Surface Impoundments An additional set of requirements will apply to surface impoundments that do not satisfy the HSWA double liner and leachate collection System requirements or have not received a waiver from these requirernen For these units, we are proposing a Combination of source control, accelerated corrective measures, and limitations on Continued operations following a detected release to ground water. (See attachment). At the time the decision is made to delay closure, owner/operators must choose one of three alternatives: (1.) to leave the wastes in place (i.e., disposal impoundments); (2) to remove the waste from the impoundment; or (3) to remove sludges and flush the impoundment with non-hazardous wastes. Alternative 1 is available only to impoundments which have not had a release at the time of conversion to receipt of only non-hazardous waste. If such an impoundment begins releasing, closure is triggered. If a unit that has undergone waste removal is leaking at the time it converts to receipt of non-hazardous waste, this receipt may not begin until corrective measures are implemented. On the other hand, if a unit that has undergone waste removal begins leaking after the conversion to the receipt of non-hazardous waste, corrective action must be implemented within one year of this conversion. Any impoundment that has converted to receiving only non-hazardous waste must show substantial progress in meeting cleanup standards. If neither of these requirements are met, the unit must close. Regional Procedures As noted above, we believe that the proposed rule establishes stringent requirements for those wishing to remain open to receive non-hazardous waste. Accordingly, we expect that while many owners and operators may be initially interested in exploring this regulatory option if finalized adopted in authorized States, relatively few units will be able to meet the regulatory requirements. In light of the upcoming November 8, 1988 deadline we of fer the following implementation questions and answers concerning closure plan review and approval procedures to assist you ii responding to inquiries from interested owners and operators: C). Can a unit postpone submission of the closure plan on the grounds that the owner/operator intends to delay closure? A. No. Units remain subject to the closure plan submission deadlines desoite this DroDosal . Enforcement authorities should be used if necessary to ensure that closure plans are submitted. (OSWER Policy Direction No. 9900.0-lA, Oct. 1, 1987). ------- —4-. Q. May interim status Units which cease receiving hazardous waste on November 8, 1988 continue to receive non—hazardous wastes under the current regulations? A. Yes, in certain cases. Interim status units are not required to initiate closure until the closure plan is approved. Units awaiting closure plan approval may continue to receive non-hazardous waste. Further, units may continue to receive non-hazardous wastes during the closure period provided the receipt of non—hazardous waste does not impede the timely and effective closure of the unit. The timeframes for closure are set forth in 40 CFR 265.113. (See OSWER Policy Directive No. 9484.00—5-a Oct. 15, 1987) Q. If a large number of closure plans are received in June 1988, how should Regions and States set priorities? A. The regulations set a 180-day timeframe for review of closure plans. However, we recognize that it will be difficult to meet these timefraines if a large number of closure plans are submitted on June 13. The RIP provides guidance on establishing priorities for review of closure plans. Environmentally significant facilities should be addressed first. 0. Which units are affected by this proposal? A. The option would be available only to permitted and interim status facilities which submit a Part B application or amended application. Facilities that have lost interim status (including LOIS facilities) would not be eligible to delay closure. Q. Will the rule be effective in authorized States? A. Authorized States will have the discretion on whether or not to adopt the rule since the rule is less stringent than the 1986 amendments to the closure regulations. (Please note that authorized States are required to adopt conforming changes to implement the May 1986 changes no later than January 1, 1989. See 53 FR 7740, March 10, 1988). The final rule will be effective in unauthorized States. Q. What affect does the proposal have on ongoing enforcement actions? A. None. Enforcement actions underway will not be affected by the regulation when it is finalized; the regulation will not be retroactive. ------- —5— We will, keep you updated on the rule development and schedule. If you have any further questions, please contact Sharon Frey at FTS 475-6725. ------- IMITID STATES INVIRCI EMTAI. PEOTICTION AGIP 9476.1989(01) MAY I 6 MEMOR UM SUBJECT: Final Rule for Delay ‘of Closure Period for Hazardous Waste Management Facilities FROM: Sylvia K. Lourance, Directorf / Office of Solid waste ( TO: Jonathan Z • Cannon Acting Assistant Administrator Attached is a final rule that amends portions of the cloS e requirements applicable to owners and operators of hazardous waste land disposal facilities. This rule is the subject of pending lawsuit brought by Union Carbide and the Chemical Manufacturers Association. Under existing rules, hazardous waste management units must initiate closure after final receipt of hazardous waste. The attached regulations allow, under limited circumstances, a landfill, surface impoundment, or land treatment unit to remain open after the final receipt of hazardous waste in order to receive non—hazardous wastes in that unit. This rule details the circumstances under which a unit may remain open to receive non—hazardous wastes and describes the specific conditions applicable to such units. This rule must undergo a second Red Border review and subsequent 0MB review due to changes made in the rule following initial clearances. I request that this rule be handled expeditiossly to avoid the need for the Agency to defend the existing (rather than amended) regulatory requirements. The Steering. tte has approved a 7 calendar day Red Border review Attachments ------- 9476.1989(o2: ,tD $P4 j UNITED STATES ENVIRONMEpgA PROTECTION AGENCY WASHINGTON. D.C. 20480 - 4L ,m t’ ’ NI 22 9 Occ;CE OF SOLID WASTE AND EMERGENCY RESF l MORANDUM SUBJECT: Correction to the Delay of Closure Rule Preamble Language FROM: Joseph S. Carra, Director/2 4 ,,, Permits and State Progr rvision (OS—340) TO: Permit Section Chiefs Regions i-X This memorandum clarifies a discrepancy in the Delay of Closure final rule published in the Federal Register of august 14, 1989 (54 FR 33376). The discrepancy involves the time frame for submission of permit modification requests for owners and operators of permitted facilities that wish to receive non-hazardous wastes after the final receipt of hazardous wastes. The rule language at 5264.l13(d)(4) correctly stated that the request must be submitted no later than 120 days prior to the date on which the owner or operator of the facility receives the known final volume of hazardous wastes at the unit or no later than 90 days after the effective date of the rule in the state in which the unit is located , whichever is later. This language is found at 54 FR 33395. The preamble language incorrectly stated that the request must be submitted at least 120 days prior to final receipt of hazardous wastes, or within 90 days of Dublication of the Federal Reaister notice . This language is found at 54 FR 33377. We do not intend at this time to publish a Register correction notice. If you have any questions about this, please call Barbara Foster at FTS 382—4751. ------- 9476.1989(02) f UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20480 \ ..o / 22 9 OFFICE OF SOLID WASTE AND EMERGENCY RESpON MEMORANDUM SUBJECT: Correction to the Delay of Closure Rule Preamble Language FROM: Joseph S. carra, Directorfl 4 ,’, Permits and State Progr rvision (05-340) TO: Permit Section Chiefs Regions I-X This memorandum clarifies a discrepancy in the Delay of Closure final rule published in the Federal Register of August 14, 1989 (54 FR 33376). The discrepancy involves the time frame for submission of permit modification requests for owners and operators of permitted facilities that wish to receive non-hazardous wastes after the final receipt of hazardous wastes. The rule language at 5264.113(d)(4) correctly stated that the request must be submitted no later than 120 days prior to the date on which the owner or operator of the facility receives the known final volume of hazardous wastes at the unit or no later than 90 days after the effective date of the rule in the state in which the unit is located , whichever is later. This language is found at 54 FR 33395. The preamble language incorrectly stated that the request must be submitted at least 120 days prior to final receipt of hazardous wastes, or within 90 daYs of Dublication of the Federal Reaister notice . This language is found at 54 FR 33377. We do not intend at this time to publish a E a]. Reaister correction notice. If you have any questions about this, please call Barbara Foster at FTS 382-4751. ------- 9476.1989(03) IO 3? UNITED STATES ENVIRONMENTAL PROTECTION AGENCY I WASHINGTON. D.C. 20460 ?4 . 7 OFFICE OF SOLlO WASTE AND EMERGENCY RESPONSE MEMORANDUM TO: Terry Anderson 1 Chief Wyoming/South Dakota Section EPA Region VIII FROM: Frank Mcklister, Chief ,J,4 Permits Policy Section Office of Solid Waste r Barbara Foster, Acting Chief Closure and Financial Responsibility Section Office of Solid Waste SUBJECT: Public Participation Requirements for Closure Plan Approval This memorandum responds to your letter of August 7, 1989 in which you requested clarification of the public participation requirements of the closure plan approval process. You questioned whether public notification is required when the Agency modifies an approved closure plan for an interim status facility. The specific case you discussed involves several changes to the liner system of a landfill that will be used for closure. We have examined this request and discussed it with the Office of General Counsel. Our response is as follows. The regulations governing amendment of interim status closure plans are found at 40 CFR 265.112. Section 265. 112(c) (3) states that if an amendment to an approved closure plan is a Class 2 or 3 modification according to the criteria in § 270.42, the modification to the closure plan must be approved according to the procedures in § 265.112(d)(4). Based on your description, we believe that the modifications to the closure plan would likely be classified as Class 3, and that the procedures in § 265.112(d) (4) must be followed. Under these procedures, the Regional Administrator will provide the owner and the public, though a newspaper notice, the opportunity to submit written comments on the plan and request modifications to the plan no later than 30 days from the date of the notice. He will also, in response to a request from the public or at his own discretion, hold a public hearing whenever such a hearing might clarify one or more issues concerning a closure plan. The Regional ------- —2— Administrator will give public notic, of the hearing at least 30 days before it occurs • The amendment cannot be approved until these procedures have been followed. The specific case you discussed involves the closure of five surface impoundments. The closure plan discusses the construction of a landfill on the location of two of the five closing surface impoundments. The Region should also consider whether the creation of this new landfill constitutes a change in interim status under § 270.72 and therefore requires submission of a revised Part A application and EPA approval. If a public hearing is held, it may be held concurrently with one being held by the Wyoming Department of Envjronmentai Quality (WDEQ), provided that the Federal procedural requizamen g are satisfied. In addition, notice should be given that there is a separate Federal action. We hope that this memorandum answers your questions on this matter. If you have any further questions please call Wayne Roepe at FTS 475—7245. cc: Denise Keehner Wayne Roepe Margaret Schneider, OGC Nandam Kenkeremath, OGC Pat Godsi], Region vi ii David Christenson, Region viii ------- O S r 41 UNITED STATES ENVIRONMENTAL PROTECTION _____ WASHINGTON. D.C. 20460 p. JUN 4 1990 9476.1990(01) MEMORANDUM SUBJECT: Regulatory Interpretation of Questions Raised in Objection to Region V Review of Clean-Closure Equivalency Petition for Stee Incorporated ORD 091 83: FROM: Sylvia L.owrance, Direc Office of Solid Waste ( TO: David A. Ulirich, Acting Di/ ctor Waste Management Division (S’H—12) This responds to your memorandum of February 21, 1990 in which you requested our response to arguments raised by Steel Abrasives, Inc. of Hamilton, Ohio in objection to the Agency’s preliminary denial of its equivalency petition (OHD 091 831 313). As you explained in your memorandum, Steel Abrasives closed a surface impoundment, waste pile, and sluiceway in 1985, while the units were subject to interim status standards. Closure was certified by the Ohio Environmental Protection Agency (OEPA). Steel Abrasives recently submitted a petition to demonstrate equivalency with the closure by removal standards of Part 264. After reviewing the facility’s equivalency petition, EPA Region V made a preliminary determination that the 1985 closure is not equivalent to 40 CFR Part 264 standards. Steel Abrasives submitted a document entitled “Comments and Request for Hearing in Support of Steel Abrasives, Inc. Equivalency Petition” on February 9, 1990. In that document, Steel Abrasives challenged the Agency’s authority to revisit clean closures and objected to the way the regulations were applied to its particular case. In your memorandum, you requested our response to several arguments they raised. In general, we disagree with the arguments that Steel Abrasives made in its February 9, submission and believe that the Agency acted within its authority when it issued a OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE 41 ------- 2 preliminary denial of Steel Abrasive’s equivalency demonstration. However, given the specific facts of this situation, we believe that the Region has the flexibility to reconsider its preliminary decision to deny Steel Abrasive’s equivalency petition, should it wish to do so. We explain the basis for requiring equivalency determinations, and address Steel Abrasive’s arguments below. SAC KG ROUND Section 3005(i) of HSWA requires all landfills, surface impoundments, waste piles, and land treatment units that received waste after July 26, 1982 to comply with the Part 264 Subpart F standards (groundwater monitoring and corrective action) that are “applicable” to new permitted units. The Agency has selected post—closure permits as the mechanism for implementing the Subpart F standards at units that close before obtaining operating permits. Thus, to implement the requirement of Section 3005(i), the Agency, in the Second Codification-rule (52 FR 45788, December 1, 1987) amended section 270.1(c) to require post—cLosure permits for the newly subject interim status units. However, the Agency recognized that Part 264 Subpart F standards are not “applicable” to new permitted units if those units close by removal under sections 264.228, 264.258, or 264.280(e). Therefore, sjnce Section. 3005(i) subjects interim status regulated units only to Subpart F standards that are “applicable” to new permitted units, Section 3005(i) does not impose Subpart F standards on interim status units that meet the requirements for closure by removal under Part 264. Prior to March 19, 1987, the Part 265 regulations governing clean closure differed from the requirements of Part 264. The Agency has since modified those Part 265 closure by removal regulations so they are equivalent to those in Part 264 {see the Conforming Changes rule 52 FR 8704, March 19, 1987). However, in the Second Codification rule, the Agency clarified that closure by removal under the previous interim status standards, which were not equivalent to the Part 264 requirements, does not provide an exemption from the requirements of Section 3005(i). At the same time, the Agency should be noted that the current Part 264 standards for closure by removal are unchanged from the standards that were in place for permitted facilities at the time that Steel Abrasives closed. ------- 3 devised a procedure by which owners/operators that closed under the previous Part 265 standards can demonstrate that the closure also met the standards for closure by removal under Part 264, and thus avoid post-closure permitting obligations. This equivalency determination procedure is codified at section 270.l(c)(6). The Agency discussed the rationale behind the equivalency determination both in the preamble of the Second Codification rule and in the preamble of the proposed rule (51 FR 10706, March 28, 1986). RESPONSE TO STEEr.. ABRASIVE’S ARGUMENTS 1. Challenge to the Agency’s Authority to Revisit Closures In its February 9 submission, Steel Abrasives challenged the Agency’s authority to revisit interim status clean closures and require post—closure permits if it determines that the closure does not satisfy the closure by removal standards of 40 CFR Part 264. It argued that (1) OEPA’s 1985 acceptance of the closure should stand and EPA has no right to reopen the case; (2) the adequacy of the closure should be judged by the regulations effective a1 the time9f the closure; and, (3) to take further action, EPA must demonstrate that metals remaining in the area pose a threat to human health and the environment. We disagree that the Agency lacks authority to revisit OEPA’s 1985 acceptance of closure and apply the standards of Part 264. As is discussed above, Section 3005(i) of HSWA expanded the universe of facilities to which the standards of Part 264 Subpart F apply, and the Second Codification rule established that this universe includes interim status facilities that closed by removal but did not satisfy the requirements for closure by removal under Part 264. To implement the mandate of Section 3005(i), the Agency established authority within its regulations at 40 CFR 270.l(c)(5—6) to revisit those clean closures and to require post—closure permits when facilities cannot successfully demonstrate equivalency. This authority was properly established by the Agency through notice and comment rulemaking procedures. Thus, if Steel Abrasives closed under the standards of Part 265 that were in effect prior to the Conforming Changes rule, the regulations provide authority for the Agency to revisit its 1985 closure, and it is not necessary for the Agency to demonstrate a specifi threat to human health or the environment in order to do so. 2 It should be noted that the opportunity for Steel ------- 4 Steel Abrasives also suggested that, even if the Agency has authority to revisit clean closures, it should not exercise that authority. Steel Abrasives argued that reopening the case and requiring further action from a facility that attempted to clean close would set a bad precedent for EPA and the regulated community. However, we believe that the Agency has the obligation to revisit clean closures and make a case—by—case determination whether the standards of Part 264 have been met. In doing so, the Agency does not seek to discourage clean closures, but to carry out the mandate of Section 3005(1) of HSWA, that is, to subject those facilities that have not met the Part 264 standards for closure by removal, to post—closure permitting requirements and, thereby, to the standards of Part 264 Subpart F. 2. Challenge to the Regulations as they Apply to Steel Abrasives . In addition to challenging the Agency’s authority to revisit clean closures, Steel Abrasives objected to certain procedures followed by-the Agency in applying the regulations to it. - F First, Steel Abrasives objected that the Agency has no legal right to use internal guidance as regulations. It argued that the Agency must decide whether the closure met the applicable Part 264 requirements, and not rely upon internal policy memoranda or guidance to change the rules. Abrasives to file a legal challenge to the regulatory provisions promulgated in the Second Codification rule has passed. That rule was promulgated on December 1, 1987, and Section 7006 of RCRA, which provides for appeal of regulations, requires that an appeal be filed within 90 days of promulgation. However, the Agency’s authority to require equivalency demonstrations was, in fact, challenged (see American Iron and Steel Institute v. US EPA , 886 F.2d 390 (D.C. Cir. 1989) cert. petition pending on other issues). Petitioners in that suit challenged several provisions of the Second Codification rule, including the Agency’s authority under Section 3005(i) to impose a retroactive post—closure burden on facilities that lawfully closed under interim status provisions. The court in that case upheld the Agency’s authority. ------- 5 We agree with Steel Abrasives that the Agency cannot use internal guidance as regulations, but note that the Agency established its authority and procedures for equivalency determinations through notice and comment rulemaking procedures. The Agency can use guidance to help implement regulations that have been properly promulgated. When using this guidance to implement its regulations, the Agency does consider comment on the regulatory interpretations provided by the guidance as well as the application of the guidance in that particular case. Steel Abrasives next argued that averaging the lead and cadmium levels in the entire closure area, thus leaving hot spots in place is allowable, because of the protective slag covering the area, and because the local groundwater does not appear to have been impacted. Thus, it argues, the closure performance standard has been met. Steel Abrasives is correct in that it must demonstrate that its closure meets the specific performance standards for closure by removal under Part 264, or be subject to post—closure-permitting -requirements. It is also correct in citing groundwater that is free 0 fr contamination as an element of demonstrating clean closure. However, it should also demonstrate that the groundwater will remain free of contamination in the future because, to meet the performance standards of Part 264, Steel Abrasives should demonstrate that any hazardous constituent left in the soils will not cause an unacceptable risk to human health and. the environment in the future, and will not impact any environmental media in excess of Agency recommended limits or factors ( see 52 FR 8704 at 8706 . In addition, since no further monitoring or management is required at a clean closed unit, and there are no limitations on future uses of the property, this demonstration should be made assuming direct contact with the soil. In this case, the fact that slag is currently covering the area and, thereby, limiting exposure is not relevant to a demonstration of clean closure because the slag could be removed in the future, and direct contact could occur. Generally, the owner or operator should remove “hot spots” of contamination (i.e., areas of contamination above Agency limits) in order to demonstrate clean closure. This practice is recommended in the 1987 “Surface Impoundment Clean Closure Guidance Manual.” However, this is not a requirement specified se in regulations and, as is discussed above, the recommendations in, and applicability of, guidance must be assessed in each case. The Region may wish to evaluate the number and size of the “hot spots” remaining in the soil, the degree to which they may exceed established “clean closure” levels, and other site—specific factors in determining whether ------- 6 the performance standard for clean closure has been met for these particular units. As you know, the Agency is in the process of establishing soil lead levels based on a biokinetic uptake model. Since the model is not yet available, OSW has issued interim guidance on establishing soil lead cleanup levels at RCRA facilities, which provides the Region some flexibility in making this decision ( see Memorandum from Sylvia Lowrance to David (Jllrich, May 7, 1990). However, as was discussed above, EPA must accept and respond to conunent on the guidance and its applicability in individual cases. Finally, Steel Abrasives objected to EPA’S submittal of preliminary denial and request for information during the public cotmnent period. They claim that by doing so, the Agency unfairly prejudged the issue and biased the public. We agree with Steel Abrasives that as a general rule, we should wait for the conunent period to close before issuing a preliminary decision. However, we do not agree that, in this case, the Agency prejudged the issue. The Agency had before it the equivalency petition submitted by Steel Abrasives and, based on that information, made a preliminary determination. Further, the Agency’s final decision will be made after the close of the comment period and should take into account any comments that were submitted during that time. I hope the above responds to your questions. If you have any further questions, please contactS Barbara Foster (FTS 382—4696) ------- IOST 4 , - .,I. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 &aAV 99 9476.1991(01) OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE MEMORANDUM SUBJECT: Closure Standards for Hazardous Waste Land Treatment Units FROM: Devereaux Barnes, Director ”’ Permits and State Programs Division Office of Solid Waste (OS-340) TO: Doug McCurry, Chief Waste Engineering Section RCRA Branch, Region IV You previously raised a series of questions regarding the closure of hazardous waste land treatment units to my staff and to the ORD laboratory in Ada (RSKERL—Ada). These are important questions since many land treatment facilities are beginning to close in response to the November 8, 1990 prohibition of the land disposal of the petroleum refining wastes (K048—52). After consulting with RSKERL-ADA, as well as internally, we are providing you with the answers you sought. It is important to keep in mind that of the four major types of land disposal units, the land treatment unit is the most difficult for which to define generic technical closure procedures. This is due to the fact that the characteristics of the soils affecting the closure are by nature site—specific, and that the wastes are to be transformed, degraded, or inunobilized during the closure process by the soil, biologic,. and climatic conditions unique to each site. With this constraint in mind, we have addressed your questions as specifically as possible: 1. Q. Is soil sampling required during closure/post closure? A. Section 265.280(d)(1) requires that during the closure period the owner or operator of an interim status land treatment facility continue unsaturated zone monitoring in a manner and frequency specified in the closure plan, except that soil-pore liquid monitoring may be terminated 90 days after the last application of waste to the treatment zone. Unsaturated zone monitoring consists of Prüied i ReqclsdPapir ------- 2 both soil-pore liquid monitoring and analysis of soil cores (see Sections 265.278(a) and (b)). In addition, Section 265.280(f) requires that during the post-closure care period the owner or operator of an interim status land treatment unit must continue soil— core monitoring (soil sampling) in the manner and frequency specified in the post-closure plan. Similarly, permitted units must continue unsaturated zone monitoring during closure and post-closure care periods, as specified in the permit (see Sections 264.280(a) (7) and (c)(7)). Given the language of Sections 264.280 and 265.280, we expect that in most cases unsaturated zone monitoring (particularly soil—core) will be necessary during the closure and post—closure care periods of a land treatment unit. There are, however, limited instances where soil— core monitoring may not be required by the -closure and/or post—closure plan. For example, in the case where the treatment zone is removed as a part of clean closure, soil-core monitoring may be suspended at the completion of the closure period. (See Sections 264.112(e); 264.280(c); 265.280(d) and (f)(i)). 2. Q. At what intervals and for how long? A. General guidance pertaining to soil sampling intervals and duration during land treatment site closure/post- closure is provided in several land treatment guidance documents: Guidance Manual on Hazardous Waste Land Treatment Closure/Post-Closure (OSWER Directive 9476. 00-9) Permit Guidance Manual on Unsaturated Zone Monitoring for Hazardous Waste Land Treatment Units (EPA/53 0—SW—86—040) RCRA Guidance Document: Land Treatment (NTIS-PB- 155065) Permit Guidance Manual on Hazardous Waste Land Treatment Demonstrations (July, 1986) Although the guidance provides a general framework for soil sampling, the geographic, spatial, and temporal variabilities between different land treatment units (as well as within any individual unit) necessitate that site-specific considerations be evaluated when establishing the sampling intervals and duration required ------- 3 during closure/post closure of a given land treatment unit. Data from the reconnaissance survey is used as the primary basis for establishing site-specific sampling requirements. If this survey reveals that the facility has been well managed, with no apparent significant buildup or downward migration of hazardous constituents, the general guidance provided in the above-referenced guidance documents can be used to establish soil sampling intervals and duration. We recommended that, at a minimum, samples should be collected quarterly during the closure period and during the first year of the post- closure period. Periods between sampling events may be gradually extended after the first year of post-closure. If data from the reconnaissance survey reveals an apparent significant buildup and/or downward migration of hazardous constituents, the general guidance alone will not be sufficient to establish soil sampling intervals and duration. Under such a scenario, soil pore liquid samples should continue to be collected as recommended in the Permit Guidance Manual on Unsaturated Zone Monitoring for Hazardous Waste Land Treatment Units (EPA/530—SW—86—040). The soil pore liquid monitoring should continue until there is no longer potential for vertical migration of fast-moving hazardous constituents from the waste-soil matrix. Additionally, it is important to collect soil cores downward through the treatment zone into the unsaturated zone for analysis at selected intervals along the core in order to determine the extent of degradation and immobilization within the treatment zone, as well as the migration of less mobile waste constituents into the unsaturated zone. Under this scenario, actual degradation rate data under the closure conditions may be deemed important. If such is the case, sampling intervals should be shorter than specified in the guidance. Two recent land treatment research studies, sponsored by RSKERL—Ada, provide useful guidance because they involve a determination of degradation rates under field conditions. These studies used the following sampling schedule: 0, 2, 4, and 8 weeks, and continued at 4-week intervals throughout the study. Under a closure scenario, the sampling schedule should use these same intervals, or other type of appropriate sampling interval, until a minimum of 6 data points are obtained or until an asymptotic constituent level is approached. Any time degradation rates are to be calculated, a minimum of 3 replicate sample analyses are.. recommended for each sampling date in order to establish a 95% ------- 4 confidence interval for the degradation rates and half- lives of the waste and its constituents. After you determine that degradation is proceeding at an acceptable rate and that downward migration is not occurring, quarterly sampling (as recouunended in the general guidance) can be initiated. 3. Q. Does EPA recognize approved methods for determining degradation rates? A. There are no EPA-approved methods for determining degradation rates, although methods for determining degradation rates are discussed in the Permit Guidance Manual on Hazardous Waste Land Treatment Demonstrations (LTD). These are based on methods used in the land treatment research program at RSKERL—Ada and documented in the lab’s publications. (See Attachment) The need and approach for determining degradation rates will depend to a great degree on the results of the reconnaissance survey discussed under Question 2. Under the well—managed scenario, we can see little need to undertake this task unless the final loading rate is significantly greater than that used during normal operation. Under the poorly managed scenario, we would consider this task a necessity. The actual approach for determining degradation rates would vary somewhat depending on the degree of the problem as well as waste and site—specific characteristics. In addition to the treatability study approach discussed in the LTD Guidance Manual, the RSKERL—Ada publication Mobility and Degradation of Residues at Hazardous Waste Land Treatment Sites at Closure (See Attachment) specifically provides information pertaining to the quantitative evaluation of mobility and persistence of organic and inorganic waste constituents which have accumulated in soil treatment systems under various closure scenarios. 4. Q. Can continued operations under closure last indefinitely? At what concentration is closure complete? At what concentration, degradation rate, or point in time does operational closure cease and a R RA cap become a requirement? A. As Sections 264.113 and 265.113 layout, closure is expected to be completed within 180 days after receiving the final volume of hazardous waste, but a longer period may be approved if the owner or operator can demonstrate that closure activities will, necessarily, take longer than 180 days (see Sections 264.113(b)(l)(i) and 265.113(b) (1) (1.)). In the case of a land treatment unit, more than 180 days may be required to maximize ------- 5 degradation, transformation, or immobilization of hazardous constituents within the treatment zone. This period cannot be defined by regulation in that each site will require a time period specific to that site. The duration of the closure period is primarily dependent on the waste loading rate at closure as well as the potential waste degradation rate. Each owner or operator should, however, be able to estimate that time in advance, based on the treatment data already established during operation. For the large majority of well-managed land treatment units, the duration of the closure period will vary between 90 and 360 days. Because land treatment closure is a continuing process rather than a set of distinct engineering procedures (as in landfill closure), the concentrations of hazardous constituents remaining in the treatment zone after closure may vary and will continue to change during the post—closure care period. Post-closure care at a land treatment facility is different from practices at other closed or closing land disposal facilities in that active management will frequently continue to enhance degradation and transformation and sustain immobilization. Complete degradation of organics to background levels before closure has been completed is not necessarily required. Concentrations of organics should, however, be to the point that the application of a final cover and the reduced level of active site management will prevent the post-closure escape of hazardous constituents from the treatment zone. Similarly inorganics should be immobilized during closure to provide the same level of protection over the long term. In the case where closure activities fail to immobilize or degrade hazardous constituents, an impermeable cap may be required or clean closure may be appropriate. (Changes to the closure plan will require approval by the Regional Administrator (Sections 264.112(c) and 265.112(c)). The determination of the rate of immobilization and degradation is site specific; however, escape of constituents from the treatment zone at concentrations above health—based levels indicates that the rate of immobilization or degradation is unacceptable. 5. Q. What closure standards are required where migration of hazardous constituents has occurred? A. The general closure performance standard remains the same whether or not migration of hazardous constituents has occurred. That is, the owner or operator must close the ------- 6 facility in a manner that minimizes the need for further maintenance; and that controls, minimizes, or eliminates to the extent necessary to protect human health and the environment, the post-closure escape of hazardous waste, hazardous constituents, leachate, contaminated run-off, or hazardous waste decomposition products to the ground or surface water or to the atmosphere. (Sections 264.111 and 265.111). Where hazardous constituents have migrated beyond the treatment zone above health-based levels, successful immobilization, degradation, or transformation during closure may be subject to question. In this case additional closure and post-closure activities may be required that go beyond disking, adding soil amendments, and installation of a vegetative cover. Obviously, the additional activities will vary from site to site; however, some of these activities may include, but are not limited to, removal of some or all of the treatment zone and installation of a low permeability cap. In addition, cleanup of the contaminated media, e • g., ground—water removal and treatment, may be appropriate. Cleanup of these media is a corrective action decision. Whatever program of additional activities is selected, it must be consistent with the goals specified in the general closure performance standard. 6. Q. What closure standards are required where ground-water contamination exists but where levels of contaminants are within the ACL’s established by the permit? A. At units where ground-water contamination exists but where that contamination is below the established ACL, corrective action under Section 264.100 may not be required. The decision as to whether ground-water cleanup is required is site—specific, generally based on the principles described in EPA’S proposed corrective action rule (55 g 30798). At the same time, the closure standard to be applied remains the same (see previous discussion). Furthermore, having an ACL does not negate the treatment demonstration requirement of Section 264.272. If it is found during closure that constituents are migrating below the treatment zone above health-based levels, additional steps may be required, such as treatment zone removal or installation of a low permeability final cover. The determination of what steps are required will depend primarily upon whether the hazardous constituents migrating from the land treatment unit would cause ACL5 to be exceeded during the closure or post-closure period. ------- 7 The owner or operator should be aware that the post- closure care period cannot be terminated until the owner or operator successfully demonstrates that all the ground water at the site is safe for all potential receptors (Alternate Concentration Limit Guidance, EPA/530-SW-87— 017). 7. Q. At what point in the life of the unit do closure activities become in-situ remediation under corrective action? At what concentrations and frequencies for soil, pore-water, surface water and ground water? What permit modifications are required? A. Most actions taken to remedy migration of constituents of concern outside the treatment zone (into ground water, surface water, or soil adjacent to the treatment zone) at closing units can be accomplished as a part of closure. At a permitted facility, methods for preventing such migration should be outlined in the permit (see Sections 264.270—264.283). If, during closure, migratory constituent concentrations are found to exceed levels specified in the permit, a corrective action program must be initiated (see Sections 264.90—264.101). The addition of a corrective action program requires a permittee to initiate a Class 3 permit modification, although some limited remediation activities, such as a change in the number of ground—water monitoring wells at a regulated unit, may require only a Class 2 permit modification (see Appendix I to Section 270.42). Such modifications may receive temporary authorization provided they meet the test of Section 270.42(e)(2). (Of course, Class 2 or 3 modifications would not be used in states authorized for ground-water corrective action, but not authorized for EPA’S new permit modification procedures. In authorized States, permit modifications must be made according to state modification procedures.) In the alternative, the Agency may take unilateral action to modify a permit to require corrective action (see Section 270.41). At an interim status facility, certain requirements designed to prevent migration of constituents of concern are specified in Sections 265.270—265.282 and 265.90— 265.94. Unlike permitted facilities, at present there are no regulatory provisions requiring corrective action when migratory constituent concentrations exceed regulatory levels of concern. Instead, the Agency may compel corrective action at an interim status facility through the issuance of an administrative order pursuant to RcRA, Section 3008(h). In addition, as an alternative, the Agency may expedite the issuance of a ------- 8 permit to an interim status facility, with the result that the corrective action provisions referenced above would be applicable. Completion of remedial activities may exceed 180 days. As mentioned previously, this is a legitimate basis for granting an extension of the closure period. In addition, long-term remediation activities at regulated units, such as ground-water counterpumping, may be performed during the post-closure care period. 8. Q. At what point in time, and to what standards does a facility certify closure? A. This question is directly related to question 4 in your letter. You will note in Sections 264.115 and 265.115 that closure is to be certified when the unit has been closed in accordance with the specifications in the approved closure plan. Closure will be complete when closure activities have immobilized, degraded, or transformed hazardous constituents in the treatment zone to levels agreed upon in the closure plan and when a vegetative cover has been established. In the case where the treatment zone is ineffective, closure may be certified after the treatment zone is removed or after a low permeability cap is installed. Other long-term activities such as ground-water reznediation will normally be completed during the post-closure care period and after closure certification. We hope these responses are useful. Please feel free to call Chris Rhyne (FTS 382—4695) to discuss other technical aspects of land treatment closure. Attachment cc: Sylvia Lowrance, OSW RCRA Branch Chiefs, Regions I-X Nancy Bethune, Region IV John Matthews, RSKERL-Ada Scott Huling, RS RL—Ada. Tom Beisswenger, OGC Susan Bromm, RED, OWPE Chris Rhyme, AB, PSPD, OSW Barbara Foster, PB, PSPD, OSW Dave Fagan, CAB, PSPD, OSW ------- HAZARDOUS WASTE LAND TREATMENT SELECTED REFERENCES RCRA Guidance Document Land Treatment (NTIS PB87-155065). OSW, 1982. U.S. EPA. 1983. Hazardous Waste Land Treatment. OSW, SW-874. Streebin, I.E., Robertson, J.M., Callender, A.B., Doty, 1., and Bagawandoss, K. 1984. Closure Evaluation for Petroleum Residue Land Treatment. University of Oklahoma, Norman, OK. P885-115822. EPA/600/2-84-162 Overcash, M.R., Flutter, W.L., and Kendall, R.L. 1985. Field and Laboratory Evaluation of Petroleum Land Treatment System Closure. P886-130564. EPA/600/2-85/ 134. Loehr, R.C., Martin, J.H. Jr., Neuhauser, E.F., Norton, R.A., and Malecki, M.R. 1985. Land Treatment of an Oily Waste--Degradation, Invuobilization, and Bioaccumul ation. PB85-166353. EPA/600/2-85/009. U.S. EPA. 1986. Permit Guidance Manual on Hazardous Waste Land Treatment Demonstrations. OSW, EPA/530-SW-86-032. U.S. EPA. 1986. Permit Guidance Manual on Unsaturated Zone Monitoring For Hazardous Waste Land Treatment Units. OSW, EPA/530/SW-86-040. Martin, J.P., Sims, R.C., and J. Matthews. 1986. Review and Evaluation of Current Design and Management Practices for Land Treatment Units Receiving Petroleum Wastes. Hazardous Waste & Hazardous Materials , Vol. 3, No. 3. pp. 261-280. Dupont, R.R and Reineman, J.A. 1986. EvaluatIon of Volatilization of Hazardous Constituents at Hazardous Waste Land Treatment Sites. Utah State University, Logan, UT. PB86-233939. EPA/600/2-86/071. Sims, R.C., Sims, J.L., Sorensen, D.I., and Hastings, L.L. 1986. Waste/Soil Treatability Studies for Four Complex Industrial Wastes: Methodologies and Results. Volume 1: Literature Assessment, Waste/Soil Characterization, Loading Rate Selection. Utah State University, Logan, UT. PB87-111738. EPA/600/6 -86/003a Sims, R.C., Sorensen, 0.1., Doucette, W.J., and Hastings, L.L. 1986. Waste/Soil Treatability Studies for Four Complex Industrial Wastes: Methodologies and Resu1ts. Volume 2: Waste Loading Impacts on Soil Degradation, Transformation, and Immobilization. Utah State University, Logan, UT. P887-111746. EPA/600/6-86/003b. Anierican Petroleum Institute. 1987. The Land Treatability of Appendix VIII Constituents Present in Petroleum Refinery Wastes: Laboratory and Modeling Studies. Washington, D.C. Westat, Inc. 1988. Statistical Methods for Evaluating the Attainment of Superfund Cleanup Standards. Vol. 1: Soil and Solid Media. Final Draft. Statistical Policy Branch. U.S. EPA. Washington, D.C. ------- Barth, D.S., Muon, B.J. Starks, T.H. and Brown, K.W. 1989. Soil Sampling Quality Assur ce User’s Guide. PB89-189864. EPA/600/8-89/046. Loehr, R.C,, Erickson, D.C., Rogers, L.A., and Kelmar, D.M. 1990. MobilIty and Degradatoin of Residues at Hazardous Waste Land Treatment Sites at Closure. RSKERL-Ada. NTIS PB90212564. EPA/600/2-90/O1a. Sims, J.L., Sims, R.C., and J.E. Matthews. 1990. Approach toBloremedjation of Contaminated Soil. Razardous Waste & Hazardous Materials , Vol. 7, No. 2. pp. 117-149. ------- 9476.1991(02) RCRA/StJP FUND HOTLINE MONThLY SUMMARY OCTOBER 1991 2. TSDF Closure/PoSt”CIOSUrO After Lou of Interim Status Pursuant to 40 CFR §270.73(c)(2) , a Subtitle C land djsposalfaciliri lost its interim sra’us due to the owner/operator s failure to submit cerufication that the facility was in compliance with all applicable groundwater monitoring and financial respontibility requiremen . The owner/operator has been told by his e, orcement agency that he is required to close his facility in accordance with 40 CFR Part 265. Subpart 6 closure standardt. If the facility has lost its interim status to operate, war/ should the owner’ operator be required to comply with interim status standard s to close the facility? According to 40 CFR §265.1(b), the standards of Part 265 are applicable to interim status facilities until Part 265 closure and post-closure responsi- ibilides are fulfilled. As EPA explained in the preamble to its November 21, 1984, amendments to the applicability sections of Part 265(49 ER 46094), EPA has statutory authority under §3004 to enforve the Part 265 standards at facilities which no longer have interim status to operate. The preamble explains that such facilities must close in accordance: with 40 CFRPart265, SubpartG. The September 25, 1985, Federal Register (50 ER 38949), specifically indicates that compliance with all applicable closure and post-closure requirements specified in 40 CFR 265, Subpart G is required when a facility has lost its interim status due to the owner/operator’s failure to submit certification of compliance with all applicable groundwater monitonng and financial requirements (40 CFR §270.73(c)(2)) to the Regional Adminisirazor. Such a facility owner/operator must, in accordance with 40 CFR § 265.1 12(d)(3)(i) and 265.1 18(e)(1), submit a closure and post-closure plan to the Regional Adminiswator no later than 15 days after termination of interim status. ------- ,IOSr4 9476.1992(01) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 t• 2 1992 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE MEMORANDUM SUBJECT: RCRA Units at NPL Sites FROM: LDon R. Clay Assistant TO: Patrick Tobin Deputy Regional Administrator Region IV Thank you for your inquiry regarding the ability to. issue post—closure permits to RCRA regulated units at NPL sites. ‘ttached you will find a final legal analysis from the Office of neral Counsel (OGC). Based on the legal interpretation, I .. .onclude that CERCLA 121(e) (1) does not eliminate the need to secure a RcRA permit where the facility is required to obtain such a permit due to the presence of a RCRA Subtitle C treatment, storage or disposal unit that was not created by the CERCLA action. This interpretation is consistent with Agency policy that EPA has the discretion to use its authorities under CERCLA, RcRA, or both to accomplish appropriate cleanup action at a site, even where the site is• listed on the NPL. The integration of these authorities should be applied on a case by case basis, taking into account Regional priorities, to avoid duplication of efforts where. possible. Some options for integration include: o . adding lar uage to the RCRA post—closure permit that establishes a schedule of compliance (as allowed under RCRA section 3004 (u)), according to which the appropriate corrective action would be determined completion of the CERCLA action. If a thorough CERCLh response is carried out, there should be no need for further action when the site is reviewed under RCRA. o dividing responsibilities in the Interagency Agreement, focusing CERCL1 activity only on certain prescribed units. This could leave cleanup of other units under the direct control of RCRA authorities. This may be appropriate where the RCRA regulated unit is Painted on Recycled Paper ------- 2 DOE has taken the position, based on CERCLA section 121(e) (1), that RCRA permits are not necessary or required at NPL sites and that instead, RCRA requirements for groundwater protection and post—closure care need to be met only •to the extent they constitute ARARs for the CERCLA response action at the facility; DOE further argues, ) ased on the decision in United States v. Colorado (D.Colo. Aug. 14, 1991) that the State has no authority to enforce RCRA permit requirements at an NPL site. Region IV takes a contrary position, arguing that DOE has an obligation to apply for and obtain pest—closure permits for non-CERCLA. RCRA-regUlated units at Oak Ridge. rhe Region notes. that RCRA permitting requirements were triggered by DOE’s decision to operate and close these specific types of hazardous waste management units beyond key dates established in RCRA regulations. In addition to the legal issue, óOE expressed the practical concern that a requirement to study and respond to groundwater contamination at individual RCRA units as part of separate post- closure permits, rather than addressing the site groundwater in its entirety under CERCLA, would not be efficient or cost— effective. Region IV has raised three specific questions for Headquarters’ review. DISCUSSION question 1 : Does CERCLA section 121(e) (1) relieve DOE from the requirement to apply for post—closure permits at NPL sites and instead require RCRA 40 CFR 264 standards for post—closure care and groundwater protection be considered as ARARs in a ROD? No; CERCLA does not relieve DOE from the requirement to obtain post—closure permits for pre-existing, RCRA-regulated units at NPL sites. CERCLA section 121(e) (1) prOvides that: No Fedèial, State, or local permit shall be required portion of any removal or remedial action conducted entirely onsite, where such remedial action is selected and carried out in compliance with this section . Thus, no permits need to be obtained in order to conduct a remedial action “selected and carried out in compliance with” CERCLA section 121, even if that action will involve the treatment, storage or disposal of hazardous waste. However, this does not eliminate the need to secure a permit where the facility is required to obtain a permit due to the presence of a RCRA Subtitle C treatment, storage or disposal unit that was nQ.t created by the CERCLA action. ------- 3 Of course, any remedial action selected for the site under CERCLA section 121 would have to attain (or waive) the substantive standards set out ir RCRA 40 CFR 264, to the extent they are determined to be ARARs. The decision in United States V. Colorado (D.Colo. Aug. 14, 1991) does not change this analysis. In that case, Colorado was attempting to enforce a closure plan under RCRA that was in conflict with a cleanup plan under CERCLA; the district court found, in effect, that in order to evaluate whether or not to enforce Colorado’s claim, he would have been required to review EPA’s remedial action decision under CERCLA -- such review is barred by CERCLA section 113(h). The Colorado decision does not limit the ability of a state to issue, and seek to enforce, R A orders or permits that do not conflict with the CERCLA-selected remedy. This analysis is further supported by the fact that RCRA “facilities” and CERCLA “sites” are not necessarily cotermiflOuS. In cases where the CERCLA site is only a portion of the R RA facility (e.g.i consisting of several of the largersolid waste management units), the corrective action portion of the R RA permit ‘ust be available to address the contamination that is subject to RCRA only. However, if in that example the permitted unit were on the CERCLA site, and if RCRA requirements could not be enforced at RCRA—regulated units on a CERCLA site (as DOE argues), then the RCRA permit’s ability to address releases at solid waste management units of the R RA facility would be improperly prevented; this cannot be correct. EPA has recognized that where there are corrective action’ requirements in a RCRA post-closure permit and remedial action requirements a CERCLA decision document, there is the potential for conflict or overlap between the two authorities in addressing contamination problems ( see NPL Listing Policy for Federal Facilities, 53 Fed. Reg. 10520k 10522—23 (March 13, 1989) (attached)). As the Agency noted in the preamble to the 1990 revisions to the NCP, EPA . has the discretion to use its authoritieS under CERCLA, RCRA, or both to accomplish appropriate cleanup action at a site, even where the site is listed on the NPL. (See 54 FR at 41009 (Oct. 4, 1989).,.. 1n the context of federal facility cleanups, this decision, and the cleanup plan in general, would be discussed in the Interagency Agreement (lAG) for the facility. 55 Fed. Reg. 8666, 8698 (March 8, 1990). The Agency has a number of options for harmonizing operation of the two authorities and avoiding duplicative orders and overlaps. ------- 4 First, any conflict or overlap could be avoided by establishing a timing sequence for evaluation of site problems under RCRA and CERCLA. For instance, the RCRA post—closure permit could establish a schedule of compliance (as allowed under RCRA section 3004(u)), according to which the appropriate corrective action would be determined after completion of the CERCLA action; if a thorough CERCLA response is carried out, there will be no need for further action when the site is reviewed under RCRA. Such provision in a RCRA permit might read as follows: In light of the requirement in the FFA to achieve a cleanup under CERCLA that is protective of human health and the environment, corrective action under this permit shall be determined according to the following schedule: after the work called for in the FFA has been completed, the need for any further corrective action, under this permit, shall be evaluated. Such further corrective action shall be limited to action required based on new information or conditions, not available at the time of the remedy selection under the FFA, that render the FFA remedy no longer protective of human health or the environment. Similarly, the CERCLA decision document could delay its review of certain units (or “carve out” those units) while action proceeds under RCRA; such areas would then be revisited under CERCLA after the RCRA action has been completed, as part of the review of the site for possible deletion from the NPL. As EPA explained in the NPL Listing Policy for Federal Facilities, In some circumstances, it may be appropriate under an (Interagency Agreement) to divide responsibilities, focusing CERCLA activity only on certain prescribed units, leaving the cleanup of other units under the direct control of RCRA authorities, such as where the RCRA-regulated hazardous waste management unit is physically distinct•from the CERCLA contamination and its cleanup would not disrupt CERCLA activities. 53 Fed. Reg:at 10523. It is generally expected that sites cleaned up under RCRA would qualify for action” under CERCLP. (This approach is discussed in your memorandum, “Requirements for Cleanup of Final NPL Sites Under RCRA” (Don R. Clay, July 11, 1990) (attached).) Alternatively, a potential overlap could be resolved by drafting a RCRA permit that references the CERCLA cleanup actions. For instance, the corrective action condition of the RCRA permit could be written to say: In light of the requirement in the FFA to achieve a cleanup under CERCLA that is protective of human health and the ------- 5 environment, corrective action under the permit is unnecesSarY, as long as the permittee complies with the conditions in the FFA, including modifications thereto. In situations like Oak Ridge, where there are interconnected groundwater plumes rather than distinct source units, EPA has stated that it is generally most appropriate to address the contamination comprehensively under an enforceable agreement under CERCLA (e.g., an FFA), see 53 Fed. Reg. at 10523, and to use mechanisms like those discussed above to have the RCRA permit take into account the CERCLA action. Finally, the Agency recognizes that there may be cases where a RCRA-authoriZed State declines to coordinate RCRA cleanup actions with an on-going CERCLA action, and a conflict may occur that cannot be resolved through discussions. In that case, EPA may resolve the conflict using CERCLA section 122(e) (6), which prohibits a PRP from taking remedial action at a CERCLA site without EPA’s authorizatiOLn’: Inconsistent Response Action -- When (an RI/FS has been initiated) for a particular facility under this Act, no potentially responsible party may undertake any remedial action at the facility unless such remedial action has been authorized by the president. EPA has interpreted this authorization requirement to extend to PRP remedial actions ordered by a State. See discussion at 53 Fed. Reg. 10523. Thus, once an RI/FS has been initiated, EPA can deny a PRP authorization to comply with a State order or permit calling for remedial action at the CERCLP site. Of course, EPA also has the discretion under section 122(e) (6) to allow the PRP to implement the State-ordered remedy; this might be appropriate where, for example, the State-ordered cleanup activities would be consistent with,, or distinct from, the CERCLA action. To our knowledge, the Region has not yet made any decisions under the CERCLA section 122 (e) (6) authorities; question 2 : the Tennessee Department of Environment and Conservation (TDEC) reserve its rights to require DOE to apply for post—closure permits if DOE fails to fulfill its obligation to conduct timely remedial investigations and remedial actions (schedules to be negotiated pursuant to the FFA) for certain RCRA regulated units at Oak Ridge Reservation (ORR)? In the Superfund Executive Order, No. 12580, the President’s authority under CERCLA section 122(e) (6) for NPL sites has been delegated to EPA. g E.O., Section 4(d)(1). also discussion at 54 FR at 10523, n. 10. ------- 6 The answer to the question of whether TDEC has “reserved” specific rights depends on the language agreed to by TDEC in the FFA as well as the language of the post-closure permit and applicable State regulations. (Clearly if TDEC incorporated a schedule of compliance into the permit, then it would have reserved its right to at least review the site after the CERCLA action has been completed to determine if any permits or other action are necessary under ECRA; similarly, if the permit included a permit condition stating that “corrective action under the permit is unnecessary as lone as the perinittee complies with the conditions in the FFA,” the failure to comply with the FFA could trigger a review of RCRA responsibilities.) However, as explained above, it is clear that the simple issuance of an FFA for the Oak Ridge site does not, without more, act to preempt the effect of permits required under RCRA (including RCRA-authorized State law) fqr non—CERCLA activities. The continued applicability of RCRA permitting requirements appears to have been contemplated by DOE and EPA in the FFA for Oak Ridge. Section IV , C. of the FFA provides that: ongoing hazardous waste management activities at ORR (Oak Ridge Reservation] may be subject to or require the issuance of additional permits under Federal or State laws. This agreement does not relieve the DOE of its obligations, if any, to obtain such permits. This Agreement does not supersede, modify, or otherwise change the requirements of the DOE’s existing RCRA permits. question 3 : Does EPA have discretionary authority to disallow entirely, or limit the CERCLA section 121(e) (1) permit waiver, provision to ensure that NPL and non—NPL RCRA facilities are treated equitably? CERCLA section 121(e) (1) provides that no federal, State, or local permit Sishall be’required” for CERCLA response actions, thereby effectively limiting EPA’s ability under the statute to require a PRP to obt in a permit for a CERCLA resDonse action . i However, this does not mean that a PRP may not have an obligation to comply with a permit issued with regard to matters other than the CERCLA response action. For example, where a facility has a pre-existing NPDES discharge permit related to on- going activities distinct from the CERCLA actions, that permit remains in force even if the site is listed on the NPL and an RI/FS is initiated under CERCLA. In addition, if obligations under a preexisting permit would overlap with planned CERCLA activities, EPA could authorize a PRP, under CERCLA section 122(e) (6), to carry out remedial actions called for in an order or permit issued under another federal or State law. ------- 7 * * * * * If you have any questions concerning these responses, or would like to discuss the issues further, please contact me (260- 7697) or Larry Starfield of my staff (260-1598). Attachments ------- 10520 Fode al Roglatet jL. VoL.54, No 47• /. Monday. March’13; .1989- / Rulèv lad Re ulatjäns. . ‘ tlV1RON MENTAL PROTECTiON.. Part 300 1 1. 4 535 -2 1 The National Prlodtlos Ust (or Uncontrolled Hazardous Waste Sftss Usthig PoUcy for Federal Facilities *OEMC Environmental Protection Agency. *ci ore Notice of policy statement SUUUAM The Environmental Protection Agency rEPA ” )l. anno ’m ng a policy re lat lzzgtotheNat lonilO lland Hazardous Substances Contingency Plan (“NC ?’), 40 Part 300, which was promulgated pursuant to section 105 of the Comprehensive Environmental. Response. C mpensailon. and UAbWty Act of 1980 ( “ aA1 famended by the Si perfundAiizendineOts and ReauthorizatiOn Ad of 1986 (“SARA”)) and Executive Order 12580(52 FR 2923.’ January 29.1987). Q.A requires thai the NO’ Include a list of nitlonal priorities among the Imdwn re1ea es or threatened releases of hazardous - - substances. pollutants. or confomuliants throughout the Uc1te LSlates. and that the list be revised at least annually. The National Pu critics List ( “NPL’). Initially p umu)gated as Appendb B of the NO’ ‘m er8 1983(48FR406S8) ies this llst aoUcedesmThesa SdUcyfor a- p&actng On the (PLis1tes located on Fedetally.cWned doperate(fadHUes• -% that meet thd NPL eligibliltyafteila set: oat lntheNO’,.ven lftheFtderal facility Is also subject to the correcifir. action authorities of Subtitle C of the Resource Conservation and Recovery Act eROtA ” ). ‘A had requested. public commenton this policy on May 13.1987(52 FR 17991): mments . - received are contained In the Headquarters Superfund Pub3lc Docket Thewhere In todays Federal Register Is a rule adding Federal facility sites to the NFL In conformance with this policy. EFFECTIVE 0AT This policy Is effective Immediately. *DORESSE The Headquarters Superfund Public Docket Is located at. the U.S. Enviro meata1 Protection Agency. 401 M Street SW_ Washington, DC 20400. It Is available for viewing “by appointment only’ from 9 0 a.m. to 400 p.m.. Monday through Friday. ezdudlng Federal holidays. Telephone Z021 382.. 3046_- FO FURThER mFORuAT)OM CONTACC Joseph Kruger, Hazardous Site Ev’’,atioa Dlvision Office of t cy and Remedial Response (OS.230ItU . S. Environmental Protection Agency. 401 M Street SW.. Wasb1rjtari DC 204oo orths Superfund Hothno.- ’ - phone (800) 424-9345 (or38Z 3000.lu.the’ Washington. DC. meiropolitan.ares-) SUPPtLMENTARY INFORMATIOIC Tabi, of Content.. L Introduction - IL Development of the Policy for Listing Federal Facility Sites U I. Coonilastion of Response Authodtisut Federal Facility Sites oaths IV. Response to Public C’qiim” ’ Llntrod”ctI” In 1980, Congress enacted the Comprehensive Env1roumental . :.- Response. Compensation. and Uabtilty Act. 42 U.S.C. sections 9001- 1687. (CERQA or “the Ad . In response to- the dangers of uncontrolled or abandoned hazardous waste sites. - C [ .A was amended In 1988 by the Superfund A mendmen a and • Reauthorizatlâu Act (“SAR4 , Pu)ra L No.99-499,. l O OStit. lOi3e(seq.Tó Implement O.A. the Edvironmental Protection Agency ( “ ‘A” or.”the.. Agency promulgatedthe revised National Oil and Hazardous Substances Contingency Plan ( ‘ NO” ). 40 300. on July 10 1882(47 FR 3U80), pursuant to CLA section 105 and Executive Order 12310(40 FR 42237, August30. 1981). The NO’. further revised bya ’A 6n Sètemberf0186 • (90 FR-37634) atid’November20. 1985 ( 50’ FR 479 12). sets falth guidelines and’ pro eduretde eded to respond ndde to releadesand threatenád- releasesofk .ihrdous sub.Iánces pollutants. or con”'n’t ints.-In response- to SARA, EPA proposed revisions to the. -NO’ on December 214988(53 FR 51394), - Section 10S(a )(8J(A).of (LA. , as amended by SARA, requires that the NO’ Inc lude criteria for “deter’ ”g priorities among releases or threatened releases throughout the United States for the purpose of taking remedial action and, to the extent practicable lafring Into account the potential wgency of s ’uch action. foi the purpose of taking remâ4 action.” Removal s ction lnvolvei deanup oiother actions that are In respdnse to releases or threats of - releases on a short4erm or temporary basis (C CLA section 101(23)). - Remedial action tends to be toog-teniln , nature and Involves respons, actions. which are consistent with a permanent remedy for a release ( CLA section - 101(24)). Criteria for determining - priorities for possible remedial actioni - under CERCLA are included in the - Hazard Ranking System CHRS1. which -EPA promulgated as AppendbrA of the . , NCP (47 FR 31219 July19, 9823,’- •-Sectlon105(a)(8 )(Bj aI tQrA.as. smeededbySARArtequlreithaith, - statutory criteria provided by the IIRS. be used to prepare a list of national- priorities among the Imown teleasesor threatened releases of hawdoua substances, pollutants. orenuIi,.I .. .ts. throughout the United Slates. The list. which Is Appendix B of the NO’. Is the - National Priorities list (‘?lPL Section 105(aJ(83(B) sisorequires that the?WL - be revised atleut enn9lly.- A site can under*o OA-6nanced - remedial action only after It Is pLaced on thsfi na lNPLup ruv ldèd lntheNQ’at : 40 O’R300 8(c)(Z).snd 30 9 8 8(a). Although Federal facility sites are. e llglblefortheNLprsuanttolheNO” at 40 O’R 30(L86(cJ(2), section IU(e)(3) of tO.A.-as amended bySARA. - - limits the edq ,endlture ufsuperfund .- thonlesatPederslly owned 41 1l .. Federal facility sites .isozre subject in. the requirement. of QA section.. 120. added by SARA. - This notice annoumcesJheAgency s policy of Indudlug on.the NFL Federal facility sites that meet life ellgIbWty requirements (e.g.. anliRS scare of. - 20.50), even If such fadutletare also - - subject to the corrective action. - authorities of Subtitle Cof the Resource Conservation and Recovery Act-. - ROlA1. 42 USC 6901.0991(13 , - sewhere-in todays F.daèel Register: EPA luddlugEederul facility sites to”- the NFL Incoufcr i .nce Wththlspollq: IL Devalopnisct of Ui PoliciforUsthig - F.dolil Fadhit* Sites aA section IOS(a)(8)(B) dlrecb- EPA to list priority sites “amon( the - known releases cc threatened releases of hazardous subitances pollutants, or contaminants. and section 105(a)(83(A) directs EPA to consider certain enumerated and “other app pdste ” factors In doing so. Thus, as a matter of: policy. EPA has the discretion not to use CIA to respond tocertsln types of releases.- - When the Initial NFL was promulgated (48 FR 40062, September 0. - 19833, the Agency announceà certain listing policies relsting to sites that might qualify for the NPL One of these polides was that RCRA lend disposal units that received hazardous waste after luly 26.1982 (the effective date of the RCRA land disposal regulations) D’A 1 , opo..d st. ,ac r i.Ioi i to ha ton on D.o. b.rm. r osa Isi ER stosr b.—... . ib. tImS appli.. io tha U.dn of .ft..oa 0.. - - f1PL zdI 0.. r..i..d I S I , (in .liz.d aM take. QA ..cOoa im(cl(hl. ------- Federal Register 1VoL 54. No 47/.Monday,March13. 1989 j RuleB and Regulations 10521 • would generally not be included on the NPL On April 10, 1965 (50 FR 14117). the Agency announced that it was considering revisions to that policy based upon new authoritie, of the Hazardous and Solid Waste Amendments of 1864 (“HSWA that allow the Agency to require corrective action at solid waite management units of R A facilities Iti addition to regulated hazardous waste management: unit . .. -- - On June 10,1905(5* FR 210573, fl’A announced several óomponents of a Soil policy (a jdoclng RCRA.reguIat d cites on the NP! . but made dear that the policy applied only to nan1 7 ederal sites. The Policy stated that the listing of non- Federal altec with releases that can be addressed under the expanded RotA Subtitle C corrective actlonauthcdtfee generally would be deferred. However. certain RO A sites at which Subtitle C • corrective action authorities are available would generally be listed If theyhadeñHRSecoreof2a. socr greater and met at least one of the following aliens: • Facilities owned by persons wh& have demonstrated an inability to ilnancea deanap as evidenced by their Invocation of the bankruptcy laws. • Facilities that have lost - authorization to operate, and for which there are additional Indications that the wner or operator ivill be unwilling to adertake corrective action. • Site., analyzed on a case-by-case basic, whose awuera or operator, have a clear history of unwillingness to undertake corrective action.’ On June 10, 1986 (Si FR 21059), EPA stated that It would consider at a Later date whether this revised policy for deferring non-Federal RCRA-cegulaied sites from the NFL should apply to Federal facilities, On October17. 1986 SARA took effect, adding a new section t to C CLA devoted exclusively to Federal facilities. Section 120 dpialns the applicability of Q .A to the Federal Government, and generally sets oat a scheme under which cont mtno ted Federal facility sites should be Included in a special docket, evaluated, placed on the NFL (If IIRS scores so warrant), and addressed pursuant to an Interagency Agreement with EPA. As part of IL. deliberations ona Federal facilities listing policy. EPA considered pertinent sections of SARA and the proposed policy concerning ‘On Ao u ,1 I. tO (S3 FR 300or1300m1 A pisbUáed odd dc aJ totorm ,tloa on A cy policy cooc ,rn1s g att.dg dMor ja , If o Ownor or ,ruIor I. i wj1jjfl or onob to s&ndcii,k. Tnctiv. ROtA corrective action at Federal facilities with ROtA-regulated. hazardous waste management units ($1 FR 7722, March 5,1986). Specifically. that policy stated that • ROtA sectIon 3004(u) subjects Federal fadlltics to corrective action requirements to the same cxi ut privately-owned or-opcnatedfac lliUes. • The ãeflnltlon of a Federal facility boun4azy Is iqtdrralent to the.próperty. wide dRnf tianaf facility at privately- owned cr-operatedf” l le’-. The Agency determined thaithe greet mafodtyof Federal facility sites that could be placed on the NP!. have ROtA- regulated hazardous waste .a .gement. units within the Federal facility property’ boundaries, subjecting them toltQtA corrective adieu autharities, Therefore, application to Federal facilities oLihe Mardi 5,1905 boundary policy and the June10. 1986 RCRA deferral policy . - would tesult In pladng vezy few Federal. facility sites on the NFL Ho(vever, Q.A end Its legislative history Indicate that Cc ’ugreu dearly Intended that Federal fadlitysites generally be placed on the NFL and addressed under the procesi set out In C ( A section .120(e). Thus, EPA conduded that the RCRA defènel policy applicable to prlvate.sltes might not be a pr dàte for Fedetal facilities. On May13, 1987 (52 FR.17991) , the Agency announced that It wu considering adopting a policy far Hating Federal facility sltes.that era eligible far the NFL, even If they are also subject to the couedive action authorities of Subtitle Cof ROtA public comment was spedficaliy requested on this approach. Congress’ Intent that Federalfadlity sites should be on the NFL even If ROtA corrective action authorities apply, I . evidenced by the nature of the comprehensive system of site Identification end evaluation set up by a.A, section 120, added by SARA. First, In sectlon120(c). EPA is required to establish a “Federal Agency Hazardous Waste Compliance Docket.” based on Information submitted under’ sections 103 and 120(b) of QA. and sections 3015,3005, and 3010 of RCRA.’ Thus, the dotket I . based heavily on’ information provided by Federal facilities that are subteotto ROtA. If Congress had Intended that Federal. facilities subject to ROtA authorities- should not also be examlOed under the Federal facility provisions of & Lthenthi legislator. would not have d lrededEPAtodeve lop.dodcetof - - facilities (for evsluationwider A) oompasedlatgelyofFederslfadliuts’ - subject to ROW Second tbe .A enq I. also directed, In tOA section 120(44 . “Saks steps to asswa that. preII l..aty assessment Is conducted jbt sods fadlityan thd docket,” and where ap .dits. to - Include sud facilities en the N L ltthe facility meets “the at tale established In accordance with section 105 mznSer Ike Ilatlonel Contingency Plan for - 4etermlnlegpdoltlçs among miesses.’ ( ‘Adçetapp!y the CZt A sçctlon: 105 alterla— .(he Hazard Ranideg - System (HES)—lo FederaL as well as private, sites.) Here again, If Congress had intended that Federal fa 4 llftes subject to ROtA authorities not be -. placed on the NPL,thenthe leglslatois would not have required EPA to evaluate for the NP!. all Federal - facilities In the docket—the large majority of which are subject to ROtA authorities - Third, Congress set up the Interagency ment AC)prucess(OtRO .A. section 120(e) (23-(4)) to evaluate Ihe need for cleanups cfFederaUadllty sites. U .fl Federal facility sites subject to ROtA Subtitle C were deferred from listing and attention under C OA , few Federal sites would come within the lAG process. conliary to Congressional Intent Rather, Congress Intended that EPA Hs t .andevaluate lnthe lAGpuucess .sfl Federal facility sites that are eligible Ton the NFL, Including those facilities subject to ROtA Subtitle C authorities, As Senator Robert T. Stafford stated daring the floor debate on sectIon 120 of SARA (subsequently section 120 of (rib. m4m - ’l . meqaire a comprehensIve nationwide ffod to Identify and assess all Federal bszsrdaus waste site. that warrant attentIon. 132 Cou& Sec. S 14902 (dilly sd,, October 3, 19861 ( ‘tphssls added), EPA has long expressed the view that piadag Federal facility sites on the NP !. serves an Important Informational function and helps to set priorities and focus deanup efforts on those Federal sites that present the most serious problems (50 FR 47931. November 20. 1985). ‘Sc on $a*s.f& A pr.vtdc, for th. tovoutury of F.d,rsl Us wbor, R A bmwdong wssts 1 str,d. b,st,1, or q-: ofor boo boo. dIopoond . 1st say 3Co6c1acaAooq iIm th 9111,1.1 Inboom . 5o ..wo.oos,y toith, ko.uio, .1 poi fta (or tho .bro1n1a ollntoitm .tmtva to st tort. erdlipo.. of bawd.., ws.too.dor R A sad RcaA . icdoo 3010 ruqoIrs , oosfl eong thit s ROtA bawd . ,, ws.W I. bstag eoorstet bsa .po .d. sted. storsd. or dl.po . .d of. ------- it szz Fod.rnl Register f VoL 54. No. 47 I Monday, March 13, 98 / Iti Ios.and Regulations . - - EPA ballevee that tod* s decision not. to apply the lu e i000 NPL/R A policy f’ ‘Federal sites) to Federal i Is consistent with section. 4 of (i.A. which provides . all guidelines, rulcs,-z ulatIoiii - .snd criteria which are applicable(o Inclusion on the National’ Priorities Ust or applicable to remedial’. actlons skellslsobeappllcableto (Federal facilities).” Gives’. Co gru.LonaI Intent that Federal - facility sites should be Inchided on the tWI 5 EPA Interprets section 1 aj(2 ) I. mean that the attadito list sites should uot be more exd”4owy than the’’ criteria to list non .Federal situ on the tWI As discussed In the May13. 1907. notice on the policy (51. FR 12992-3 ).. most Federal facilities Include RGitA- regulated hazardous waste management units and thus. almost all waste contamination areas within facility boundaries are subject to RQtA corrective action authoritles In addition.,. key exclusions Lu the non-Federal ROtA deferral policy are not applicable to Federal fadllties.Thzs ,1f the non- Federal ROtA deferral policy were applied to Federal sites. very few Federal sites woeldbe listed.. The Agency believes that aithoegir’ section IW(a )(2) evidences Congress” Intent that the Federal agencies comply with the same baseline of requirements a”-”-able tq private sitei, the section’. t require that all policies end macta applicabl, to private and • ei .cral facility sties be IdenticaL Indeed. Congress specifically set cut a series of requirements which apply to Federal facilities In a manner different from, or In addition to. those applicabte to private alt... e.g., the preparation of a separate Federal Agency Hazardous Waste Compliance Docket (section 120(cTh the notification required before Federal agencies may transfer property (section 12.o(h33 and the entire process for signing Interagency Agreements at Federal facility sites (section 120(e) (2)-’ (4fl. Just u Congress recognized that there are unique aspects of Federal facilities requiring additional or special attention In the contexts Just named, special attention Is also’requlred Inriedding what listing/deferral policy should apply to Federal versus private stIes. EIWe opinion Is that significant differences inherent In the rides to which Federal facility sties and privet. sites are sublect under CLA and the NFL dictate that different listing and defeiTal policies should be crafted for cachdau of facilities. For private sites, the only legal - “ cance of NPL.ILsting is that the site become. eligible for Rtnd-/inwrced - remedial action. as provided In the N(P’ at 40 R 300.OO(cj(2) and 300.08(a)(tj (removal actions and eñfoc eut actions can belches at private sites’ regardless of NFL staIns) Indsed.’EM recentlyisuggeeted In the preamble to’ proposed rdvlsloos to the NO’ (53 FR’ 51410. December 1.1.1988) that It map be appropriate to view the non-Federal NPLas a list for Informing the public of bawdous’wiste slté ..thit appear to:’ • remedill actlon4hroug!1:: - OtRCLA fândhj ilong.” 11ds ’ relatIonshIp betweenthe NFL aprd the avatlabflhty of Fund monies (at private” - sites) L .a omtr l factor bebln& EPA’s’’ deferral policies. EPA has odnded that by deferring to other stabates like ROtA. ‘a ‘n.’dmum aumberçf ,.. potentially haiardous waste sites can be addressed sod EPA can direct Its CZRGi .& efforls (and Fond monies. If necessary) to those sites where remedial” adieu cannot be achieved by other means” (53 FR 5141.5. Dëoembei2l. 1288). However, this goal of wa 4 ” g the use of limited Fund monlesdoes not’ apply to Vedenalfa7dlityslte... . Federal facility sites on the NPL are not eligible forF rnd-flnancá1remedia1’. actlons.(exceptln the very limited cases-. described In OA section i11(e)(3Th pursuant to the NO’ at’40 O’R 300.80(c)(2).Thus, the deferral of Federal facility sites from the NFL would rtot result In significant economie. to the, Fund, although It coald’do harm to the Informational arid mauagement ealsof’ Indudlug Federal facility sItes on the NPL. as well u Cuingreulonal Intent.’ Although the Agencyadght have decided to defer Federal facility sites subject to ROtA based on a desire to avoid duplication In remedial actions. (another of the purposes behind ROtA deferral for private sites). EPA has - concluded that this goal maybe accomplished satisfactorily for Federal facilities through the process. set out in CDtOA section 1.99 (eJ(2)-(e)(4), of developIng comprehensive lAGs. As discussed In detail below. EPAwill attempt to use the lAG process to achieve effident, comprehensive solutions to site problems. and where appropriate, to divide responsibilitIes for cleanup among the various applicable authorities. Finally, the deferral of Federal Facility sites to ROtA-authorized States, In lieu of evaluation under the lAG process. may be inconsistent with the Intent of CFRCLA section 1 99 (j). which provides that “no authority vested hi the [ EPA) Administrator under this section (1.99) may be tran.s(ervcd” teeny person. 42 U,S 9099(g). UL Coordination of Response Authorities at Federal Fedhlty.Slia. on -. IheNPL- EPA recognizes that when fttakos: action urider QA to address a’ - fadlity’tbat Is-also subject to ROtA; authorities. that. La some risk of .ovdap. or,even osaflict. Such conflict sltuai1oius’ .. are not’s. problem where EPA Is responsible for carrying ont.tiae’ requirements of both ROtA and’ ( t A (since any jurisdictIonal’. overlaps can be managed within EPAV Hówciu. an overlap of eatbodty may to Lowe .It. sboeld be deaned upwbere’a State he. been authorized tocerry out ill or part”’ oftheRCRAiv ..... ’ However, this potential overlap betweçn ROtA and C t(1A cleanup authorities Is the result of Congre ’ .”nal ‘ dest i. not site listings. EPA neither. intends nor beUe es thl lteUiüi gs- themielvès auto a’ànfliétbetwe,u CLA and ROtA (orState law): rather, any conflict stems from the.’ overlap of the ulxreGtlve action iithj ill e nof the’iwosra81tWThe overlap e,ds1j’WR fl!V’Ff EPA takes’ CIIc action ataslte That bis’ ,, . regulated hazardous waste mane g .Jn.n’ , wilts subject tea State’s RQtA’prcgr th’ or other-Slate law.EPA can take such-., QJu actions at sIteinót thi tWL , e. u-ii’ r u aa IS; NIL. ’ ( Si L oótiIllcts may also o ’at privatesites as well as at Federal facility sltes4. There may she be’case.wbece the.’. applicabllityofbothRQtAand ..- A authorities at NFL itt .. does. not create a conflict—for example. where the ROtA hazardous waste management wilts are not included within the area to be addressed under’ C O .A. or where the release Is exempt from action under ROtA. This. , .eeftfr between ROtA and OA corrective actions n occur at virtually any point In the process or not at all. How ROtA authorities era affected (if stall) when WQ.A also applies tea site is a matter that vanes greatly. depending upon the Fads of the site. In some cases, the NFL .11. Is physically 4lstinct from the ROtA-regulated • m’Ancoseiwe ibsi neq Slates Is,, weate (ewe ted.pssdmtdibat spot width the Slal.’a s ei dP A pio ... . sa bs bsesd, Although this polki dmtaese pdmei8y stOw m.th otkr sppIyW RcaA(b, D’Aorseib. . .LtL 4 Stetee% ?.dnel IsdUOssoo the NPL the sans saelyuls would .pp( So see’ & A Slat. laws lIst pot.stMUyoeu(sp with aA isepotas suthoitdes . epawsoul actosa. ai wuS is isteOsi scOns e,dm.d osder sac000 105 o( A. nay I . takot .1 ooo. 14P1. .fte., S .. waR aoo .e cl(zl sad xo6 eKiI ------- Federal Register.! VoL54.. No. 4Z.I. Monday March 13,1989 I. Rules and Regulations 10523. hazardous waste management units, and corrective action or closure at the ‘oted units may proceed under L while at the same time a deasup Is proceeding at another area of the property under CERa.A. without the risk of Lnoo”istency or duplication of response action. In other cases. the releases or con’ ” t ” ”t plumes may overlap, such that a comprehensive solution under one statute may be tha most efficient and desirable solution. ‘The questions of which authority should control. and of how to avoid potential duplication orlnoonslatency. are often Implementation Issues, to be resolved In light of the facts of the case end after consultation between ‘A and the concerned State. ‘A’i belief Is that.In most sithadous, It Is appropriate to address site. comprehensively under pursuant to an enforceable agreement (Li.. an lAG under section 122), signed by the Federal facIlity, ffl’A. and.where poss1bI the State. In some •c ances , It maybe a w 1 ,date under en LAG to divide responsibilIties foc”lng QA activity only on certain preserthed units, leaving the’ cleanup of athercnfts under thedirect control of RCRA authorities, such as • wherethe RCRA cp1ated.I mdoua. waste management unit Is physically. ‘inctfromthe LA •. - minatlon end Its cleanup would erupt Q .& activities. • _.mathely. th LAG can prescribe dlvlaiaua of responsibility, audi as stating that wilF address ground water contofrlnntion while RQ1A will addreaalhe closure of regulated hazardous waste management units. Any disagreements In the ImplementatIon of the LAG would be resolved by the signatory parties under the dispute resolution terms of the LAG, Of course, there may be cases where a RCRA-authorized State declines to Join the MG process. or agreement on the terms of an LAG cannot be achieved. For Instance. State offidals may decide that the proper dosure of a landfill should be accomplished through excavation, while C CLA officials may determine that the same area should be managed differently as part of a ompreheusive CIA action at the site. Although EPA wilt try to resolve any sur.h conflicts and achieve agreement with the Slate In the LAG process, there may be cases where the corzflictifla views of EPA and the State concerning corrective action cannot be resolved. CERCLA section 122(e)(63 , entitled ‘inconsistent response ac(ior.s. gives -iflc guidance on (hi. point LNCONS!ST dT R PONSE ACrION.— When either the Pteufdeut. ore potentially responsible pasty pennant te en admInistratIve order or consent denee under this Ad. has Initiated arcinodial Invaitigation sad feasIbility study (RIIFSJ (or a partlaàr fadlity er this Ad. no potentially sesponsibli party may undertake say remedial action at the isdulty unless audi remedial action has been authod ed by the As the Conference Report on SARA- noted, section 1V e 6j was included In the bill “to clarify that no potentially responsible party (PRPJ may mdastake ny remedial . rtI” ' ’ atafadlity unless suds semedl ” t action has been authorized by the ñesldent’ (or his delegate, A )’.Se. HR. Rep. O6 Oath Cong 1st Seas. at 254 (1086) .See also 132 C”ng Rec. 514919 (daily ed., October 3, 19863 (“ThIs Is to avoid situations In which the PRP begins work at a site that preJudges ocway be InconsIueflI with what tire final remedy shouldbeorexacerbatesthe -. ,rgbIem. ’ This authovixaildi.’ requirement applies to any kemedlal actions Imirso . by a PRP. Induding those actions ordered by a State, an both types of act loncouldbesa ldtópresenta potential conflict with a ( ta.A- authorizEd action.’ sbtalae e .etced(lsdsdlis a or loused .a.dnids nivs.derundsr A .suton 105 ericeA . on 7002. end a , c ’his psrty li dW,usUy ensduewg areuwreL en iuiia .rproousdIa 5 wtth sewedlel ardoaessanttethst order. Sledlsdy. &ca* s.c IOX(bJ direct, the A daturt rlo rpats .9 nnulmee(pr L, for ,r ’ dadedst ,Ooa sad sof.,...,.,.gfl sad shell mr dd .plio ,Sas laths - ‘— — enlist prsc ksbk. ” 4ik .ppruç.4 .te pesulsisnu of laws ( i s a en ta.A) peuadq tqslalmy suthodly to R sdlsl scdou ”k v.,ybrosdiy dsfi.edta .s sn 101(141 en stIle — ounddent su(th • purwensat , sdy alaska. l ’ ding vosfiouws.t of. ruIns.. of bsa ,rdous ssbstaaoru. dsin..p .f bawd... .,bstaaoue ste. A bdIsvsa thsl remedial s oos w(thM l b. wesnl .g of lbs lute way b dsd. d i . .. tak.. oudur sialaten other then Q.A. t .d . .dln coiru vs scdoa oudø R 4.. CLA section 1224e)(63 does not constitute a prohibition on RW 1A corrtètive action at Q.A sites: rather. It provides a meth-”la” by _____ which the Agency mut approve of remedial actions commenced at sites after an Rl/FS has been Initiated under Such en approach would help. to avoid duplicative end wasteful cleanup actions. This authorization me 4 ’ ” t ” would not affect normal- - hazardous waste managemsid requirements under ROl.& such as complying with , tenlfest. 90-day . storage, and label f qwlawUh1110 any RUM-regulated hazardous waste management units operating at a QA site must continue to comply with ROtA hazardous waste management requirements, even Ifs response adlon Is underway. - The Agency also Intends to adthodze many State RQ A “ ctio”° to continue. e.g., where the RQtA adlon addresses a unit distinct from the OtRO.A contamln ”tlon, and whore the ROtA action will not disrupt tU A activities, 7, - • - £venivbereEPA ’deddealhatlt(LaOt - appropriate to aalt 4 ea ROtA or’ - other State actloitto cwaILm .e under: _______ section 1V(eX8J faurderto -. avoid disruption órd*iplicaUve ct1ona.. . ‘-‘seess .. d - - -aftse lbs Q.A section 1*1) spedW ” t ly - Isidadosofen P atenf sfts has hon - - - - provides that participation by .Stite dslegdudso lbs owdels Iii remedy electlon”1biIl ,e prodded In accordancewlth ’ ectfotr IZ, ” and OtRUA iectio ” 1ZI(d3 ass u e mons 5 n u nemi w specifically provides a ueu for ensndss for silas enderththI sdI e erwfisL taking aomunt oT ”app cable or - - ____ relevant and appropriate requirements” (ARARa) of ROtA (as woil as other State and Federal statutes) when a ___ ______ .,ernedyisselçcted.IfanySlate requirements are waked pursuant to O .& section 121(d)(43. the affected- State may obtain Judidat review of suds _____ waiver, and even If unsuccessful. may ensure that those requirements are met by providing the necessary additional wuaruwaaaz aenon e is a dm8Puh.Sed repeatedly In the put. ‘It Is GA’s ____ expectation that remedies selected and Implemented under C1& will generally satisfy the ROtA co. . dve action requiremeats. and vice versa” (52 FR. 17993. May 13. 1957. and 52 FR V045 . July 27 .1987).’ The discretion under CLA section 1V(e)(6) not to authorize a PRP to go forward with a remedial action ate site der1 . ’ ” (djii (ura JmesrTa - I ) .Z s e .. .don4 diN. t htg s asNlenthut - asthodas sties sedat s. oa u e)(ej Is Uwliedby lbs prueldons of usstsnIZ(aX41 saduuossuad. - - below, - ‘Congrus€Int di.tWcrA.dIem ld , .w..i istthost pu wIth other - remedial ardoula she soussstsdbythsisapsee 1. — ———— - e*tflon7V bIZJtUJ 01 Ki iA. ._ . RQtAd uasdts aiL en ’- - s .d .sbstaneal is st way ast be b isughtlf lu’A has wc oed anactosunderemcL& .sdIon10s(orR A7005 (a .i qIngIna rune,.! ardon iO or has Inimied onto to been as lu PS under tøA and Is To the talent thst dds obcy asy be ,,sd .a Inoseddeit wtil . lbs dlauid ooui(s opidos Is Sga r U. D.il.(th.Aemy . CA. 54 .. 16-C-SItS (0. Cola. F.bruasy U. tO05 . A di.acsci wIth that opinion. U ------- 105 4 Federal Register I VoL 54. No. 47 / Monday. March 13 . 1989 / Rules and.Rcgulationa: ai - r . RCLA remedial investigation! tudy flUFFS) has begun— iction has been ordered by —i t cnerelly available at both Ivate and Federal facility sites. However. i CIA section 120(a)(4) provides that State laws shall apply to remedial sctlon,—lncludlng those under CF1tCL& .at Federal fadlity sites that are not on the NFL thus, acting as a general limitation on the more general section 12Z(e)(OJ.” Of course, no such limitation applies tQFedensl fadifty sites cape they ore placed onihe NFL The plain language of section 1*03(8) makesftc learthatlt lstheRllFSaot the listing ftself.—that triggers section 122(eJ(6). Indeed. anRIFS may be commenced prior to. as well as after. NP !. lluiJng.”ThJs Is especially true for Federslfacillty sites, as the President has delegated his authojity to take (L& sectIon 101 response actions ( IncludingRl/FS 5)toheFederat agencies for most non .NPt sites (Executive Order 12580 at section 2(eJ(1)).” Thus, when a Federal facility Is placed on the NPL..az P IfFS will often have been copzmenced (qr completed).. In ordâ ( ini,oke.tfzi authorization mea4iaofi in of DA section 122(e3(6). ‘A must make a threshold: determinaficu ci whether cr.not an RI! - uler this Act (c Q.A3 has been &.studieeconaucted by federal es before a slte,has been placed on inc I3PL may or i ay not constitute an appropriate RI/FS In RI’A’s opinion. 1 ’ As a matter ãf policy. the ‘• s. oo tm(m (4) stat.. s. foUow . Stirs 1mw. ,mavsI drw.adiml .ctoa ndsdt.g Stats laws r.gttdlog .ofxcanset. shall qpl scoowsI and tenedW .ct a at (a L ssesmed opsisted by a dspartiu . . y. tea .st .lZty at ( ha tidied Stati. whi m .tth kituidma iii mel Indudud as thu Naeonal Norilies Ust. (Easphaul. . AA _ dI. - Is ( him s.ctloe piusota Faders! tadlidma hco — that thu doitrthoa .t lathes. estop oi as$Md pr.smipdas limit (ha s .ds(.edloo -‘axe). IS S os SC4 SsiWcs,.f In&ome. Lnc. a. Thomas. me F.Sç p. 1355. 1351 (W ,D. lodIJes) (- aA dasity asks. the asod. c i im RLfPS. nmai’ .L sot s.medlaI. sates. so that (ha ussutatco that •“ — be takasesly whas (ha site ta as ( ha NFL I . st ly kTslsesa( to. al$FS ’ 52 FR V5 Udi . 1 ) Can RIIFS som be psifonued at prspo.sd (NPi4 sites pwwsaotto die A euc ’s q vel sutho ,ftyasdsi QA). “Secdoo 10* autho (tlss wars delegated to (ha .1 Dales.. s od Eccigy mor.geesrsliy. .ithoiih .sdi Iwictions mt still be swdsed jlstant ,rtth thu r,qdáeueuuts of section 135sf Emceed’s Oudsi ISSIO. .edioo 2tdJ . ‘t ’*if PS I. a arm of eat vodsr WCA. and ap 1is . to a sp.dsl sit. stody sod s’sluaton im ..cdoo 30001(d) of the t’ICP. & us the s5uocy .sWuatad with the dovolopincet sod . .-- t sein be of di. N . I. (lie . .. ,ç.k.d eWrd %q constitutes an .omptsble PJIFS sodci A Agency will generally interpret CERCLA.quallty RI/FS5 to be those that are provided for, or adopted by reference, In an IAC. The Agency believes-that such a policy Is consistent with CER(LA section 1W(eJ(1). which directs Federal facilities. in consultation with ‘A. ” to commence anRI/FSw lth lns lXmOflth softhe facility’s listing on the NFL In addition.. the policy will promote consistency In RI/FS.s , and will help Jo ensure that all appropriate Information jias been collected during the Rl !FS Ic that RI A may properly evaluat, remediaF alternatives at Federal facility sites-as required under CERQ.A section U0(eJ(4]. Further. by encouraging the development of lAGs at the early Rl/FS stage. tblà policy may help to promote coordination among the parties. and avoid InconsIstent actions. Thus, the lAG will generefly cotninit the Federal facility to complete both an Ru/FS and any subsequent remedial act londetezinlnedbyEPAt obe’ necessary. Once an RIlES his been commenced under (or Incorporated into) an lAG, EPAmustdeâlde whether or not to authorize PPPs to continue withany. non-WCLA remedial actions (both voluntary and State-ordered) at the site. This decision will be made on a case-by. case basis. faliI g into amount the status ot (LA activities at the site, and the potential for disruption of or conflict.with that work If the 1P.P action were authorized. IV. Response to Pt bflc Comments On May 13.1987(52 FR 17991). EPA solicited public comment on the Agency’s intention to adopts policy for Including eligible Federal facility sites on the NP!., even if they are also subject to RCRA corrective action authoritleE the Agency received six comments on the policy. EPA considered the comments raised. cud responds to them as follow.. Two of the six commenters concur with the policy to Indude eligible Federal facility sites on the NFL and have no suggested revisions or additional comments. One commenter “generally supports” the policy, but believes that the criteria used to list Federal facility sites are unclear. The commenter states that “as written. the proposed policy could be interpreted to mean that Federal hazardous (acilities would be placed on the NP!. regardless of their status under (RCRA1 or their degree of actual hazard.” In response. the commenter is correct. in co!uiuding that under th. ’ policy. Federal facility sites would be placed on the NP!. regardless of the facility’s status under RO A. As discussed above. this Is consistent with Congressional intent that Federal facility situ should be on the NFL. and that listing miterla should not be applied to Federal sites In i uninnér that Is snore exclusionary thsn for private sites. However, the commenter Is In nect In s eat1ng. that Federal facility sites will be listed regardless of the degree of hazard they present The Agency Intends to use the lOtS, the same atethod used for noc’ Federal sites. to determine whetbeta Federal facility site poses an actual or potential threat to health or the environment and, therefore, qualifies for the NFL (Currently, a site Is generally eligible for the NFL If the lOtSicore Is 28.50 or greater.) The application of the HitS to Federal facility sites Is. consistent with WCI& section 1Z )(4 wh lchrequ lresEPAtou setheHRS lfl evaluating for the NFL the facilities on the Federal Agency Hazardous Waste Compliance Docket. One commasterdid not comment on thepolicy.butratherist’OnClcuedthat no Superfwid monlesbe spent at Federal believes that neither pre-cemedlal work’ (prellndF°’y assesm . .ents and site Inspections) nor remedial work should be fiuzanced.by.the ’l ust Fund:. In response. ExecutiVe Order 12530(52 FR 2823. january *19873. at section 2(e). delegates the zespoualblllty’foe conducting most pre.temedlal work to the Federal agencies. Therefore, the Federal agencies, rather than the Trust Fund, finance these activities, with EPA providing overslghL In addition. section 111(e)(3) of a.A. as amended by SARA. strictly limits the use of the Fund for remedial actions at Federallyowned facilities. Although the M° ”strator does have the discretion to use. funds from the Hazardous Substances Superfund to pay for emergency removal actions for releases or threatened releases from Federal facilities, the concerned Executive Agency or department must reimburse the Fund for such costs. Executive Order 12580 , section 9(1). The Department of Defense and the Department of Energy also have response authority for emergency removals (Executive Order. section 2(d ) ). Mother commenler opposes the policy of placing RCRA.regulated Federal Facilities on the NP ! ., arguing that public notilication is adequately addressed by other provisions of (sectIons 12.0 (b) (c). and (d)). end that the policy is inconsistent with ‘uction iZOfel. which requires that ------- Federal Rngiater. / ifoL 54. No. .47 / Monday MarchJ3; j9 9 /Rrdès ‘and Regulations .. •1OS2 Federal facilities comply,with tCLA in the same manner as any flOfl8ov flin ea(at entity. The commenter believes that the adoption of the proposed policy Is inconsistent with EPA ’ , policy egardlng uon.Feder*l f dlitics. La Tesponse sections 120 (b). (cJ , and (d) refer to the establishment of the Federal Agency Hazardous WasteS Compliance Docket and to the evaluation of facilitie, on the docket for the NPL’ 4 The Agency agree. that this’ docket will provide the public with some Information regarding hazardous waste activitIes at Federal fadlitles, as.wdll as Iriformaflon concerning conf mIn.tIon of contiguous or .adjaceut property. The Agency believu..however. that evaluating sftes using the tillS. and, placing on the NP !. those aLte c that poe. the most serious problema ,.will serve to Inform the public of thèxelative hazard’ ‘of these sites. The listing process else. afford, the public the opportunity to’ examine-HRS documents and references (oi a particular site, and to comment on a proposed listing. in addition, the NPL provldesre ,ponaecategorjesend deanup.etatus codes for sites, and deletes sites when no further response Is required, adding to the Informational bene ts of using the NP!.. Therefore. E2P 1 believes that Ildtizzg Federal facility sites will advise the public of the statue’ of Federal governaent cleanup’efforts, as well as help Federal agende. ’set,’ ionties and fo utdeanup efforts’ou .ioâe sites that present the most sedbui problèm ’cang1stentw1th’the N P(So: R4 31.NovemberW.1 s)..: ‘A g to the ‘ wment concerning’ - CLA section 120(a ). EPA agrees that the section provIde, that Federally-. owned facilities are subject to and must comply with CLA to the same .exten( as any nougovernnientaj entity. - Further, sections 120(a)(Z) and 120(d) provide that EPA should use the same rules and iterla to evaluate Federal sites [ or the NPL as are applied to private sites. However, today’s policy La not Inconsistent with those sections, As a threshold matter, It La uncoutrayerted that an flitS score of 28.50 or greater Is en eligibility requirement for both Federal and private sItes. The question ‘Pwiuini to ..cdon tZ c ef a ,* , published he Federal Agency Kawdou. Waste Co plianc . Dodiat on F.b,uezy 12. ion (53 FR tzmj ‘Tb. docket a eateblighed bued. Igfar gtjon ibnfttod by Federal sgcadee to A ondar scc ona 3 3010, sad 30T0 of RQTA sad noder a.c oo 1c3 docket serve, to ldeatlfy Federul fa Iij.a that mug( be ,v ,last,d Lu accurdiac, wfth QA acUou 130(d) to dsIemzIa. If they pon. a u .k to public b..Jtb sod ha vtivan ent, Se oa 120(d) requIre. A to ceajuate fadlid.. on the docket uliag the I S for po .aibI e 1g cJu .ioa oath, NPL is, should NPL-ellgible Federal sites be’. deferred (rent llsting’es -a mutter of policy. As explained above, the Agency does not believe that aJt section 1Z0(a)(2) can be read to require identical treatment of Federal and private sites In all drcumstances the fact that Congress legislated a number of requirements In. addition to. or’instead oI those applicable to private facilities (e.g., sections 120(c), (e)(2J, (h)), demonstrates the leglsIators recognition of the need to addreu certain unique aspects of Federal facilities differently. than for prIvate sites. Rather. EPA Interprets A section 1 2 0(a) to’ mean thAt the afterma to list Federal,. facility sites should not be mpre exd” Ionszy than the cafteda to list non- Federal sltes.irrthls case, It Isalear that If EPA were toapply the non.Federal: RQtA deferred llstla g policy to Federal.’ facilities, very few Federal sites would bç considered for the NPLcounter to.. the spirit and intent of section .(c) sad (d)’af. OA and the statute’s legislative history. Moreov r ’rone of the ey factor, In EPA’. declslouto adapt a RQtA deferral policy for private gites.- the needto mannge süd ‘conserve Fund resouràs—doesiiot apply to Federal - facilities because the remedies arenot’ VUnd.&ianced, EPA believe. thaUt Is. apyiv)iriate, and gousistent with Congriessfonallatent,,to tak, these ‘difference, Into account,aa lông as the result Is not to treat Federal agencies In a more ex duaioaazy mannerithan - private facilities, Two commenters expressed concern that listing Federal facility site, might. Interfere with enforcement activities’ under RQ 1A .One commenter stated that the policy.La Inconsistent with C CLA section 1 2 0 (I ). which requires that Federal facilities comply with all’ RC A requirements. in response, the Agency’s view Is that’ today’. policy will facilitate enforcement activities at Federulfadility site,, not Interfere with theta. In effect, by encouraging the drafting ot comprehensiv, lAGs for Federal facilities, this policy will advance the goal of site remed1atioa, In *ddltion, the LAG process allows EPA to take steps to avoid duplicatloa.and conflict the LAG may define areas o( a Federal facility that may effidently be addressed under ROtA (e.g.. unit, that are distinct from, and do not disrupt, CLA activities). La addition, States will be encouraged to become signatory pasties to lAGs, reducing the likelihood of lntezgovcrnmenta l conflict over jurisdiction and the selection of remedy. in any event. It I. not the act o [ placing a site on the NPL that acates a S,oteatial conflict between C a.Aahd R0t1¼ rather,’the corrective actlod - authoritie, of the two statute. overIa ,’ pursuant to statutgiy4eslgn. indeed, the ailegcd Latezfe nce vvlth ROtA corrective actions by CLA desnupá can oemr at any point Lathe roosss, ’. depending upon the spedflc facts ôf ’the case, In those cases whers’the relevant’ statutes do overlap EPA believes that - one of the statutes mustaonietfw.esbe. chosen for practical ruons . and Congress has set out a procedure (or resolving suck conflicts In O .A section 12 eflOj .” However, the gail of today’s policy Is to any suds conflicts through the LAG prooçss . :t’ .The Agency acknowledges that laths. case of Federal fadlit les..l lstlng does have a significance not prüent for private sites. For lna °’#,e_ Q.A’ - section 120(e)(2) provides that for Federal facility sites on thu NPL. EPA’ will plays role ln’selbctlnE remedies, while O ,A sectlonl20(afl4) pmvides.that State laws concerning. removal and remedial aceti . shall’ apply to Federal facilities when such - facilities are not on the NPL (the section :loe, ot dlsurss how State. aws’appIy at Federal s ltes.’that are on the NP!.).. However.’any diffexence ’In EPA or State roles at NP!. eznus non-NP!. Fedeial .fadlity sites tesultsfront:the statutory stheme reflected In OtRO .A sections 120(a)(4)’andlZi(dJ, arid not from thb ad of listing Itselt, QA directs EPA- to list Federal sItesoaiheNPL and then specifies certain statutory: consequence. - Further, merely alleging that there may be some effect on State ‘enforcement actiond as a result o [ a, policy of Including Federal facilities on: the NP!. ii not grounds for rejecting today’s policy. The Agency has’ reviewed both sides of the question, and has determined that It Is Lathe best Interest of the public and environmental protection to place Federal facility sites on the tJPL and thus to make CLA authorities available to achieve comprehensive remedies for contamination at suds sites (when appropriate). In addition, the lAG process, as discussed In this policy,,wilL serve to minimize duplication and inconsistency with potential State order,. Sift I. Ipoutsni to nato dust the .ec on 124e )(s ) •sduodaatioo unqalrewatu at Federal Isdilde. taunt aiggered su low.ticaUy by NrLII.th 5 . but rather take. cIted .b, ..aiirs bc. been Initiated ate. hued Federal alic as a cuatter of palky, d ii. . 1st’’ uppo L utIorthsPilFUootb .rea,g alaed t o oeI cain. audi so enforceable lAG baa been atgncd w!ilcla way be well alict • alit a haled. ------- i056 Federal RcgLstor / Vol. 54, No. 47 / Monday. March 13. 1909 / fluke und.P.cgulalions A also disagree, with the cammenter’ , suggestion that today’. po” (nconaliten( with CLA 13 (1 ). whIch provide, that jt this section (1 fl shall affect .mp.(r the obligation of any department. agency, or kutrumeutality of the Ual ted State. tocouiply with any requirement of the Solid Waste Disposal t (RQtAJ (Induding corrective action requlrasnents). Alnterpretz that section .lsnpl7 to mean that section 1 does not Impair otherwise applicable R( tA req ilre.ients thi. mandate Is met .even If en action ls.cou.duct.d det (ZRa.A. as section IZ1(d)(Z) specifically provides that ARARs of: RQLA and State law must be achieved with regard to any ou.rslta remedy. Even IfaROtAorSthterequ lreisientthat ls an AltAR is waived by ‘A (section 121(dJ(4J), the State may obtain judicial review of sudi a walvet and even If unsuccessfuL way requite that the remedial action conform to the requirement La question by paying the additional costs of meeting such atandatd (CERCLA section 121(1)(3fl.. thus, the Intent of section t (1) Is satisfied , This Intezpretatlois of ,ectioo1 3(fl follow. directly form ths Iaimgua e of the- •provtsloáltselL which state. that. “uotlz1 g miLls uectldn”—u cdmpared’ to?noth lng lnt ldsAct%-chsflaffed RQ1A obilgatioas lids leave. La place: lImItatIons contilned In other sections of the statute such a. the puudt waiver provision (section 121(eJ) the ‘pieces I (or selecting and waIving ARAR. (section. 221 (d)(23 and (dUll): and the ban on remedial actions not approved by the Preudemit (section 122(e)(Gfl. For all these reasons, the Agency believes that today’s Federal (adilUes listing policy is appropriate, that It reflects Congressional Intent, and that It is consistent with QA. Purauanttothepolicydeseribed ln. ihis notice, the Agency will place. .eliglble Federal fadfltyofteson the.NPI. even LI the site Is also .ub ect to-the corrective action authoritIes of Sqbtltle CöfRO A.. D.t P4.,dul. iasa the. LCmuoa ,: AMioc rOfflcióf Solid Woss.amd&mog.r cyR.çbora.. eo .ses o4 e.sa j sajeis 000C = ------- (o Sr . ., UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 \ JIlL 111990 SOUO WASTE AND EMERGENCY RESPONSE MEMORANDUM SUBJECT:. Requirements for Cleanup of Fi al NPL Sites Under RCRA FROM: Don R. Clay c- .--- iZ. Assistant Administrator TO: Stephen R. Wassersug, Director Hazardous Waste Management Division Marcia Mulkey, Regional Counpel Office of Regional Counsel In your memorandum of May 16, 1990, you requested guidance on the applicability of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) to the final National Priorities List (NPL) sites being addressed pursuant to R RA corrective action authorities. Specifically, you question whether the KCP mandates, for sites being addressed under RCRA, specific cleanup procedures and deletion criteria for site cleanup and ultimate removal from the NPL which are not requirements of RcRA 3008 (Ii). You are concerned that a site that is considered by RcRA to be remediated, may not be able to be removed from the NPL due to a failure to address an administrative or procedural NCP requirement. Your memo refers to language in the proposed NCP which states that “it is appropriate to apply different and more stringent criteria in actions to delete based on deferral to other authorities.” it also mentions examples of NCP requirements (e.g., the ROD must detail how the selected remedy attains ARARs and utilizes permanent solutions; a five—year review of remedial actions is required if hazardous substances remain at the site above certain levels; and’State involvement requirements must be met) which are not required by RCRA Section 3008(h) actions. In response to your inquiry, it should first be noted that the final NCP states that EPA “has the discretion to use its authorities under CERCLA, RCRA or both to accomplish appropriate cleanup at a site, even where the site is listed on the NPL.”- 55 FR 8698 (March 8, 1990). See also 54 FR 41009 (Oct. 4, 1989). Thus the Agency has clearly stated that RCRA authorities may be used at NPL sites. ------- —2— Second, the “different” and “more stringent” criteria you referred to from the proposed NCP related to deletion of final NPL sites “based on deferral” to another authority. 53 FR 51421 (Dec. 21, 1988). That draft policy has not been adopted by the Agency, and therefore, the preamble language is irrelevant. The criterion that must be met hefore a site on the final NPL is deleted is that “no further response (at that site] is appropriate.” 40 CFR 300.425(e) (55 FR 8845, March 8, 1990). Where a remedial action haà been carried out under RCRA and there is no significant threat to public health or the environment, a CERCLA response should not be necessary. (See 40 ER- 300.425(e)(l)(iii)). In effect, vhere the RçBkp ogram takes action at an NPL site, the CERCL program imply delay ’ the start—up of its Remedial Investigation/Feasibility Study (RI/FS) site assessment process, in order not to interfere with or duplicate the ongoing RCRA work. When the RCRA remedy is complete, the Agency will do an abbreviated RI (incorporating by reference in most cases, information from the RCRA cleanup) and make a determination of whether any CERCLA action is required. The Agency expects t at sites cleaned up under RCRA corrective action would be considered “no action” sites under CERCLL The finding of no action should be set out in a close-out report in preparation for deletion from the NPL. The site close- out report should include appropriate documentation on the R RA action (and any other action at the site under RCRA or cERCLA), and a finding that no further action under CERCLA is warranted for any of the units and areas of contamination. Site deletion can proceed when all necessary response actions have been completed. For more information, refer to the April 1989 OSWER Directive 9320.2-3A entitled “Procedures for Deletion and Completion of NPL Sites.” - You also asked whether actions taken under RCRA section 3008(h) at an NPL site must meet NCP requirements for remedy selection. Because no CERCLA remedy is being selected in a R RA corrective actior3 situation, the remedy selection requirements in CERCLA Section 121 and NCP Section 300.430 do not have to be met in order to delete the site from the NPL. Therefore, the requirements of a ROD —— for example, that it’ detail how the remedy will attain ARARs and utilize permanent solutions —— do not apply to RCRA activities at NPL sites. In addition, the formal State involvement discussed in Subpart F of the NCP does not apply to RCRA activities at NPL sites although the 3008(h) order should allow States to be kept informed of the progress of the RCRA corrective action activities, and include some type of State review of workplan submittals. ------- —3— It should also be noted that State concurrence and public participation are required prior to the deletion of all NPL sites, even if much of the site was addressed under RCRA corrective action authorities. NCP Section 300.425(e) (2) (4) (55 FR 884 ,5 ’). ‘V With regard to the five year reviews under CERCIA, these reviews are required only at sites where a CERCL remedy has been selected and thus would not apply to sites where no action is taken under CERCL (e.g., RCRA corrective action sites). However, as a matter of policy, the Agency may decide to include in the CERCLA five-year review program no-action NPL sites where RCRA corrective action has occurred and hazardous substances remain on site above levels that allow for *rnrestricted use and unlimited exposure. The Agency is presently considering whether five-year review would be appropriate at NPL sites where monitoring is already being conducted inder a RCRA post—closure permit. If you have any questions regarding these issues, please call Nancy Parkinson, OWPE, at 475-8729 or Larry Starfield, OGC, at 245—3598. cc: Hazardous Waste Division Directors, Regions I, II, IV—X Regional Counsels, Regions I, II, IV-X ------- 9476.1992(02) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 OFFICE OF DEC 2 I 1992 SOLID WASrE AND EP. ERG CV RESPONSE Mr. Allen 14. Carton Deputy Director Directorate of Military Programs u.s. Army Corps of Engineers Department of the Army Washington D.C. 20314—1000 Dear Mr. Carton: This letter responds to your request of October 1, 1992 for clarification of the ability of the U.S. Army Corps of Engineers to perform engineering services for federal agencies, including the De .er ..r.ant of the Army. More specifically, you asked two questions related to the requirement that “independent, registered, certified engineers” certify that a hazardous waste management unit has been closed in accordance with the approved closure plan as required by EPA’s regulations implementing the Resource Conservation and Recovery Act (RCRA). You first asked whether an authorized state can interpret the regulatory language “independent, certified, professional engineer”, found at 40 CFR sections 264.115 and 265.12.5, to require that the professional engineers be registered in the state where the hazardous waste facility that they are inspecting is located. You noted that different authorized states have different interpretations of this phrase. You further pointed out that the language does not appear to specify where the engineer must be registered. You request EPA’S interpretation of the phrase as it applies to the Corps. We agree that the regulatory language of sections 264.115 and 265.115 on its face does not require engineers to be r istered in the state where the hazardous waste management t acility is located. However, if that same regulatory language is adopted by a state and becomes part of that state’s authorized RCRA program, the state would be free to interpret this regulatory language to have a more stringent effect than the federal interpretation. Therefore, if an authorized state interprets the registration requirement to require registration within the state, the Army Corps of Engineers must comply with such a requirement. The second issue concerned the regulatory requirement that certification of compliance be performed by an “independent” ------- professional engineer. You ask if a professional engineer in the Army Corps of Engineers would meet the criterion of “independent” when performing work for another federal agency or for the U.S. Army. The attached December 15, 1987 memorandum entitled “Hazardous Waste Tank Regulation Clarification” addressed this issue. That memorandum responded to an inquiry by the Utah Bureau of Solid and Hazardous Waste concerning whether an engineer in the Army Corps of Engineers would meet the criteria for an independent, qualified, professional engineer for purposes of assessments, installation, and/or testing for Army facilities. There, the Agency determined that the Corps was considered a separate entity from the Army, and, as such, the Corps could provide the needed certifications. Because this 1987 determination is applicable to the instant situation, an engineer in the Corps would be able to certify compliance with RCR regulations for a federal facility, other than one under the c....rect command of the Corps of Engiz eers. If you have any questions concerning these responses, or would like to discuss the issues further, please contact Tina Kaneen of the Office of General Counsel (202 260—7713) or Jeff Schwartz of the Permits and State Programs Division (703 308- 8627). Attachment ------- 9476.1993(01) ,ø I14, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON. D.C. 20460 4 , o%# OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE MAY 2 8 I9 Mr. Benito J. Garcia Bureau Chief Hazardous and Radioactive Xateriala Bureau New Mexico Environment Department Harold Runnels Building 1190 st. Francis Drive, P.O. BoX 26110 Santa Fe, New Mexico 87502 Dear Mr. Garcia: This responds to your letter of December 14, 1992, to DevereauX Barnes, requesting clarification of RCRA regulations related to closure of hazardous waste management facilities. specificallYs you noted that there is a minor difference between the wording of section 264.112(b)(3), which applies to permitted facilities, and the analogous provision applicable to interim status facilities, section 265.112(b)(3). ‘iou expressed concern that a literal reading of these provisions would result in less stringent management of hazardous wastes at permitted facilities than at interim statue facilities, and asked whether the difference in wording was an unintended omission. Section 264..1l2(b)(3) requires that closure plans of permitted facilities provide ‘1...identifiCatiOfl of the type(s) of the off-site hazardous waste management units to be used....” However, section 265.112(b) (3) requires interim status closure plans to include the ...identifiCati0fl of the types(s) of off-site hazardous waste management unit(s) to be used....” As you noted in your letter, the result of thi. difference is that owners and operators of facilities seeking a permit are required to identify only the type of off-site unit that will manage waste removed from the unit at the time of closute, whereas interim status facilities must identify the specific off-site unit that will be used. we believe that this distinction in the regulations is reasonable because of the difference between the timing of closure plan submittal for owners and operators of interim status units and owners and operators seeking a permit. Owners and operators of interim status units are not required to submit closure plans to the Agency until immediately prior to closure ( g section 265.112(d)). Facilities seeking a permit, on the Printed on Recycled Paper ------- 2 other hand, must submit a closure plan as part of the permit application, which is typically submitted many years prior to closure. In the case of an interim status unit, where closure is imminent, the owner or operator can reasonably be expected to know the specific destination for the waste, whereas an owner or operator seeking a permit will typically be unable to identify a specific unit that will be available 10 or more years in the future. The explanation above, of course, reflects EPA’s interpretation of the Federal RCRA regulations. As you know, authorized States may have more stringent requirements. If you have any questions concerning this response, please contact Barbara Foster of the Permits and State Programs Division at (703) 308—7057. Sincerely, L Sylvia K. Lowrance, Director ice of Solid Waste ------- 9476.1993( 02) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON, D.C. 20460 JUN —4 I9 OFFICEOF SOLID WASTE AP1O EMERGENCY RESPONSE Ms. Joan Z. Bernstein Vice President of Environmental Policy and Ethical Standards Waste Management, Inc. 3003 Butterfield Road Oak Brook, Illinois 60521 Dear Ms. Bernstein: This letter responds to your request of March 26, 1992, for clarification c. ::;uiremeflts in 40 CFR 264.115 and 265.115 related to certification of closure by an independent registered professional engineer. Specifically, you asked whether a registered professional engineer employed by a subsidiary can provide an “independent” certification of closure for its parent firm within the meaning of those sections. As your letter indicated, the Agency has interpreted the requirement that engineers be independent in two preamble discussinr 1 . The preamble to a 1986 final rule promulgating standards for closure established the principle that the engineer certifying the closure of a hazardous waste unit must be someone who is “least subject to conscious or subconscious pressure” to certify inaccurately ( g 51 FR 16433, May 2, 1986). The preamble to a 1986 rule promulgating standards applicable to tanks established that an engineer employed by the owner or operator of the hazardous waste unit cannot be considered independent ( see 51 FR 25445—46, July 14, 1986). Applying these principles to situations involving parent/subsidiarY relationships between the company receiving and the company providing certification, EPA believes the independence of the certifying engineer may be affected in some cases but not in others. We do not belie that a parent company typically has the means to compromise the independence of the engineer in situations where the company that employs the engineer is a less than ma ority-owfled subsidiarY. 1 According to SEC regulations, the term “majority owned subsidiary” means, “a subsidiary more than 50% of whose outstanding voting shares is owned by the subsidiary’s parent and/or one or more of the parent’s other majority-owned subsidiaries” ( See 17 CFR 210.1—02). Pnnted on Recycled Paper ------- However, we do believe that the certifying engineer’s independence may be affected in cases where the employer of the certifying engineer is a majority owned subsidiary of the company receiving certification —— but not in all such cases. specifically, we believe that the engineer may be considered independent in majority ownership situations if the following criteria are met. First, the certifying company must offer its certification servic s o . on-affiliated companies (i.e., its closure certification services cannot be limited to companies within the corporate family). The fact that a company is actively solicited by and provides the same certification services to non—affiliated companiPS helps to establish the expertise, integrity, and objectivity of the certifying engineer. Second, the management of the facility beiny certified and that of the certifying engineer must exist and operate separately of each other such that the engineer is completely free of any reporting obligation to the management of the facility for which he or she is providing certification and that management is not responsible for the engineer’s compensation. The absence of any managerial link between the two entities is essential to the certifying engineer’s ability to act independently. The Agency believes that these two conditions are both necessary and sufficient to ensure the engineer’s independence in majority ownership situations. In summary, EPA interprets the language in section 264.115 and 265.115 to mean that an engineer employed by a less than majority owned subsidiary may certify closure of a unit owned or operated by its parent company. In majority ownership situations, the engineer may be considered independent if the aforementioned criteria are met. I hope that this information is adequate to guide you in deciding on a case-by—case basis whether it is appropriate to use the services of registered professional engineers. If you would like to discuss this issue further or have questions on how this policy applies to your specific situation, please contact Tina Kaneen of the Office of General Counsel (202 260—7713) or Becky Daiss of the Permits and State Programs Division (703 308—7057). Sincerely Yours, , __) /24 I) s ’1via iç4 Loy ance, Director ffice’& s& id Waste ------- MONTHLY HOTLINE REPORT February 1997 9476.1997(01) 2. Delay of Closure Owners or operators of permitted an interim status treatment storage, and disposal facilities (TSDFs) must comply with the facility closure standards in 40 CFR Parts 264/265, Subpart G, and the spec f Ic standards applicable to the unit in which they are managing hazardous waste. These closure standards require owners or operators to treat, remove from the unit or facility, or dispose of on site all hazardous waste in accordance with the approved closure plan within 90 days after receiving the final volume of hazardous waste or within 90 days after approval of the closure plan, whichever is later ( 264/265.113(a)). Owners or operators of suiface impoundments, landfills, and land treatment units can delay the closure timetable beyond the 90 day period and allow the units to accept nonhazardous waste, provided they meet conditions in §. 264/ 265.113(d). Can owners or operators of tanks, container storage areas, waste piles, or incinerators at permitted or interim status TSDFs delay closure in this manner as well? No. The delay of closure provisions of § 264/265.1 13(d) are limited to landfills, surface impoundments, and land treatment units. Owners or operators of tanks, containers, waste piles, and incinerators are not allowed to delay closure and accept only nonhazardous waste in such units (54 ER 33381; August 14, 1989). In order for these units to accept nonbazardous waste after the last shipment of hazardous waste has been received, the owner or operator must first comply with all applicable closure standards including removing and decontaminating all contaminated equipment, soils, and structures. These closure standards are compatible with the futurç use of such units, and closing them before receiving nonhazardous waste should not place an undue burden on owners or operators (54 ER 33381; August 14, 1989). ------- This Page Intentionally Left Blank ------- Financial Responsibility Requirements (Subpart H) s . ------- 9477 - FINANCIAL RESPONSIBILITY REQUIREMENTS Parts 264 & 265 Subpart H ATKI/1104/38 kp ------- OSWER POLICY DIRECTIVE 9477.OO—5 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON D.C. 20460 NOV 23 OFFICE OF SOLID WASTE AND EMEqOENCY REspoNsE MEMORANDUM SUBJECT: Risk Retention Groups and-fl aitçjal As,surance II FROM: Marcia E. Williams, Director Office of Solid Waste ( S TO: Waste Management Division irectors, Regions I-X Attached for your information is a letter from Bruce Weddle, Director of the Permits and State Programs Division, to Harry Shuford of the Environmental Protection Insurance Company confirming that risk retention groups may qualify to issue liability insurance policies under RCRA regulations. As the letter states, policies issued by risk retention groups would satisfy the RCRA requirements if the group was licensed to transact business in one or more states, and if the policy otherwise met the RCRA financial assurance requirements. Because the question of whether policies issued by risk retention groups can be used to satisfy RCRA financial assurance requirements has been raised in a number of states, I ask that you forward this letter to the RCRA financial assurance contacts in each of your states. If you have any questions on the letter )lease contact Matt Hale (382—4740) or Margaret Schneider (382—4696) - my staff. Attachment CC: Gene Lucero ------- OSWEP. POLLCY DIRECTLVE ‘9477.C 9477.00—5 UNITED STATES ENVIRONMENTAL PROTECTION AGE?._. WASHINGTON. D.C. 20460 OV JQk . OFPICE OP SOLID WASPE AND EMERGENCY MESPONS, Harry Shuford Environmental Protection Insurance Company 220 E. 42nd Street, Suite 500 New York, NY 10017 Dear Mr. Shuford: - I am writing you, at Robert F. Schiff’s request, in response to Mr. Schiff’s letter of Movember 2, 1987 to the EPA Off ice of Solid Waste. In his inquiry, Mr. Schiff sought our view of whether the Resource Conservation and Recovery Act (RCRA) requirements that hazardous waste management facilities demonstrate financial assurance for liability can be satisfied by a policy issued by a risk retention group. The RCRA regulations at 40 CFR Subpart H require, in part, that to satisfy the financial assurance requirements, an insurance policy must be issued by an insurer licensed to transact business in one or more states (40 CFR 264.147(a) (l)(ii), (b)(1)(ii) and 265.147(a)(1)(ii), (b)(1.)(ii) ). Arisk retention group which meets the requirements of the Risk Retention Act of 1986 and whictt is licensed to transact the business of insurance in at least one state would satisfy this regulatory requirement. Your letter indicates that the Environmental Protection Insurance Company (EPIC) has met these conditions. Accordingly, policies issued by EPIC in conformance with all other requirements of Subpart H could be used to satisfy the Federal RCRA requirements for liability coverage, or the requirements of an authorized state tha adopted the Federal regulatory language. I should add, however, that compliance with Federal requirements may not be sufficient to fulfiLl state requirements. State RCPA requirements may . e more stringent than the Federal requirements. In states aithorized to ------- L OLIC? DIRECTIVE •9477.30—5 2 administer the RCRA program, therefore, state regulations must be examined to determine whether your specific meChanisn satisfies the RCRA financial assurance requirements and is otherwise consistent with state law. Sincerely, Bruce R. Weddle Director Permits and State Division CC: Robert F. Schiff RCRA Waste Management Division Directors, Region I-X ------- OSUER POLICY DIRECTIVE #9477.00—5 WEuJ’o . WEGiAN & Ho r I,Ot PCNNUy .vap AV(NIJC. N.W. su rc oa WAIWINOTOPI, D.C. 20001 (203) 771.0300 .. * m*N ø*ULI. q0P W*SLIØN ?NOt.A. N JOMN I&CPI• JAM I 0 AL AONI •c•cl? r 1CMI rS TO N IYIAMO November 2, 1987 VIA SAND DEL IVERY Mr. Matthew Hale Chief, Permits Branch Office of Solid Waste Environmental Protection Agency Room 2818 3, 401 M Street, S.W. Washington, D.C. 20460 Re: Environmental Protection Insurance Company——Risk Retention Group (EPIC) Dear Mr. Hale: Following our telephone discussion, I am writing to request your opinion that the Environmental Protection Insurance Company (EPIC) qualifies under federal regula- tions to provide Resource Conservation and Recovery Act (RCRA’) insurance, As you know, EPIC is in the final stages of raising the necessary capital to begin operations. In order to assure potential investors that an EPIC policy will allow them to satisfy state financial responsibility req.irements, EPIC is nov discussing those requirements with ind ridual state environmental regulators. A concern somet es raised in these discussions is whether EPA’s regulat ons under RCRA can be satisfied by a policy issued by a risk retention group such as EPIC. Of particular relevance are the regula- tions located at 40 C.F.R. SS 264.147(a)(1)(jj), (b)(l)(ii) and 265(a)(l)(Li), (b)(l)(ii). ------- OSWER POLICY DIRECTIVE #9477.00-5 WET.J..yO I. WEGM . & HoFF Page 2 EPIC is licensed as an insurance carrier in the state of Illinois. Pursuant tO the Liability Risk Retention Act of 1986, it has filed as a risk retention group in all 50 states. EPIC intends to comply with all RCRA regulations for liability coverage. Based on the foregoing, please inform us whether, in EPA’S view, EPIC can provide RCRA insurance to hazardous waste facility owners and operators. We would appreciate your transmitting your response to the appropriate EPA Regional offices, and through them to state representatives. Thank you for your prompt attention to this matter. Sincerely, Robert F. Schi 1 f ------- PL K OSWER DIRECrEVE * 9477.00-6 ( ‘ I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON D.C. 20460 - 23 NOV 87 OFFICE 0$ SOUD WASTE ANO EMERGENCY RESPON5 StIIJECT: Guidanc. for Reviewing Exclusions for Pre.Exiscing Conditions-in RcRA TSDF Insurance Policies FROM: Marcia Williams, Director, Office of Solid Waste TO: Regional Waste Management Division Directors, Regions E-X Under 40 CFR Parts 264 and 265 Subpart H, owners and operators of RcRA trea enr, storage and disposal facilities (TSDFs) may use insurance policies to meet RCPA requirements for financial assurance for third-party property and bodily injury Insuranc, policy language generally begins with bread coverage for damages, which is modified through the us. of inserted exclusions to limit the scope of the policy coverage. Because insurance is intended to cover only possible future events, policies typically have exclusions limiting th. insurer’s coverage of releases which occurred prier to the start of the policy. Such “prs-existing conditions ” exclusions ar. acceptabl. provided that they do nor so limit a policy that it no Longer provides the coverage required by Subpart H. While the Agency recognizes that it is inappropriate to expect insurance to be provided to cover ‘tamag. that is certain to occur or that has already occurred, it does expect policies to cover future conditions whose incidence is uncertain. This guidance describes acceptable pre-existing conditions exclusions based on the Agency’s interpretation of the Subtitle C regulations. On April 16, 1912 (47 L6554), EPA promulgated regulations to require owners and operators of TSDFi to provide financial, assurance for third-parry compensation for bodily injury and property damage caused by accidental occurrences arising from facility operations. Such ‘uiags should be “neither expected nor intended” by th. owner or operator of the facility (40 CFR 264.141(g) and 265.161(g)). While the regulation defines accidental occurrence and other key terms, it also provides that these definitions “are not intended to Limit their meanings in a way that conflicts with general insurance industry usage.” but ------- 2 rather are intended to “be consistent with their coori meanings zithin the insurance industry.” Also, the defihicions of bodily injury and property damage would “not include those liabilities which, consistent with standard industry practices, are excluded from coverage” (40 CFR 264.141 (g) and 265.141(g)). Specific guidance on what constitutes industry practices was not deemed necessary in 1982. Of late, however, it has become difficult to define standard industry practice regarding exclusions. In response to court decisions that interpreted policy language in a matner that expanded the coverage intended by insurers, some insurers have tried to clarify the coverage by modifying their pre-existing conditions exclusions. A variety of such modified exclusions have been developed, some of which are inconsistent with the accidental occurrence definition in §26 4 .141(g). This guidance is intended to assist in determining which exclusions are permissible under current regulations. flDANCK AcceDteble Exclusions The range of pre-existing conditions exclusions can be divided into broad and narrow exclusions. Broad exclusions are usually part of the basic policy language used by an insurer, while narrow exclusions are added to specific policies as endorsements to limit the scope of the basic policy for a particular insured. The Agency reviewed a variety of both types of exclusions and identified acceptable Language for both. This guidance describes and provides examples of that Language. Broad Exciusfots Broad pre-existing conditions exclusions are “g.neric exclusions applicable to all facilities covered by a particular type of policy. Such exclusions generally apply to a specific type of occurrence (e.g., a pollution incident known or expected by the insured or a release occurring prior to the policy’s effectiv, date) or a particular type of d*i *ge (e.g., contamination of gro md water). Psraissible breed exclusions may allow the insurer to limit its liability for current and certain &am*ges present at the start of the policy. Policies that make clear that pre-exiscing conditions (releases likely to result in damages) must be known or reasonably foreseeable to the owner/operator would be acceptable. The Agency has determined that the following provide examples of acceptable broad pre-existing conditions exclusions: “Insurance does not apply where the insured knew or could have reasonably foreseen that claims would result.” ------- 3 “Insurance will pay on behalf of the insured ... provided always that the claim is made during the policy period and that the insured as of the ‘First Coverage Date’ did not know or might not have reasonably foreseen that such a claim would result.” “The policy will pay on behalf of the insured for dimaages caused by an occurrence . .. .“ with occurrence defined as “a happening resulting in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” ‘The insurance does not apply to ‘ 4 amages arising from any environmental impairment chat was known or should have been known to the insured prior to the original policy inception date.” “This insurance does not apply to ‘bodily injury,’ ‘property d *ge’ or ‘environmental dini*ge’ expected or intended from the standpoint of the insured.” “I tsurance does not apply to damages from a release that the insured knew or could reasonably have known had occurred.” The language in these examples is specific enougI to provide guidance to insurers and is consistent with the intent of the definition of accidental occurrence in its focus on whether dai. ge, rather than a release, was expected or intended, or on whether the impairment was known or should have been known. These exclusions are also consistent with industry practice since they are now used by some insurers. The following sample language is representative of unacceptable broad exclusions: “This insurance does not apply to releases either expected or intended by the insured.” “This insurance does not apply to groundwater contamination.” The first example, by .xc].uditig a release “expected” by the insured, could severely Limit coverage because any releases from hazardous waste facilities could bs deemed “expected” by th. very nature of the materials involved. The second ev ple specifically excludes, in a blanket fashion, a particular type of damage and therefore would be incbnsisc.nc with Subtitle C regulations. Narrw £xeluaieiis Narrow exclusions are coverage exclusions for d- ”ges related to a specific problem at a specific facility. Such exclusions may be written for a particular area of contamination (e.g., contamination from waste unit X) or for a particular type of 4 tm ge at a specific faciLity (e.g., groundwater contamination at facility A). Narrow excL asions are generally added, in an ------- 4 accompanying endorsement, to the basic policy’s broad exclusions and are thtend.d to tailor the policy to a specific facility. Narrow exclusions should be specific enough to prevent excessive Limitations of policy coverage. A narrow exclusion should be described so that there appears to be a basis for the exclusion (i.e., damage must be expected from a known, actual release). To ensure that such a basis exists, narrow exclusions should refer to a facility assessment t that identifies the threatening contamination. An acceptable exclusion should include a description of the media, type of contamination, and specific Location involved. Thus, such exclusions should specifically indicate a current and reasonable belief chat d ge has occurred or is likely to occur. Given this need for specificity, the Agency has identified the following sample language as representative of acceptable narrow exclusions: “All claims and costs resulting from a) groundwater contamination as identified in the facility assessment dated XX/XX/87 (or) b) groundwater contamination by light and gross hydrocarbons as identified in the facility assessment dated /XX/87 (or) c) contamination arising from a release at unit A and identified in the facility assessment dated U/XX/87 at facility XYZ in Smalitown, Any State, are not covered by this policy. These types of exclusions specifically and clearly identify particular known existing problems constituting current and certain - i. a., known or expected • - dampges that an insurer should not be required to cover. teas specific language. or language excluding certain I 4 am ges from coverags des to facility conditions causing insurers to suspect, rather than know, char. baa been or vii]. be a release, ar. unacceptable. There should be clear evidence chat a pra-exisUng condition in fact exists that has a reasonabl. likelihood of resulting in damage. The Agency reviewed, and found A facility assessment is similar a CERCLA preliminary assessment or the preliminary review portion of the RCRA facility assessment. It is generally based on a ssarch of the files of the facility and regulating agencies, and a windshield site review. The format for assessments will vary, and we are not suggesting that any specific format is required. It is also not necessary to review these assessments. ------- 5 unacceptable, the following language: “All claims and costs resulting from a) groundwater Contamination (or] b) groundwater contamination by light and gross hydrocarbons at facility XYZ in Smalitown, Any State, are not Covered by this policy.” These exclusions are insufficiently narrow to justify an exclusion of a pre- existing condition. They could be interpreted to exclude all groundwater dani ge, even that initially occurring during the policy period. The coverage provided would thus be too limited to meet the H264.141(g) and 26 S.l4l(g) definition of accidental occurrence. ton Current regulations (40 CFR 264.147 and 265.147) require the owner or operator of a RCRA TSDF to submit a signed duplicate of the Hazardous Waste Liability Endorsement or Certificate of Liability Insurance to the appropriate EPA Regional Administrator(s). These certificates and endorsements state only that coverage is provided in a particular amount and do not reveal specific policy terms or endorsements. Therefore, to implement this guidance, EPA or the authorized State should review the pre-existing conditions exclusions of the policies being used to demonstrate financial assurance. Such a review should routinely include the following steps: 1) Endorsements relating to pollution coverage should be routinely requested. Any endorsements adding narrow exclusions for pta-existing conditions should be reviewed to determine if the exclusions are acceptable based on the criteria described above. 2) If the narrow exclusions are determined to be unacceptable, the owner/operator should be notified, so that it can seek an acceptable policy (enforcement action may also be determined to be appropriate). 3) If reason for broader concern arises the Regional Administrator or State may request signed copies of liability policies from owners/operators (this authority is granted under U264.147(a)(l)(j) and (b)(l)(j) and 265.147(a)(].)(L) and (b)(l)(L)). 4) Periodically, a review of selected basic policy language should be undertaken to determine if its ------- 6 broad pre-existing conditions exclusion is acceptable based on the criteria described above. Apart from the acceptability of any narrow exclusions, their presence in a policy may signal. a need for corrective action at the facility. In some cases, the need for corrective action will already have been determined by EPA because exclusions are often written based on records from the RCRA permitting and inceri stacu.s programs. However, if a review of narrow exclusions indicates a potential need for corrective action, the following is applicable: 5) Appropriate EPA Regional or State staff should be notified if a narrow pre-existing conditions exclusion points to a potential need for corrective action. 2 For further assistance in implementing this guidance, please contact I1argarec Schneider, Chief, Closure and Financial Responsibility Section, Office of Solid Waste (202 or FTS•382-4640). cc: Regional Counsels 2 m, presence of a narrow exclusion is merely one factor to consider in determining the need for corrective action decisions. Consistent with established priorities, these releases should be addressed using any or all corrective action authorities. ------- 9477.1982(01) May 24, 1982 MEMORANDUM SUBJECT: Part B Financial Responsibility Information Requirements for Owners or Operators in States with only Phase I Authorization FROM: John H. Skinner Director, State Programs & Resource Recovery Division (WH-563) TO: Ira W. Leighton, Chief Hazardous Waste Section Region I This is in reply to your memo of April 13, 1982 (copy attached). We agree with you that owners or operators in States with only Phase I authorization are required to submit financial instruments (as specified in Subpart H, Part 264) only prior to the final permit decision. The requirement in §122.25 for submission of copies of the financial instruments with the Part B application is, as you point out, based on the premise that owners or operators of existing facilities would have established the instruments in compliance with Federal interim status standards. The premise does not hold in Phase I States. For owners or operators in these States, the effect of §122.25(a) (14)—(16) would be to impose financial requirements through the permit application procedures. This would be inappropriate since there would not be an applicable standard (either in Part 264 or Part 265) in effect. Therefore the Regional Administrator may exercise the discretion afforded in Sl22.25 (first paragraph) to require copies of the financial instruments only prior to permit issuance. However, these owners and operators should be required to specify in their Part B applications the mechanisms they intend to use to satisfy the financial requirements. Although these owners or operators are not required to establish financial instruments until just prior to permit issuance, they may find it distinctly advantageous to provide the instruments by the time the draft permit is made available for public comment. Without providing financial assurances, they may This has been retyped from the original document. ------- —2— encounter significantly greater difficulty in obtaining public acceptance of the facility. In view of the above, we are advising the Regions as follows: Owners or operators in States with only Phase I authorization should be required to specify, as part of their Part B applications, the mechanisms they intend to use to satisfy the financial requirements. The instruments must be submitted to the Regional Administrator prior to final permit decision. We strongly recommend that owners and operators be informed of the advisability of establishing financial instruments prior to public notice of the draft permit. Thank you for calling this matter to my attention. Attachment cc: Solid/Hazardous Waste Branch Chiefs, Regions I-X Permit Branch Chiefs, Regions I—X State Programs Branch, OSW Joseph Freedman, OGC, A-131 This has been retyped from the original document. ------- 9477.1982(03) 7 OCT 82 r. • M kiekin (T”it.’rnatie n 1 Tj,u j #j Wnugø linories t.ondon 1RJ, En li rid near r r. Aickiris Thank you for your letter of July , l R2, regarding the ‘lazardous Waste Facility Certificate of Liability Insurence ineludqi in t o liability coverage regulation applie ah].e to t,tzar ou waste facility owners and operators (40 CP’R V4.l5l(j). As Actin j flirector of the flivision r. oonsthl. for developMe!’ t ,9 the liability coverage re’ ulation, t am pleased to provitle you with the following response. Your concerns, as we understand them, have to do with the Av ency’s intent in using certain terms in the Certificate. ‘o clarify the intended meanings, we confirm the following. irs usinq the word ‘occurrence’ in the Certificate, the Agency jA not intend to limit the insurance policies which may be used to meet the requ(rements of £fl 2 4.l47 or 5.l47 to r ccur nce—baqe4 policies. ‘ior did the Aqency intend to exclude coverae e yrovtl.d ‘w claims-mad, noliciec, or $ o amend clai” c—mede. policie, so that they rsepond on an occurrence basis. (The kgency’e intent in nein the term ‘occurrence’ is indicated in th. preamble to th. regulation under ‘Definitions and 3sa s’ (47 PR 16551, April 1’, 1QR2).) Furthermore, use of the words ‘each occurrence’ in the Certificat. is not intended to alter limits of liability under the policies which respond on a ‘per claim’ or ‘per incident’ basis. Similarly, us. of th. terms ‘sudden accidental occurrence’ and ‘nonaudd.n accidental occurrence’ in the Certificate does not nreelude us of other terms, such a. ‘envtronis.ntal i”spairment’ or ‘pollution incident,’ in the insuranc, policies ‘.o describ, the extent of coverage. As indicated in th. preamble, the Agency does not intend that the Certificate langu.qe should modify the contractual obligations regarding extent of coverage under the insuranc. policies used to satisfy the 1ia it1ity coverage requirement (47 un.ie’” ‘extent of Coverage’). ------- —2— These state” ents are intendel to clarify the ‘ieaninqg nf t.r iiced in t Ie rertjficnte nd ‘ c ul1 n t I,q interpreted cc ’ ens on t e acceptability e,f e vera e pr vide4i by any ‘, rticu1ay insuranc. policy in !ieeting the re uire ents e f 40 4.l47 o 26S.14 . We ho e this letter res on to ani alleviates your Sincerely, ruce . Waddle ctinq Director State Proqr s and Resource Recovery Division (Wfl—.5 3) ------- It) 9477.1983(01) ii. p ’Y 1983 MEMORANDUM SUBJECT: April 20, 1983, Menorandun on Financial Requ.treii*nts John H. Skinner, Director Office of Solid b ste (WH—562) TO: Harry Seraydarian, Director Toxic. and t ste Management Division, Region IX CT—i) Your menorandtmi of April 20, 1983, suggested that a regulatory interpretation aeaorandum be written to clarify the exenpt ion of States and the Federal governnent fros the RCRA Subpart H. Financial Requirenents (55264.140(c) and 265.140(c)). However, the interpretation you suggest does not appear to be consistent with the regulations. Our interpretation of the regulations, confiraed by Office of General Counsel stAff. ii that set forth in ry 5, 1983 , letter sent to Mr. Bradley E. Dillon at US Ecology, a copy of i i1ch is attached, A copy of that letter s also sent to Richard Procunier, the Region TX financial contact. Your suggestion that EPA notify the various State and Federal agencies which aay be affected by this ex.nption nay be pursued at a later date. However, since the owners and operators of hazardous west. facilities are jointly and severally liabl• for th. other requirenants of the Resource Conservation and Recovery Act (RCRA) regulations, I aa not sure that such a narrowly focused letter would be appropriate. Rather, a letter broadly addressing the potential obligations of the States and the F.deral govsrnaent under the RCRA regulations would be sent. You can be sur. that as vs ke decisions on regulatory reporting to EPA Headquarters, this particular section viii be knot in aind. I ac certain that should-a ’. £L .vironnantal —Prb’J2—— iq• aus.d r .xeaption, we will alte” :V.L3 _ r’ to r ..z.. tn. regulation. in a responsive eanner. Attachaent ------- January 5, 1983 Mr. Bradley E. Dillon Associate General Counsel US Ecology, Inc. 3200 Melbvi]].e Road, Suite 526 P.O. Box 7216 Louisville, Kentucky 40207 Dear Mr. Dillon: Your letter of November 5, 1982, raises a question about the applicability of the Subpart H, Financial Responsibility requirements to a US Ecology facility. Your specific concern is the extent of your responsibility for compliance in view of the S265.140(c) exemption for States and the Federal. government and the fact that your facility operates on land leased from the State of Nevada. Section 2 65.140(c) states “States and the Federal government are exempt from the requirements of this subpart.” The Subpart H regulations apply to owners operators; while either party may fulfill the requirements, the Agency may take action against either or both of the parties in the event of noncompliance. The Agency interprets this exemption to mean that where one party (the owner or the operator) is an exempted party because it is a State or Federal governmental unit, the other, private sector party need not comply with the Subpart H requirements. However, a State or Federal agency owner may, of course, require the private sector operator by contractual agreement to demonstrate financial responsibility. I suggest that you confer with staff of EPA Region IX and the state of Nevada to determine the extent and applicability of responsibility for the concerned parties under the Resource Conservation and Recovery Act regulations. You should be aware that the RCRA Subpart G regulations, which stipulate the This has been retyped from the original document. ------- -2— requirements for performance of not contain any such exemption. the Subpart H regulations, which proving financial responsibility care and for liability coverage. cc: Dick Procunier, Region IX closure and post—closure care, do The exemption applies only to contain the requirements for for closure and post—closure Sincerely, John H. Skinner Acting Director Office of Solid Waste This has been retyped from the original document. ------- This Page Intentionally Left Blank ------- 9477.1983(02) RCRA/SUPERP’UND HOTLINE MONTHLY SUTOIARY FEBRUARY 83 3. uestion: Can the riner/opera r of a facility cancel or terninate his licy without givir the ir urance canpany the 6 or 30 days the ins ance c npany needs in order to ;ive A 60 to 30 days noti of ncellation? An . r:. The insuran çany is bound by the certificate or endorsetent to give opar notice. There is no requir erit for the facility to give the ir urance c npany advance notice. ‘ ie ins . ance cunpany could otect itself aainst this in its contract with the facility. So ce: aren Gale Resear : Irene Homer ------- I -, j (3—b ‘1 9477.1983(03) I t Mr. Allan B. Mitchell Mitchell & Schultz, Inc. P.O. Box 190 310 E. Lee Sapulpa. ‘)klahoria 74066 Dear Mr. Mitchell: Thank you for your letter of October 23 in which you question the net working capital requirement of che financial test for acsurance of closure and post—closure care at arc ous waste ‘nanage’ ent facilities. The financial test i a i”ean by which a financially sound firm may demonstrate its ability to cover the costs of closure and post-closure. The financial test differs train other acceptable n’echanisms for assurance of financial responsibility. In the event of aban ionw,ent or bankruptcy, there is no special fund of money that PA can use to properly close and maintain a facility. TI erefore, it is imperative that the Agency be assured that a firm passing the test is viable and that sufficient funds would reuiain available even in the event of a change in the financial position of the firm. In developing the financial test, the Agency extensively analyzed over 300 possible tests, applying them to known bankruptcies to determins which test would provide the needed safety margin while allowing as many viable firms as possible to pass the test. The result was th. two alternative sets of criteria found in 40 CPR Parts 264 and 265. The first alternative, the ‘ratios test, requires a net working capital of at least six times the sum of the closure and post—closure cost estimates. To assure that the closure and post-closure costs themselves would not cause insolvency, the Agency originally determined that a firm should have net working capital of at least twice the cost estimates. However, in studying bankruptcies, the Agency discovered that many firms experienced a rapid deterioration ------- 2 of financial condition in the two to three years prior t business failure. In such cases, net working capital fell by an average of 66% in two years. Thu ., a multiple of six (a factor of two — to ensure ability to pay — times three — to protect against rapid deterioration) was found necessary. The second alternative, the ‘bond rating” test, is not directly comparable to the “ratios’ test. While both options provide EPA with the needed assurance, they do it in different ways. While the ‘ratios” are designed as predictors of bank- ruptcy, the •bond rating” assures viability and credit—worthiness. In fact, both Moody’s and Standard and Poor’s look at many factors, including ratios, in assigning a rating. For example, they consider a firm’s size to be very important.. Host firms assigned investment grade bond ratings have net worth in the SlOO million to S200 million range and above. Firms which pass the “bond rating’ test are able to raise money easily, and they have a statistically lower business failure rate than those that pass the ‘ratios test. It is important to note that over 90% of those firms wishing to use the financial test are able to pass it. I can certainly understand the frustration of those unable to use the test, but believe that our requirements are appropriate to meet our over- riding responsibility to protect human health and the environment. Sincerely yours, William D. Ruckeishaus ------- 477.1983(O4) RCRA/SUPERFUND HOTLINE SUMMARIES SEPTEMBER 83 If a State does not have a required financial mechanism but has an approved financial mechanism, can a facility owner/operator use the approved mechanism under 4OCFR 264.149? SectIon 264.149 of the regulations allows the substitution of a financial mechanism which the State requires for one of the EPA approved mechanisms. This substitution requires the approval of the Regional Administrator. A State approved (but not required) mechanism can also be used in lieu of the Federal mechanism if the facility owner/operator receives approval from the Regional Admi nistrator. Source: Scott Biehi ------- 9477.1984(01) January 12, 1984 MEMORANDUM SUBJECT: Closure Cost Estimates Based on Third Party Costs FROM: John H. Skinner, Director Office of Solid Waste (WH—563) TO: James H. Scarbrough, Chief Residuals Management Branch Region IV This is in response to your memorandum of November 22, 1983, in which you raise the issue of whether a closure plan for a recycling facility can specify continuation of recycling in order to reduce waste inventory during closure. You raised this issue in the context of a statement made in the September 19, 1983 RCRA/Superfund Hotline report. The Hotline report stated that a closure cost estimate cannot be reduced to reflect planned recycling of waste at a facility or the planned sale of equipment or property after closure begins. The rationale given by the Hotline is that the cost estimate must reflect closure at the most expensive point in the facility’s operating life, rather than some point after the facility’s inventory is reduced by continued recycling of waste on site, or after sale of capital. While the Hotline memo is correct, your memo raises a separate issue, which the Hotline report did not address. That issue is whether the closure cost estimate may reflect the cost of closure activities carried out by the owner/operator (who may use his own personnel and equipment if he desires), or whether the estimate must reflect the costs of closure activities carried out by a third party, such as the government or a private contractor. You referenced several statements in the regulations and EPA guidance documents which you interpret to mean that the first case is correct. In the context of recycling facilities, you have interpreted the regulations and guidance to mean that 1) continued recycling at a recycling facility is a form of “treatment” and a legitimate closure activity, and 2) the closure cost estimate for a recycling facility may reflect the owner/operator’s own costs of carrying out his closure plan. This has been retyped from the original document. ------- —2— I concur with these interpretations. With regard to your last point, please make note of an important requirement which lessens the likelihood of a large, abandoned stockpile of waste in the event of a forced closure. Under §264.113(a), and §265.113(a), the owner/operator has 90 days from the day closure activities begin in which to t treat, remove from the site, or dispose of on—site, all hazardous wastes in accordance with his approved closure plan”. Therefore, acceptable cost estimates for recycling facilities could reflect labor and materials for up to 90 days of recycling plus the cost to dispose of the amount of waste which could not reasonably by recycled with existing throughput capacity during 90 days. This, in effect, ensures that recyclers do not stockpile more hazardous waste than they have the ability to recycle in 90 days, unless they have made provisions in their closure plans and cost estimates for disposing of the excess hazardous wastes, either on—site or of f- site, by end of the 90-day period. cc: Bruce Weddle Eileen Claussen Carolyn Barley Hazardous Waste Branch Chiefs, Regions I-Ill, V-X This has been retyped from the original document. ------- 9477.1984(01) Attachment DATE: November 22, 1983 SUBJECT: Closure Plans and Cost Estimates-Treatment of Waste Inventory As Part of Closure Activities FROM: Chief, Residuals Management Branch Region IV TO: John Skinner, Director Office of Solid Waste (WH—563) The September 20, 1983 memo from Carolyn Barley transmitting Superfund hotline monthly status report for August contained a response with which we do not agree. On page six the following statement is made tiThe Agency has interpreted these two statements to not allow a Closure Plan to include recycling of waste or sale of equipment or property in order to reduce the closure cost estimate.” Region IV does not totally agree with this response. We agree that the money gained from the sale of recycled hazardous waste equipment or property can not be included in the closure cost estimate as a credit. However we feel that the regulations and guidance are clear that a recycling facility can continue to treat its waste inventory as a part of its closure operations. The following citations from RCRA Regulations and Guidance Documents support this position: DOCUMENT CITED SUPPORTING QUOTATION 40 CFR 264.142 Cost estimates for closure are to be based on the closure plan Preamble to May 1980 Reg. “Closure is the period after wastes are no longer accepted, during which the owners or operators complete treatment , storage and disposal operations, apply final cover to all cap landfills, and dispose of or decontaminate equipment” This has been retyped from the original document. ------- —2— 40 CFR 264.112(a) (4) 40 CFR 264.113(a) EPA Draft Guidance Closure and Post Closure: Interim Status Standards 40 CFR 265, “For example, in the case of a landfill, estimates of the time required to treat and dispose of all waste inventory. “Within ninety days after receiving the final volume of hazardous wastes, the owner or operator must treat , remove from the site, or dispose of on-site, all hazardous wastes in accordance with the approved closure plan. “The Plan (Closure) should also include a description of the procedures for treating or removing these wastes ...“ “It does ensure that an owner or operator has prepared for treating , disposing or sending hazardous waste off—site in a timely fashion. “In most cases, it is likely that wastes awaiting disposal will require varying degrees of processing and treatment . At an incineration facility, for example, all wastes may be incinerated on—site and the residues hauled off—site.” “The schedule of closure activities should include: (e.g. dates for completing treatment and disposal of all wastes on—site,) “An example would be the costs of treating or disposing of inventory on-site, which will normally be a simple continuation of the normal operating practices of the business . P. 2-8 P. 2—9 P. 2—11 P. 4—2 This has been retyped from the original document. ------- —3— P. 5—5 “In the vast majority of cases at disposal facilities, the disposing or treatina of inventory will take place on—site,” From these documents we think the following conclusions can be clearly drawn. These conclusions reflect our Region’s approach to Closure Plans and cost estimates for Hazardous Waste recycling facilities. 1. The Closure Cost Estimate is based on the Closure Plan. 2. The Closure Plan is based on a planned Closure that is carried out by the owner (who may use his own personnel and equipment if he desires). There is regulatory basis for requiring the closure plan and cost estimate to be based on a third—party or contractor handling the closure activities. 3. The Regs and Guidance are clear that a facility that does treatment of Hazardous Waste may continue to provide treatment as a part of its closure activities as a means of reducing its inventory on hand at the time closure begins. For a facility that recycles spent solvents through distillation this would mean that the facility could distill spent solvents on hand when closure begins as a means of reducing the costs for final disposal. 4. Once Closure begins the Closure Cost Estimate must reflect all operating costs, disposal costs, and clean—up costs incurred during the closure period including any costs associated with continued treatment during closure, such as all costs associated with the operation of facility. The guidance manual indicates that the company should submit the previous years financial budget and put up the percentage of the year it will take for the treatment, ultimate disposal and decontamination in their closure fund. There are many waste recycling facilities throughout the country that are subject to the RCRA permitting requirements. Because of the significant impact which the financial assurance requirements have on these facilities, it is important that EPA be consistent nationwide in our application of the RCRA regulations for Closure This has been retyped from the original document. ------- —4— Plans and Cost Estimates. We have issued and are about to issue several permits to recycling facilities using the above stated guidance. If you disagree with our approach please call Douglas C. McCurry of my staff at FTS 257—3433 before December 15, 1983. James H. Scarbrough cc: Region IV State Directors Hazardous Waste Branch Chiefs, Regions I-III,V-X This has been retyped from the original document. ------- 9477.1984(02) t1EMORANDIJM SUbJECT: U.S. Ecology’s Nevada Facility and Financial Res .orts ibility FROM: 3ohn H. Skinner, Director Otfice of Solid Waste (v . 11—562) TO: Harry Ser ydarian, Director Toxics and Waste Management Division Region IX CT—i) Your er orandu of A;ril 5 requested comnents on the Notice of Deficiency you sent U.S. Ecology. While I sympathize with your desire to ensure that all owners and operators demonstrate financial responsibility, PA is not in a position to require such compliance in this instance. Section 140(c) of the regulations clearly exempts the States and the Federal government from the SuDpart H regulations. Therefore, EPA does not have authority to enforce compliance with the financial requirements since the U.S. £cology facility is located on land owned by the State of Nevada. Only the State of Nevada may require U.S. Ecology to demonstrate financial rosponaibility by contractual arrangement. This point is covered In both the January 5, 1983 letter to U.S. Ecology and the May ii. 1983 memorandum to you (copy attached). I want to reassure you that my staff had extensive conversations with your staff before the January letter was issued. I hope this clears up the matter for you. Attachment ------- 9477.1984(03) Closure/Post-Closure and Cost Estimate Updates RCRA — What is the latest inflation factor for updating the closure/.post —closure cost estimate? The inflation factor is determined by dividing the latest annual Implicit Price Deflator for Gross National Product by the previous annual deflator. The deflators are publisned by the U.S. Departmeett of Comerce in Its Survey of Current Business . Typically, tne cost estimate upaate Is done annually, witnin 30 days after tne anniversary date of the first cost estimate which was May 19, 1981. Therefore, cost estimates are only required to be updated by the regulations (264.142(b). 265.142(b), 264.144(b), and 265.144(s)) bet en May 19 and .3une 19 of each year usi ç the latest deflat s wPuc t are ublished every Marsh. H .’ever, if a change in the closLze/ t—c1osure plan occurs at any oc..ier tune ar.d results in increased costs, the closure! pcst-clcsure cost est mates mist be revi sed at that time and updat d anrtua. .ly thereafter (265.142(:), 264.142 (c), 26 5.144(c)). P’cst cQ1 arties requesting the inflation factor were updatirç their financtal test letters and wanted to update their cost estimate to coLnc de wtth the close of theLr fiscal year ending Decent er 31, 1983. ? .s the reçulations are written, the financial test annual update f fiscal. year ending cember 31, 1983, ald over the May 1983 cost estimate. Callers are reaLr%ded that if their facilities are in interLm aut. ized States, the State — not the Federal — financl.al requirenents apply per 265.l(c)(4). ------- 9477.1984(04) N3’ 20 a’ S Charles W. Shipley 1 ‘ii1liaPis Center Suite 1770 Tulsa, OK 74172 Dear 1r. Shipley: This letter is in response to your question to i y staff regarding insurance coverage limits required under the L(CRA Subpart H re ulatioflG. As you kno’;, 40 CF1 264.147 and 265.147 require all owners or operators of hazardous waste management facilities to demon- strate financial responsibility for bodily injury and property a znage to third parties caused by sudden accidental occurrences in the emount of $1 million per occurrence and $2 million annual aggregate. In addition, the owner or operator of a surface itapoundmenc, landfill, or land treatment facility must demonstrate financial responsibility for bodily injury and property damage to third parties caused by nonsudden accidental occurrences in the ai ount of $3 million per occurrence and $6 million annual aggregate. An owner or operator has several options to satisfy this liability coverage requirement. An owner or operator who chooses to meet both the sudden anci nonsudden requirement solely through the purchase of insurance may obtain a single insurance policy to cover both sudden and nonsudden accidental occurrences. Thi. policy, however, must provide coverage for at least the s of the sudden and nonsuøden miniiuun limits, in other words, sEE a policy must provide coverage for at least $4 million per occurrence with an annual aggregate of at least $8 million. The liability limits of $4/$8 million are consistent with ourS regulations and provide adequate coverage. Of course, an owner or operator may satisfy the liability coverage requirement by obtaining two separate insurance policies, one to cover sudden acciuental occurrences (with limits of at least Si and $2 miLlion) and one o cover nonsudden accidental occurrcnces (with limits of at least $3 and $6 million). ------- 2 We are aware that this option is not specifically addressed in 264.147 or 265.147 of the regulations. The required wording for the endorsement and the certificate of insurance (S5 264.151(i)(t) and 264.151(j)(1)), however, states that: The coverage applies at [ list EPA Identification flumber, name, and address for each facility] for [ insert “sudden accidental occurrences,” “nonsudden accidental occurrences,” or “sudden and nonsudden accidental occurrences” ) (emphasis added). If you have further questions, please feel to contact me at (202) 382—4761. Sincerely, George A. Garland Chief, Financial Responsibility and Assessment ranch ------- 9477.1984(05) Ievi.v e Financial Assurance Instruments George Garland, Chief Financial Responsibility and Assessment Branch (WH-562) Hazardous Waits Branch Chiefs Regions I-I The purpose of this memorandum is to clarify our policy regarding the review of financial assurance instruments. a. Daneker and Tony Montrons sent a memorandum to the IWDMS Project Officers on csmbsr 20, 1913 to clarify the initruc-. tions for the Cosplianc. and Inforc.asnt Log arid the Facility Status Sheet. As a result of that memorandum, I am conc.rn.d that reviews of financial instruments ar. being d.ferr.d until closurs/past-closurs plans and cost estimates are d.tsrmin.d to be adequate and in cosplianc. with fsd.ral or stats r.gulatiena. It is our policy to review all financial assurance in- struments r.gardlsss of decisions concerning Ut• adequacy or inadequacy of closure/post—closur, plans and/or cost estimates. We •xp.ct you to examine the financial ins trum.nts (wording, issuer qualifications, etc.) for cospliane. with ?.deral or State regulations. We consider this distinct review essential and, therefer., stress that it b. conducted even in the absenc. of a reviewed plan and cost estimats. Tb. facility status sheets should reflect this policy. Therefore, its. number el.v.n—Closure Assurance Instruments—- and item numb. r fourteen—pest-Closure Assurance Instruments-- should always be cospleted .v.n when the piss. and/er cost estimates have been determined inadequate. When the plans and/or cost estimates ar. revised and reviewed, the adequacy of the amount of the financial instrument should be reviewed coneurr.ntly. I hay. mad. minor revisions to th. facility status sheet instructions to reflect this distinction. Tb. revised instructions sr. attached to this memorandum. Please inform your States of our policy and explain th. change in the status sheet. If you have any questions about adequacy determinations en financial assurance instruments, please contact Carol. Ansheles on 382—4671. Attachment cc: Carols Ansh.les Susan Hughes Lee Dan.ker Tony Plontrone ------- 477.1984(O6) 2 Nu / 1984 ME 1ORANDU 1 SUBJECT: Availability of Environmental Impairment Liability (EIL) Insurance FROM: John H. Skinner, Director Office of Solid Waste (%H—562) TO: Regional Division Directors Regions L-X There has been some question raiBed in the Regions about the availability of Environmental Impairment Liability (Eli.) insurance. Eli. insurance is necessary for owners and operators of surface impoundments, landfills, and land treaent facilities to meet the liability coverage requirement for nonsudden accidental occurrences under SS 264.147(b) and 265.147(b), if they are not using the financial test. Owners and operators with annual sales or revenues of less than $5 million will become subject to this requirement in January 1985. - It is my understanding that this type of insurance is avail.. able, although there is a waiting list. Attached is a list of companies which offer Eli. insurance and the limits of coverage they provide. The Agency has been advised that at this time only two companies on the list, Shand Morahan and American International Group, are taking new customers. The rest of the companies are offering policies only in limited circumstances. Attachment ------- UNITED STATES ENVIRONMENTAL PROTECTION AG 9477 1984(07) t tjLLj WASHINGTON. D.C. 20460 ‘ t M IdIc OPPICE OP SOLID WASTE AND EMERGENCY RESPONSE MEMORANDUM SUBJECT: Determination of a Facility’s Operatin Life FROM: George A. Garland, Chief Financial Responsibility and Assessment Br nch (WH-562B) TO: William H. Taylor, Chief Enforcement Section, Region 6 This memo addresses the questions raised by the State of Oklahoma in their letter to Region 6 dated September 6, 1984. Most of these questions concern how one determines the operating life of a facility for the purpose of calculating the trust fund pay-in-period. As requested, I also address the separate issue of how to treat recycling in the closure cost estimate. 1. How does one calculate a facility’s operating life for determing the pay-in-period for the trust fund ? For permitted facilities, “payments into the trust fund must be made annually by the owner or operator over the term of the initial RCRA permit or the remaining operating life of the facility as estimated in the closure plan, whichever period is shorter” (iS264.143(a)(3) arid .145(a)(3)). For interim status facilities, “payments into the trust fund must be made annually by the owner or operator over the 20 years beginning with the effective date of these regulations or over the remaining operat- ing life of the facility as estimated in the closure plan, which- ever period is shorter” (SS265.143(a)(3) and .145(a)(3)). For purposes of this requirement, the operating life of a facility must be pres mied to end in that year in which the owner or operator currently expects to close his facility. His expected year of closure should be identified in his closure plan. EPA should be able to determine, after reviewing the facil- ity’s operating record, whether the owner or operator’s estimate of the year he expects to close his facility is reasonable. If EPA believes that the facility’s operating life is less than that stated, we may require the owner or operator to change the closure plan. ------- —2— 2. Should a facility’s operating life be determined based on existing, permitted unbuilt, or unpermitted unbuilt captcity ? The capacity of both permitted arid interim status facilities to store or dispose of wastes for the purpose of determining the facility’s operating life should be based on “the maxim extent of operation which will be unclosed during the life of the facil- ity” as required in the closure plan under SS 264.112(a)(1) and 265.112(a) (1). Thus, for permitted facilities, operating life should be based on permitted capacity which may include unbuilt capacity. Operating life will, not be based on unpermitted capacity. If the owner or operator later decides to increase capacity at a permitted facility by building additional units or expanding existing units, he must modify his permit. For interim status facilities, operating life should be based on the capacity described in Part A of the facility’s permit application. If the owner or operator later decides to increase capacity beyond what is stated in the Part A, the owner or operator must modify his Part A and his closure plan. 3. Are payments to the trust fund based on each individual unit or the facility as a whole ? Sections 264.143(a)(3), 264.145(a) (3), 265.143(a) (3), and 265.145(a) (3) state that the payments into the trust fund must be made over the remaining operating life of the facility (if less than the permit life or 20 years). We cannot interpret “facility” as it is used here to mean “unit”. Thus, the pay-in-period to the trust fund must be calculated for the facility as a whole. If the facility has more than one unit, the end of the facility’s operating life for purposes of calculating the trust fund pay-in period will be that year when the owner or operator expects to close the last unit (ass ing this period is less than the permit life or 20 years). 4. How does one determine the operating life of a tank or surface impoundment which can be refilled? How do treatment processes affect operating life ? During the operating life, the level of waste in a tank or an impoundment may vary. Filling and emptying is part of a tank or impoundment’s normal operating life. Wastes may be treated, sludges may settle out, liquids may evaporate or be drained off, sludges may be dredged out and disposed of. While the level of waste in a tank or impoundment may fluctuate, the facility is still operating until the year the owner or operator has indicated he expects to close the facility. ------- —3- Priorto the time the facility receives its final volt e of waste, the owner or operator should be able to determine the year he expects to close based on the treatment or other storage and disposal processes he employs. If he plans to operate longer than he had originally intended, he must modify his closure plan. 5. Should waste stored in tanks prior to recycling be considered a salable asset or liability for disposal ? Section 265.142(a) states that the cost estimate “must equal the cost of closure at the point in the facility’s operating life when the extent and manner of its operation would make closure the most expensive”. Since EPA has no guarentee that there will be a market for wastes stored prior to recycling and that these wastes will be in a salable condition when recycled, such wastes should be considered a liability. As discussed in the January 12, 1984 memo from John Skinner to James Scarbrough on closure cost estimates based on third party costs, the owner or operator of a recycling facility may continue to recycle wastes during the closure period as a legiti- mate closure activity. While the owner or operator need not include the cost of disposing of that inventory of waste that he anticipates will be eliminated because of recycling during closure, his cost estimate must reflect the labor and materials necessary for recycling that waste. It is important to point out that recycling may only continue fo r 90 days after the final receipt of waste unless an extension of the closure period is granted by the Regional Administrator. The cost estimate must also include a reasonable estimate of the cost to dispose of that amount of waste which cannot be recycled with existing treatment capacity in the 90 days of closure. If you have further question, please contact Alyce Ujihara of my staff at 382-4784. ------- 9477.1984(08) RCRA/SUPERFUND HOTLINE MONTHLY BUM)thRY NOVEMBER 84 6. The Agency requires owners or operators of hazardous waste treatment, storage, or disposal facilities to have liability coverage for accidental occurrences arising from the operation of their facilities. These requirements are specified in 40 CFR §264.147 and §265.147 for permitted and interim status facilities, respectively. The required coverage for sudden accidental occurrences is at least $1 million per occurrence with an annual aggregate of at least $2 million, exclusive of legal defense costs. The required coverage for nonsudden accidental occurrences applies to facilities with surface impoundments, landfills, or land treatment units. These facilities must also have sudden accidental insurance coverage. Nonsudden coverage is at least $3 million per occurrence with an annual aggregate of at least $6 million, exclusive of legal defense costs. Must an owner or operator of several facilities have liability coverage in the amounts just stated for each facility? No; one policy will cover all facilities. Liability insurance is required on a per firm basis rather than a per facility basis. The requirement for the use of an annual aggregate liability coverage encompasses the risk of multiple occurrences among facilities belonging to the same owner or operator. For example, an owner of six container storage facilities would only need sudden accidental occurrence coverage of $1 million per occurrence with an annual aggregate of $2 million. This issue is addressed in the April 16, 1982 Federal Register (47 16546). Source: Carole Ansheles (202) 382—4761 Research: Hilary Soiiuner This has been retyped from the original document. ------- 9477.1985(01) RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY DECEMBER 84 1. The financial requirement regulations (40 CFR 5264 and 5265, Subpart H) require that ovners and erators of all hazardous waste nianaenent facilities establish financial assurance to cover the t of closing their respective facilities. The regulations provide six met} ds for establishing financial assurance. e method is a financial test and corporate guarantee for closure (S264.143(f)(l0) and 5265.143(e)(lO)). Using this method, a parent corporation (guarantor) can provide the financial assurance for an ovner/cçerator of a subsidiary cot any. If a facility becures a separate x ariy, ccepletely autcnaicus fra t the parent rany, may the ex-parent ipany provide financial assurance for the ovner/cperator of the newly independent aii any? No; th. ex—parent ipany mey not provide financial assurance for the newly independent c içany. Sections 264.143(f)(lO) and 265.143(e)(lO) state that .me guarantor miust be the parent corporation of the ovner or cperator. Therefore, the newly independent caipany mast establish its ovn financial assurance since Its ex—parermt ca any can no longer function as its guarantor. This financial assurance nust be In place upon independence. Source: Joe Free maan (202) 382—7700 Research: Gordon vidson ------- 9477.1985(02) RCRA/SUPERFUND/OUST HOTLINE JANUARY MONTHLY REPORT QUESTION 1985 Financial Repuire ients for Inactive Surface ImDoundlnents 3. A facility has a surface 1itçoun nt which has not been used to store hazardous waste since July 1983. The facility is still cperating under interim status as a generator of hazardous waste. Although the surface inçow nt has not been closed in accordance with interim status require n nts, the owner/operator of the facility canceled the liability insurance for the surface impourónent. Is the facility in c t 1iance with Part 265 Suk art H of A? ‘it facility is not in u liance with A. The facility should have . den and noneudden liability insurance for the surface [ ir a nt until certification of clesure is received either ‘ the gional Mninistrator cc State Director, d ending on which hee pr r suthociuti3!I (S265.147(.)). rtificaticn of cinsure is addr.ued fully in P65.115. ------- 9477.1986(01) Senator Charles E. Grassley United States Senate Wasflington, D.C. 20510 Dear Senator Grassley: Thank you tor forwardinc Mr. Gary Jaehrel’s letter of November 26, 1985, concerning the Kiowa Corporation’s transfer of its hazardous waste storage operations to a new site. Outlined below is our understanding of how regulations under the Resource Conservation and Recovery Act (RCRA) apply to Mr. Jaehnel’s facility. RCRA requires that hazardous waste storage facilities obtain permits to ensure that the wastes are managed in an environmentally protective manner. RCRA regulations also allow facilities that were in existence on May 19, 1980 to continue operation in ‘interim status’ until decisions are made as to whether or not to permit the facility (Kiowa is an interim status facility). Regulations prohibit, however, changes to an exist2t facility during interim status which are so extensive as to amount to reconstruction of the facility (see 40 CFR 270.72(e)). The proposed transfer of the Kiowa storage facility would, in effect, amount to reconstruction of the tacility. As such, it must be treated as a new facility. In order to begin construc- tion of a npw facility, it must first be issued a permit, as provided by 40 CFR 270.10(f). In addition, closure of the exist- ing Kiowa facility must be done in accordance with interim status closure standards (contained in Subpart C of 40 C?R Part 265). We contacted Mr. Gene Evans, the EPA Reaion VII staff member assigned to this project, who provided additional background information. Mr. Evans reviewed the revised closure plan submitted by the Kiowa Corporation, and advised Mr. Jaehne l that the revised closure plan was not acceptable as submitted. Mr. Evans offered to amend the submitted plan as provided for in the regulations. Mr. Jaehnel preferred to amend the plan himself and reguested a letter detailing the deficiencies in the plan. This letter was prepared and sent on November 20, 1985. We wish to apologize for any lack of responsiveness Mr. Jaehnel may have encountered. As an ‘interim’ authorized State, the Iowa ------- —2— c . Department of cater, Air, and haste Mananei”ent had been irp1er nt— irig certain portions of the RCRA procirar, irtcludjna closure activities, in lieu of the Federal hazardous waste r anaaerient 0 proarari. The Iowa State legislature voted to end furtdjna of the State’s hazardous manaqer’ent program, effective July 1, 1985. On that date, the State’s hazardous waste I ana er ent pro,rar ceased operating and EPA Recion VII assumed responsibility for the entire hazardous waste manaaer ent proqrai”, includinci Closure activities. This transfer of responsibility may explain sorie of the problens fir. Jaehnel experienced. Acain, apolocize for any lack of responsiveness he may have encountered and regret any inconvenience. 0 r If you or Mr. Jaehnel have any additional Questions or recuire further information, please call Mr. Gene Evans at (913) 236—2888. Thank you for your interest in this matter. o Sincerely, -— .. 0•’ p . .) .. .3. Winston Porter Assistant Administrator cc: Region V II - Congressional Liaison/Derevier ------- 9477.1986(02) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, 0 C Z0460 - 3 ‘986 OFFICE OF SOLID wASTE A O EMERGENCY RESPONSE Honorable Charles E. Grassley United States Senate Washington, D.C. 20510 Dear Senator Grassley: Thank you for your letter of December 11, 1985, forwarding the November 15, 1985 comments from Mr. Russell C. Smith of Salsbury Laboratories. Mr. Smith suggested that the Agency consider a corporate guarantee from a parent corporation or an indemnity agreement or letter of credit as alternative means for meeting the financial responsibility requirements for liability coverage under the Resource Conservation and Recovery Act. In the past, the Agency has not allowed a parent company to use the corporate guarantee to meet the requirements for Liability coverage; we have been concerned that this use of the corporate guarantee might be declared an invalid practice of insurance under State insurance law. The Agency is now reconsidering its position, however. Over the next few months, we expect to promulgate regulations allowing the corporate guarantee where the hazardous waste facility has obtained a letter from the State Attorney General or from the State Insurance Commissioner, indicating that this is a valid practice under State law. In addition, the Agency intends to propose the use of indemnity agreements and letters of credit at a later time. Please let me know if I can provide any further assistance. Sincerely yours, /8/ J : ‘ ‘ IcGrap 3. Winston Porter Assistant Administrator ------- 9477.1986(03) RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY FEBRUARY 86 6. L.iability quiranents Pccording to 5265.147(a)(])(ii), insurance licies held by ners/ope ators of hazardous waste facilities must be issued by an insurer which, at a is licensed to transact v.ne business of insurance, or eligible to provide. insurance as an excess or surplus lines insurer in one or nore States. . r der what Circunstances, if any, uld an off—shore (foreign) entity be able to provide insurance for a dai*stac treatnent, storage, or disposal facility (TS )? Under Federal RA requir nts, facilities imast be insureø by a Canpany that is licensed in one or n cr. States. The C npany need rct be licensed in the State in which the facility is located, unless stricter State regulations require in—State licensing. 11 facility er/operator should verify the qualifications of a canpany by tirst contacting the insurer about its licenses and then confirming with insurance regulatory authorities of the appropriate Stat. or States. garding the off—shore entity, any captive or alien insurers must r.et the above requ1reu nts in order to provide insurance satisfying the Subpart H regulations. See SW-961, •Liability Coverage: qu1i w nts for Owners and ( erators of Hazardous Waste Trea nt, Storage ar Disposal Facilities: A idance manual, datec Novsthsr 1982 (pages 11—3 and G—3). Sourcs: Carole Msheles (202) 382—4761 ------- UP D4TATES ENVIRONMENTAL PROTEC ‘NM 9477.1986(04) MAR2O B6 Honorable F. James Sensanbrenner, Jr. House of Representatives Washinaton, D.C. 20515 Dear Mr. Sensenbrenrier: Thank you for your letter of February 18. 1986 on the subject of liability insurance. You are correct in statin’j that some industries have chosen to comply with EPA’s liability requirement by establishjnc, captive insurance companies. The National Solid Waste Manaqenent Association and the Synthetic Organic Chemical Manufacturers Association represent two such industries. However, we believe these additional suppliers of insurance would acid to conn,etition in the insurance marketplace, rather than create a monopojy. Second, the Agency has recently contacted all insurance companies known to have been involved in the environmental impairment liability market. I have enclosed a list of all companies who were willing to be named as Dotential suppliers of environmental impairment liability coverage. Of course, it is possible that not all companies named would be able to supply all coveraqe needed, but may be able to supply partial coverage. This list was current as of January 24, 1986. Finally, the Agency requires coverage for bodily injury or property damage to third parties for hazardous waste facilities in 40 CFR 5264.147 and 5265.147. The Superfund reauthorization bills would not waive these provisions. You nay have in mind HR. 3917, passed December 16, 1985, which would provide limited lief from th. required financial responsibility certification in Section 3005(e)(2) of the Resource Conservation and Recovery Act (RCRA). However, the Agency does intend to amend the ------- 2 financial responsibility requlation in the next few nonths to aflow a corporate quarantee to satisfy this reauirenent. The Agency also will propose indemnity agreements and letters of credit at a later time. Please let me know if I Can be of any further assistance. Sincerely, La. I. ousa Lee II. Thomas Enclosure ------- 9477.1986(05) RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION MARCH 1986 2. Financial Test Liabilities The financial test used to demonstrate ocjnplianoe with financial responsibility requirenents under S265.143 utilizes a ratio of total liabilities to net worth, $265.143(e)(l)(i)(A). 4 at is to be included in the total liabilities estimate? ‘buld accounts payable be included in the total liability ru.xnber? Neither the regulations nor the statute contains any definition of total liabilities. According to the Glossary of Te in “Financial Assurance for Closure and Post-Closure Care: Requirements for Owners and Operators of Hazardous Waste Treatsient, Storage, or Disposal Facilities” (Sw—955), total liabilities are defined as “total debts owed by a business or individual including all liabilities.u (p.. 13) In that sane glossary, EPA defines “liabilities” as: “...probable future sacrifices of econanic benefits arising fran present obligations to transfer assets or provide services to • other entities in the future as a result of past transactions or events.” (p. 8) The P ency uses the sane definition of total liabilities as used in generally accepted accounting practices. Therefore, for further clarification, owners or operators should be directed to Financial Accounting Standards Buard Qncepts State ent No. 3 Elements of Financial Statements of Business Enterprises which stipulates tFiree essential conditions that an item must fulfill to qualify as a “liability:” o It must involve a present duty or responsibility to transfer or use assets at a determinable date; o It must be unavoidable; and o The event obligating the transfer or use of assets must have already occurred. According to this definition, owners or operators should not exclude the ca çany’s day-to-day payables, or any other current liabilities, fran their canputation of total liabilities. Current liabilities are (1) payable at a certain date (i.e., within one year), (2) are unavoidable, and (3) the obligating event occurred when the canpany purchased the inventory, supply, or service associated with the current liability. For purposes of the financial test, total liabilities should include any obligation of the canpany which meets the three essential characteristics listed above. The time period in which the obligation is due, whether short or long—term, does not matter. ------- 9477.1986(09) July 24, 1986 Mr. Gettinger President Midwest Oil Refining Co. 1200 Walton Road St. Louis, Missouri 63114 Dear Mr. Gettiriger: Thank you for your letter of June 25 addressing the effects of the constrained insurance market on your business. Although we are aware of the difficulties in obtaining liability insurance, EPA believes liability regulations are desirable for several reasons. First, the liability requirements assure that funds will be available for third parties seeking compensation for bodily injury and property damage arising from operation of hazardous waste management facilities. Second, without liability coverage, many commenters to EPA believe that there will be lessened public confidence in and greater opposition to proposed and existing hazardous waste management facilities. Third, these regulations have the potential for inducing improved design and operation of the facility resulting from the incentive of lower insurance premiums and the oversight that insurers might provide over facility operations. Finally, when EPA published a proposal on various methods of addressing the constrained insurance market on August 21, 1985, we received many comments indicating continued support for the liability requirements. While I understand that it is difficult to pay for a risk assessment without prior assurance that insurance coverage will be provided, we understand that most insurers will insist on conducting a risk assessment before they make a decision to offer coverage or not. We believe that this is sound insurance practice. In addition, risk assessors and insurance companies have quoted risk assessment costs as generally falling between $5,000 and $25,000; your $5,000 cost therefore appears to be at the low end. In response to this situation, EPA has several ongoing efforts. First, the Agency developed the February 25, 1985 list of Environmental Impairment Liability providers, a copy of which you obtained and enclosed in your letter. We will update this list soon. This has been retyped from the original document. ------- —2— Second, we expect to publish final regulation allowing the use of a corporate guarantee as a method of demonstrating compliance with the liability requirements. This regulation was signed by the Administrator on July 3 and should be published very soon. Third, we have begun work on developing a proposal to authorize the use of other instruments to demonstrate compliance. We expect to publish the proposal in approximately one year. Fourth, the Federal regulations allow both the state assumption of this requirement (SS264.150 and 265.150) and the use of state-required instruments (SS264.149 and 265.149), upon meeting certain conditions. You may wish to pursue this further. Finally, I urge you to consult with the appropriate officials in Missouri, since the state has authorization to administer these liability insurance regulations in lieu of the EPA. With regard to your comment on the effect of a possible listing of used oil as hazardous waste, we received many similar comments on our November 29, 1985, proposed rule. Although no final determination has been made yet on this issue, these comments will be fully considered and addressed before the issuance of the final rule. I hope you find this information helpful. Sincerely, J. Winston Porter Assistant Administrator This has been retyped from the original document. ------- 94 7.1986(1O) / ! UNI TED STATES ENVIRONMENTAL PROTECTION 1 I ) WASHINGTON O.C zouo jj4 25 8B MEMORANDUM SUBJECT: Union Carbide’s March 1986 Financial, Test FROM: Bruce Weddi i ’recf Qij Permits and Stats Programs Division (WR—563) TO: Conrad Simon, Director iu.r & Waste Management Division (2kwM) I am responding to your May 2 memorandum Concerning tite Union Carbide financial test. Your memo requests assistance in determining whether the adjustments Union Carbide made are Consistent with the criteria or the Subpart H tinancial test, I recommend that you disallow Union Carbide’s use of the zinancial. test tor five reasons. First, the firm fails the financial test because tn. procedures used to compute the test ratio (sum of net income plus depreciation, depletion and amortization (NIDM) to total liabilities) does not satisfy the procedures pxsscribd in the Subpart H regulations. Based on the information available to us, if Union Carbide had followed those procedures, the firm would not have passed. Second, the 0.1 cutoff value for the ratio of NID to total liabilities is premised on the RCM definition of WIDDA; in ’orporating other cash flow measures (e.g.. fixed assets write—of is) atight invalidate the credibility of the cut—cU value as a predictor of firm Viability. Third, the write—off of fixed assets is not equivalent to asset depreciation (or depletion or amortizatt ) under generally accepted accounting principles. Fourth, Dy adding back the value of fixed asset writeoffs to HIDDA, Union Carbide allegedly iaprov.s the measure of cash tla, by c is million. However, as a result of reductions in the provision for deferred taxes associated with the fixed asset write—off, the net effect of the fixed asset write—off was very likely a decrease in cash flow in 1985. ------- F i na lLy, dStC from Union Carbia.’s Consotidated Statement or Changes in Financial Position reveals that using ! ! Y on . of tnra. measurements 0± itS c5s A.ow in t s cas ri t t5 jL Jiabliaties ratio Of the tLnanc test will not provid, the tirm with a passing vai.ue ror th. ratio. Attached to this me crandum are copies of menos prepared by i c r our consuLtants, wnich .xpJ.atn in greater detail the rataenaie nino these tave reasons. in addition, although not strictly relevant to t e question or acc.ptaoii.ity or union Carbide’s financial test I am concern.o aDout the ancunt o some of tne cost .sti at.s listed an the t•st. I suspect cLesur• Colt •itinetes that are Lasted as •S .J7J inc S4,8U4 y not ø adequate. Some ot the other estimates aLso app.ar unusually i 1 uL4 suggest tnat aLa ,Lars anc cost estimates os reviewed for adequacy, if that has not yet been done. because Union Carbtds ns or operates o many tacUttiss across tri nation, 1 want to •rsuz!• that all R.ga.ons and States with Union Carbide tacijitiss are aware ot t is issue. I am senaing aLa ktegtona.L Uivision Directors a capy or your incoming meruorancum. my response and a aist, developed from their tsst submission and rrom HWL b data ot their tacilities. I appreciate your oringing this matter to my att.ntion. it you have any ao@itionaL questions r.garaing this tter. please contact Varoie AnsAhils On hTS J 4-47 l. Attachments cci Hazardous Waste Dtvasion Directors, Regions I. Ifl-X L.( X s - t4 cf - .Q; c.c- LLr4 1,,. .L- o Pt c oae CLA.. .o... C&C. ------- 9477.1986UU RCRA/SUp F D HOTLINE MONTR y SU) , JUNE 86 3. financial Requlr T nts/Closure Costs The regulations under 40 CFR 265.143(a) apply t the use of a trust fund as a financial assurance mechanism for closure of an interün status facility. Section 265.143(a)(3) requires the ner/operator to make annual payments into the fund throughout the “pay-in period.’ The “pay—in period” is defined as the 20—year period fol1 iiirç July 6, 1982 (the effective date of the regulation per 47 FR 15032) or the r riaining operating life of the facility, whichever period is shorter. An interim status facility with three surface impoun tents has estimated different closure dates for each unit. If the facility uses a trust fund for closure/financial assurance, does it make adjus tents in the pay-in period for the different closure dates? tb the new closure/f inancia]. assurance regulations, effective October 29, 1986 (see the May 2, 1986 Federal Register ) (51 FR 16422)), change these requi nents? Msuning that the estimated closure dates fall before July 6, 2002 for the units, the pay—in period for the facility uld equal the pay-in period for the unit closing last. Specifically, Section 265.143(a)(3) states that the ainer/operator nust make payments into the trust fund ‘over the re iaining operating life of the facility as estimated in the closure plan....” For example, If unit A closes In six years, unit B in eight years, and unit C in ten years, the pay-in period u1d be ten years. Closure of the first t in ouináiients uld constitute partial closure, as defined in S260.]O, so that the facility ‘ uld continue operating until the last unit closed. A definition of “final closure” s added to 5260.10 by the May 2, 1986 regulatic . The new closure/financial assurance regulations published in the May 2, 1986 Federal Register (51 FR 16422) do not directly affect the current pay-in peri syst . EPA requested e a nts on the systen in the pre le to the proposed closure/financial assurance regulations published in the March 19, 1985 Federal Register (see 50 FR 11068). Sate ccmtents suggested that the pay—in period sP Td be as long as the shortest operating life of a unit at a multiple process facility. EPA believes that the accelerated pay-in period may be cost-prohibitive for enafler facilities arid discourage ners/operators fran conducting partial closures (51. FR 16438), Presently, EPA will maintain the existing pay—in period regulations arid evaluate the situation further. Source: Michael !brthridge (202) 382—4790 Research: Jennifer Brock ------- UNITED STATES ENVIRONMENTAL PROTECTION A ‘“ ‘, c c’•’ ja.tS MEMORANDUM SUBJECT: LTV Bankruptcy FROM: Carole .7. Anehele., Chief Closure/Financial Responsibility Section (WH-563—A) TO: Addres sees On July 17, 1986, LW Corp. and noet of its si.tsidiariee filed for protection under Chapter 11 of the Bankruptcy Code. In a Chapter 11 proceeding, the debtor generally rename in t*ieiness during the bankruptcy action, retains his property, and pays the creditors fran future earnings, in accordance with a plan of rehabilitation approved by the court. In a Chapter 11 proceeding, the debtor my be allowed to contiziie to operate the isiness or a trustee may be appointed in the interest of the creditors. The financial responsibility regulations require that an owner or operator, or a guarantor of a corporate guarantee, notify the Regional Administrator by certified nail of the canmencenent of a proceeding under Title 11 (Bankruptcy), U.S. Code, nening the owner or q)erator as debtor, within 10 days after the cannencement of the proceeding (see 264.148(a) and 265.148(a)) Accordingly, LW must notify appropriate officials by July 27, 1986. Attathed to this inemoranduni is a copy of information that shows ich facilities are owned by LW or its subsidiaries, according to our firm/facility data base. Although it appears that only Regions II, III, IV, V and VI have LW facilities, I am sending this to all Regional Subpart K contacts, in the event this listing is incanpist. (please notify na of such errors). Many of the faciliti.. are located in authorized states. I suggest that you watch r the required notification, and in any case, •nsurs that financial responsibility mechanien. for the LW facilities ax. in order. Of course, th. notices for facilities in authorized states are unlikely to be sent to you; please coutact yo counterparts in th. those states. I also suggest that you info jn your Regional Counsels of this action. OSW developed a guidance document entitled Pursuing RCPA Subpart H Interests in Bankruptcy Litigation, dated F.bruazy, 1983, wt ich was provided to you at that time. ------- —2- In &4vfttic , you y be a re that the General P ccoLv tinc• ‘) fice (GN’) riccntly pt lishe a r ort re ar r g the ris,s po.el by closing/closed facilities (4azarjcaas sits, Environ— mental Safe uardz Jeopar’1jted When Faciitjes Cea s Operating, February 1986 . GAO/PCEr’ —86.. 77). As *rt of the infor,ti.itjogi collection ftfl( 4 analysis that •upy rteci this r ort, C? devclope a list o’ C A facilities or o reted ty firi that havo declare 4 berkruptcy. I just r.ceive the attathed r r oranduzi from ICF, ers they atter t.d to e tch GAO’. list of facility oai es with EPA identification mit’b.rs, Açain . please let as know of any errors on the list. I t11 atte- 2 t to track noticea of bankruptcies and providi ‘ ,‘e j with •jr jlar list.i of facilities, call. on F 3t2-47 l if vr j h&ve any “uerttona or if vu ne .! another copy of tne ui lance. Attfichr er.t , AJ’ re, sees * lar” os!’ce . Pe jon I Lc’lia t ltzer, R.cthn II nil Shr4s-:, Reqion 111 3. . Eirrnr., Pe ion fl’ tave Strirr’ a’i• Region V !ill allaiier, Peqion VI Pure Wol!rar, egfo ’ VII Carol Lee, Reaion, VIII Phon a Rothschild, I X chuck rice, : Jo’ Fr•ocr n, O C inny teiner, O PF: scott Parzis’a, Pa, ?har, ozc : Hike ‘ orthrid , O! Susan ra i, OS• I ------- UNITED STATES ENVIRONMENTAL PROTECTIoN 9477.1986(13) ucwst 15, 19FsG Plr. C.T. Howlstt, Jr. Dir.ctor, Goverr nent 1 f fairs I nviron:ient, Health and Ch.rical Safety Georaia—Pacific Corporation International Sqi. r. 1785 Eye tr.et, .W. WasHn ton, T5.C. 20006 Vear Mr. tow1ett: I an re3ponclin’7 to your letter o’ August 4, 1986, to Mr. Ceorge Garland, since the Offic. of Solid .te ha. bee ’i reorganired. The ape iUc questions you raised are eddros.sc below $ oursrii ’ , !)o these n provisions in 40 CFR Parts 264 anc 4C autor tically tabz effect in Ca1i rnia on Sept ber 9, 19sC? The corporate qua rantea rule that appears in the Fe.leral Re ister o’ July 11, l9qG (51 FR 25350) is an int.riii final rule. Corn’ er .ta were r u.ste fror t regulated ca munity on tho “fo ” of t’te guerantee. If the ca”uients do not show a need to modify the rvlo, It will become effective for the Federal RCRA proqra.- on Septe.’*er 9, l98f . Compliance idth any applicable Californ atatc, liability raquira ents may also be necessaryi their re .il i— tions may differ from the corresponding Federal rules on thiri party liability. The k.y ir ivi iual, fr California you t cntiou in your letter w u1d be able to offer you better guidance in t c area c f state liability rm utr ents. An additional r.quir.i nt is receipt by EPA of a written •tat .nt or •taeaents, as th• case may be fran the Attorney O.n.ral(a) or insurance cau tssion.r(s) of the Stat• in èiLch the quarantor is inco porat.d and tie Stats(s) in whi the facility(L.s) covered by tb. guarante. is (are) located, saying that the corporate guarantis .zecut.d as described in section. 264.147, 265.147 and 264.151(h) (2) is a legally valid aM •nforce&,i,s obligation in that State. Althouq your question concerned a G.orgia Pacific ft.sin facility in Ukiah, California, other facilities rnec or q’er— ated by your corpe Iy in Stat•s wit RCRA aut) rized xograma r net have the a-portunity to benefit fra” the Feisral corporate juarantee rule. Aut rL:ec 1 t $j1 net os r. uir..i to r odif ------- —2— t:i ir ‘ro.-ra c hec we tl’ ese stan4 r s, or 1 t& or: J 1y 1 , 1 sP6 ar’ c zi erc’ to be lv a! etrirrient than the existinc, Fe1er 1 re,u 1 .rer,ents. OUF5 TIo :z flava you aleo o tr ined ai ’ res nze frai the Ca1ifornj Attorr ey General ah it the leaality of the approvei ta ranty under Calitorniahs in xance law? ks v. t, have not received arrj res nse fran eitner the California or the Geor,ia (State ef incor ratjon) State Attori a 1 General. I trust t t iy ans erq have baen he1pfi. l. If you havc y further luestion2, 3lease c l1 Carlo. Lago o (202) 3 2—47c . Sinci c ly, Carole J. Ans’ elee, i f ClosurefZ’jnancjal Ke3 x ns ihilit, SeCtion (%;;I— c3i .) P rr .t an I state Progra: .iivisio:i cc l Ce r e ( rlanr ------- UNITED STATES ENVIRONMENTAL PROTECT $ AGENCY 9477.1986(16) SEP -4 i 5 M 4ORANDUM SUIJEC”ls Third-Party Letters of Cr.d.tt, Conv.rtibl.. bonds, and Iubçsrt 0 Conference PROM, Carols J. Mshej..s, Qti.f Closure/pjnancjal RSs n. ibility Section TO, Subpart H Contacts, Regions i-X We have recently r ceive1 questions and rsseard .d the following t subjects, which should be of interest to yous (1) Third—Party Letter of Credit , We received a question frczi an individual who nt.d to know if a third party could obtain a letter of credit for an owner or q’.rator who mast cc.inply wit.i the Subpart ! requirenmnts. O contractor, icr, looked into t e matter, and concluded that a letter of credit obtained by a thir.. party on behalf of an o er or operator would costply with the regulatory rs uirsn.nts of Subpart H if the language is identicd to the languaqe stipulated in 40 CPR S264. 151(a). QGC , GtC t , and O : agr.o. Attachn*zzt 1 explains the reasoning behind the rss nse. (2) Convertible Rondas We received a question conc.rninc vhetncr eonvertthle bore rattn ar. acceptable r r .ting financial teat requir .nts. Atta m.nt 2 shows ICY’s analysis. They concladc that a convertible bond issue should be acc.ptable in iieetin financial t.st rspair.i.nts if it is rated investv.nt jrade by either of the required rating agencies. In ad tjon, the Subparts G and H conf•g.nc., originally sChedulsd g this fall, has been postperaed due to rssowc• probl.r,s. W• have not rescheduled yet, but will likely hold it in the spring. Pleas. pass this infornation on to your State contacts. If y u have any questions on the.. 2ttsrs, call Deborah Woip. at 382-772g. cc . Joe Freeduan Ac ie T.nusa]c . SPA P. .. 1320.1 (12.70) t. s .usa. es r ------- 9477.1987(01) March 2, 1987 MEMORANDUM SUBJECT: Liability Requirements for Facilities Actively Seeking a RCRA Permit FROM: J. Winston Porter Assistant Administrator TO: Waste Management Division Directors Regions I - X As you know, before a treatment, storage, or disposal facility is issued a RCRA permit, §270.14(b) (17) requires that the facility demonstrate its ability to comply with the liability coverage requirements of S264.147. We are aware that a number of facilities with Part B permit applications currently undergoing review by EPA and the authorized States do not have insurance coverage and cannot otherwise demonstrate compliance with the §264.147 liability coverage requirements. The permit applicant’s inability to demonstrate compliance with this important financial responsibility requirement is grounds for permit denial under §270.10(e) (5). The constrained insurance market which currently exists makes the §264.147 requirement difficult to meet. We are especially concerned about facilities that are actively seeking a permit and can satisfactorily demonstrate compliance with the other Part 264 regulations. Some of these facilities face permit denial solely because of the limited availability of insurance. As we agreed at the October, 1986 Division Director’s Meeting, we believe it is appropriate to grant such facilities additional time prior to final action on the permit, to make concerted efforts to secure insurance or provide an alternative mechanism for lability coverage. Six months is suggested as sufficient extra time; however, facility—specific adjustments can be made in order to be consistent with compliance orders issued pursuant to the October 29, 1986, memorandum of “Enforcement of Liability Requirements for Operating RCRA Treatment, Storage, and Disposal Facilities.” Facilities that are close to either a Notice of Intent to Deny (NOID) or permit denial solely for failure to meet the §264.147 liability coverage requirements should be notified immediately that further permit processing This has been retyped from the original document. ------- —2— will be delayed for the duration of this final opportunity to demonstrate compliance with §264.147. Some of these facilities, for instance, may be able to take advantage of the recently promulgated corporate guarantee. Others may now find it easier to locate an insurer. At the end of the additional period of time, if the applicant still does not have an acceptable financial instrument in place, the permit is to be denied. It should be understood that approving an additional few months for facilities to provide the necessary demonstration of compliance with our §264.147 liability coverage regulations does not justify delaying any land disposal facility’s permit issuance/denial beyond the November 8, 1988 deadline. To the extent facilities accorded this additional time are approaching NOID or permit denial during the next few months, I realize this policy may affect the Regions’ abilities to meet quarterly SPMS targets. Regions should identify, on a facility— specific basis, the permitting targets for the second and third quarters of Fl 1987 that will be missed due to the exercise of this policy. The revised schedules for draft and/or final permit determinations should also be provided. This information should be submitted in writing to Susan Bromm, Acting Director, Permits and State Programs Division, by March 30, 1987. The Office of Solid Waste (OSW) will use this information in the quarterly SPMS briefings for me and the Deputy Administrator. In this way, managers at both the Regional and national level will continue to focus on the liability coverage issue and the utility of this policy. In addition to the near-term SPMS reporting information, OSWER also needs to be able to accurately characterize the problems that operating hazardous waste facilities are facing in regard to insurance for liability coverage. Whereas OSWER has previously relied upon informally-gathered or anecdotal information, it has become increasingly important for OSWER to have more facts about the magnitude of the problem. I am, therefore, asking for an overall list of the land disposal facilities in your Region that are currently seeking an operating permit but are not in compliance with §264.147. Among these, you should identify the facilities which, in the judgment of the Region, will not qualify for a RCRA permit due solely to their lack of liability coverage. This information should be submitted to Susan Bromin no later than March 17, 1987. This has been retyped from the original document. ------- —3— Please contact Natt Hale (FTS 382—4740) or Elizabeth Cotsworth (FTS 382-4746) if there are questions regarding this policy or the information being requested from each of you. cc: Susan Bromm Jim Michael Kim Ogden Susan Absher Thad Juszczak Jackie Terusak Sue Gladek Elizabeth Cotsworth Matt Hale Permit Section Chiefs, Regions I-X RCRA Branch Chiefs, Regions I-X This has been retyped from the original document. ------- 9477 . 198 7 (03) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON D.C. 20410 APR! 1987 o,pIcE op soi. ,o W*STt £ D 1MI QINCy NtlPOpd$E Honorable Robert Dole United States Senator 636 Minnesota Avenue Kansas City, Kansas 66101 Dear Senator Dole: Thank you for your letter of March 6, 1987, concerning the comments of your constituent, Mr. Gregory Shondell, Secretary Treasurer of Heathwood Oil Company. Mr. Shonde]l, had written to you expressing concerns with hazardous waste financial responsibility regulations under the Resource Conservation and Recovery Act (RCRA). A particular concern of Mr. Shondell with respect to his parts cleaning business, is the reluctance of his insurance company, Federated Insurance, to provide either a Hazardous Waste Facility Liability Endorsement or a Certificate of Liability Insurance to the Kansas Department of Health and Environment (KDHE). Either of these documents, if submitted, is sufficient to indicate Heathwood Oil Company’s compliance with RCRA liability coverage requirements. The Endorsement and the Certificate wire developed specifically to ease compliance with the RCRA liability coverage requirements. Insurance companies can rely on the standard languag. of the Endorsement or Certificate rather than having to assure that the language of individual policies meet the requlatory r.quir.m.nts. At the same time, for regulatory and enforce— mint authorities who must evaluate facility compliance with various design, operating and performance requirements, compliance with the liability coverage can be easily verified. We are not aware of any insurance company’s reluctance to provide the Endorsement or Certificate when the policies being issued fully comply with the RCRA liability coverage requirements. As stated above, authority for the RCRA program currently belongs to the State of Kansas. Under Section 3006 of RCRA, EPA may authorize quslif lid States to administer and enforce their own hazardous waste programs. Kansas has been authorized since 1985. As such, Kansas imposes regulatory requirements that are equivalent or more stringent than those of the Federal RCRA program. As part of its authorized hazardous waste program, Kansas relies on receipt of the Endorsement or Certificate as the mechanism for indicating compliance with its liability coverage regulations. ------- We understand that Mr. Shondell’s situation is currently under review by the KDHE. A meeting was held between KDHE officials, Mr. Shoridell, and Federated Insurance representatives to review possible deficiencies in the coverage provided and suggest changes that may bring Heathwood Oil Company back into compliance with Kansas regulations. A final decision is pending. There is a concern on the part of KDHE that one existing policy for Heathwood Oil Company does not cover all its hazardous waste operations. Our financial responsibility expert, Mr. Mike Wolfram (913—236-2800) in EPA’s Region VII office, is also reviewing the Federated Insurance policy and will be availabl, to participate with KDRE officials and Mr. Shondell’s insurance company representatives to discuss the policy in question. Mr. Shondell also Commented on the difficulty of securing liability insurance. The EPA is aware of the constrained environmental liability insurance market and is sensitive to the problem for owners and operators of hazardous waste management facilities seeking to comply with RCRA. Enclosed for Mr. Shondells information is a list of companies that offer Environmental Impairment Liability (EIL) Insurance. There are changes taking place in the insurance market- place that are favorable to the regulated community. For instance, Business Insurance, the trade publication of the insurance industry, te in its December 8, 1986, issue that the two major vendors for EIL insurance ar. looking to expand the volume of EIL business they write. In addition, risk retention groups are being formed to offer EIL coverage. The Agency has also made efforts to offer relief to RCRA facilities unable to secure insurance. On July 11, 1986, EPA promulgated a rule allowing an alternative instrument, the parent corporat. guarantee, to be used to demonstrate financial assurance for liability coverage. The Agency is also developing another rule that will authorize more instruments for providing liability coverage and will also amend current insurance requirements that say be limiting the availability of insurance coverage to hazardous waste facilities. I hape this information on Mr. Shondell’s situation and on liability insurance is useful. If I can be of any further assistance, please let me know. Sincerely. I . Winston Porter ssistant Administrator Enclosure ------- 7.1987(o5) RCRA/SUPERFUND HOTLINE MONTHLY SUPO(ARY JUNE 87 7. L .iabiii.ty R uir nents of Subsi.d.iaries EPA requires that all. hazardous waste fir ns caTply with the A third party Liability requirements. Besides insurance. cat pliance can be obtained through the use of the financial test for Liability and the cotporate guarantee for liability. A hazardous waste Ca axiy has six different subsidiary fim . This parent corporation has met the requirements of the financial test. Can all six subsidiaries obtain a corporate guarantee fran the parent corporation? bthing in the regulation prevents the parent fran using the corporate guarantee for nore than one sub-contractor. 3.zt, the required multiples for the financial test must be based on a true aggregate of liability guaranteed. Source: Canoe Lago (202) 382—4780 Research: Georga Kleevic ------- 9477.1987 (09) UNITED STATES ENVIRONM TAL PROTECTION AGENCY WASHINGTON D.C. 204*0 NO 1 0 l9 o,,IcI o lOUD WAITE AND £Ml 3(NCy E3PONfl Harry Shuford Environ enta1 Protection Insurance Company 220 E. 42nd Street, Suite 500 New York, NT 10017 Dear Mr. Shuford: I am writing you, at Robert F. Schiff’s request, in response to Mr. Schiff’s letter of November 2, 1987 to the EPA Office of Solid Waste. In his inquiry, Mr. Schiff sought our view of whether the Resource Conservation and Recovery Act (RCRA) requirements that hazardous waste management faciliti-es demonstrate financial assurance for liability can be satisfied by a policy issued by a risk retention group. The RCRA regulations at 40 CFR Subpart H require, in part, that to satisfy the financial assurance requirements, an insurance policy must be issued by an insurer licensed to transact business in one or more states. (40 CFR 264.147(a) (l)(ii), (b)(1)(ij) and 265.147(a)(1)(ii), (b)(1)(ji)). A risk retention group which meets the requirements of the Risk Retention Act of 1986 and which is licensed to transact the business of insurance in at least one state would satisfy this regulatory requirement. Your letter indicates that the ivironjnental Protection Insurance Company (EPIC) has met these conditions. Accordingly, policies issued by EPIC in conformance with all other requirements of Subpart H could be used to satisfy the Federal RCRA requirements for liability coverage, or the requirements of an authorized state that adopted the Federal regulatory language. I should add, however, that compliance with Federal requirements may not be sufficient to fulfill state requirements. State RCRA requirements may be more stringent than the Federal requirements. In states authorized to ------- 2 administer the RCRA program, therefore, state regulations must be examined to determine whether your Specific mechanism Satisfies the RCRA financial assurance requirements and is Otherwise Consistent with state law. Sincerely• Bruce R. Weddle Di rector Permits and State Division Cc: Robert F. Schiff RCRA Waste Management Division Directors, Region E-X ------- 9477. 1987(10) November 10, 1987 Honorable Nancy Johnson House of Representatives Washington, D.C. 20515 Dear Ms. Johnson: In my letter to you of March 19, 1987, I indicated that the Office of Solid Waste was attempting to identify how many land disposal facilities subject to the 1988 permitting deadline were unable to meet the RCRA liability coverage requirements and, among these, how many faced permit denial solely because of this non-compliance. I am happy to be able to share the results of our inquiry with you. Information from our Regions indicates that the number of existing land disposal facilities out of compliance with the RCRA liability coverage requirement (40 CFR Part 264.147) for facilities totals no more than 19 and may, in fact, be as few as 13. Unfortunately, difficulties in clearly separating liability coverage violations from non-compliance with other RCRA financial responsibility regulations prevents me from being more precise. In regard to the number of land disposal facilities for which liability coverage is the only impediment to permit issuance, according to the best judgment of our Regional experts, only one facility falls into this category. The remaining 12-18 facilities are either unable to comply with other RCRA permit requirements or else are expected to decide to close instead of pursuing an operating RCRA permit. This information is good news to me and, I hope, also to you. The results indicate that most land disposal facilities actively seeking a RCRA operating permit at this time have made concerted efforts to acquire insurance or otherwise demonstrate their ability to provide coverage for third-party liability. EPA’S Regional offices, the States, and my own office continue to work with the non-complying RCRA facilities to secure the necessary liability coverage to comply with current regulations. In our meeting of late March, you also inquired as to the mechanisms that facilities rely on for demonstrating liability coverage. Although not all of our Regions have been able to provide us this information yet, I can share some illustrative information. Region I, for instance, reported that six out of eight existing land disposal facilities seeking a RCRA permit use the financial test to comply with §264.147 liability coverage requirements; the remaining two facilities use insurance policies. In another EPA region, almost half (47%) rely upon the This has been retyped from the original document. ------- —2— financial test while the rest are either insurance (43%) or the corporate guarantee (10%), which became effective as a liability coverage instrument in September 1986. I will forward a more complete tabulation of this information as soon as it is available. Please feel free to contact me if I can provide further information on this issue. Sincerely, J. Winston Porter Assistant Administrator Enclosure This has been retyped from the original document. ------- 9477.1987(11) -7 ‘ s. 1 , UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON. 0 C 20460 OFFICE OF I fl 10P7 SOi ID WASTE AND EMERGENCY RESPONSE Richard Cram, Vice President R&D Fabricating & Manufacturing, Inc. Box 31225 Lafayette, LA 70503 Dear Mr. Cram, Thank YOU for consenting to participate in a pre-test of a questionnaire developed by the Environmental Protection Agency (EPA) for the purposes of gathering information on difficulties associated with third—party liability coverage requirements of the Resource Conservation and Recovery Act (RCRA). The RCRA liability coverage requirements, con .ained in 40 CFR Parts 264.147 and 265.147, are briefly described below. The enclosed questionnaire is intended to help EPA better understand the problems that owners and operators of hazardous waste treatment, storage, and disposal facilities have encountered in obtaining liability coverage, in particular through insurance, to meet the current RCRA requirements. The information will provide EPA with a factual basis for determining necessary modifications tO regulatory requirements and policies. Responses tO our questions will not be used for enforcement purposes. Your participation in our pre-test, along with that of several other hazardous waste management facilities or firms, will enable EPA to determine whether our questions are clear and understandable, and also whether our instructions provide helpful guidance. Because of your willingness to participate in this pre-test, you will not be required to respond to the final questionnaire. Currently, RCRA financial responsibility regulations in 40 CFR Parts 264.147 and 265.147 (SS264.147 and 265.147) require owners or operators of hazardous waste treatment, storage, and disposal facilities tO provide liability coverage for third-party bodily injury and property damage by sudden accidents arising from facility operations. The RCRA regulations also require owners or operators of most types of hazardous waste land disposal facilities to maintain third-party liability coverage for bodily injury and property damage due to nonsudden accidents. The respective coverage levels for sudden and nonsudden ------- accidents must be at least Si million and $3 milliOn per occurrence, with annual aggregates of at least $2 million and $6 million, exclusive of legal COStS. These requirements apply to owners and operators of interim status (S265.147) and permitted (S264.147) facilities or groups of faci lit ies. Financial instruments that can be used to provide third—party liability coverage are also specified in the 264.147 and 265.147 regulatiOns. Insurance and a financial test were initially included as allowable instruments for liability coverage. In July, 1986, in response to difficulties that hazardous waste management facilities experienced in obtaining liability insurance, EPA authorized the corporate guarantee as an additional financial instument. We intend to further amend the regulations to allow other instruments to be used to demonstrate compliance with the RCRA liability coverage requirements. EPA has authorized most States tO administer their own hazardous waste programs in lieu of the federal RCRA - program. While the liability coverage requirements of authorized States may differ from the federal requirements of 5S264.147 and 265.147, they must be at least as stringent. Since your facility is located in an authorized State, please base your responses to our questions on your State’s liability coverage regulations. You should answer all questions contained in the enclosed questionnaire that are applicable to your facility or the group of facili.ties owned or operated by your firm. If a response to a question requires more space than is provided please use the back of the questionnaire or attach a separate sheet of paper. Please feel free to consult with your insurance agent or broker, if necessary, to respond to any of the questions. As a pre-test participant, any comments that you may have regarding rephrasing either the questions or the instructions for further clarity are welcome. We encourage you to note, on the questionnaire itself or on a separate piece of paper, ally additional instructions that might be useful, or any particular difficulty you encountered in answering our proposed questions. Your estimate of the amount of time needed to respond, including preparation and research time, would also be helpful tO EPA in estimating the burden that our inquiry places upon owners/operators. At any time as you read through the questionS or answer them, you should feel free to contact Elizabeth Cotsworth at 202—382-4746 to discuss the purpose of the question, EPA’S expectations regarding the form or content of an answer, or to provide general comments directly tO us. ------- —3— Upon completion of the questionnaire, please return it in the enclosed envelope, along with any written comments, to: Elizabeth Cotsworth Office of Solid Waste, iH-563 U.S. Environments ]. Protection Agency 401 M Street, S.W. Washington, D.C. 20460 We are requesting this information under authority of Section 3007 of RCRA. Information obtained under RCRA Section 3007 must be made available to the public unless you demonstrate to EPA that it is confidential. The treatment of confidential business information is provided for by Section 3007(b) of RCRA and regulations contained in 40 CFR Part 2. We look forward to your response to our pre-test. We expect it to provide EPA with useful information for finalizing our questionnaire. Sincerely Director Office of Solid waste Enclosure ------- 9477.1987(12) RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY NOVEMBER 87 3. Financial Assurance Corporation A owns 100% of the voting shares of corporation B. Corporation B owns over 50% of the voting shares of corporation C. Can corporation A fulfill the requirements as a parent company of corporation C for the purpose of financial assurance, via corporate guarantee as required in Sections 264.143, 264.145, 265.143 and 265.145? In this situation corporation A is a “grandparent” corporation which indirectly owns over 50% of the voting shares of corporation C. Corporation A does not fulfill the definition of a parent corporation stated in Section 264.141(d) (see April 7, 1982 Federal Register, 47 FR 15037) as: “A corporation which directly owns at least 50% of the voting stock of the corporation which is the facility owner or operator; the latter corporation which is deemed a “subsidiary” of the parent corporation.” The Agency adopted this definition to ensure that the connection between the two firms will be close and direct, and the parent company is likely to have a strong interest in the satisfactory performance of the subsidiary. Since corporation A is not a parent corporation, it may not be used to demonstrate financial assurance via a corporate guarantee for corporation C. Source: Carlos Lago (202) 382—4780 Research: Craig Campbell This has been retyped from the original document. ------- 9477.1988(01) iID S 4 F UNITED STATES ENVIRONMENTAL PROTECTION AGENCY c WASHING T ON. D.C. 20460 ; I f 1 ,, •%I t OFFICE OF FEB 2 5 1988 SOLID WASTE AND EMERGENCY RESPONSE MEMORANDUM SUBJECT: OSWER Directive No. 9477.00-6 Guidance for Reviewing Exclusions for Pre-Existing Condi in RCRA TSDF Insurance Policies FROM: Jeffery D. Denit, Acting D Office of Solid Waste (WH-56 TO: Robert L. Duprey, Director Hazardous Waste Management Division, Region -VII I This memorandum is in response to your memorandum dated January 22, 1988 regarding OSWE Directive No. 9477.00-6 aad Subpart H liability nsurance c verage. The guidance i.’ this Directive, “Reviewing Exclusions for Pre—Existing Conditions in RCRA TSDF Insurance Policies,” was developed because the Regions differed in their willingness to accept policies that contained pollution exclusions. The guidance is based on the Agency’s interpretation of the existing Subpart H regulations. Since the insurance certificate or endorsement is a statement that the policy fulfills the “insured’s obligations tO demonstrate financial responsibility under 264/265.147” such certificates or endorsements should provide evidence that the issued policies do not contain unacceptable exclusions. As pointed out in the guidance, you may continue to rely upon the insurance certificate and the insurance endorsement required by Subpart H regulations to ensure that insurance mandated by RCRA is in place. As part of your oversight role, however, the guidance suggests that you routinely review the pollution exclusions endorsements to policies. Directive No. 9477.00-6 should provide adequate guidance in reviewing these contract endorsements. If problems or questions do arise, please do not hesitate to contact either OSW or OWPE for assistance. OSW and OWPE are also currently ascertaining whether the Agency has funds to retain a contractor to assist in the review of insurance pc1Jicie . If the project is undertaken, ------- —2-- S the task for the contractor would most likely entail an analyEls of one “form” contract from each of the companies issuing liability insurance o RCRA TSDFs. In reference to your last point concerning the expansion of liability insurance coverage for nonsudden events to all TSDFs, there are currently no plans to revise the regulations. In developing the distinction between sudden and nonsudden coverage, EPA relied on evidence contained in case histories concerning damages associated with waste facilities. As a result of this analysis the Agency determined that storage and treatment facilities were more likely to experience a sudden, rather than nonsudden accident. We believe that this distinction is still appropriate; however, the regulations re quite flexible. If a Regional Administrator or State determines there is a significant risk to human health and the environment from nonsudden accidents at a treatment or storage facility, such coverage may be required (264/265.147(d)). Should your staif have further questions concerning these issues, they may contact Mark Pollins at FTS 382-4780. ------- 9477.1988(03) RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY JULY 88 1. Tank Replacement A permitted storage facility has several above-ground storage tanks that are managed in compliance with Subpart J of 40 CFR 264. If the owner/operator replaces one of the tanks, would he be subject to any closure requirements? Would it make any difference if it were a facility with only one tank? Section 264.112(d) requires notification of partial closure for surface impoundments, waste piles, land treatment units and landfills. This same section requires notification regarding treatment, tank storage, container storage or incinerator facilities only in the case of final closure. Replacement of a storage tank would not constitute final dosure per Section 264.197, and partial closure is not applicable to a storage tank facility per Section 264.112(d). While not specifically required, the owner/operator should decontaminate the removed equipment and notify the state or region of the change. However, equipment that is not decontaminated must be managed as a hazardous waste. Source: Bill Kline (202) 382-7924 Chester Oszman (202) 382.4499 Research: Laurie Huber ------- 9477.1988( 34) RCRA/SUPE HOTLINE MONTHLY SUMMARY OCTOBER 88 2. Financial Assurance Three treatment, storage and disposal facilities (TSDFs) are wholly owned subsidiaries of one company. The three facilities need financial coverage for nonsudden accidental occurrences: $3 million per occurrence and $6 million annual aggregate. Must the parent company provide the $3 mi]lion/$6 million for each facility (a cumulative of $9 million/$18 million) or can all of the facilities be covered by the $3 million/$6 million? An owner or operator of a hazardous waste treatment, storage, or disposal facility, or a group of such facilities must demonstrate liability coverage in the amounts of $3 million per occurrence and $6 million aggregate (40 CFR Section 264.147(b)). As explained in the April 16, 1982 Federal Register (47 16544), liability coverage is required on an owner or operator basis rather than a facility basis. The annual aggregate coverage requirement takes into account the risk of multiple occurrences among facilities owned by one company (47 , 16546). Therefore, the company that owns three TSDFs as subsidiaries is only required to have $3 million/$6 million nonsudden accidental coverage, not $9 uullion/$18 million. Source: Mark Pollins (202) 382-4780 Research: Renee Pannebaker ------- 9477 • 1988 C 05) RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY NOVEMBER 88 1. Adjustment of Post-Closure Trust Funds Used for Financial Assurance A TSD facility has been in post-closure care for one year. The Facility owner or operator had established a post-closure trust fund to meet their financial assurance obligations. Can the facility owner or operator remove from the trust fund the amount which exceeds the remaining cost of post-dosure care? According to Section 264.145(a)(lO), during the period of post-dosure care, the Regional Administrator (RA) may approve a release of funds if the owner or operator demonstrates to the RA that the value of the trust fund exceeds the remaining cost of post-closure care. Therefore, the facility owner or operator must receive approval for the release of excess funds from the RA, prior to removing that amount from the trust fund. Source: Mark Pollins (202) 382-6259 Research: Kim Jennings ------- 9477. 1988(06) RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION . DECEMBER 1988 3. Financial Assurance Company X is identified on a RCRA Subtitle C permit or permit application as owning three treatment, storage and disposal facilities (TSDFs). These facilities are operated by wholly-OWfled subsidiaries of Company X. ‘rhe three -. facilities need financial coverage for nonsudden accidental occurrences: $3 million per occurrence and $6 million annual aggregate. Must the parent company provide the $3 million/$6 million for each facility (a cumulative of $9 million/$18 million) or can all of the facilities be covered by the $3 million/$6 million? An owner or operator of a hazardous waste treatment, storage or disposal facility, or a group of such facilities must demonstrate liability coverage in the amounts of $3 million per occurrence and $6 million aggregate (40 CFR Section 264.147(b)). As explained in the April 16, 1982,Federal Register (47 E 16544), liability coverage is required on an owner or operator basis rather than a facility basis. The annual aggregate coverage requirement takes into account the risk of multiple occurrences among facilities owned by one company (47 ER 16546). So, the company that owns three TSDFs as subsidiaries is only required to have $3 million/$6 million nonsudden accidental coverage, not $9 million/$18 million. ------- 9477.1989(01) WIlTED STATES mIYIIOIWENTAL PROTECTmi AGENCY MEMOPAND V.? SUBJECT: Acceptable Bond Ratings for Use in Subtitle C Financial Test FROM: Joseph s. Carra, Director Permits and State Programs Division TO: RCRA Branch Chiefs, Regions I - K We have recently received specific inquiries Concerning whether certain types of bond ratings meet the conditions required by the bond rating alternative of the Subtitle C financial test. 40 CFR SS 2 64/265.]43(f ), 264.145(f), 265.145(e), and 264/265.147(f). Specifically, whether a BBB— rating from Standard and Poor’s (S&P) or a Baa3 rating from Moody’s satisfies the minimum ratings required by regulation. In brief, these ratings can be used to satisfy the bond ratin4 alternative of the financial test. Regulations relating to the bond rating alternative of the financial test specify that the owner or operator must have a bond rating “of AAA, AA, A, or BBB as issued by Standard and Poor’s or Aaa, Aa, A, or Baa as issued by Moody’s.” At the time these regulations were promulgated, S&P had not yet begun the practice of adding a “+“ or “-“ suff ix to bond ratings, and Moody’s had not yet begun adding a ‘1”, “2’, or “3” suffIx. The bond rating suffix indicates the relative standing of a bond within a major rating category. In other words, a BBB- bond has a lower relative standing than a BBB bond or a BBB+ bond, but all three bonds fall within the major rating category of BBS bonds. The BBB- bond would have been rated as a BBB bond prior to the time when S&P began adding a rating suffix. Similarly, a bond rated Baa3 by Moody’s would have been rated Baa prior to the time when Moody’s began adding the rating suff ix. In s’-—— ry, pursuant to current regulations, a Moody’s rating of Baa3 or better, or a S&P rating of BB S- or better satisfie the legal requirements of the financial test. We note that revisions to the financial test are currently being considered. The question of bond ratings will be fully re-examined during this effort. If you have any questions, please call Mark Pollins on FTS 382—6259. CC: RCRA Hotljne Regional Subpart H Contacts ------- PINK FILE COPY .- 0 9477.1990(01) JAN25 9O MEMORANDUM SUBJECT: Clarification of 40 CFR § 264.l47(a)(7), (b)(7), and § 265.147(a)(7), (b)(7) FROM: Sylvia K. Lowrance, Director (5/ Office of Solid Waste, (OS—300) TO: RCRA Branch Chiefs, Regions I-X This memorandum clarifies the regulations at 40 CFR §S264.147(a)(7), (b)(7) and 265.l47(a)(7), (b)(7), which require an owner or operator of a hazardous waste treatment, storage, or disposal facility (TSDF) to report to the Agency claims for bodily injury or property damage that result from operation of fl the facility. We believe this clarification is necessary because the Agency has been asked what types of information owners and operators must report to comply with those provisions. The reporting requirement in those sections was promulgated as part of a rulemaking related to liability coverage on September 1, 1988 and became effective on October 3, 1988. Those sections state that owners or operators must notify the Regional Administrator in writing within 30 days Ci) whenever a claim for H bodily injury or property damages caused by the operation of a Z TSDF facility is made against the owner or operator or an instrument providing financial assurance for liability coverage under this section, and (ii) whenever the amount of financial assurance for liability coverage under this section provided by a financial instrument authorized by this rule is reduced. We have been asked to define the extent of the first requirement, that is, the meaning at the language, “whenever a claim ... is made.” The purpose of the notification requirement is to provide the Agency with early warning of potential instrument failure due to pending claims and to provide the Agency with data concerning the incidence of valid third-party claims. To achieve these ------- 2 goals the Agency envisions that TSDF facilities will report to the Regional Administrator whenever: 1) a claim results in a reduction in the amount of financial assurance for liability coverage provided by an authorized financial instrument, or 2) a certification of a valid claim for bodily injury or property damages caused by a sudden or non— sudden accidental occurrence arising from the operation of a hazardous waste treatment, storage, or disposal facility is entered into between the owner or operator and a third-party claimant for liability coverage, or 3) a final court order establishing a judgment for bodily injury or property damage caused by a sudden or non-sudden accidental occurrence arising from the operation of a hazardous waste treatment, storage or disposal facility is issued against the owner or operator or an instrument providing financial assurance for liability coverage. The regulation is not intended to require owners or operators to report all types of claims that potentially could be filed against a facility. Section 264.151, a related provision promulgated in the same rulemaking, authorizes the payment of funds from the financial instruments only for valid third-party claims and expressly excludes payment for certain categories of damages or obligations such as claims under worker’s compensation law or resulting from automobile accidents involving vehicles owned by the facility. Similarly, the Agency intended to require owners or operators to report only valid claims to the Regional Administrator. The Agency did not intend that the reporting requirement extend beyond the three situations listed above and plans to clarify the regulatory language in the near future. This memorandum interprets the provision as it stands pending formal clarification in the Federal Reaister . It should be noted that the Agency is clarifying this provision in the interim through use of a memorandum because of the particular circumstances of this case. If you have any questions about this issue, please contact Barbara Foster at 382—4696. ------- 9477.1990(02) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE SUBJECT: Post-Closure FROM: Sylvia K. Office of Solid TO: Robert L. Duprey, Director Hazardous Waste Management Division (8HWM-RN) This responds to your memorandum dated 26 March 1990, in which you requested modification of the RCRA regulations regarding release of owners and operators from financial responsibility requirements. You expressed concern that owners and operators do not comply with the deed notification requirements of the regulations, and that because such a deed notation has a negative effect on the value of the property, there is a strong incentive for them not to comply. You suggested that the regulations should explicitly require such compliance with the deed notice requirements as a condition for release from financial responsibility requirements. As you discussed in your memorandum, sections 264.119 and 265.119 require owners and operators to record notations on the property deeds within 60 days of certifying closure. The deed notification must specify that: (a) the land has been used to manage hazardous waste, (b) use of the land is restricted under 40 CFR Subpart G regulations, and (c) a record of the hazardous wastes disposed of on the site has been submitted to the local zoning authority. At the same time, sections 264.143(i) and 265.143(h) require the Regional Administrator to release owners and operators from financial assurance requirements within 60 days of receiving certification that final closure has been completed in accordance with the approved closure plan. The certifications mentioned in sections 264.143(i) and 265.143(h) are those in sections 264.115 and 265.115. Thus, there is no explicit language stating that release from financial assurance requirements is conditioned upon a demonstration that the owner or operator has fully complied with the requirements of sections 264.119 and 265.119. We plan to amend the regulations to clarify that release of financial assurance is conditioned on full compliance with sections 264.119 and 265.119 in the next available rulemaking vehicle. Although enforcement is an available option to obtain compliance with sections 264.119 and 265.119, we encourage you to incorporate the requirements of sections 264.119 and 265.119 into ------- closure plans to avoid the need for such enforcement action. This will ensure that compliance with those sections will be complete before the release from financial responsibility. If you have any questions or comments regarding this memorandum, please feel free to contact Ed Coe at FTS 382-6259. ------- #uIO S’ 4 1 . UNITED STATES ENVIRONMENTAL PROTECTION AGENCY j WASHINGTON. D.C. 20460 9477.1993(01) OCT-4 ;gg3 c i E e SOLO v .ST NC F? RGENC RESPC’N5 Mr. Doug MacMillan, Director National Solid Waste Management Association Suite 100 1730 Rhode Island Avenue. NW Washington, DC 2 36 Dear responds to a question raised in your letter of May 16, 1993, regarding the potential liability of disposal facilities for disposing of contaminated debris that they believe to be within the scope of the May 8, 1993 extensiOn, but in fact is not (e.g., because the generator failed to file the required report, or failed to make a good faith effort to locate treatment capacity). This issue is not unique to the debris extsnsion it can arise under a variety of RCRA requirements (e.g., testing and recordkeeping) that are to be carried out by the generator. In such cases, it has consistently been EPA’S position that the disposal facility remains responsible for ensuring that restricted wastes are not disposed except in full compliance with all applicable treatment standards. See 51 Fed. Rag. 40597 (Nov. 7, 1986). A rule of strict liability applies under RCRA, so that a disposal facility can be liable for improper disposal of untreated waste even if it does so in the good faith belief that the treatment standard does not apply. As noted above, this is no different from the regime under which disposal facilities operate generally as to other RCRA requirements. Disposal facilities should use their own judgment on how best to minimize their risk of liability in such situations: obvious possibilities include requiring a copy of the national case-by-case report filed by the generator with EPA. In addition, as EPA has previously noted, generators and disposers may enter into indemnification agreements to allocate liability between them in the event that prohibited wastes are land disposed (see 51 Fed. Reg. 40597). Finally, I note that while good faith efforts to comply are not a defense to liability, they may be considered in the assessment of penalties under EPA’S 1990 civil penalty policy. ------- If you have further qi estions, please feel free to contact Lee Otte at (703) 308-8480 of this office. Sincerely, ( & C;& 1 t! ef nit - Ac ing Director Of of Solid Waste V cc: Matthew Straus, WMD Mike Taimi, WMD Lea Otto, ALDRS George Wyeth, OGC Jim Thompson, OWPE ------- D8 UNITED STATES ENVIRONMENTAL PROTEC11ON AGENCY t ) WASHINGTON. D.C. 20460 9477.1994(01) AFRI 94 OFFICE OF $0110 WASTE AND EMERGENC’r RESPONSE )lr. Torger Dahi Environmental, Health, and Safety Legal Staff Eastman Kodak Company 343 State Street Rochester, New York 14650-0207 Dear Mr. Dahi: Thank you for your letter to Matthew Hale, dated March 3, 1994 regarding a recent statement issued by the Financial Accounting Standards Board (PASS) that affects Kodak’s ability to pas. the RCRA financial test for it. environmental obligations. As your letter states, PASS statement 106: Accounting for Post-Retirement Employs. Benefits Other than Pensions (OPEB), requires that employers recognize these benefits after December 15, 1993 by using either the “immediate” or “delayed recognition” alternative. Your specific concern is that since Kodak has elected to use the “immediate recognition” method in accounting for OPEB, it may not be able to pass EPA’S financial teat for all of its environmental obligations. To address this concern, you propose that, for Security and Exchange Commission purposes, Kodak continue to use the “immediate OPEB recognition” method, but for purposes of the Agency’s financial teat, Kodak could use the “delayed OPEB recognition” method, which it calls an alternate net worth calculation. You state that when Kodak uses the “delayed OPEB recognition” method, it can pass the financial test for all of its environmental obligations. As you indicate in your letter, the RCBA subtitle C financial test under sections 40 CFR 264.343(f), 264.145(f), and 264.147(f) requires that, a. part of the teat, the owner or operator’s Chief Financial Officer must submit a certification that “figures for the following items marked with an asterisk are derived from this firm’s independently audited, year-end financial statements for the latest complete fiscal year. • N (see section 264.151(f) for the complete language of the certification). The owner or operator must also submit a 0. ------- -2— certification from hi. or her independent certified public accountant confirming the Chief Financial Officer’. certification. In your letter, you ask for EPA’s views on whether a firm’s Chief Financial Officer could make the required certification, if ths firm’. audited year—end financial statement calculated net worth by the “immediate OPEB recognition method,” but the figure. in the financial test submission are based on the “delayed recognition method.” After a careful review of the materials you provided, we have concluded that your proposal is within the scope of EPA’s subtitle C regulation., since both the “immediate” and “delayed” recognition methods ar. allowed under PASS 106. Furthermore, we agree that, under the circumstances you describe, the Chief Financial Officer could reasonably make the required certifications under the regulations, on the grounds that the alternative net worth calculation used for the RCRA financial teat is derived from the audited, year-end financial statements, or woUld have been used to prepare the financial statement if the company had chosen to use the “delayed recognition” approach. Thi. letter provides EPA’s interpretation of the Federal RCRA rsgulations. As you know, most Stats. are authorized to carry out the RCRA hazardoul waste program, and these States may choose to impose more stringent requirements than does the Federal program. Therefore, you should also contact the authorized States in which your facilities ar. located to determine whether your proposal is acceptable under authorized State law. If you have any questions regarding this letter, please feel free to contact Matthew Hale at (703) 308—8404. Sincerely, Michael Shapi , Director Office of Solid Waste ------- HOTLINE QUESTIONS AND ANSWERS June 1994 9477 . 1994 (02) 4. FinancIal Assurance Cost Adjustments On a Quarterly Basis The financial assurance regulations of § 264I5.142(b) require the owner/operator of a TSDF to annually adjust closure and post- closure costs. For a facility adjusting costs via L’nplici: price deflator (IPD), the cost adjustments must be made within 60 days prior to the anniversary of the esablislzment of the facility’s financial assurance (or within 30 days after the close ofafacility’sfiscal year for owner/operators using :hefinanciai test or corporate guarantee). Ifafacility’s anniversary date offinancioi assurance (or fiscal year) does not coincide with the issuance of the annual IPD, how should the facility adjust its costs? - - If a facility’s financial assurance anniversary daze or fiscal year does not coincide with the issuance of the annual IPDs, the owner/operator may use the latest IPD (for example, if a facility must update their financial assurance in February of 1994, the facility may use the 1992 annual IPD, despite the time lag). The U.S. Department of Commerce usually publishes the annual [ PD based on Gross National Product (GNP) in March, and the Gross Domestic Product (GDP) IPDs in February; the owner/operator may use either figure. Alternatively, the owner/ operator may use quarterly IPD figures published by the Department of Commerce, cbcaining the inflation factor by dividiiig the current quarterly IPD by the IPD for the same quarter in the pre uous year (e.g., divide first quarter 1994 by r z quarter 1993). If a facility’s anniversary date r fiscal year does not coincide with the issuance of the annual [ PD, the facility may use the most current annual or quarterly [ PD, however owner/ operators must be consistent in their use of either annual or quarterly JPDs to calculate the inflation factor. Some owner/operators may be required by their state regulations to update financial assurance cost estimates on a quarterly basis. ------- This Page Intentionally Left Blank ------- - HOTLINE QUESTIONS AND ANSWERS The RCRA financial assurwzce regulanons at § 264/5.l42(b) require the owner or operator of a TSDF to provide financial assurance to cover closure and post-closure costs. The regulations require the owner or operator to caiculate closure and post-closure cost esriinaies and adjust them aiuiually by either recalculating the cost estimate in current dollars, or by multiplying the previous estimate by an inflation factor. The inflanon factor is calculated by dividing the current Implicit Price Deflator (IPD) by the previous IPD. For those owner/operators who choose this method, must the inflation factor be calculated using the IPD based on Gross National Product (GNP), or n y the IPD based on Gross Domestic Product (GDP) be used instead? Although § 264/5.142(b) specifies using an [ PD based on GNP, EPA allows owners/ operators to update c sj e timates using the annuallPD)asedonGDP. The lDPbasedon GDP produces similar results to the IDP based on GNP, however, the IDP based on GDP is available to owners/operators two months before the IDP based on GNP. The IDP based on GDP was not available at the time this regulation was issued. When financial assurance regulations were originally promulgated, the Department of Commerce used GNP figures to calculate the IPD, but in recent years has favored GDP as a basis for the [ PD because the data better represent national output. The IPD is a measure of the change in the relative nominal value of a dollar due to inflation as well as to changes in the composition of GNP or GDP. Because changes in inflation will affect the value of a dollar, IPDs are used to accurately compare costs over time. Whichever type of deflator is used, belt the IPD based on GNP orGDP, the owner/operator must use only that type for all cost estimates and adjustments, since each deflator is based on different data. An owncr/ operator may choose to switch dcflazors, but must adjust previous cost estimates accordingly. Annual IPDs based on GNP are usually published by the Department of Commerce each Maith; annual IPDs based on GDP are published each January. In the interest of maintaining as accurate records as possible, the Department of Commerce reviews IPDs for the previous three years each August, making any changes to previous figures as necessary. Facilities’ cost adjustments should reflect as soon as practicable any changes to previous IPDs as a result of this review. Annual IPDs since 1987 are as follows: GNP GDP 1987 100.0 100.0 1988 103.9 103.9 1989 108.5 108.5 1990 113.2 113.3 1991 117.7 117.7 1992 121.1 121.1 9477.1994(03) June 1994 3. GNP v. GOP for Cost Adjustments Under RCRA ------- This Page Intentionally Left Blank ------- , tO Sr 4 , UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON, 0 C. 20460 L 9477.1994(04) JUL 2 5 1994 OFFICE OF SOLID WASTE AND EMERGENCY Ms. Ann Claassen RESPONSE Weinberg, Bergeson & Neuman 1300 Eye Street, N.W. Suite 1000 west Washington, D.C. 20005 Dear Ms. Claassen: This letter responds to your request of July 6, 1994 for clarification of certain closure cost estimate requirements applicable to facilities seeking a permit under 40 CFR 264. In your letter you request guidance on three approaches for developing a cost estimate for a containment building. As you know, containment buildings and other units subject to RCRA permit requirements must prepare cost estimates for closure as specified in 40 CFR 264.142. In brief, Section 264.142 requires that cost estimates must equal the cost of closure of a facility at the point where closure would be most expensive. Estimates must be based on the costs to an owner or operator of hiring a third party to close the facility. The cost estimate may not incorporate any salvage value for waste, equipment, land, or other assets associated with the facility. Finally, the owner or operator may not incorporate zero cost for hazardous or non-hazardous wastes that might have economic value. In the first approach you describe a situation where the costs to an owner or operator of performing part of the facility closure would be factored into the closure cost estimate. In 40 CFR 264.142 (a) (2) the regulations specify that, “... the closure cost estimate must be based on the costs to the owner or operator of hiring a third party to close the facility.” Since this approach would base the closure cost estimate on the owner or operator performing part of the closure, the cost estimate would not reflect the costs of a third party closing the facility. Therefore, this approach would not meet the requirements of 40 CFR 264.142. The second approach describes a situation where an owner or operator would hire a third party to close the facility. The third party would complete closure as specified in the closure plan. Closure activities performed by the ;hird party would include removing all waste and decontaminating the facility. Since the cost estimate in this approach would be based on the Q jr Rocycld/Ricyctabl• P,1n $d with SoyiCancls Ink on o.o .t ifl n. 50% r.cyc.o ‘I ------- 2 costs to an owner or operator of hiring a third party to close the facility, this approach would meet Part 264 requirements for closure cost estimates. Finally you ask if the third party that provides the cost estimate could be the sister corporation of the closing facility. You define a sister corporation as a corporation that shares the same corporate parent as another corporation. According to 40 CFR 264.142(a) (2), a third party is defined as, “. . . a party who is neither a parent nor a subsidiary of the owner or operator.” A parent corporation and subsidiary are defined in 40 CFP. 264.141(d) as, “. . . a corporation which directly owns at least 50 percent of the voting stock of the corporation which is the facility owner or operator; the latter corporation is deemed a ‘subsidiary’ of the parent corporation.” Therefore, a sister corporation would qualify as an acceptable third party under Section 264.142. In summary, under 40 CFR 264.142 facilities that manage RCRA hazardous waste must provide a closure cost estimate that is based on a third party conducting the closure. The third party providing the estimate may be a corporate sister of the facility requiring the closure cost estimate. Your letter describes a hypothetical situation only. Therefore, the actual cost estimate may vary depending on the circumstances at a specific facility. Please be aware that under Section 3006 of RCRA (42 U.S.C. Section 6926) individual States can be authorized to administer and enforce their own hazardous waste programs in lieu of the Federal program. When States are not authorized to administer their own program, the appropriate EPA Regional office issues the permit and is the appropriate contact for any case-specific determinations. Please also note that under Section 3009 of RCRA (42 U.S.C. Section 6929) States retain authority to promulgate regulatory requirements that are more stringent than Federal regulatory requirements. In this letter, we have answered your questions in terms of Federal requirements. To determine the status of specific facilities in an authorized State you should consult the appropriate State regulatory agency. If you have any questions concerning this response, or would like to discuss the issue further, please contact Timothy O’Malley of the Permits and State Programs Division at (703) 308- 8613. 1 Shapiro, Director of Solid Waste ------- WEINBERG, BERGESON & NEUMAN ‘300 EvE Sr c r. N.W SuITE 1000 WEsT WASHINGTON, D. C. 20005 ANN CLAASSEN ICLERMONC 202.962 8585 FAcSIMILE 202-962.8599 July 6, 1994 Via Hand Delivery Mr. Michael H. Shapiro (5301) Director, Office of Solid Waste U.S. Environmental Protection Agency 401 M Street, S.W. Washington, D.C. 20460 Re: Closure Cost Estimate for Secondary Smelter Containment Building Dear Mr. Shapiro: We are writing to request clarification of certain closure cost estimate requirements under rules implementing the Resource Conservation and Recovery Act (RCRA) as applied to the hypothetical facts described below. Your expedited response to the questions set forth below would be-greatly appreciated. Hypothetical Facte Assume that a secondary smelter, which recovers the lead value from lead-acid batteries and other lead-bearing materials, has constructed a containment building. The facility has applied for a permit modification to include the containment building in its Part B permit, which is being processed. After cracking, lead-bearing battery parts and other lead-bearing material would be temporarily staged in the containment building, prior to smelting into lead ingots. The lead ingots are sold as commodities. The total time period from the receipt of a batch of used batteries and other lead-bearing materials to the manufacture of lead ingots is approximately thirty days. The total maximum inventory of hazardous wastes in the containment building is approximately 10,000 cubic yards. ------- WEINBERG. BERGES0N & NEUMAN Mr. Michael H. Shapiro July 6, 1994. Page 2 Regulations The RCRA regulations for containment buildings provide that the closure plan for the building must comply with Subparts G and H of Part 264)” Subpart G requires that, “(w]ithin 90 days after receiving the final volume of hazardous wastes . . . the owner or operator must treat, remove from the mit or facility, or dispose of on-site, all hazardous wastes in accordance with the approved closure plan.”V Subpart H requires that the owner or operator have a detailed written estimate of the closure cost, subject to the fol1owing: ’ (1) The estimate must equal the cost of final closure at the point in the facility’s active life when the extent and manner of its operation would make closure the most expensive, as indicated by its closure plan ..;and (2) The closure cost estimate must be based on the costs to the owner or operator of hiring a third party to close the facility. A third party is a party who is neither a parent nor a subsidiary of the owner or operator. (3) The closure cost estimate may not incorporate any salvage value that may be realized with the sale of hazardous wastes (4) The owner or operator may not incorporate a zero cost for hazardous wastes that might have economic value. 40 C.F.R. § 264.1102 (a) 40 C.F.R. § 264.113(a) (emphasis added). 1/ 40 C.F.R. § 264.142(a). ------- WEINBCRG. BERGESON & NFUMAN Mr. Michael H. Shapiro July 6, 1994 Page 3 Questions In light of the above hypothetical facts and the regulations, we request your guidance on whether any of the following three approaches to preparing a closure plan and a closure cost estimate would be acceptable to EPA. 1. May the closure plan include the provision that, after receipt of the final volume of hazardous waste (i,e., used lead-acid batteries and other lead-bearing materials), the owner or operator will continue to process its inventory into lead ingots which will be sold as commodities? As stated above, complete processing of batteries usually can be accomplished in a thirty-day period, and it certainly can be accomplished within a ninety-day period, even for the maximum possible inventory under the hypothetical facts set forth above. Thus, within ninety days of receipt of the final volume of hazardous waste, no lead-bearing materials used as feedstock in the manufacture of lead would remain in the containment building. The closure cost estimate for the containment building would be the costs to the facility to process the inventory into lead ingots, plus the costs for a third party to remove or decontaminate all hazardous waste residues, contaminated structures, contaminated equipment, and so forth. Memoranda written in 1983 and 1984, and included in the RCRA Permit Policy Compendium, indicate that this would be an acceptable approach to the closure plan and the closure cost estimate. ’ Copies of these memoranda are appended. The memoranda are: John H. Skinner, Director, Office of Solid Waste, to James H. Scarbrough, Chief, Residuals Management Branch, Region IV, “Closure Cost Estimates Based on Third Party Costs” (January 12, 1984); Chief, Residuals Management Branch, Region IV, to John Skinner, Director, Office of Solid Waste, “Closure Plans and Cost Estimates-Treatment of Waste Inventory As Part of Closure Activities” (November 22, 1983); and George A. Garland, Chief, Financial Responsibility and Assessment Branch, to William H. Taylor, Chief, Enforcement Section, Region 6, “Determination of a Facility’s Operating Life” (Dec. 3. 1984) These three memoranda are contained in: U.S. EPA, Solid Waste and Emergency Response (OS-343), RCRA Permit Policy Compendium, Volume 7, EPA/330-SW-91-062G, (1991). In the compendium, the memoranda are numbered 9477.1984(01), 9477.1984(01) Attachment, and 9477.1984(07), respectively. ------- WEIN8ERG, BERGESON & NEUMAN Mr. Michael H. Shapiro July 6, 1994 Page 4 This approach (reduction of the waste inventory during closure by the owner or operator) is not contrary to the prohibition against incorporating salvage value into the closure cost estimate, because the continued processing and reclamation of the lead battery parts and lead-bearing materials is not “salvage” of the parts, but merely constitutes the continued and legitimate recycling of those materials, and the value of any lead ingots sold from the facility after receipt of the final volume of hazardous waste is not being used to offset closure costs. Rather, the closure cost estimate is based on the costs associated with the facility processing the batteries into commodity lead ingots, plus necessary decontamination after these recycling activities are complete. For the same reasons, this approach does not involve setting a zero cost for hazardous wastes. This approach, wherein the estimated costs of continued recycling would be those of the owner/operator, may no longer be acceptable, however, in light of the 1986 amendments to the RCRA regulations requiri,ng that closure cost estimates be based on third-party costs. ’ We would appreciate clarification of whether the 1984 memoranda are still valid interpretations. 2. As an alternative to the above approach, could the closure plan for the containment building specify that, upon receipt of the final volume of hazardous waste, the existing inventory of lead batteries, battery parts, and lead-bearing materials will be removed within ninety days by the owner or operator of a separate (i.e., third party) secondary smelter which will then reclaim the materials at their smelter? Under this scenario, the closure cost estimate would be based on the amount charged by the third-party smelter to remove the lead battery and lead-bearing materials, plus the costs necessary to remove or decontaminate waste residues, building equipment, and so forth. The closure plan could include a fully-executed contract between the facility and the third-party smelter that would obligate the latter to remove all lead battery and lead-bearing materials whenever closure occurs and that would specify the cost to be charged by the third party for this service. Again, this approach would not involve using salvage costs or economic value to offset closure costs. Rather, it involves removal of the hazardous waste from the facility within See 51 Fed. Reg. 16422, 16436-37 (May 2, 1986) ------- WCIN8ERG BERGESON & NEUMAN Mr. Michael H. Shapiro July 6, 1994 Page 5 ninety days, in accordance with the closure plan and the requirements of 40 C.F.R. § 26 4.113(a). The Closure cost estimate is then, the costs charged by the third-party smelter to take the wastes ‘(as specified in an enforceable Contract), plus costs to remove or decontaminate all waste residues arid Contaminated materials remaining after waste inventory has been reduced during closure. 3. Assuming the second approach is acceptable, may the third-party smelter be a sister corporation of the facility? That is, assume the facility, XYZ, is a wholly-owned subsidiary of corporation ABC. ABC has a separate wholly-ow -ned secondary smelter, PQR. Thus, XYZ and PQR are sister corporations, with the common parent of ABC. May the closure plan ‘specify that, upon receipt of the final volume of hazardous waste at XYZ, PQR will remove all existing inventory within ninety days? Thank you for you assistance with these matters. 4e request an expedited reply. If you have any questions, please call me at (202) 962-8547. Sincerely, Ann Claassen cwh Attachments cc: Mr. David Hockey (5301) OSW Special Assistant Mr. Tim O’Malley (5303w) Financial Responsibility Section Permits Branch 48LT001_.211(04) ------- This Page Intentionally Left Blank ------- ç O S7 q . UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON. D.C. 20460 4 AUG I 9 I99 i 9477.1994(05) OFFICE OF James M. Kus zaj SOLID WASTE AND EMERGENCY Ogletree, Deakins, Nash, Smoak & Stewart RESPONSE P.O. Box 31608 Raleigh, NC 27622 Dear Mr. Kuszaj: This letter responds to your request of July 26, 1994 for clarification of certain financial assurance requirements applicable to permitted hazardous waste facilities under the Resource Conservation and Recovery Act (RCRA). You inquired whether changing financial assurance mechanisms during the term of a permit would require a permit modification. As you know, the Federal RCRA regulations provide several mechanisms for ensuring financial assurance (see 40 CFR 264 Subpart H and 265 Subpart H). These regulations are designed to ensure that owners and operators provide financial assurance for their closure, post-closure and corrective action obligations on continuous basis. However, t:.e specific mechanism used to demonstrate financial assurance is usually not identified in a facility’s RCRA permit. As long as the financial assurance mechanism is not specifically identified in the permit, changing the financial assurance mechanism does not require a permit modification. Please be aware that under Section 3006 of RCRA (42 U.S.C. Section 6926) individual States can be authorized to administer and enforce their own hazardous waste programs in lieu of the Federal program. In this letter, we have answered your questions in terms of Federal requirement..... To determine the status of specific facilities in an authorized State, you should consult the appropriate State regulatory agency. If you have any questions concerning this response, or would like to discuss the issue further, please contact Timothy O’Malley of the Permits and State Programs Division at 703/308- 8613. Shapiro, Director of Solid Waste £ X Recycled/Recyclable <9 Ptfnted wIth SOyIClfl0 S Ink Ofl pa’er that contains St taUt 50% recycled fiber Sincerely, ------- This Page Intentionally Left Blank ------- LAW OFFICES OGLETREE. DEAKINS, NASH, SMOAK & STEWART 4101 LAKE BOONE TRAIL POST OFFICE BOX 31608 RALEIGH, NORTH CAROLINA 27622 TELEPHONE (9(9) 787-9700 FAX (919) 783-9412 OThCR OFr ,C S GRCCNV.LI.C SQUrM CARQ IN* JAMES M KUSZAJ, PH.D. wASI- NGTON 0 C AT .ANTA. OCORGIA OAR1 NC CC ,.UMOIA. SOUr ,. CAROLINA NASHVIt.L.C TCNNCS5CC July 26, 1994 ALBANY. Michael Shapiro Director Office of Solid Waste and Emergency Response U.S. Environmental Protection Agency 401 M Street, S.W. Washington, DC 20460 RE: Permit Mod jfication for Change in Financial Assurance Mechanism Dear Mr. Shapiro: I am seeking your confirmation that a permittee need not obtain a permit modification to change financial assurance mechanisms under 40 CFR Part 264 Subpart H. The financial assurance requirements in 40 CFR Part 264, Subpart H allow the owner or operator of a facility to choose the mechanism for providing financial assurance for closure (p264. 143), post-closure ( 264. 145) and liability ( 264. 147). If a permittee decides during the term of his permit to change the financial mechanism, must this change be accomplished by a permit modification? If a permit modification is not required, can the permittee simply change mechanisms by notifying the Agency? The only guidance I have found on this question is in the preamble to a March 15, 1984 proposed rule. That preamble states: the regulations already allow permittees to make minor changes to the financial responsibility mechanisms [ FN4] absent a permit modification. [ FN4] The responsibility requirements are found in 40 CFR Part 264, Subpart H. The regulations provide that permittees must choose from the several financial mechanisms specified in ------- Michael Shapiro, Director Office of Solid Waste and Emergency Response U.S. Environmental Protection Agency July 26, 1994 Page 2 of 2 §264.143. Permit conditions implementing this requirement provide that the permittee must establish and comply with the specified financial mechanisms; however, the specific mechanism is not incorporated in the permit. The permittee currently has the flexibility to change or revise the financial mechanism without going through permit modification procedures. [ 49 Federal Register 9852] I would appreciate confirmation that the 1984 preamble still reflects EPA’s position. If it does not, I would appreciate EPA’s current guidance on this question. Thank you for your attention to this matter. I look forward to hearing from you. Yours truly, OGLETREE, DEAKINS, NASH, SMOAK AND STEWART Enclosure jIg wp5 1\4 1etters\finassur.Itr ------- io e t UNITED STATES ENVIRONMENTAL PROTECtiON AGENCY WASHINGTON D.C. 20460 9477.1994(06) OCT 7 1994 CcFcEOc SOLID WASTE AND EMERGENCy RESPONSE Mr. A. E. Moffitt, Jr. Vice President, Safety, Health, and Environment Bethlehem Steelm Corporation Bethlehem, PA 18016 Dear Mr. Moffitt: Thank you for your letter, dated September 22, 1994, regarding a recent statement issued by the Financial Accounting Standards Board (FASB) that affects Bethlehem Steel Corporation’s ability to pass the RCRA financial test for its environmental obligations. As your letter states, FASB statement 106: Accounting for Post—Retirement Employee Benefits Other than Pensions (OPEB), requires that employers recognize these benefits after December 15, 1993 by using either the “immediate” or “delayed recognition” alternative. Your specific concern is that since Bethlehem Steel Corporation has elected to use the “immediate recognition” method in accounting for OPEB, it may not be able to pass EPA’s financial test for all of its environmental obligations. To address this concern, you propose that, for Security and Exchange Commission purposes, Bethlehem Steel Corporation continue to use the “immediate OPEB recognition” method, but for purposes of the Agency’s financial test, Bethlehem Steel Corporation could use the “delayed OPEB recognition” method. You state that when Bethlehem Steel Corporation uses the “delayed OPEB recognition” method, it can pass the financial test for all of its environmental obligations. As you indicate in your letter, the RCRA subtitle C financial test under sections 40 CFR 264.143(f), 264.145(f), and 264.147(f) requires that, as part of the test, the owner or operator’s Chief Financial Officer must submit a certification that “figures for the following items marked with an asterisk are derived from this firm’s independently audited, year-end financial statements for the latest complete fiscal year...” (see section 264.151(f) for the complete language of the certification). The owner or operator must also submit a certification from his or her independent certified public accountant confirming the Chief Financial Officer’s certification. In your letter, you asked for EPA’s views on whether a firm’s Chief Financial Officer could make the required bI. ------- certification, if the firm’s audited year—end financial statement calculated net worth by the “immediate OPEB recognition method,” but the figures in the financial test submission are based on the “delayed recognition method.” After review of the questions you raised, we have concluded that your proposal is within the scope of EPA’s subtitle C regulations, since both the “immediate” and “delayed” recognition methods are allowed under FASB 106. Furthermore, we agree that, under the circumstances you describe, the Chief Financial Officer could reasonably make the required certifications under the regulations, on the grounds that the alternative net worth calculation used for the RCRA financial test is derived from the audited, year-end financial statements, or would have been used to prepare the financial statement if the company had chosen to use the. “delayed recognition” approach. This letter provides EPA’S interpretation of the Federal RCRA regulations. As you know, most States are authorized to carry o it the RCRA hazardous waste program, and these States may choose o impose more stringent requirements than does the Federal t program. Therefore, you should also contact the authorized States in which your facilities are located to determine whether your proposal is acceptable under authorized State law. If you have any questions regarding this letter, please feel free to contact Matthew Hale at (703) 308—8404. 1 Shapiro, Director of Solid Waste incor ely, ------- ,Io , UNITED STATES ENVIRONMENTAL PROTECTION AGENCY \ 3 WASHINGTON. D.C. 20460 9477.1997(01) FEB 27 1g27 OFFICE OF Memorandum SOLID WASTE AND EMERGENCY RESPONSE Subject: Obsolete Language in the Financial Test for Subtitle C Treatment Storage and Disposal Facilities From: ‘ Io h, biie t Officeyt Solid Waste To: Senior RCRA Policy Advisors RCRA Enforcement Managers This memorandum provides guidance to Regions and States on an acceptable form for the izidependent certified public accountant’s (CPA’s) special report that owners or operators must submit when using the financial test and corporate guarantee to comply with EPA’s financial assurance regulations. This guidance is necessary because the regulatory requirement (that the CPA’s report provide “negative assurance”) has become inconsistent with current professional auditing standards. Background on the Regulations Subpart H of 40 CFR parts 264 and 265 allows owners and operators of RCRA treatment, storage, and disposal facilities to use a financial test or a corporate guarantee to demonstrate financial assurance. In using the financial test or corporate guarantee, the owner or operator’s chief financial officer (CFO) must submit (1) a letter using the language specified in 40 CFR 264.15 1 to report financial information and test results, (2) a copy of the firm’s audited year end financial statement, and (3) a copy of a special report from a CPA. The CPA’s special report presents the procedures performed and findings based on the CPA’s comparison of the data which the chief financial officer’s letter specifies as coming from the independently audited year end financial report with the amounts in the audited financial statements. The regulations also require the CPA’s report to state that “In connection with that procedure, no matters came to his attention which caused him to believe that the specified data should be adjusted” (see, for example, 40 CFR part 264.143(f)(3)(iii)(B)). This is referred to by the auditing profession as a “negative assurance.” The CFO’s letter must discuss any adjustments made in the data to report the results of the financial test that differ from the amounts in the audited financial statements. The purpose of the CPA’s special report on the CFO’s letter is to ensure that information provided in the financial test is consistent with information in the firm’s audited financial statements. This is particularly important when information cannot be checked directly against the financial repc’ ------- because of adjustments by the chief financial officer. An allowable adjustment by the chief financial officer for the Subtitle C financial test was discussed in the preamble to the proposed corporate financial test for municipal solid waste landfills (59 FR 51530, October 12, 1994). The preamble states that in reporting for “post-retirement benefits other than pensions” (e.g. health benefits for a company’s retirees), the Financial Accounting Standards Board Statement 106 allows either an immediate or deferred recognition of these benefits as liabilities. Since either method is allowable under generally accepted accounting principles for financial reports, EPA will allow companies to use the immediate recognition method for their financial reporting to the Securities and Exchange Commission and the delayed method for purposes of the financial test. New Professional Standards for CPAs Do Not Permit Expressions of Negative Assurance In performing audits and other types of work, CPAs must follow certain professional standards. The American Institute of Certified Public Accountants, Inc.’s (AICPA’s) Statement on Auditing Standards no longer permits independent auditors to express negative assurance (i.e. “no matter came to his attention which caused him to believe that the specified data should be adjusted.”). The new standards require the auditor to present the results of procedures performed iii the form of findings, and explicitly disallow issuing “negative assurance.” This has left many accountants, corporations and States uncertain how to fulfill the regulatory requirement for using the financial test. Use of a Report from an “ Agreed Upon Procedure ” The Agency intends to change the regulations so that they conform to the new professional auditing standards. Until that rulemaking is completed, in addition to, or in lieu of a CPA report stating that “no matter came to his attention,” EPA will accept a CPA’s report describing the procedures performed and related findings, including whether or not there were discrepancies found in the comparison, based on an agreed-upon procedures engagement performed in accordance with AICPA’s Statement on Auditing Standards No.75. Engagements to Apply Agreed-Upon Procedures to Specified Elements. Accounts or Items of a Financial Statement . (In an agreed-upon procedures engagement an accountant is engaged by a client to issue a report of findings based on specific procedures performed on the specific items of a financial statement.) The Agency will regard this report as satisfying the requirements of the financial test or corporate guarantee for a special report by an independent CPA on the CFO’s letter. Please distribute a copy of this memo to your authorized states. Also, if you or your authorized States have any questions on this issue, please feel free to contact Dale Ruhter at (703) 308-8192. cc: Steven Herman, OECA Tom Kennedy, ASTSWMO ------- tOSP4? f 4 UNITED STATES ENVIRONMENTAL PROTECTiON AGENCY WASHINGTON, D.C. 20460 APR 30 9477.1997(02) OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Ms. Billie S. Flaherty Beazer East, Inc. 436 Seventh Avenue Pittsburgh, Pennsylvania 15219 , Dear Ms. Flaherty: Elizabeth Cotsworth has requested that I respond to your March 19, 1997 letter to her on our interpretation of 40 CFR 264.151(k). That letter raised two questions on EPA’s interpretation of the letter of credit requirements for liability coverage, specifically the words “annual aggregate.” Your letter states that you currently have a letter of credit from Chase Manhattan Bank in the amount of $12 million to satisf ,’ the third-party liability requirements of the State of Pennsylvania. This letter of credit was issued on December 26, 1996 for a period of one year. Chase Manhattan has questioned whether it is liable for $12 million for the last six days of 1996 and an additional $12 million for the remaining 359 days of 1997 for which financial assurance is being provided. EPA interprets the amount as not increasing when the period of time for the letter of credit spans a new calendar year. EPA interprets the words “annual aggregate” to refer to the amount for the one year period of the letter of credit. The other issue is whether the extension of a letter of credit for an additional year increases the amount of the letter of credit. In particular, does the extension of the letter of credit add to the amount of the bank’s exposure? EPA does not interpret the automatic renewal provisions as increasing the amount of the letter of credit in the renewal period above the annual aggregate amount. 1f however, a claim is paid under a letter of credit, in the succeeding renewal period the amount of the letter of credit would have to increase to the level required as the annual aggregate (assuming that the letter of credit is the only mechanism used to demonstrate financial assurance for third party liability). Thus, in any given year, the exposure of the issuer of the letter of credit is limited to the amount of the annual aggregate. R.cycI.d R.cycIsbI. • PiWed wfth Vegetable O Based nW on 100% Recyded Paper (20% Po consumsr) ------- In providing this information, EPA notes that it is giving its interpretation of the Agency’s requirements. In responding to your letter, we have not reviewed the financial assurance requirements for Pennsylvania or other jurisdictions with State-administered financial assurance programs. Further, under the Resource Conservation and Recovery Act, States may have more stringent requirements than EPA’s. If you should have ftirther questions on this matter, please call Dale Ruhter of my stafF at (703) 308-8192. Sincerely, Stephen Heare, Acting Director Permits and State Programs Division ------- BEAZER EAST, INC., 436 SEVENTH AVENUE, PrrrSBUROH, PA 15219 USA TEL: 412 227.2430 FAX: 4122272042 LAW DEPARTMD 1T Jill M. Blundon Om Caguel Thamu nder Mary Dombrowski Wriiht BillieS. Flaherty William E Giarla Ma ,yCFairley Tcnance Gilco Fayc Robert M. Lucaa Edward O’Connell March 19, 1997 Pli nheth A. Cotsworth Acting Director, Office of Solid Waste United States Environmental Protection Agency 401 SW M Street, Mail Code S3O1W Washington, DC 20460 RE: Clarification Regarding the Use of Letters of Credit for Assuring Third Party Liability Under the Resource Conservation and Recovery Act CRCRA” ) Dear Ms. Cotsworth: On behalf of Beazer East, Inc. (“Beazer”) and Chase Manhattan Bank (“Chase Manhattan”), I am writing to request the Environmental Protection Agency’s (“EPA’s”) interpretation of 40 C.F.R. §264.151(k) as this regulation relates to the annual aggregate amount of third-party liability which must be assured using a letter of credit for sudden and nonsudden accidental occurrences. Section 264.151(k) ecifles the wording for irrevocable standby Letters of credit used to demonstrate financial assurance for third-party liability. The language of the letter of credit at issue provides, in relevant part, that it is established for “awards or settlements up to the amount of...U.S. dollars $___ per occurrence, and the annual aggregate amount of.. .U.S. dollars $ ...“ 40 C.F.R. §264.151(k). (emphasis added) The letter of credit further provides that it “is effective as of [ dame] and shall expire on [ daze] [ at least one year later], but such expiration date shall be automatically extended for a period of [ at least one year] on (date] and on each successive expiration date...” unless appropriate notice is provided by the issuer that the letter of credit will not be extended. . By way of background, Beazer is a Delaware corporation with headquarters in Pittsburgh, Pennsylvania Bearer provides financial assurance for third-party liability for facilities located in 10 states . By regulation, Bearer’s deadline for filing financial assurance is ninety days after the close of it’s fiscal year. Beazer’s fiscal year ends on the Saturday nearest the end of September (i.e., September 28, 1996). Accordingly, on December 26, 1996, Chase Manhattan - Delaware issued ‘C ------- EIi beth Cotsworth March 19, 1997 Page 2 letter of credit in satisfaction of Beazer’s third-party liability financial assurance requirements under RCRA for the annual aggregate amount of $12 million. The letter of credit was issued for $12 million to satisfy the Pennsylvania requirements, which are more stringent than the federal requirements. Through cur discussions with Chase Manhattan in obtaining the letter of credit, we have identified two specific issues which require clarification from EPA. First, because Beazer’s fiscal year is not the calendar year, the twelve-month period for which financial assurance is being provided does not coincide with the calendar year. Chase Manhattan has questioned whether, based on the use of the term “annual aggregate” in the regulations, it is liable for $12 million for the last six days of 1996 and an additional $12 million for the remaining 359 days of 1997 for which financial assurance is being provided. In other words, Chase Manhattan is reading the phrase “annual aggregate” to apply to the calendar year rather than the financial assurance year which is dependent, in Beazer’s case, upon Beazer’s fiscal year. I am asking that EPA clarify, based on its interpretation of the regulations, that the total amount of liability being assured pursuant to the December 26, 1996 letter of credit is, and should be, limited to $12 million. The second issue relates to the phrase “annual aggregate” and its use in combination with the language of the letter of credit which states that the “expiration date shall be automatically extended for a period (at least one year) on [ date] and on each successive expiration date...” 40 C.F.R. §264.151(k). Chase Manhattan is reading the combination of these two provisions of the letter of credit to mean that the liability accrued each year is “ annually ” aggregated (i.e., summed) with each year the letter of credit is automatically extended. Thus, if the letter of credit is automatically extended on December 26, 1997 for another year, the bank’s exposure will be equal to $24 million (or $36 million depending on EPA’s interpretation of the first issue addressed above) and when that letter of credit expires but then is automatically renewed on December 26, 1998, the bank’s exposure will increase by another $12 million, and so forth. Unless EPA clarifies that the exposure for the current letter of credit ends on December 26, 1997 and a new exposure of only $12 million begins automatically upon extension of the letter of credit, Chase Manhattan has indicated that it will terminate the letter of credit on its anniversary date and annually reissue a new letter of credit in its place. It is Beazer’s belief that this is precisely the type of adminiStrative burden which the Agency intended to avoid by providing in the regulations that the letter of credit is automatically extended. Beazer further believes that the Agency intended the use of letters of credit to serve as an alternative to claims-based insurance policies which became less available during the mid-1980s. 53 Fed. Reg. 33938, 33939 (September 1, 1988). Therefore, it is Beazer’s position that just as annual aggregate levels of insured liability would not be additive which each year that a policy is in effect, the annual aggregate level assured by a letter of credit cannot be constnied to be additive with each year that it is renewed. We ask that EPA address this narrow issue and clarify that, notwithstanding the automatic renewal provisions, Chase Manhattan’s exposure under its letter of credit is limited to $12 million in any given year. ------- Eliz2beth Cotsworth March 19, 1997 Page 3 Through my conversations with Dale Ruhter, I understand that it may take several weeks for the Agency to develop its response to this letter. Because of the timely nature of the issues presented, I mas ldngthttheAgency t a k eallpos siblest ePStoeXPediteit s re viewoftheseiSS u e s. I appreciate your attention to this matter and look forward to your response. Should you need further information, please contact me at (412) 208-8832. Sincerely, Billie S. Flaherty cc: Dale A. Ruhter, US EPA ------- bcc: Karen Mance Jill Blundon Keith Terreri Jonathan Nicholls ------- TSDF Technical Requirements (Parts 264 and 265) 0 ------- 9480 — TSDF TECHNICAL REQUIREMENTS Parts 264 & 265 ATK1/1 104139 kp ------- 9480.00—14 ‘t4R I 3 :‘ TO THE STATES AND COMPACT REGIONS: SUBJECT; COMBINED NRC—EPA SITING GUIDELINES FOR DISPOSAL OF MIXED LOW-LEVEL RADIOACTIVE AND HAZARDOUS WASTE As you are aware, the Low—Level Radioactive Waste Policy Amendments Act of 1985 (LLRWPAA) established milestones (and penalties for not meeting these milestones) to ensure ade uate developnent of future disposal capacity for comnercial low—level radioactive waste (LLW). The penalties are aulte severe and the deadlines do not leave much room for slippage. We would like to call to your attention the January 1, 1988 milestone (Section 5(e)(1)(B)) which requires that each non—sited compact or non—member state develop a siting plan for a LLW disposal facility. These siting plans must include detailed procedures arid a schedule for establishing a disposal facility location and preparing a license application. Among other things, Section 5(e)(])(B)(iif) provides that the siting plan shall: “... Identify, to the extent practicable, the process for (1) screenIng for broad siting areas; (2) identifyIng and evaluating specific candidate sites; and (3) characterizing the preferred site(s), • •N This letter serves four purposes: (1) to Inform states and compacts that, under current Federal law, the U.S. Nuclear Regulatory Conmilssion (NRC) and the U.S. Envirorunental Protection Agency (EPA) have dual jurisdiction over mixed low—level radioactive and hazardous waste (MIxed 11W); (2) to state that both NRC and EPA do not consider the absence of EPA ’s final comprehensive location standards to be justification for states and compacts to not meet their obligations under the LLRWPAA; (3) to convey that both NRC and EPA are comeitted to providing guidance to states and compacts who request help In their efforts to meet the January 1988 LLRWPAA milestone for siting plans; and (4) to jointly transmit the NRC-EPA combined siting guidelines for Mixed LLW (enclosed). Dual statutory authority exists for Mixed 11W, which Is regulated by the NRC under the Atemic Energy Act (AEA), as amended, and by EPA under the Resource Conservation and Recovery Act (RCRA), as amended. Mixed LLW Is defined as waste that satisfies the definition of LLW in the LLRWPAA and contains hazardous waste that either is listed in 40 CFR Part 261 Subpart D or causes the LLW to exhibit any of the hazardous waste characteristics identified In 40 CFR Part 261 Subpart C. Both the NRC and EPA staffs consider that Mixed 11W ------- a can be dispcsed of in accordance with the above statutes and NRC and EPA regulations. In 1982, the NRC promulgated regulations Containing minimw site suitability requirements for LLW land disposal facilities under 10 CFR Part 61. In 1981, EPA promulgated minimum location standards for hazardous waste treatment, storage, and disposal facilities in 40 CFR Part 264. Section 3004(o)(7) of RCRA, which was added by the Hazardous and Solid Waste Amendments of 1984 (HSWA), requires EPA to publish guidance identifying areas of vulnerable hydrogeology; this guidance was completed and issued In July 1986. Section 3004(o)(7) of RCRA also requires EPA to specify criteria for the acceptable location of new and existing hazardous waste treatment, storage, and disposal facilities as necessary to protect human health and the environment. EPA anticipates proposing these location standards in September 1987 and promulgating them by September 1988. This schedule provides affected states and compacts with a preview of the final standards and an opportunity to coninent on the standards before promulgation. Because of uncertainty about the precise content of EPA’s future location standards, states and compacts may nave questions regarding the site selection process. Both NRC and EPA are coemitted to providing guidance to states and compacts who request help in developing their siting plans by the January 1, 1988 deadlIne. Technical questions pertaining to siting a disposal facility for Mixed LLW should be submitted In writing to either the NRC or EPA contacts listed below, as appropriate. For questions about the LLRWPAA For questions relating to siting deadline or NRC’s site EPA’s location standards suitability requlr i- ,ents, contact: contact: Dr. Sher Bahadur Mr. Burnell Vincent Division of Vests Management Waste Management Division Mail Stop 6234$ Mail Code WH.565 U.S. Nuclear Rs alatory Commission U.S. Environmental Protection Washington, D.C. 20555 Agency Washington, D.C. 20460 ------- —3— In sunrtary, if states and compacts cbserve the enclosed NRC-EPA combined siting guidelines and keep abreast of the developing EPA location standards, the absence of final RCRA location standards should not prevent states anu compacts from meeting their obligations under the LLRWPAA. Sincerely, Kug1 t,/ ThCIflpson,) .,, Wector OfFijé of Nuclear Matepj’al Safety ana Safeguards U.S. Nuclear Regulatory Coninlss lon ,‘ ‘. • - & t - 1 /- J. Winston Porter Assistant A iinjstrator Office of Solid Waste and Emergency Response U.S. Environmental Protection Agency Enclosure: As stated ------- 1 COMBINED NRC—EPA SITING GUIDELINES FOR DISPOSAL OF C0 lERCIAi. MIXED LOW—LEVEL RADIOACTIVE AND HAZARDOUS WASTES Introduction The Low—Level Radioactive Waste Policy Amendeents Act of 1985 (LLRWPU) requires states and compacts to develop siting plans for low—level radioactive waste (LLW) disposal facilities by January 1. 1988. These disposal facilities may receive conTnerclal mixed low-level radioactive and hazardous waste (Mixed LLW), which is regulated by the U. S. Nuclear Regulatory Comeisslon (NRC) under the Atomic Energy Act (AEA), as amended, and by the U. S. Environmental Protection Agency (EPA) under the Resource Conservation and Recovery Act (RCRA), as amended. Mixed LLW is defined as waste that satisfies the definition of LLW In the LLRWPAA and contains hazardous waste that either is listed in Subpart 0 of 40 CFR Part 261 or causes the LLW to exhibit any of the hazardous waste characteristics identified in Subpart C of 40 CFR Part 261. To assist In applying that definlticn, NRC and EPA recently developed joint guidance entitled Gu ldance on the Definition and Identification of Coumercial Mixed Low—Level Radioactive and Hazardous Waste and Answers to Anticipated Questions” (Jan. 8, 1987). NRC has promulgated LLW regulations and EPA has promulgated hazardous waste regulations that pertain to the siting requirements for disposal facilities for Mixed LLW. Because of uncertainty about the precise content of EPA’s future location standards, states and compacts may have questions regarding the site selection process. This document provides combined NRC-EPA siting guidelines, to be used before EPA’s new locaticn standards are promulgated, to facilitate development of siting plans for disposal facilities that may receive Mixed ILL Section 5(e)(1)(B) of the LLRWPAA requires states and compacts to develop siting plans for LLW disposal facilities by January 1, 1988. In addition to other information, these siting plans must identify, to the extent practicable, the process for (1) screening for broad siting areas, (2) identifyIng and evaluating specific candidate sites, and (3) characterizing the preferred site(s). It Is uuticlpated that this process will be based primarily on the site suitability requirements that apply to LLW disposal. If facilities also receive Mixed LLV, their siting requirements will reflect additional requirements that apply to disposal of hazardous waste as defined by RCRA. In 1982. NRC promulgated regulations which contain minimum site suitability requirements for LLW land disposal facilities in 10 CFR 61.50. EPA has also promulgated minimum location standards for hazardous waste treatment, storage, and disposal facilities in 40 CFR 264.18. Considerations affecting siting are also found in 40 CFR 270.3, 270.14(b) and Cc). Although both NRC and EPA have incorporated siting requirements In existing regulations for LLW and hazardous waste disposal, respectively, the 1984 Hazardous and Solid Waste Amen ients (HSWA) to RCRA require EPA to publish guidance identifying areas of vulnerable ------- 2 hydrogeology. In July 1986, EPA published this guidance in “Criteria for Identifying Areas of Vulnerable Hydrogeology under the Resource Conservation and Recovery Act——Statutory Interpretative Guidance, July 1986, Interim Final. (P8-86-224953).” The 1984 HSWA also requires (In Section 3004(o)(7)) that EPA specify criteria for the acceptable location of new and existing hazardous waste treatnvent, storage, and disposal facilities. EPA anticipates proposing these location standards In September 1987 and promulgating them in final form by September 1988. EPA’s scheduled date for promulgating Its final location standards is nine months after the LLRWPU January 1, 1988, milestone for non—sited states and compacts to develop siting plans. Therefore, states and compacts may require some assistance in their efforts to develop siting plans for LLW disposal facilities that may receive Mixed LLW. The two agencies are issuing these combined guidelines to promote the development of siting plans by states and compacts. Both NRC and EPA consider that the absence of EPA’s final comprehensive location standards for hazardous waste disposal facilities is not an adequate basis for states and compacts to delay development of siting plans for LLW disposal. States and compacts should proceed at this time to develop siting plans in accordance with the existing NRC and EPA requirements. The following combined NRC-EPA guidelines are provided for use by the states and compacts, and ar based on existing NRC regulations in 10 CFR Part 61 and EPA regulations in 40 CFR Parts 264 and 270. As EPA continues Its development of location standards, both agencies will strive to keep states and compacts Informed about the status of the developing siting requirements. Combined NRC-EPA Siting Guidelines Site suitability requirements for land disposal of 11W are provided In 10 CFR Section 61.50. These requirements constitute minimum technical requirements for geologic, hydrologic, and demographic characteristics of 11W disposal sites. Several of these requirements Identify favorable site characteristics for near-surface disposal facilities for 11W. The majority of the site suitability requirements, however, Identify potentially adverse site characteristlc* that must not ho present at LLW disposal sites. The site suitability r Irements in 10 CFR Part 61 are Intended to function collectively with the requirements for facility design and operation, site closure, waste classification and segregation, waste form and packaging, and institutional controls to assure isolation of 11W for the duration of the radiological hazard. The NRC Technical Position entitled TM Slte Suitability, Selection, and Characterization’ (NUREG . .0902) provides detailed guidance on implementing the site suitability requirements in 10 CFR Part 61. EPA has also promulgated certain minimum location standards for hazardous waste treatwent, storage, and disposal facilities. These standards are provided In ------- 3 40 CFR Section 264.18. As previously roted, the hazardous waste regulations also include other location considerations as well as applicable provisions cf other Federal statutes. For example, Subpart F of 40 CFR Part 264 requIres establishment of ground-water monitoring programs capable of detecting contamination from land disposal units. While not a siting criterion £! se, this requirement can preclude siting in locations that cannot be adequately monitored or characterized. A further description of location-related standards and applicable provisions of other Federal statutes can be found in the “Permit Writers’ Guidance Manual for Hazardous Waste Land Storage and Disposal Facilities: Phase I Criteria for Location Acceptability and Existing Applicable Regulations’ (FInal Draft — February 1985). This guidance manual describes five criteria for determining location acceptability: ability to characterize, exclusion of high hazard and unstable terrain, ability to monitor, exclusion of protected lands, and identification of areas of vulnerable hydrogeology. The first four of these criteria have a basis in the regulations and are fully described In the manual. The fifth criterion, vulnerable hydrogeology, is defined in the RCRA interpretive guidance manual mentioned above (Criteria for Identifying Areas of Vulnerable Hydrogeology under the Resource Conservation and Recovery Act--Statutory Interpretive GuIdance, July 1986, InterIm Final (P8—86—224953)). However, since HSWA also added other requirements In addition to location standards to prevent or mitigate ground—water contamination, EPA recognizes that vulnerable hydrogeology must be considered in conjunction with design and operating practices. Vulnerability should not be the sole determining factor in RCRA siting decisions. Rather, this criterion provides a trigger for more detailed evaluation of sites that are identified as having potentially vulnerable hydrogeology. The extent of necessary site review and evaluation is related directly to the extent to which a location ‘falls” or ‘passes’ the vulnerability criterion. Sites that are determined to be extremely vulnerable will require much closer examination than sits that are deed non-vulnerable. The results of this more detailed revisw may then provide a basis for eventual permit conditions or modifications in design or operating practices. By combining the above technical requirements, standards, and guidance of both agencies, Nit and EPA have formulated the eleven guidelines listea below. The use of terms is th. guidelines is consistent with their regulatory definitions in 10 CFR Part 61 and 40 CFR Parts 260 and 264. The combined set of location guidelines Is intended by the agencies to apply only as guidance to states and compacts developing siting plans for LLW disposal facilities that may receive Mixed LLW. These combined guidelines are not intended to displace existing standards and guidance. In addition, the independent guidance of both agencies should be considered in any application of the combined siting guidelines. The combined siting guidelines for a coesrercial Mixed LLW disposal facility are as follows: ------- 4 1. Primary ewphasis in disposal site suitability should be given to isolation of wastes and to disposal site features that ensure that the long-term performance objectives of 10 CFR Part 61, Subpart C are met. 2. The disposal site shall be capable of being characterized, modeled, analyzed, and mwiitored. At a minimum, site characterization must be able to (a) delineate ground—water flow paths, (b) estimate ground—water flow velocities, and Cc) determine geotechnical properties sufficiently to support facility design. At a minimum for site ground—water monitoring, disposal site operators must be able to (a) assess the rate and direction of ground-water flow in the uppermost aquifer, (b) determine background ground-water quality, and (c) promptly detect ground—water contamination. 3. The disposal site must be generally well—drained (with respect to surface water) and free of areas of flooding or frequent ponding. 4. The disposal site shall not be in the 100—year floodplain. 5. The site must be located so that upstream drainage areas are minimized to decrease the amount of runoff that could erode or inundate waste disposal units. 6. Disposal sites may not be located on lands specified in 10 CFR Section 61.50(a)(5), including wetlands (Clean Water Act) and coastal high hazard areas (Coasta’ Zone Management Act). Location of facilities on the following lands must be consistent with requirements of applicable Federal statutes: archeological and historic places (National Historic Places Act); endangered or threatened habitats (Endangered Species Act); national parks, monuments, and scenic rivers (Wild and Scenic Rivers Act); wilderness areas (Wilderness Protection Act); and wildlife refuges (National Wildlife Refuge System A in1strat1on Act). 7. The disposal site should provlee a stable foundation for engineered containment structures. 8. DIsposal sites must not be located In areas where: (a) tectoflic processes such as faulting, folding, seismic activity, or vulcanism may occur with such frequency and extent to affect significantly the ability of the disposal facility to satisfy the performance objectives specified in Subpart C of 10 CFR Part 61, or may preclude defensible modeling and prediction of long-term Impacts; In particular, sites must be located more than 00 feet from a fault that has been active during the Holocene Epoch; (b) surface geologic processes such as ness wasting, erosion, slumping, lar.cslidlng, or wedtherlng occur with such frequency and extent to affect ------- C significantly the ability of the disposal facility to meet the perfnrmance objectives in ubpart C of 10 CFR Part 61. or may preclude defensible modeling and prediction of long-tern impacts; Ic) natural resources exist that, if exploited, would result In failure to meet the perfornance objectives in Subpart C of 10 CFR Part 61; (d) projected population growth and future developments within the region or state where the facility is to be located are likely to affect the ability of the disposal facility to meet the performance objectives in Subpart C of 10 CFR Part 6 ; ai d (e) nearby faciHtics or act1v ties could adversely Impact the disposal facility’s ability to satisfy the performance objectives in Subpart C of 10 CFR Part 61 or cculd significantly mask an environmental monitoring program. 9. Th hydrogeologic unit beneath the site shall not discharge ground water to the land surface withir the disposal site boundaries. 10. The water table must be sufficiently below the disposal facility to prevent ground-water intrusion into the waste, with the exception outlined under 10 CFP Section 61.50(a)(7). 11. In general, areas with highly vulnerable hydrogeology deserve special attention in the siting process. Hydrogeology Is Considered vulnerable when ground-water travel time along any 100-foot flow path from the edge of the engineered containment structure is less than approximately 100 years (Criteria for Identifying Areas of Vulnerable Hydrogeology Under RCRA--Statutor,y Interpretive GuIdance, July 1986, Interim Final. (P8—86-224953)). Disposal sites located In areas of vulnerable hydrogeology may require extensive, site-specific Investigations which could lead to and provide bases for restrictions or modifications to design or operating practices. However, a finding that a site Is Iccated in an area of vulnerable hydrogeology alone, based on the EPA criteria, Is not considered sufficient to prohibit siting under RCRA. ------- 9480.1984(01) JUN 12 1984 Mr. Lou A. bellone, S33 7 £astha ii Unit P.O. box 16 L.ove ledy, TX 758 1 Dear Mr. bellone: Thank you for your recent letter to Adriinistrater Ruckeishaus reclar(ljng the use of cavities produced as a result of nuclear weapons testin j for the disjosal of hazardous waste. Mr. Ruckeishaus has asked e to res .ond to your letter. The major concern in the dLS OS81 of hazardous waste ii in containing the waste so that the potential for cigration of hazardous constituents is siniisizeø. For this reason, EPA generally re;uires the installation of a liner that will pr.vent igration of hazardous constituents dunn; th. activ, lit, of the land disposal facility and a cover to Rin2miz. infiltration of precipitation at facility closure. The deposition of hazardous wastes in deep underground rock formations tnat are capable at containing the wastes without use of liners or covers is not currently among the options that EPA allows, althou’jh we are actively developing n. u1atjons to address this type of disposal. However, severe fracturing of underground rock foraations can be expected as a result of underground nuclear testing. Such fracturing would likely provide conduits throu h which hazardous constituents could i rato, Furthermore, pre3ic- tion of Uie routes of mi.jration would be i! ossib1 e. Additional detonation where hazaroous wastes have been placed could result in the generation of hazardous byproducts of unknown character and contrimute to the dispersal or b.zaroous constituents un c — ground. Kuclear test sites, theretore, are g;roB bly unsuitable for haparcous va to disl.esal. ------- 2 I P ope that this information is helpful to you. Mr. Ruckelahaus deeply appreciates your concern for the proper disposal of hazardous waste. Sincerely yours, Kenneth A. Shust.r Chief, Land Disposal Rranch Office of Solid Waste WH—565E ;Rich Stessej, :pj :S206 :382—4 654 :WSMS6/]2/84 ------- 9480.1985(01) April 1, 1985 MEMORANDUM SUBJECT: Applicability of the HSWA Minimum Technological Requirements Respecting Liners and Leachate Collection Systems FROM: John H. Skinner, Director Office of Solid Waste (WH—562) TO: Waste Management Division Director Regions I - X We have received numerous inquiries regarding the applicability of the HSWA-imposed minimum technological requirements for liners and leachate collection systems at hazardous waste landfills, surface impoundments, and waste piles. This memorandum outlines the most critical factors for determining the applicability of the minimum technological requirements. The guidance contained herein will be incorporated into an upcoming version of the Reauthorization Statutory Interpretation (RSI) for the minimum technological requirements. Other important applicability issues, such as definition of the term “replacement unit,” will be addressed in the RSI. As you know, the new minimum technological requirements are contained in sections 3004(o) and 3015 of RCRA. Among other things, these sections require that (a) new landfill and surface impoundment units and lateral expansions and replacements of existing landfill and surface impoundment units must have two or more liners and a leachate collection system above (in the case of a landfill) and between the liners; and (b) new interim status waste pile units and lateral expansions and replacements of existing interim status waste pile units must meet the current regulations for new, permitted waste piles. RCRA Subtitle C permits issued after November 8, 1984, must include these provisions, and interim status facilities must meet the requirements with respect to waste received after May 8, 1985. This has been retyped from the original document. ------- —2— The key term in understanding the applicability of the minimum technological requirements is texisting unit,” because all other types of units (i.e., new units, lateral expansions, and replacements) are required to meet the minimum technological requirements. (However, interim status units that do not receive hazardous waste after May 8, 1985, are excepted. In addition, units permitted prior to November 8, 1984, are not addressed under section 3004(o).) In order for a unit or portion of a unit to qualify as an “existing unit” and, therefore, be exempt from the minimum technological requirements, of the following criteria must be met. 1. The unit must have received solid or hazardous waste in some portion of the unit as of November 8, 1984. 2. The area was identified in operating records, closure plans, state permits, etc., as being part of the unit as of November 8, 1984. 3. The area was “operational” as of November 8, 1984 (i.e., the area was constructed by that date in accordance with Federal, State, and local requirements, including licenses and permits). The attached memorandum, regarding a facility in Region 7 that has recently proposed to place waste above a landfill trench that is reaching its physical capacity, may provide you with additional useful guidance. Attachment This has been retyped from the original document. ------- 9480.1985(02) JUL 4 7 1985 RE: WIBCJO285 MEMORANDUM SUBJECT : Status of Sludges in Surf ac. Impoundment.. or Land Treatment Units when Wastewater Treatment sludges ar. List.d in 5261.31 6 5261.32 PROM : John H. $kjnnsr, Director Offic. of Solid Waste TO : James H. Scarbrough, Chief Rasiduals Management Branch, Region IV In your June 20, 1985 memorandum, you asked if wast•wat•r treatment sludge listings under 5261.31 or 5261.32 would apply in all situations where land disposal or storag. of thi associated wastevaters was prsctic.d. You cited a pr.viaos orandia from this off ice dated November 23, 1984, vh.r.in a determination was made that vastewaters from wood preserving facUlties treated in spray irrigation fields gen.rat.d listed O0l wastewater trsetant sludges, and that such units are sub 3ect to the hazardous waste facility permitting standards. Any pollution abatement technique such as ths land trsataent, disposal, or storage of a vastr.at•r will iavariably generate a sludge • The echaniums for sludge tormation involve •ith.r precipitation, adsorption, or accumulation of biasass. Thes. units would be sub ject to regulation if the associated vastewater treatment sludges are listed In 5261.31 and 5261.32. if the sludges exhibit a characteristic. or if the wastewaters themselves are listed or exhibit a chara - units would therefore he sub sct. to 5264, 3SS r quir.meats. cci Rsgion&l inistrators R.gional Branch Chief. ------- 948O.1987( i) RCRA/SUp F jD HOTLINE MONTHLY SUMMARY MAY 87 A tanic c ner closed a tank which contained waste solvent i n 1977. The waste solvent was an unlisted, ignitable waste (DOOl) which was punçed out of the tank. Some ignitable residues remained in the tank. The tank was sealed and has not been used since 1977. Is the tank a RCRA dLsposal facility? The preamble of the May 19, 1980 Federal Register (40 CFR 264 and 265, page 33170) specifically states that the regulatory scheme of Subtitle C is prospective, i.e.. it applies to hazardous waste management which takes place after the effective date of the Subtitle C regulations. Inactive (either closed or abandoned) disposal facilities could be subject to A 7003 enforcement authorities and CE .A. If the tank was closed in accordance with existing industry practices, it w .ild be an inactive disposal. facility not subject to RCRP Subtitle C regulation unless the waste in the tank is subsequently managed in a manner that would constitute treatment storage or disposal. Source: Qiet Osznan (202) 382-4499 Research: Becky CUthbertson -4- ------- 9480.1987(02) ,tD ‘4 ____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 OCT 29 :9 - SOLID WASTE AND EME QENc. RES C MEMORANDUM SUBJECT: Union Carbide Agricultural Products ComPany Waiver Request Under §3004(o)(2) iiSw , FROM: Marcia Williams, Directo ’ tri fr Office of Solid Waste i TO: Robert E. Greaves, ActIng’C& ijef Waste 1anagement Branch (3 3O) Per your memorandum of September 16, 1987 reQuesting our assistance in responding to Union Carbide Agricultural Products Company’s (UCAPCO) application for a variance under §3004(o)(2) of RCRA, our views are set forth below. Section 3005(j) requires the installation of double liners and a leachate collection system by november 8, 1988 for all surface impoundments that existed on November 8, 1984 and that qualified for interim status. Certain exceptions from these requirements, however, are authorized under §3OO5(j)(2),(3),(. .) & (13). One other means of obtaining a waiver of §3005(j) require- ments is set forth in §3004(o)(2). That section authorizes the Administrator to grant variances from the double liner and leachate collection system requirements if: the owner or operator demonstrates to the Administrator, and the Administrator finds for such landfill or surface impoundment, that alternative design and operating practices together with location characteristics, will prevent the migration of any hazardous consti- tuents into the ground water or surface water at least as effectively as such liners and leachate collection systems. Unsuccessful in its attempt to obtain an exemption pursuant to §3005(j)(3), UCAPCO now proposes to satisfy the requirements of obtaining a variance under 3004(o)(2) by a combination of intragradierit cut—off walls and the removal and treatment o± contaminated ground water within such walls. UCAPCO submits that these design and operating practices coupled with the particular hydrogeologic Setting of its facility will ensure that the ground water and surface water beyond the waste management area will be Protected as effectively as it would with the ------- —2-- installation of liners and a leachate collection system. A fundamental premise of UCAPCO’s proposal is that an evaluation for effectiveness occur at the edge of the waste management area and not at the point hazardous constituents enter the ground water. Whereas hazardous constituents will be allowed to contaminate ground water beneath the units, UCAPCO claims that its proposed system will not allow migration beyond the waste management area. In tJCAPCO’s view, “any degree of contamination Cof the ground water] within the waste management area is authorized” provided that the ground .iater outside the area is protected. Accordingly, tJCAPCO’s proposal attempts to demonstrate that the system will control the escape of hazardous constituents from the ground water beneath the unit to ground water beyond the waste management area as opposed to the escape of hazardous constituents to the ground water beneath the unit. In our view, UCAPCO’s proposal fails to meet the requirements of §3004(o)(2) on its face. Section 3004(o)(2) authorizes a waiver of the double liner and leachate collection system require- ments only upon a demonstration that a proposed alternative will “prevent the migration of any hazardous constituents into the ground water or surface water” at least as effectively as a double liner and leachate collection system. TJCAPCO’s proposal, ho -ever, is specifically designed to allow migration of hazardous consti— tuents into the ground water . The term “ground water” in §3004(o)(2) is not qualified by the phrase “beyond the waste management area.” Ior is there any evidence of Congressional intent that the term “ground water” means only ground water beyond the waste management area. Surely if Congress had intended such a test for waivers of the double liner and leachate collection system requirement, it would have stated so clearly. To the contrary, in amending §3004 o± RCRA, Congress devised a threefold scheme to ensure protection of human health and the environment from hazardous waste treatment, storage and disposal activities. The first “line of defense” is the requirement of a liner and leachate collection system to prevent the escape of hazardous constituents from landfills or surface .mpoundments.- The second line of defense is the requirement for ground—water monitoring to detect any failure of such containment device. And, the third line of defense is the requirement to take corrective action to clean up any problems resulting from such failure. Containment with collection and removal of leachate within the unit to prevent leakage to ground water as the intended purpose of the liner and leachate collection system requirement is supported not only by the language of’ §3004(o)(2) in authorizing waivers of such ------- —3 requirements only for methods equally effective at preventing migration to ground water but also by the language of §3004(o)(5)(B). That section provides that the liner requirement of §3004(o)(1)(A)(j) can be satisfied pending issuance of regulations by construction of a liner system” ... to prevent the migration of any constituent through suoh liner... .“ Any system, therefore, that only controls constituent migration after it enters ground water cannot meet the equivalency test of 3O04(o)(2). The system proposed by UCAPCO fully allows migration of hazardous constituents to the ground water beneath the unit and therefore .loes not prevent the migration of hazardous constituents “into the ground water.” Moreover, because migration of hazardous constituents freely occurs with respect to such ground water, UCAPCO’s proposed system cannot be “as effective as” a double liner and leachate collection system in preventing migration to the ground water. tJCAPCO’s argument that EPA regulations express an intent on EPA’s part to “write off” ground water beneath hazardous waste management units because they only require compliance with ground—water standards at the edge of the waste management area demonstrates tJCAPACO’s fundamental misunderstanding of EPA regulations. Compliance with ground—water standards is determined at the edge of the waste management area simply because the installation of ground—water monitoring wells directly through a unit was considered to put at risk the effectiveness of containment devices underlying such unit. As the preamble to the regulations establishing the ground—water monitoring system stated: EPA does not believe that the placement of wells required in this regulation presents a significant risk that monitoring wells will become conduits for leachate passing to ground water.... [ T]he regulation calls for monitoring at the edge of the waste management area rather than under the solid waste itself. This is to eliminate any suggestion that the wells should be drilled through any natural or artificial ba 1 rrier that may contain the waste. The problem of migration of leachate will be reduced by plac [ ing] monitoring wells outside of any containment barrier. 45 PR 33066, 33193 (May 19, 1980). Thus, this requirement in no way evidences an intent on EPA’s part to allow contamination of ground water beneath a unit. Accordingly, any reference to EPA regulations in the legislative history of §3004(o) cannot support the conclusion that Congress intended to forfeit the quality of ground water beneath hazardous waste manage— rnent units. In fact, EPA has expressly stated its contrary views with respect to the meaning of “ground water” in guidance addressing a ------- — ‘4— waiver provision similar to §300 ’ 4(o)(2). Section 3OO5(j)(L ) authorizes a waiver from the double liner and leachate collection system requirements upon a showing of, among other things: that such surface impoundment is located, designed and opet’ated so as to assure that there will be no migration of any hazardous constituent into ground water or surface water at any future time. The Administrator or the State shall take into account locational criteria established under Section 3OO 4( ) (7). EPA’s guidance regarding the meaning of “ground water” states: EPA interprets this provision as referring to the closest source of ground water or surface water, whether contaminated or noncontaminated, usable or norlusable, as the point to which there must be no migration of any hazardous waste or constituents. As used in this provision, “ground water” includes, but is not limited to, all tJSDW’s and all aquifers; It encompasses “all water below the land surface in a zone of saturation” (‘40 CFR 260.10). A demonstration of no migration in saturated soil would not be appro- priate for this exemption because waste migration into the saturated zone is Interpreted as ground—water contamination. Because Section 3005(J) Is concerned with migration that could be prevented through the installation of a double liner and leachate collection system and because the escape of hazardous wastes or constituents through overtopping, surface water runori and runoff, and/or erosion are addressed independently in various sections of ‘40 CFR Part 26 ’i, the demonstration of no migration to surface waters for this exemption should address migration in subsurface soils. The demonstration of “no migration” to both ground water and surface water should therefore be made for the unsaturated soil beneath the facility. Inter m Status Surface Impoundments Retrofitting Variances, EPA/530—SW— 86—017 (July 8, 1986). In sum, §300 1 i(o)(2) allows for waivers of the liner and leachate collection system requirements only for alternatives at least as effective as the first line of defense against migration of hazardous constituents, i.e., containment within the unit and maximizing the collection and removal of leachate before it can migrate out of the unit. Congress did not authorize substitution of a corrective action type system that is responsive only to the further migration of hazardous constituents as a substitute for Initial containment requirements. See Senate Report No. 98—28’4 at 28. In fact, Congress specifically amended §300 ’ 4 “to correct the deficiency in existing regulations allowing double liners and ground-water monitoring to be alternatives.” H.R. 2867, Conf. Rep. at 89. Accordingly, substitution of UCAPCO’s ------- —5— proposed system for the double liner and leachate collection system requirement would undermine Congress’ and the Agency’s carefully crafted, tiered strategy for ensuring protection of human health and the environment. We are therefore unable to conclude that the proposed alternative would be as effective as the liner and leachate collection system requirement in preventing migration of hazardous constituents into the ground water. cc: Bruce Weddle Susan Brornm Joe Carra Bob Tonetti Suzanne Rudzinskj Bob Kayser Les Otte Tina Kaneen Charles Openchowskj Pamela Savage Chris Rhyne ------- to SZq UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 •1 4 pRcø° FEB 2 0 1996 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE 9480.1996(01) Barry L. Vedder 2014 Austin Place Richiand, WA 99352 Dear Mr. Vedder: Thank you for your letter of January 11, 1996 requesting clarification on several aspects of the RCRA corrective action program. The following are responses to the four questions that you raised in your letter: 1) Are operating RCRA TSD units (e.g., hazardous waste tank systems, surface impoundments, etc.) considered solid waste management units? Yes. RCRA regulated units are defined in 40 CFR 264.90 as - surf ace impoundments, waste piles, land treatment units, and landfills that received hazardous waste after July 26, 1982. RCRA regulated units are a subset of the universe of solid waste management units (SWMUs). 2) Is RCRA corrective action authority applicable to such units in the event that the unit has had a release to the environment? Yes. The 1984 HSWA amendments extended corrective action authority to all solid waste management units at TSDFs which received solid or hazardous waste at any time; as described above, the universe of SWMUs includes regulated units. At the same time the HSWA corrective action provisions were enacted, corrective action for releases to ground water from RCRA regulated units was already provided for under 40 CFR 264 Subpart F. As specified in 264.90(a) (2), all regulated units must be in compliance with § 264.91 through 264.100 in lieu of §264.101 for purposes of detecting, characterizing and responding to releases to the uppermost aquifer. In practice, cleanup of groundwater and other contamination (e.g., source materials or contaminated soils) at regulated units is often accomplished under one administrative. vehicle. For example, a single Federal §3008(h) corrective Veget Io 01 Based ki1 on 100% Recyded Papei (40% Po consumer) ------- action order, or §3004(u) corrective action permit condition, can compel cleanup of groundwater and other media at regulated units. However, in other cases, such as when a state is authorized for the RCRA groundwater requirements but not for corrective action, cleanup at a regulated unit may be undertaken under more than one administrative vehicle, with groundwater cleanup conducted undera state permit and other cleanup under a Federal corrective action permit or order. 3) Regulations at 40 CFR 270.72(b) (5) remove the reconstruction limit at interim status facilities with regards to changes necessary to comply with an interim status corrective action order. If corrective action is mandated at an operating RCRA TSD unit at an interim status facility, would changes necessary to comply with the order be exempt from the reconstruction limit? Yes. The exemption listed at 270.72(b) (5) from the reconstruction limit applies to corrective action activities that originate within the boundaries of an interim status facility, including from within regulated or solid waste management units. 4) Application of corrective action au thori ty to closing TSD units could result in significant overlap. Is it EPA’s intent that corrective action requirements be spelled out in the closure plan for the unit, or will the closure activities be held in abeyance pending completion of corrective action? EPA has long recognized the need to more effectively integrate corrective action and ‘closure activities. Toward this end, the Agency proposed a rule entitled “Standards Applicable to Owners and Operators of Closed and Closing Hazardous Waste Management Facilities; Post-Closure P rmit Requirement; Closure Process; State Corrective Action Enforcement” (59 FR 55778, November 8, 1994). In this notice, the Agency proposed and sought comment on revisions to the current requirements applicable to facilities with closed and closing land disposal units, as well as revisions to the requirements for State authorization for corrective action. These provisions were proposed as part of the Agency’s efforts to create a consistent approach to cleanup at RCRA facilities. EPA is completing its review of comments on these proposed provisions and plans to proceed with promulgation of the final rule in the near future. The current regulations at 40 CFR Part 270.1(c) require owners and operators of surface impoundments, landfills, land treatment units, and waste pile units that received wastes after July 26, 1982, or that certified closure after January 26, 1983 to obtain a post-closure permit for the facility, unless they demonstrate closure by removal at ------- those units (commonly referred to as ‘c1ean closure”). For facilities that did not receive an operating permit, and closed under interim status standards, this post-closure permit serves to impose several critical statutory and regulatory requirements, including the requirement for facility-wide corrective action. At the present time, the agency does not intend that closure activities need be held in abeyance pending completion of corrective action activities in all cases, or that corrective action requirements need always be specified in a closure plan. Given the interrelationship of many closure and corrective action activities (e.g., both closure activities and corrective action at closing units typically involve removal of wastes or contaminated media), the agency encourages coordination between these activities that results in the most effective and expedient approach to cleanup and closure of regulated units. This coordination may take several forms, including specification of corrective action activities in closure plans, concurrent activities under closure and cQrrective action, or incorporation of closure activities into corrective action permits or orders. Which approach is taken depends upon site-specific factors including state authorization, extent of site contamination, and types of remedial activities. I hope that this has helped to clarify the issues that you have raised. If you have any further questions, please contact Hugh Davis at (703) 308-8633. Sincerely yours, _9 _ 8 idI/ — ,4_-Michael Shapiro, Director Office of Solid Waste CC: Dave Bartus, EPA Region X Moses Jaraysi, Washington State Department of Ecology Joe Witczak, Washington State Department of Ecology ------- 2014 Austin Place Richiand, WA 99352 January l l,1996 Michael Shapiro Director, Office of Solid Waste U.S. Environmental Protection Agency 401 M Street, SW 5301 Washington, DC 20460 l .i /rt Dear Mr. Shapiro, The purpose of this letter is to request clarification regarding EPA’s interpretation of the RCRA corrective action authority. There seems to be some confusion in the regulated community regarding whether this authority applies to RCRA TSD units, or only to non- TSD solid waste management units (SWMUs) at a RCRA TSD facility. This confusion may result, in part, as a consequence of the pre-HSWA corrective action authority applicable to “regulated units.” Indeed, the regulations indicate that there may be two corrective actions - one applicable to regulated units (including certain TSDs) promulgated at 40 CFR 264.100 and a second corrective action for all other SWMUs pursuant to 40 CFR 264.101. This appears to be clarified at 40 CFR 264.90(a)(2), which imposes the standards of 40 CFR264.101 to all SWMUs, with the requirements of 40 CFR 264.91 through 264.100 applicable to regulated units with regards to releases to the uppermost aquifer. The discussion at 50 Federal Register 28714 (July 15, 1985) appears to support this interpretation. In any event, your response to the following questions is requested in order to help clarify RCRA corrective action authority as applied to RCRA TSD units: 1. Are operating RCRA TSD units (e.g., hazardous waste tank systems, surface impoundments, etc.) considered solid waste management units? 2. If the answer to question 1 is “yes,” does that mean that RCRA corrective action authority is applicable to such units in the event that the unit has had a release to the environment? 3. Regulations at 40 CFR 270.72(b)(5) remove the reconstruction limit at interim status facilities with regards to changes necessary to comply with an interim status corrective action order. If corrective action is mandated at an operating RCRA TSD unit at an interim status facility, would changes necessary to comply with the order be exempt from the reconstruction limit? (This question and question 4 assume that questions 1 and 2 are answered in the affirmative.) ------- 4. Application of corrective action authority to closing TSD units could result in significant overlap. Is it EPA’s intent that corrective action requirements be spelled out in the closure plan for the unit, or will the closure activities be held in abeyance pending completion of corrective action? Your response to these questions will enhance my understanding of EPA’s interpretation of the federal corrective action authority. I recognize that state requirements may impose additional scope or stringency to the corrective action requirements, and that the responses you provide will necessarily be based upon interpretation of the federal standards of 40 CFR 264 rather than any state “add-ons.” Thank you in advance for your time and consideration on the issues raised in this request. - Sincerely yours, Barry L. Vedder ------- This Page Intentionally Left Blank ------- February 1996 =..‘=. 1. Frequently Asked Questions on the 40 CFR Part 264/265, Subpart CC Air Emission Standards Are large quantity generators subject to the RCRA Subpart CC air emission standards for tanks, surface impoundnzents, and containers? The Subpart CC standards do not requii the use of any Specific type of equipment or add-t n control device. Instead, the standards allow owners/operators the flexibility of choosing a control device that is best suited for a particular wastestream (59 EE, 62896, 629 18; December 6, 1994). Yes, large quantity generators are subject to the Subpart CC air emission standards if managing hazardous waste in 90-day accumulation units ( 2 62.34(a)). Does Subpart CC affect containers used for satellite accumulation under § 262 . 3 4(c)? Subpart CC does not apply to containers used for satellite accurriulatjon (59 62896, 62910; December 6, 1994): Are large quantity generators subject to the Subpart AA znd BB air emission standards for process vents and equipment leaks? Yes, in addition to establishing the Subpart CC air emission standards, the December 6, 1994, FederaLRegister also extended the applicability o Subparts AA and BB to large quantity generators accumulating hazardous waste in permit -exempt unjts ( 262 .34(a)). Do the Subpart CC regulations spec jfy the types of control equipment that must be installed to comply with the air emission - stalidards? HOTLINE QUESTIONS AND ANSWERS 9480.1996(02) ------- This Page Intentionally Left Blank ------- The effective date of the 40 CFR Parts 264/ 265, Subpart CC air emission standards is June 6, 1996. Owners and/or operators who are unable to install the appropriate air emission controls on affected tanks, surface impoundments, and containers by the effective date of the rule are given the opportunity to• establish an implementation schedule for the installation of required equipment. In all cases, owners and/or operators must have all controls installed by December 8, 1997 - ( 265.1O82). Is the removal of an affectea unit from service an acceptable means of compliance with the Subpart CC standards?. If so, can the Dwner and/or operator continue to manage hazardous wastemn the unit without the appropriate air emission controls f he or she is unable to remove the unit from service p ior to the June 6, 1996;provided that .docu,nenrarion of the intentions so remove the unit from service by December 8, 1997, is •placed in an implementation schedule? Removal of a tank, surface impoundment, or container from service is an acceptable means of compliance with the Subpart CC standards. If, however, removal of the unit does not occur before the June 6, 1996, March 1996 ] effective date, all required air emission controls must be installed on the unit if it continues to manage hazardous waste. When it is not possible to install the appropriate controls by the effective date of the nile, owners and/or operators must prepare an implementation schedule in accordance with the guidelines established in §265.1082. Preparation of an implementation schedule is not an automatic e,uension to the effective date of the Subpart CC standards until December 8, 1997. In all cases, owners and/or operators must document in the schedule the reasons why required controls cannot be in place by the effective date and must make all efforts to install the equipment as soon as possible, but no later than December 8, 1997. Thus, in order to continue managing hazardous waste after the effective date of the air emission requirements in a unit scheduled for removal without the required controls, an owner and/or operator must be able to demonstrate why the unit cannot be removed before June 6, 1996, and why the necessary controls cannot be installed. An implementation schedule describing the removal of an affected unit must be prepared ahd placed in the facility’s operating record. The owner.andlor operator can continue to operate the unit without air emission controls while he or she is implementing the schedule. HOTLINE QUESTIONS AND ANSWERS JRCRA] , 9480.1996(03) 2. Removal of Hazardous Waste Management Unit for Subpart CC Compliance ------- This Page Intentionally Left Blank ------- Ground Water Protection Standards (Subpart F) ------- 9481.1992(01) RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION APRIL 1992 1. Groundwater Monitoring at Newly Regulated Facilities The regulations in 40 CFR Par:265, Subpart F require owners and operators of interim status surface impoundments, landfills, and land treatment units to implement groundwater monitoring programs. Section 265.92 requires these facilities to establish initial background concentrations for three groups of indicator parameters. Background concentrations are established based on the results of quarterly groundwater sampling during the first year. For newly regulated interim status facilities or units, when must the background concerurations be established -- during the first year of interim status, or the first year the groundwater monitoring system is operating? Owners and operators of newly regulated interim status facilities or units must begin establishing background concentrations for the indicator parameters in § 265.92(b)(I)-(3) as soon as the groundwater monitoring system is installed. These facilities then have one year from the date the system is operable to establish these background levels. When interim status is triggered, §270.73(d)(2) requires owners and operators of land disposal facilities to certify compliance with all applicable groundwater monitoring requirements within 12 months. Land disposal facilities that do not certify compliance with these requirements within 12 months automatically lose interim status. The September 27, 1990, Federal Register (55 ER 39411) clarifies 270.73(d)(2) by stating that facilities newly subject to the Part 265, Subpart F groundwater monitoring requirements must complete site characterization and design and installation of groundwater monitoring systems within 12 months of receiving interim status (also see October 1985 Hotline Monthly Report question on loss of interim status). In other words, a newly regulated interim status facility must have characterized the hydrogeology of the site and installed a groundwater monitoring system capable of determining the facility’s impact on groundwater quality by the end of the lust year of interim status at the latest. Once owners or operators have completed the installation of groundwater monitoring systems, they must then immediately begin establishing background concentrations for the three groups of indicator parameters specified in § 265.92(b)(l)-(3). These background concentrations are established during the first year of operation of the groundwater monitoring system. For newly regulated facilities or units, background concentration levels must be established by the end of the second year of interim status at the latest (sooner if the facility’s groundwater monitoring system was installed and operating before the end of the first year of interim status). For example, a facility with a surface impoundment that became subject to RCRA regulation for the first time because of the TCLP final rule had until September 25, 1991 (one year after the effective date of the regulations), to certify that a groundwater mOnitoring system was installed. The facility then has until September 25, 1992, to establish background concentration levels pursuant to §265.92. 41’ this facility finished installing its groundwater monitoring system before September 25. 1991 (e.g., on July 15, 1991), background concentrations for the indicator parameters would have so be establisheti within one year of the date the groundwater monitoring system became operable (by July 15, 1992). ------- 9481.1992(02) RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION JUNE 1992 2. Groundwater Monitoring Resampiiflg Requirements Owners or operators required to establish a compliance monitoring program under 40 CFR §264.99 must sample all groundwater monitoring wells located at the point of compliance for any chemical paroii wter or hazardous constituent speciYied in the permit pursuant to §264.99(a) a: least senilaniusallY, and for all Appendix IX constituents at least annually (i.f264.99(f) and (g)). If the groundwater contains any additional Appendix IX constituents that are not already identjfied in the facility permit as monitoring constituents, the owner or operator must report the results of the analysis to the Regional Administrator within seven days or resample within one month after the initial sampling. If the owner or operator chooses to resample, nuts: he or she resample for all Appendix IX constituents? The owner or operator is not required to resample for all Appendix IX constituents. Since the purpose of resampling is to verify the presence of the additional constituents discovered in the initial sampling, resampling is only performed on those Appendix IX constituents the owner or operator wishes to contest. If the owner or operator chooses to resample and confirms the presence of the new constituents within seven days of the second sampling, he or she must report the concentrations of these additional constituents to the Regional Administrator and, through a permit modification, add them to the monitoring list required by §264.99(a)(l). The owner or operator must then monitor for these constituents at least semiannually pursuant to §264.99(f). 11, after resampling, the second analysis does not confirm the initial analysis, then the unconfliTnedN constituents are not added to the monitoring list and notification to the Regional Administrator is not necessary. This, however, does not exempt the facility owner or operator from the annual Appendix IX analysis pw uant to §264.99(g). In the event that the owner or operator chooses not to resample, he or she must report the results of the initial sampling to the Regional Administrator and modify the monitoring list no later than seven days after the initial sampling. ------- 9481 — GROUND-WATER PROTECTION STANDARDS Parts 264 & 265 Subpart F ATK1/1 104/40 kp ------- 9481.1985(01) CCT I 5 = M EP!O RAN DU M SUBJECTz Requirements for Malyzis of Appendix VIII Constituents in Groundwater F M: Marcia Wi11ta. s, Director Office of Solid Waite (WH—562) TOi Stephen . Uasserluq, Director Hazardous Waste Manageiaent Division (3HWOO) Your r esorandua of September 20 reLating the problems associated with the analysis of Appendix VIII constituents in ground water raise. a number of valid concerns. Th. adequacy of the current 811-446 methods for routine determinations of all constituents is. being evaluated, and the rationale for requiring a cmeplets Appendix VIII analysis in ground water is being reexamined. As yew know, the existing permit regulations (9270.14(c)(4)) requir, the permit applicant to identify the concentration of each Appendix VIII constituent in any plum. of contamination. In response to numerous requests fox selective waiver, of the regulatory requirement., the Off tee of Enforcement and Cospliance Monitoring (0 5CM) and OS U’issu.d a joint memo to the Regions (Price/Thomas, August 16, 1984). Thi& memorandum, however, only exempted a small number (21) of the 375 Appendix VIII constituents from monitoring requirements through •nforcsment discretion, based on the constituents instability in water or the lack of EPA-accepted • standardized test procedures • The Agency has also proposed to eliminate th. need to test for these substances in ground water in a proposed rule (49 FR 38781, October 1, 1984). Currently, severaL Agency activities are underway that should address many of the concerns outlined in your memorandum. A workgroup., has been formed to examine ths need for changes in the regulatory requirement for the analysis of all Appendix VIII constituents. In order to justify a regulatory aaendeent, the workgroup is gathering data and considering several options that may lead to a more limited set of parameters far ground-water analysis. This work and the subsequent regulatory development process could lead to a proposed rule by late 1986. and the promul- gatton of a final rule a yar later. For more details on the progress of the Appendix VIII workgroup, contact Bob April, Land Disposal Branch (362-4684). ------- —2— tn sunport of the work’ ro rn f fort th Agency is uxaa inin ; hich constituents (beyond those cited Ln the krice/Thor 1 ias 1ze orancur.1) should be dropped frcn the ronitorin requir ent beca , of instability in water or lack of analytical “et ods. :‘jt ’ioiis evaluation york is also underway to up ort prc uicjation of t analytical ethods . ssianed to the . ppendix VIII constituents in the rule proposed on Cctober 1, l 84. Additional r ethods evaluation is beinq conducted throu ih the Su w3rfund proçram and the Ground— Water Monitoring Task Force. Any questions concerning these efforts, or other questions on the adequacy of current PA methods, should be directed to Paul ?riedr!an 1 Studies and ethods dra ch (3 2—4796). The currcnt regulations are vary specific in raquirinçj t”tat ach p endix VIII constituent be termined. Therefore, a strict reading of the regulations would not allow either of the ait3rna- ttves put orward by the Ar!iy to be deemed acceptable under current EPA policy. The Agency is aware of the iraplementation problems involved in perriit issuance that arise from the current rigid regulatory approach. Other Regions are also wrestling with the implementation questions you ars facing in Region II!. For assistance in resolving permit—related Appendix VIII questions, you may contact Bob layser of the Permit Assistance Team (382—4536). As noted above, any regulatory chang.s in the Appendix VIII monitoring requirement would not became eff.ctive until the end of 1987. I realise, hovver, that permitting needs at. more immediate. As increasing numbers of facilities are required to submit Appendix VIII analyses, the lack of a realistic policy say creat. a slowdown in the permitting process as well as incons is tent campi tanc.. Therefore, I have initiated efforts by 05W to expand the number of Appendix VIII constituents exempted from ground—water monitoring requirements beyond those listed in the proposed rule of tob.r 1, 1984. 1 intend to issue scem form of interim guidance early next year. In addition, I have made the completion of the tasks supporting a regulatory change a high priority. Finally, in regard to your’ concern about whether the Army facility can certify compliance with applicable ground-water monitoring requirements by November 8, I would refer you to the Federal Register notice of September 25, 1985 (SO FR 38948). That notice indicates that the applicable requirements are t) se in Part 265. Therefor•, compliance with Part 214 or 270 requirements involving Appendix VIII should not be an issue for certification. ------- —3— cc: -.aste anacf,ent rivjsfon [ ‘irectors, ! u’j1ons I, II, ir tV—X ruce ::e cJ1e J3ck Lehrtan E’j1e n Clausseri etc r Cuerrero Terry Crolan Eoo April Bob Kay er Paul Frjedt an Dave ‘ri dm n Lloyd (uercj Iike r!arclay park (roenwood £ohrai Kinc ------- 9481. 1985(Ola) RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION FEBRUARY 1985 Groundwater Monitoring I. A 274 acre interf n status landfill has 20 d mgradient groundwater monitoring wells. Contamination has been detected in five of the wells. For the last five years the renaming 15 wells have shc n no contamination. In the facility’s Part B application, ni st the ocu lianoe monitoring or corrective action program be applied to all 20 wells or just the five wells which shcM contamination? If, after thorough site-specific review of interim status cxjn liarice, it has been determined that all 20 assessment program wells are necessar to properly detect and characterize any plumes of contamination which may ne fran the facility, the o 1ianoe monitoring program mist be carried out at all of the 20 wells which are at the point of ou q1iance, not just those wells that have sh in contamination (S264.98(h)(2)). ever, the way the question is worded gives same doubt that the existing wells o xn 1 ly with interim status assessment rquiremerta. Usually more wells will be needed after detection to determine rate and extent of migration (5265.93(d)(4)(i)). It is unlikely that five w .l1s will fully characterize a five year old plume of contamination fran a 274 acre site. Wells may be needed in the vicinity of eathóf the five wells r i showing contamination to demonstrate that the highest concentrations are detected, and to establish the plume boundaries and the rates of migration. Additionally, it mast be sham that the failure to detect contamination in the remaining 15 wells is not a false negative. Information including additional analytes fran the 20 wells should be fully evaluated and, based on this analysis, a monitoring array should be designed. In general, the sane high standards for the number and location of wells apply to both interim status and permitted facilities implementing ground water monitoring prograne. Interim status standards include requirements for detection and assessment programe. Permitting standards include requirements for detection, ca l iance, and corrective action programme • Both detection programme are essen- tially the sane. I ta gathered fran the interim status assessment program should be sufficient for characterizing the plans for the pirposes of fulfilling Part B application requirements. Hc ever, there is no interim status equivalent to can-. pliance monitoring under Part 264. In a cam liance monitoring permit, wells n t be located at the intersection of any plume and the point of oanpliance; both periphery and the point of highest concentration within that plume i sist be monitored. monitored. Finally, both applicants and permit writers should weigh the opportunity to. improve the monitoring system under the permit against the need for maintaining data ‘ continuity. Upgrading to teflon wells, installing new wells at plume centers, and other imçrovements may need to be phased in over several sampling cycles to establish correlations between old data and new data. ------- 9481. 1985(Olb) RCRAISUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION APRIL 1985 Groundwater S l. Analysis 5. S264.97(h) describes the procedure required to determine u ether concentration limits have exceeded background levels durirç groun1 ter detection monitorirç and oanplience i nitoring prograi s. In this instance, the owner/operator (%) is In a detection aonitorir prcgra and must canpare the levels of constituents at the caupliance point to the backgroim values. These backgroi.r values have been determined to have eanpie coefficient of variations less than 1.00. The 0/0 canpares the constituent levels at the ccznpliance point to the backgrot levels, as described in S264.97(h)(l)(i), aid finds there is a significant difference in the values for certain constituents. In order to statistically substantiate these results, theo/o must repeat the sa sanpling aid analysis procedure with a new sanpie. I’tast this second analysis co’ier all the constituents, or may the o/o limit the analysis to only those constituents which showed a significant difference over background in the first seupling? Since the objective of the second analysis is to confirm the first, the second analysis need only cover those constituents which showed a significant difference over background. ------- 9481.1985(03) OZT 2 8 - MORANDUM SUBJECT, Ground—Water Monitoring Variance Requirements Or1 i a1 Sivnad By FRO9: Marcia Williams, Director rc1a . i1li s Office of Solid Waste (WH—562 TOs Conrad Simon, Director Air and Waste Management Division (2Aw11) This memorandum is in response to your memorandux t of May 29, 1985, concerning the possibility of a ground—water monitoring variance at the CECOS Bite in Ponce, Puerto lUco (EPA I.D. Nuraber PRD00001O231). The variance your nernorandurn describe. is based on engineered safeguards at the waste management unit. The standards for ground—water monitoring variances based on engineered structures for landfills operating under permits are set by new Section 3004(p) of the esource Conservation end Recovery Act. As EPA exDlaincd in the prearnble to the final codification rule for the 1984 RCRA artendment., Section 3004 (p) invalidated the engineered structures variance regulations for land disposal units EPA promulgated on July 26, 1982. and substituted more stringent standard.. See 50 Fed. Reg. 28716—28717 (July 15, 1985). The ‘codifjcatjon rule deleted the existing variance rules for landfills in 40 C.F.R. 264.302. It inserted the new variance standards required by the statute into 40 C.F.R. 264.90(b)(2) (copy attached). This regulation also delegates the authority to grant variances to the Regional Administrators. Th. standards you have outlined in your memorandum resemble, but do not precisely match the new variance regulations. For example, the regulations also require the Regional Administrator to find, to a reasonable degree of certainty, that the unit will not allow migration of hazardous constituents beyond the outer ------- 2 layer of containment before the end of the poet—closure Care period. You will need to evaluate the Ponce landfill against the regulatory requirement.. The regulation does not appear to grant the Regional Administrator authority to impose i ore stringent requirement .. If you or your staff have any question. concerning this matter, please telephone Bob April of my staff (FTS—382—4654), Attachment ------- 9481. 1985(04) RCRA/SUPERPUND HOTLINE NONTHLY SU) RY OCTOBER 85 Definition of “Physical Compliance ” Owners or operators of land disposal facilities which have interim status prior to November 8, 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 28753). The notice of implementation and enforcement policy for this provision in the September 25, 1985, Federal Register (50 38946), states that to certify compliance a facility must be in “physical compliance” with the Federal or State ground-water monitoring and financial responsibility 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 38949). “Physical compliance” for purposes of certification under §3005(e) 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 specifications 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. Source: Jackie Tenuszak (202) 475-9328 This has been retyped from the original document. ------- 9481. 1985 (05) RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY OCTOBER 85 6. Ground-Water Monitoring Well Construction A bladder pump is used instead of a bailer to obtain ground- water samples. What construction material is required for the bladder pump and the sample tubing in the well? When a bladder pump is used, it is connected to a sample tube that runs inside the well casing to the surface. The RCRA Ground—Water Monitoring Technical Enforcement Guidance Document (Draft) (Sections 3.2.1 & 3.6) dated August 1, 1985 recommends that the well casing, bladder pump, and sample tube be made of Teflon 316 stainless steel. In the case where an existing well is constructed of different materials, this guidance document recommends that the enforcement official decide if the well allows for the collection of representative ground—water samples as it is built or whether another well should be built with more inert, resistant materials (Section 3.7) adjacent to it. Source: Ken Jennings (202) 475—9328 This has been retyped from the original document. ------- 9481. 1985(06) RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY DECEMBER 85 Compliance to Detection Groundwater Monitoring 6. As part of his RCRA permit, the owner/operator of a land disposal facility must conduct compliance monitoring in accordance with S264.99. If, after several years of compliance monitoring, the owner/operator can show that Appendix VIII constituent levels are no longer present above background levels, is it possible for the owner/operator to revert to detection monitoring levels per §264.98? Once the facility has been triggered into compliance monitoring and it becomes part of the permit, the owner/operator must conduct compliance monitoring for the number of years equal to the active life of the facility (including any waste management activity prior to permitting, and the closure period per S264.96(a)). Upon conclusion of the compliance period, the owner/operator may be able to return to detection monitoring for any remaining period of post-closure care, provided that: (1) no corrective action is required (S264.99(i) or §264.100); (2) the constituent levels are at or below background levels; (since the detection monitoring program is designed to detect increases over background levels, a facility which was meeting a ground—water protection standard set at a level above background would continually be required to switch from detection monitoring to compliance monitoring; hence, the return to detection monitoring would not have any practical value unless constituent levels were at or below background levels); and (3) the owner/operator submits an application for a permit modification (S270.41(a) (5) (v)). Source: Mark Salee (202) 382—5742 This has been retyped from the original document. ------- 9481.1986(01) May 15, 1986 MEMORANDUM SUBJECT: Identification of Uppermost Aquifer in Fill FROM: Marcia E. Williams, Director Office of Solid Waste (WH—562) TO: Harry Seraydarian, Director Toxics and Waste Management Division Region IX I am writing in response to your memorandum of February 27, 1986, concerning ground—water monitoring at the IT Corporation’s Vine Hill facility. I agree that the IT Corporation must monitor the uppermost saturated zone regardless of whether the saturated zone is manmade fill or natural rock. The intent of the regulations is to monitor the first ground—water contamination, not to link monitoring to a commercially productive aquifer. The preamble to the regulations (33192 , May 19, 1980) states “The monitoring program seeks to detect contamination of the uppermost aquifer because that will be the first ground water affected by a leaking disposal facility.” The draft Technical Enforcement Guidance Document (August 1985) states “The uppermost aquifer extends from the water table to the first confining layer (or ten feet into bedrock) and includes any overlying perched zones of saturation.” Such monitoring provides essential information on the direction and concentration of the flow of contaminants from hazardous waste units since formations of low permeability (e.g., aquitards and aquicludes) may divert the flow of contaminants to surface water, upgradient wells, or beyond downgradient wells so that the contaminants are not discernable to lower monitoring wells at the waste boundary. The arguments of the IT Corporation seem to center around semantic arguments over the nature of a “geologic formation.” Instead, IT should focus on the saturated zone and early detection of contaminant flow from the site. As a policy matter, this office supports the location of wells so as to most efficiently detect contamination. This has been retyped from the original document. ------- —2— If you have any further questions concerning this matter, please telephone me (FTS-382-4627) or have your staff telephone Arthur Day of my staff (FTS—382-4658). cc: Regional Waste Management Division Directors, Regions 1—Vill, X John Lehman Bruce Weddle Kenneth Shuster Arthur Day This has been retyped from the original document. ------- 9481. 1986(02 UNITED STATES ENVIRONMENTAL PROTECflON AGENCY WASHINGTON D.C. 20460 J.L 25 86 oI Ict OF SOUD WA31I *P40 tMI GINCv mISPQN$I Mr. Alan McConnell, Legislative Director Office of the Honorable Newt Gingrich, MC House of Representatjve Washington, D.C. 20515 Dear Mr. McConnell: This is a follow—up to our phone conversation concerning the issues raised by Mr. William Gardjner of Malytech in Georgia. The document, •Ninimal Cost Instrumental Approaches to Ground Water Monitoring,’ by Mr. William Gardin.r applies to organic analysis for ground water monitoring as specified in 40 CFR Part 261, Appendix VIII. The Administrator has signed, and will place in the Federal Register , a new ground water monitoring requirement in 40 CFR Parts 264 and 270 Appendix ix. This proposal will r.place existing requirements with new requirements to analyzs ground water for 250 specific chemicals derived from the Appendix VIII, plus additional chemicals designated by Regional Administrators on a site specific basis. except for the chemicals which may be designated on a site specific basis, the organic chemicals listed in Appendix IX may b. determined by a combination of gas chrasatographic (specific detector) methods or a combination of gas chrasatographic (speci- fic d.t.ctor) and gas chrcsatographic/mass spectro..tric methods. Mr. Gardiner may employ, from the Agency’s point of view, any combination of the above-sention.d t.chniqu.s as specified in the appropriate methods of SW-846. We hop. this information h.lps you in aiding Mr. Gardiner. Paul Pr •dman Q .mis t Technical Assessment Branch cc: Bob April David Friedman Pet.r Guerrero ------- 9481.1986 (04) RCRA/SUPERFUND HOTLINE MONTHLY SUIQIARY JULY 86 3. Ground-Water 4onitOrir EstabliShir Background Values Accordir to 40 CFR 264.98(c) the owner/operator (o/o) of a land disçosal facility must establish background values for the ground- water t onitoriflg parau terS specified in the facility permit. The 0/c must establish these background values usir the procedure specified in 40 CFR 264.97(g) which requires that background data be based on quarterlY sampi ir of u red ient walls for one year. (a) Interim status facilities may not have the necessary ground—water rronitorirq data needed for a permit since the 40 CFR 265 ground—water n nitorin reguiremantS are very general and not g cific for individual constituentS. bw does an 0/0 of an interim status facility ‘reet the 40 C?R 264.98CC) standard? (b) r4ew facility owner/Operators must obtain a permit prior to construction of the facility per 40 CFR 27fl.10(f) (SO FR 28751). 1) es drillir ground- water nLtOri wells constitute construction? tf so, how does the 0/0 maet the 40 CFR 264.9 8(C) standard? (a) P 1 n interim statuS facility may fulfill the background data reguiretlent for permittim in a nuther of ways. ssumir the facility 0/0 has been conductit an indicator evaluation pr ram as required by 40 CFR 265.92 and 265.93(h), the 0/0 may submit the data that have been collected tO that coint with the permit application. s required by 40 CFR 270.14(C)(6), the 0/0 must also s .d utit a pr sed list of indicator parameters or hazardous constituents which could reasonably appear in the ground—water at the site, and background values for each proposed constituent (40 CPR 264.98). If the 0/0 cannot submit background val_es for every one of the proposed constituents, the 0/0 imist submit procedures to calculate these values (40 CFR 2 70.14(C)(6)(iii) and (iv)). The 0/0 uld then generate the hac1 roufld data durir the first year of the permit. The final background values uld aut, matiCallY hecaTle part of the permit. (See the July 26, 1982 FederaL Register , 47 FR 32306.) (b) 40 CFR 270.14(C)(6) requires owners and operators of new facilities to submit only plans for detection net ’crks prior to permit issuance. ll installation may take place after the permit issues. ll construction could constitute facililtv construCt ion. Source: Vernon Myers (202) 382—4658 search: Jennifer Rrock ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9481.1986(06) 6 AUG 86 norable Rob Dole United States Senator 444 S.E. Ouincy Topeka, Kansas 66683 T)ear Senator Dolls Thank you for your June 24, 19R6, letter on behalf of Ms. Sharilyrt Dienet. Ms. Dienst expressed concern about the use of alternate concentration lt nita at RCRA/C RCLA sites. Soecifically, Ms. Dienst raised questions reqardjn the RCRA/CERCLA consent orders on the N.t.!.S. facility in Kansas. The ground—water orotection standard (GWPS) under Subpart F of 40 CFR Part 264 requires a concentration limit for each hazardous constituent entering the around—water from a RCRA regulatory unit. This concentration limit is established in the facility permit and serves as a concentration limit beyond which learadation of around—water quality will not be allowed. These concentration limits determine when corrective action is required. There are three possible concentration levels that can be used to establish the GWPSs 1. Rackqround levels of the hazardous constituent; 2. Maximum concentration limits listed in Table I of Section 264.94(a) of the regulations; or, 3. ft lternate concentration limits (ACLa). The first two levels are established in the facility permit unless the facility owner or operator applies for an ACL. To obtain an PCL, a nermit applicant must demonstrate that the hazardous constituents detected in the ground—water will not pose a substantial present or potential hazard to human health or the environment. The factors used to evaluate AC!.. requests are nineteen specific items related to ootential adverse effects on ground—water quality or hydraulically— connected surface water quality. ------- An AC!. demonstration is essentially a risk assessment and risk management Process in which a determination of acceptable ground—water contamination is made, If the AC!. demonstration relies on a showing that adverse effects on human health and the environment will be delayed rather than prevented, then the ACLs wj]] not be nranted, The nermit applicant must Dr’ vide evidence that the adverse impacts will be prevented. The Agency has a draft AC!. guidance which includes six case studies; includina the case study which Ms. Diengt requested. The draft guidance is subject tn change and Is not EPA’s official policy. The guidances, when finalized will serve to elaborate on the AC!. criteria and to Provide examples of acceptable AC!. arguments through case study examples, We expect to finalize the guidance by the end of October, 1986. EPA’s Region vii office in Kansas City, Kansas, has the lead role in reviewing the NIES facility AC!. annlicatjon and making the final decision on the concentration limits. Regarding Ms. Dienst’s question about apneal rights, t suggest she call Mr. Lloyd Guerci, Director of EPA’g RCRA Enforcement Division. His telephone number is (202) 382—4808. The Process for orders undir RCRA Is Dresently under review. However, the RCRA Process is expected to oPerate in the same manner as that for CERCL.A orders. Under the CERCLA order process, oublic comment is sought by the respective EPA Regional Office. Once corrective action alternatives have been agreed uoon by EPA and the responsible Party, a draft consent order is usually Published for public comment. Rased on public comments EPA may renegotiate the order. In this way the public’s views are taken into account. There often are ongoing discussions, such as Dublic meetings, with the public involved throughout the process, ACLa are usually granted through the Dermit process. Nationally, neither EPA nor authorized States have aporoved any- AC!. applications to date. However, Region IV, with Headquarter’s Concurrence, has aiven tentative approval for an ACL for nickel at a facility in Alabama. .This AC!. is awaiting permit issuance, The CERCLA program has made AC ! .— like decisions at one sites Sylvester, NH. I hope this letter addresses Ms. Dienst’s concerns, If I can be of any further assistance, olease let me know. Sincerely, 5\ . WinSton P’,rter Assistant Admjnjctrator ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9481.1986 (08) SEP 2 61986 Onorab e 9ewt (irir ricPi oug of Pe regentatjves Zashinqton, b.C. 20515 near Mr. Cin rjch: Thank you for your ente be B, 1 R6, letter Concern inc7 the State of Ceorgia’s choice of analytical ‘ ethods or riround — water ‘ onitorinr . C;eorqja nvironments1 Protection t )ivj j ’q reaujrement that only qas chromatography/maja soectro ’ etry (Qc/mq) be used for orrjanjc analysis is not with the Federal oroaram. z s Mr. Friedman explained in his July 25 letter to which you referred, the !nvjrorim ntaj Protection koency (EPa ) has anprovad both methods: gc and gc/Ms . It is possible t0 oerform Appendix vtiz (40 CFR Part 261) organic analygj 5 usinq only qc. qowever, EPA’s (:round_water Task Force chose to use rjc/ms, as the State of ejeorcia has. In many cases conventional cc detectors cannot discriminate between the comnoundg of interest and the interfering compounds that are oresent. We nrefer ic/lies because it nrov(des certain struc- tural information that can minimiz, interference,. Using ‘jc n1y, it i’lay be possible for a laboratory to demonstrate the ability to overcome the problem by emoloyinq a second column contajnj a different stationary phase. Rowever, in the case of analyzing complex samples for a number of oollu— tants, this technigu. would b• cuite expensive. The cc/ms allows for the simultaneous or rapid seauentja l measurement of large numbers of different organic oollutant,. This method is especially useful in the Appendix vii i analyses to which you r.f.rred. Thus, it is EPA’s preference to use cc/Ne. under Section 3006 of the Resource Conservation and ecovery Act. SPA has cranted authorization to the Stat, of Georgia. Therefore, it is Georgia’s, rather than EPA’s, analytical rsaujgem e that apnly. Consistent with its authorization, Georgia “lay require use of the ac/mu method. Please contact Georgia’s flepartment of Natural Resources Commissioner, Leonard Ledbetter, for further information on Georgia’s requiremen Ie can be reached on (404) 656—4713. ------- I hop I have clarified this situation for you. If I can be_of any further assistance, olease let me know. Sincerely, Lee 11. Tho a Lee M. Thomas - 47 S 86 l 3 /Sld/9 —1 — 6/cont o No: AL602860/Due Dates 9 —22—e6/CONTROLLED CORRESpONDENCE $c ------- 9481.1986(10) RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY OCTOBER 86 7. Corrective Action for New Facilities Is an ner/o rator seeking a e—constz,jctjo rmit for a new RCRA treatment, storage, or dis sal facility subject to corrective action under Section 300 4(u) of RCRA? Yes, Sectton 3 004(u) states that corrective action is required “for all releases of hazardous waste or constituents fran any solid waste menagenent unit at a treatment, storage, or dis sal facility Seeking a rmit...” under Subtitle C of RCRA, “... regardless of the time at which waste was placed in such unit...” Therefore, any solid waste menagernent unit located on a site which is involved in a rmit application LS subject to corrective action (S264.lOl) even if there has never been any revicus authorization for hazardous waste activity at the site. Examples of units which could be included in corrective action under these circumetances are sanitary landfills, duin s, and units in which waste which is normally exempt fran M regulation have been stored or disp ,sed. Releases of hazardous waste wculd include releases of listed (S261.31—33) or characteristic hazardous wastes. Releases of hazardous constitueuts fran both hazardous and solid wastes are also cove . This uld include any of the hazardous constituents listed in 40 CFR Part 261, p endix VIII. Source: Dave Fagan (202) 382—4740 Research: Betty Wilson ------- 9481.1987 (01) February 25, 1987 MEMORANDUM SUBJECT: Applicability of Vulnerability Guidance FROM: Arthur Day, Chief Technical Guidance Section TO: Doug McCurry Residuals Management Branch, Region IV During the question and answer period at the recent seminar on Land Disposal Technology, you asked whether the guidance on ground-water vulnerability was applicable to the RCRA permitting standards. I took you questions to refer to whether a permit should be denied solely because the facility is located in a vulnerable setting. My reply stated that the guidance was not intended to be a national siting policy, and that it was, in this sense, not applicable to the RCRA permitting standards. I believe that this response failed to fully convey the purpose of the guidance. The intended use of the guidance by the RCRA permit writer is stated in Section 1.2 of the guidance (attached). You should carefully note that the guidance applicable to the RCRA program in at least the following ways: It provides the permit writer with a standardized method for assessing the adequacy of hydrogeologic aspects of a Part B application. An adequate site characterization is a permit application requirement, as explained in the so-called Phase I Location Guidance (note attached copy, see section 2.1). Adequate site characterization is needed for ensuring that ground- water monitoring wells are properly located. • Permit writers should consider requiring a contingent corrective action plan in permits issued to facilities in vulnerable settings, when such facilities are not already conducting corrective action. This is meant to reduce the time between plume detection and response that is associated with permit modification. The TOT method also provides a trigger for more detailed review and evaluation by the permit writer. The results of this review may provide a basis for changes in design or operating practices. This has been retyped from the original document. ------- —2— • The vulnerability definition can be used by a Region to prioritize site analyses, although the existing Facility Management Plan system would take precedent. It is also referenced in the guidance on Interim Status Impoundment Retrofitting Variances, under the migration” exemption. • It provides a framework for assessing leachate migration potential and impact along each of the three pathways of concern (i.e., water well, discharge to surface water, basement seepage). The last pathway has often been overshadowed by concern for water well protection. Let me elaborate on these points. First, I recommend that your permit writers ensure that data on hydraulic conductivity are collected in accordance with the methods presented in Appendix A. This is important, because such information influences monitor well placement and corrective action plan design. These methods are about to also appear in SW-846. I also think that permit writers should approach their reviews of site characterization/moriitorability using the flow net methods presented in Appendix B. Please note that the TEGD also recognizes the role of flow net analysis for this purpose. The vulnerability guidance recommends (pages 1—6) that an objective method that can reduce the number of negotiations with an applicant’s site characterization be tested by installing additional piezometers (in order to verify a flow net), this is an applicant to reach closure on the adequacy of site characterization. Finally, the flow net methods will also help reveal to permit applicants and permit writers whether significant migration pathways exist beyond the aquifer contamination route; this can be particularly important where above-grade or shallow trench landfills are constructed in low- permeability sediments or rocks, such as in parts of the Atlantic and Gulf Coastal Plan. I recognize that the analytical methods presented in the Guidance (such as flow nets) may be unfamiliar to many permit writers. I do not maintain that permit writers should evaluate flow nets for all of their projects. The method might be most immediately useful where site characterizations are in dispute. However, I think that you will find that a one-time effort made by your staff in applying these tools will be productive in the longer term. I am pleased to note that one member of the EPA Science Advisory Board particularly praised Appendix B (flow nets) as the best discussion on this common geotechnical tool that he had seen for hazardous waste facility analysis. As I mentioned in response to another question, OSW is developing additional location standards for TSDs, which we plan This has been retyped from the original document. ------- —3— to propose by 9/87. We are considering whether a “degree of vulnerability” concept should be incorporated into these standards. We are also considering incorporating the flow net verification concept described above as a site characterization performance requirement. I hope that these comments clarify our earlier discussion. Please contact me at FTS-382—4680 if I can provide further information. Attachments cc: James Scarbrough Bob Tonetti Terry Grogan Suzanne Rudzinski Matt Hale This has been retyped from the original document. ------- 9481. 1987 (02) March 10, 1987 MEMORANDUM SUBJECT: International Paper Company, Wiggins, Mississippi FROM: Susan Bromm, Acting Director Permits and State Programs Division TO: Patrick Tobin, Director Waste Management Division I am writing in response to your January 29, 1987 memo to Marcia Williams concerning “alternate concentration limits” (ACLs) in a draft HSWA permit for International Paper Co. (IP), Wiggins, MS. The materials you sent were reviewed by Mark Salee, Janette Hansen, and Bob Kayser of the Land Disposal Permit Assistance Team (PAT). The PAT also consulted with the corrective action work group. The continents below are based on the PAT’s recommendations for approaches to corrective action for continuing releases to ground water at solid waste management units. Final Agency regulations and guidance may be different on some issues. The draft HSWA permit contains ground-water cleanup standards (concentration limits) for 15 hazardous constituents. Seven of the concentration limits are based on an ACL—type demonstration, set at human health criteria levels. These concentration limits are consistent with currently available EPA Verified Reference Doses and proposed recommended maximum contaminant levels. Your memo highlighted two issues of concern in the draft permit. The first issue dealt with the use of human health criteria versus taste and odor criteria as the basis for the concentration limit for pentachiorophenol. This issue has been analyzed by the Region IV Ground-water Technology and Management Section. Their conclusions were summarized in a November 5, 1986 memo from B. Stallings Howell to Doug McCurry. Their rationale for the use of taste and odor thresholds is consistent with the most recent draft ACL guidance and policy. However, their application of the rationale does not appear to be fully consistent with the ACL guidance and policy. For example, the memo states, ACLs based on human health criteria be adopted for phenol and pentachlorophenol at International Paper for the following reasons: This has been retyped from the original document. ------- —2— 1. The probability that concentrations above the taste and odor threshold will reach a drinking water well is low at the site... Although not explicitly addressed in the draft ACL policy and guidance, we believe that concentration limits can be set at human health criteria levels that are above taste and odor thresholds if the resource value of the ground water is not degraded. In this case, it must be shown, to a reasonable degree of certainty, that attenuation of the contaminant plume between the point of compliance and the property boundary will result in contaminant concentrations at the property boundary equal to or below the taste and odor thresholds. This type of evaluation should be performed for the IP site to ensure the protection of the ground water for future use in the area. The second issue identified in your January 29, 1987 memo concerned the use of the minimum detection limit (MDL) to establish background as a ground-water protection standard. This is a valid approach to establishing background. However, to ensure that the permittee follows a method acceptable to EPA, the permit should contain a specified method to determine the MDLs, or specify criteria to follow when choosing a method. A method that could be used is presented in Section 1.3 of the latest version of Test Methods for Evaluating Solid Waste. SW—846 . Copies of this document will be available for distribution in late March. The permit should include a reference to this SW-846 method or a more appropriate method for establishing MDLs. During our review of the draft permit, we identified an area of concern in addition to the issues highlighted in your memo to Marcia Williams. The comments below focus on Section II.C., Corrective Action Procedures of the permit, specifically, the concentration limit for creosote, the identification of additional Appendix VIII constituents, the lack of any requirements for the treatment of the contaminated ground water, and the termination of monitoring at a well upon reaching the concentration limit at the well. The concentration limit for creosote in Section II.C.1. is defined by an analysis for phenanthrene and carbazole. Another definition may be more appropriate for two reasons. First, carbazole is not listed on Appendix VIII of Part 261 or on the proposed Appendix IX to Part 264 (51 26632) for ground-water monitoring, and there is no standard method for analyzing carbazole in SW-846. Second, creosote was not included on the proposed Appendix IX list. Instead, a list of polynuclear aromatic hydrocarbons (PAHs) representative of the major components of creosote was included in Appendix IX. A more appropriate analysis for creosote would be to analyze for a list of PAils. Such a list should include chrysene, fluoranthene, This has been retyped from the original document. ------- —3— naphthalene, acenaphthene, phenanthrene, fluorene, and pyrene. The permit should include concentration limits for all of these PAHs. Section II.C.l.c. of the draft permit lists requirements to be performed by the permittee if additional Appendix VIII constituents are identified. However, the permit lacks a specific condition requiring the perinittee to identify any additional Appendix VIII constituents. The draft permit only requires quarterly monitoring for the 15 hazardous constituents listed in Section II.C.1. Assuming that an initial Appendix VIII (or proposed Appendix IX) scan was performed to identify these 15 constituents, we recommend that the permit include explicit language requiring periodic (i.e., annually or less) monitoring for a comprehensive list of hazardous constituents from Appendix VIII (or proposed Appendix IX) reasonably expected to be in or derived from waste in the solid waste management units. The permit does not address any treatment standards or methods for contaminated ground water that has been pumped from the subsurface. While ground water in itself is not a hazardous waste, ground water that contains hazardous waste must be handled as if it were hazardous waste because the contaminants in it are subject to regulation under Subtitle C. Once the hazardous waste is removed from the water, the water is no longer subject to Subtitle C regulation (see memo from Marcia Williams to you, dated November 13, 1986). The permit should, at a minimum, contain a schedule of compliance f or the submittal of plans for the handling and/or treatment of the contaminated ground water. (The Agency’s authority to stipulate treatment standards as part of a corrective action permit condition comes from §264.101 and Sec. 3005(c) (3) of HSWA). As was stated in the permit, the permittee should comply with all other State and Federal laws regarding treatment and discharge of the water. You should also be aware that “source control” can be an important aspect of RCRA corrective action. You may also want to consider directing the permittee to study source control options. Part II.C.5. of the permit states that: “Upon reaching the concentration limits at any monitoring well further monitoring of that well may be terminated....” This condition may not be fully protective of human health and the environment, as contaminants in the ground water do not necessarily occur in one continuous plume. There may actually be several plumes of varying compositions. A ground—water sample which indicates allowable concentrations of contaminants may just represent an area between two plumes. I suggest that the permit require some type of less frequent, short-term verification monitoring (i.e., three consecutive years as discussed in §264.100(f)) before monitoring and/or corrective action is terminated. This has been retyped from the original document. ------- —4— If you or your staff have any questions or concerns about any of the comments or recommendations presented in this memo, feel free to call Mark Salee of my staff at (FTS) 382—4692. cc: Marcia Williams Doug McCurry, Region IV Suzanne Rudzinski Beverly Spagg, Region IV Natt Hale Vernon Myers Terry Grogan Mark Salee James Scarbrough, Region IV Janette Hansen Lloyd Guerci This has been retyped from the original document. ------- 9481.1987(03) .?t0 S7 f UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON D.C. 20460 - JUN 3 1987 OF ICEoc SOLID WASTE AND EMERGENCY RES?ONSE Mr. Richard J. Gimello Executive Director Hazardous Waste Facilities Siting Commission State of New Jersey CN 406, Trenton, New Jersey 08625 Dear Mr. Gimello: This is in response to your lettec dated April 27, 1987, requesting the Environmental Protection Agency’s (EPA) opinion on the applicability of EPA’s vulnerable hydrogeology guidance criteria to the Millstone, New Jersey proposed incinerator site. I must first point out that the document referred to in your letter titled, “Cciteria for Identifying Areas of Vulner- able Hydrogeology Under RCRA - Statutory Interpretive Guidance” (issued in July, 1986), is simply an Agency guidance. It does not have the force and effect of law that would require full compliance with the stated criteria. Further, the guidance is applicable only to landfills, surface impoundments, and waste piles (i.e., land—based units) and does not apply to incinerators. It is the Agency’s opinion that the potential for ground—water contamination resulting from an incinerator is typically not a concern due to the manner that waste is contained during incineration. It is unclear from your letter, however, whether other waste management units associated with the incinecatoc will be present. The vulnerability guidance might be relevant to the facility if one of these additional units were land—based. Your lettec contained questions on the extent of site— specific investigations and types of restrictions or modifica- tions to design or operating practices that would result in response to a finding that the hydcogeology of a site was considered uvulnerableN. If a site were found “vulnerable” using the Agency guidance, further site—specific investigations nay be appropriate. For example, a site owner or operator may be requested to install additional groundwater piezometecs in order to verify hydcogeologic information provided in the permit application or to construct a groundwater flow net for the site in order to more fully document flow patterns. These investigations would aid in verifying plans for ground—water monitoring. Similarly, the owner or opecatoc might be directed ------- —2— to establish a contingent corrective action plan prior to any actuaj. release to ground water, in order to more quic’cly respond to any release in the future. ‘lore stringent unit Iesign and Operating Controls might be appropriate in certain locations. For example, additional engineered barriers may be appropriate in shallow, subsurface flow areas. tn another case, an increase in the length of the Post—closure care period may assure that ground—water contamination will, be prevented or responded to quickly. Finally, we do not believe these investigations are more extensive than those required under Title 40 of the Code of Federal Regulations (CFR) Part 270. As you know, we are now developing location standards for hazardous waste management facilities in response to Section 3004 (o)(7) of RCRA. The relationship (if any) between the vulnerability criteria (and any associated site investigations or design and operating measures) and the nature of these future standards has not yet been established. I welcome your continued participation in the workgroup helping to develop these standards, as well as your suggestions on this specific topic. - I hope this information responds to your concerns. How- ever, if you need more specific information, please contact Arthur Day in the Office of Solid Waste, at (202) 382—4680. Sincerely, • Winston Poctec Assistant Administrator ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9481.1987(04) Jt4 I9 MEMORANDUM SUBJECT: Review of Alternate Concentration Limits Proposed by Union Carbide Corp., Institute, West Virginia F1 DM: Bob Kayser, Acting Chief Land Disposal Permit Assistance Section (WH—563) TO: Robert E. Greaves, Acting Chief Waste Management Branch, Region III As requested, the Land Disposal Permit Assistance Team (PAT) has reviewed the ACL. proposal submitted by Union Carbide Corp. (UCC) in September, 1984. The review was performed by Mark Salee of the PAT. The following comments and recommendations have been developed based upon the PAT’s interpretation of the current draft ACL guidance and policy. The ACL Guidance document has gone through the Agency’s Red Border review and is currently being reviewed by the Office of Management and Budget. A number of issues were raised during Red Border review of the ACL Guidance document. Decisions on these issues have been made and the document has been revised to reflect the recent decisions. An issue that impacts the Union Carbide ACL proposal pertains to ACLs based on discharge of contaminated ground water to surface water bodies. Part of the ACL policy is that contaminant plumes in usable ground water will not be allowed to increase in size. This applies to the areal extent of the contamination and contaminants at concentrations above allowable health or environmental exposure levels within the plume. Contaminants at concentration levels below allowable health or environmental exposure levels at the point of compliance could have ACLs established at the allowable health or environmental exposure levels. ACLs based on contaminant discharge into a surface body can be set at current contaminant concentrations that are above allowable health or envirormtenta l exposure levels at the point of compliance if the following conditions are met: 1) the facility property boundary is immediately adjacent to the surface water body, 2) the contaminant plume must have already reached the surface water body, and 3) the hazardous constituents are not causing a statistically significant increase in constituent concentrations over the background concentrations in the surface water body. ------- The following discussion assumes that all of the contaminant plume is discharging into the Kanawha River. However, from the information submitted in the proposal, it appears that the contami- nant plume may be migrating off-site along the eastern property boundary, near well 6 (Well 6 has shown bis(2—chloroethyl) ether levels between 26 and 59 ppb). The proposal does not contain any information on the ownership, land use, or ground-water use off—site in this area. A more detailed investigation into the extent of migration of the plume in this area, and the land and water uses im this area is needed to fully evaluate the impacts from the ground—water contamination. The ACLa proposed by UCC have been evaluated based on the above policy. RAfter a comparison of the highest constituent concentrations detected in the mollltoring wells, the allowable health or envirot ental exposure levels for those constituents, and the proposed ACLs (see Table I), the PAT concludes that the proposed ACLs for the three constituents are unacceptable. The proposed ACLs are greater than the highest detected concentrations of the constituents in the monitoring wells. Also, the highest detected concentrations of bis(2—chloroethyl) ether and antimony are greater than the allowable exposure levels for these constituents. The concentration limits for these constituents could be set at the highest concentrations detected in the ground water if the constituents are not causing a statistically significant increase in their concentrations over their background concentrations in the Kanawha River. The reviewed proposal does not contain adequate surface water quality data to make this determination, nor does the proposal contain sufficient information to verify that all of the contaminated ground water is discharging into the Karawha River. Union Carbide states that, “no information exists within the wastewater treatment plant area concerning the piezometric surface in the underlying bedrock. However, the Kanawha River valley is known to be a major ground—water discharge area. Consequently, ground water in the bedrock flows vertically upward, enteririq the alluvium and ultimately the Kanawha River.’ Additional information concerning the horizontal and vertical migration of tbe contamination is needed to verify this claim. Additional suxface water quality data is also needed to determine if the discharg e of contamination into the Kanawha River is causing a statisticat lp significant increase bv er background concentrations in the surfad water. Samples should be collected within the discharge of the contaminant plume during a period in which stream flow i near average conditions for the specific season. These samples should include water samples taken at mid—depth and sediment samples. ------- 9481. 1987(05) June 17, 1987 MEMORANDUM SUBJECT: Ground-Water Monitoring at Regulated Units Near SWMUs That Have Impacted Ground-Water FROM: Marcia E. Williams, Director Office of Solid Waste (WH—562) Gene A. Lucero, Director Office of Waste Programs Enforcement (WH—527) TO: Robert Duprey, Director Waste Management Division Region VIII We are responding to your memorandum of March 19, 1987, on the above subject. Your inquiry has raised several good questions. Situations in which either the background ground- water quality at a regulated unit is highly contaminated or the regulated unit is constructed on an old solid waste management unit (SWMU) that has affected ground water are common. Your memorandum contained a series of questions but did not include sufficient detail for us to specifically respond to each question for each site. Instead, we offer a general approach for each site, to which you may apply site-specific considerations. In the case of the refinery which has an interim status land treatment area downgradient of an unlined, non—regulated surface impoundment, you may issue a permit, if the following conditions are satisfied: • The land treatment unit is in compliance with applicable land treatment requirements, including those involving unsaturated zone monitoring (especially soil care monitoring); • The unsaturated zone monitoring indicates that there has been no migration of hazardous constituents from the treatment zone; • Upgradient ground—water monitoring well(s) are not affected by the land treatment unit (a showing by soil core monitoring that there has been no migration would be an important indication that the upgradient well(s) are unaffected by the regulated unit); and • Ground-water contamination is being addressed through HSWA corrective action provisions (either §3004(u) or §3008(h)). This has been retyped from the original document. ------- —2— In the case where the regulated unit is an interim status landfill that is constructed on a SWMU, you may issue a permit, if the following conditions are satisfied: • Upgradient ground-water monitoring well(s) are not affected by the regulated landfill (this will probably require use of background wells upgradient of the SWNU, because of the apparent stability to determine whether contamination is from the landfill or the SWMU); • Downgradient ground-water monitoring wells represent the quality of ground water passing the point of compliance (this approach assumes for regulatory purposes that all releases are from the regulated unit); and • Ground—water contamination is being addressed through HSWA corrective action provisions and §264.100 (the permit could include a reopener clause to modify the ground—water standard if corrective action is able to clean up the contamination). In both of these cases, we would like to emphasize the importance of dealing with the ground—water contamination problem at the sites. Corrective action for these releases is the critical element of any site strategy. For further guidance on the subject of various regulatory requirements of ground—water monitoring, we would refer you to the RCRA Ground-Water Monitoring Compliance Order Guidance (Final — August 1985). We appreciate the opportunity to be of assistance to you. If you have any further questions, please contact Suzanne Rudzinski at (FTS) 382—4206 or Ken Jennings at (FTS) 475—9874. cc: Bruce Weddle Joe Carra Elaine Stanley Amy Svoboda John Haggard, Region VIII Jean Bolinske, Region VIII Debbie Sherer, Region VIII This has been retyped from the original document. ------- 9481.1987(06) RCRA/SUPERFUND HOTLINE MONTHLY SU)O(?RY JUNE 87 Groundwater tbn..itoring For Radionuclides are radionuclides, which are present in mixed l —leve1 radioactive waste, aorutored in the groundwater at an interim status disposal facility? When the facility is in interim status, the initial backgro rrcnitorlrlg required by 40 CFR 265.92(b) and (c) consists of r utor1ng for drinking water parameters specified in 265.92(b)(1)...(3) Appendix iii and 265.92(b)(l) references. e of the parameters specified in Appen±ix III is gross Alpha radiation. The regu1atjc require quarterly !!v utorLng for these stituents for one yesr. Part 265 does r t address the requiranent to ncnitor the groundwater for radiation beyond the original four background measure ritg. S3urce: arnell Vincent (202) 382-4658 Research: Becky O.ithbertson ------- 9481.1987(07) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASIIINGrON D.C. 20460 OFFICE OF 2 sOLID WASTE ANO EMERGENCy REspop.sE MEIORANDUM SUBJECT: Alternat Concentration Limit (ACL) Policy for MSWA Provisions FROM: Marcia E. Williams, Director Office of Solid Waste (WH—562) TO: Robert E. Greaves, Acting Chief Waste Management Branch (3Hw30) Region III This is in response to your June 19, 1987, memorandum concerning the applicability of alternate concentration limits (ACLs) to the surface impoundment retrofitting provision under § 3005(j)(3). The facility in question is loc ted in West Virginia, which has a ground-water nondegradatiori policy under a delegated RCRA program (pre—HSWA). The retrofitting exemption in § 3005(j)(3) for aggressive biological treatment surface impoundments requires that the interim status impoundment be in compliance with ground—water monitoring requirements that are generally applicable to permitted facilities. FQr facilities that have not been issued a final Part B permit, we have interpreted this requirement, in the July 1986 guidance entitled “Interim Status Surface Impoundments Retrofitting Variances,” to mean compliance with 40 CFR Parts 264 and 270. Facility permits must include either a detection, compliance, or corrective action monitoring program. Facilities that have detected leakage of contaminants to the ground water must propose concentration limits 0 which could include ACLe, for each hazardous constituent datected in the ground water. The ACLa, Like the other concentration limits, are used to determine which ground- water monitoring program (i.e., compliance or corrective action) should be included in the facility permit. Therefore, ACLs should be considered part of the ground-water monitoring requirements that are generally applicable to permitted facilities. ------- —2— Sec.tiori 3005(j)(7)(C) states that if a qualified waste—water treatnent im,oundment is found to be leaking, the impoundment must retrofit unless EPA determines retrofitti,r g is riot necessary t protect human health and the environment. One way for an o . rier/operator of a leaking surface impoundment to demonstrate protection of human health and the environment is to obtain an ACL. Generally, ACLs are applicable and should be reviewed to determine compliance with 3005(j)(7)(C). For a facility in a State authorized for RCRA, the applicability of ACLs in EPA’s evaluation of an exemption request under § 3005(j)(3) and ( )(7)(C) is governed by State law an. regulations. As previously stated, the statutory language under § 3035(j)(3) states that to qualify for this exemption the facility nust be “in compliance with generally applicable ground—water m rlitoririg requirements for facilities with permits . . •“ The retrofitting exemption should be reviewed based on West Virginia’s ground-water monitoring permit requirements, which include a nondegradatiort standard (i.e., they do not provide for the setting of ACLs). As a result, ACLs would not be applicable under the § 3005(j)(3) and (j)(7)(C) provisions for this specific case. Should you have any questions on this matter please contact either Paul Cassidy of the Land Disposal Branch at 8—382-4682 or Mark Salee of the Technical Assistance rarich at 8—382—4755. cc: Joseph Carra Bruce Weddle Bob Tonetti Suzanne Rudzinski Art Day Marc Salee Paul Cassidy ------- 9481.1988(01) , O S I 4 , UNITED STATES ENVIRQNMrNTAL PROTECTION AGENCY WA5HINt;1jj DC 20160 PRO I! OFFICE ) SOLID WASTE AND EME C ENCy RESPONSE MEMORANDUM SUBJECT: New Jersey ?inc Compan” - 1. FROM• Marcia EY’Williains, Ci ector Office of S lid Waste W11—562) TO: Robert E. Lreaves, Chief Waste Management Branc (3HW30) This is in respcnse to youz rierno dated November 3, 1987. in which you requested that the Of f e of Solid Waste (OSW) provi.je assistance on a number regulatory issues surrou ’iing the New Jersey Zinc ompany sitc. a Palmerton, PA. AMC . EPA . A Fede Register notice (atLached) interpreting the decision was signed by t e Administrator December 31, 1987. Our reading of the C opi on is that the New Jersey Zinc Compa ij’s operation is not affected by the opinion, i.e. , it still involves solid waste management (at least up until it is bur .ed in an industrial furnace) and the company must still obtain a RCRA permit for their K061 storage pile. Further, we do not. think the opinion affects EPA’s speculative accumulation provisions at all. You should note, however, that the speculative accumulation provisi ,n determines when certain secondary materials are solid wa!:tes; it does not distinguish between storage and disposal. sI )J sposa1II is defined in the regulations at Section 260.10.) The last of your first set o’ questions concerned parti .ly recla’ .med zinc oxide that requireL further reclamation. Normally, a partially reclaimed solid waste remains a solid waste as long as it must still be reclaimed before use, and t.he Section 261.3(C)(2)(j) “derived-trom” rule would make the parti- lly reclaimed material a hazardous waste. As I unders 1 .and the s tuation at New Jersey Zinc, the partially reclaimed ziic ------- --2— oxide is both a solid and a hazardous waste. However, as is discussed below in the context of the Waelz Kiln residue, i5 New Jersey Zinc were to change their process so that the only hazardous waste they were to burn in the kiln was K061, the residues from that kiln may then not be hazardous waste. Regulatory Status of Waelz Kiln Residue The regulatory Status of the kiln residue (and the partially reclaimed zinc oxide) depends or the type of feed to the kiln. As I understand the process currently employed at New Jersey Zinc. I concur with Sam Rotenberg’s assessment that the res .due is a hazardous waste via the derived-from rule, and further, that the residue has been a hazardous waste since 1980. The. following are the factors upon w! 1 ich this determination is basea. o The kiln residue i not exempt Under RCRA Section 3001(b)(3)(A)(jj) because the K061 feedstock is a tste from the primary steelmaking industry. Steelmakjnc Constitutes an alloyin .v process, which the Agency 1 s determined not to be “‘rc.cessing of ores or minera;. .” -. Waste produced by rec1ai dtjon of other minerals from non—Bevjll waste is nbc itself a Bevil]. Waste. o The “indigenous secondary material” discussions that have appeared in the Fideral Register over the last 3 years 50 ER 630—1, January 4, 1985; 50 49167, November 29, 1985; and 52 ER 16989—91, May 6, 1987) are riOt applicable to this unit because I understand that F006 and F0l9 are introd’jced to the furnace —- these wastes a q certainly not indigenous to a zinc smelting process.AJ 1/ Your letter also stated that K062 is added to the furnace. We would not view K062 as indigenous to zinc smelting either, but as I understand it, what is actually introduced to the furnace is sludge from lime stabilization from waste pickle liquor that is exempt from the ‘ erived-from rule under Section 2 6l.3(C)(2)(jj) Therefore, introducing this exempt sludge into the furnace does not affect the regulatory status of the kiln residue. ------- —J— You should note that New Jersey Zinc might be able to ch3nge the status of the kiln dust by ceasing to add any hazardous waste but K061 to the kiln. Under the May 6, 1987 proposal 52 16990), K061 would be considered indigenous to a zinc smelting operation because K05l ic generated in furnaces use : rt primary steel production (i.e., t otn are forms of metal smeit- ing). If this rule is finalized as proposed, then the derived- from rule will no longer apply to residue from smelting of 1 (061. Of course, if New Jersey Linc continues to add F006 ;nvj E’019 o the kiln, the kiln residue would continue to be hazard- ous no matter what is decided concerning K06l. In fact, as a final point, the introduction of F006 and F0l9 to the kiln calls into question the kiln’s status ‘s a reclamation device. ( r 50 630—1, January 4, 1985.) Trat is, the F006 and F019 wastewater treatment sludges are not ordinarily associated with zinc smelting, and these wastes may contain Appendix VIII constituents different than normal zinc smelter feed materj .Ls. (j .) The kiln, as it is currently operated, may be more properly classified as a hazardous waste incinerator as oppo;ed to a reclamation furnace. Regulating Exempt€d Wa .t Ufl r RCRA Corrective Action Your second set of questions cc .nicerned the applicability of RCRA Section 3004(u) corrective aztion authority to releases from exempt units. The units you asked about are: 1. Bevill exempt; 2. Pre—RCRA inactive units, and 3. AIIC opinion exemptions. (1) The question about units containing Bevill wastes w settled recently when EPA issued the second HSWA Codific- tion Rule, signed by the Administrator on November 16, 1987. EPA determined that the RCRA Section 300l(b)(3) exemptions (i.e., those established for “Bevill wastes”) do not extend to Section 3004(u). This decision is explained fully in the preamble of the second Codification Rule. ( 45790, December 3, 1967.) ------- —4— (2) Releases from pre-RCRA inactive units are certainiy within the authority of RCRA Section 3004(u). 40 CFR Section 264.101 provides that an owner or operator of a facility seeking a RCRA permit must institute correction action for releases from unils at the facility, regardless of the time at which waste was placed in such unit.” (3) Releases from units excluded from RCRA jurisclictjcn under the C opinion, should there be such exclusions, A’OUld he handled the same as other product or process releases. That is, the unit holding the product is not a S YMU, but areas contaminated by “routine and systematic discharges” from the unit are SWMIJs. U you have further quest on in these areas, Contact Mic)’3e1 Petruska of my staff tt F’TS 475 -9868. Attachment ------- RCRA/SUPERFtJND HOTLINE MONTHLY SU)O1ARY 9481.1988(02) APRIL 88 7. Ground-Water Monitoring—Assessment Monitoring/Corrective Action at Closed Facilities An interim status landfill must comply with the requirements in Part 265, Subpart F, Ground-Water Monitoring, during the post-closure care period (see 40 CFR Section 265.90(b)). Section 265.93(d)(7)(i) states that the owner or operator conducting an assessment monitoring program must determine the nature and extent of contamination in the uppermost aquifer below the facility “on a quarterly basis until final closure of the facility (emphasis added).. .if such a program was implemented prior to final closure of the facility.” Section 265.93(d)(7)(ii) states that the owner or operator may cease to make regular analyses of the ground-water quality if the assessment plan is implemented during the post-closure care period. An interim status landfill stopped receiving waste before July 26,1982, and certified closure closed prior to January26, 1983. The facility is now performing post-closure care activities. The facility recently “triggered into” an assessment monitoring mode. With what ground-water monitoring requirements must he comply? What authority may be used to institute corrective measures? After the owner/operator implements the specific assessment plan detailed in Section 265.93(d)(1)-(5) no further monitoring would be required. According to EPA, if the confirmed detection of hazardous constituents in the ground-water first occurs during the post-closure care period, “the sources of contamination are expected to be relatively stable [ as no additional wastes are currently being placed in the unit] such that repeated assessments would only confirm the initial determination of contamination. For this reason only one ground-water quality assessment which demons ates contamination is required during the post-closure care period” (see May 19,1980 Federal Register. . 45 33195). The post-closure monitoring requirements referred to in Section 265.90(c) would therefore include only any detection monitoring and this one-time assessment of the ground-water quality. A facility who stopped receiving waste on or before July 26,1982, and who closed on or before January 26,1983, would not be required to obtain a post-closure permit (see December 1,1987 Federal Register 2 52 EE45798). This being the case, EPA could not require additional ground-water monitoring under these regulations alone. EPA may compel the owner or operator of such a facility to perform ground-water (or other media) monitoring via a RCRA Section 3013 order. A Section 3013 order may be issued when the Administrator gains knowledge of the presence of a b iwdous waste at a facility, or knowledge of the release of any waste from a facility. The corrective action authority applicable to interim status facilities (RCRA Section 3008(h)) may also be applied if any remedial activities are desired. This order may be issued when the Administrator has information that there has been a release of h 2rdous waste into the environment from an interim status facility. Source: Kirsten Engle (202) 382-7706 Vernon Myers (202) 382-4685 Research: Deborah McKie Andy O’Hare ------- 9481.1988(03) RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY APRIL 88 8. Ground-Water Monitoring—Compliance Period/Post-Closure Care Period The “compliance period” is defined in 40 CFR Section 264.96(a) as “the number of years equal to the active life of the waste management area (including any waste manage- ment activity prior to permitting, and the closure period).” The compliance period begins when a compliance monitoring program is initiated (40 CFR Section 264.96(b)). Section 270.1(c) states that the regulations in Part 264, Subpart F apply during the post- closure care period if the land disposal facility received wastes after July 26, 1982, or certified closure after January 26, 1983 (see December 1, 1987 Federal Register . 52 45798). The post-closure care period “must begin after completion of closure of the unit and continue for 30 years after that date” (emphasis added). (See 40 CFR Section 264.117(a).) If the compliance period ends before the post-closure care period ends, do the requiremen to perform ground-water monitoring also cease at the facility? No. The July 26, 1982 Federal RegisteL (47 32287) discusses the concept behind the establishment of the compliance period. EPA views the active life of a land unit as the “time period during which the release of leachate to the [ ground-water] is likely to be greatest.” Therefore the timeframe for the ground-water compliance period must be at least equal to the active life of the facility to allow sufficient time to track the plume of contamination. CompUance Period/Post-Closure Care Period End Hazardous Waste Athvfties End Conçknce Period; Begin Cycle aln 4— COMPUANCE PERIOD — BEGIN HAZARDOUS WASTE ACTIVITIES ACTIVE LIFE CLOSURE POST-CLOSURE CARE COMPLIANCE PERIOD BEGIN COMPLIANCE MONITORING Begin Post-Closure Cai END POST-CLOSURE CARE ------- RCRA/StJPERFUND HOTLINE MONTHLY SUNMARY APRIL 88 The July 26, 1982 Federal Register (47 E. 32294) also states that when the compliance period ends before the dose of the post-closure care period, a detection monitoring program must be reinstated. Section 264.90(c)(2) infers that a detection monitoring program (Section 264.98) should be conducted during the post-closure care period when the facility is not implementing a compliance or corrective action program. Once the detection monitoring program is reinstated, the facility could conceivably proceed to a compliance or corrective action program. If a statistically significant increase over background values for the parameters and constituents of concern is identified, a compliance program or a corrective program must be initiated (see 40 CFR Section 264.98(h)). If, after the compliance period ends, there are still “hazard- ous constituents under Section 264.93.. .at the compliance point under Section 264.93, the owner or operator must institute a compliance monitoring program under Section 264.99” (Section 264.91 (a)(1 )). Once the post-closure compliance monitoring program recommences, the compliance period “clock” would begin anew. (See 40 CFR Section 264.96(b).) Source: Kirsten Engle (202) 382-7706 Vernon Myers (202) 382-4685 Research: Deborah McKie Steve Campbell ------- 9481.1991(01) “4 , I 1 \ $ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 I L OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE October 16, 1991 Glen D. Johnson Commonwealth of Pennsylv2ni2 Dept. of Environmental Resources P.O. Box 2063 Harrisburg, Pennsylvania 17105.2063 Dear Mr. Johnson, Four questions were raised in your letter of August 21. Hopefully our responses will be satisfactory. If you still have any concerns please feel free to contact us again. First, concerning the “Analysis of Retesting Procedures” paper, we have re- examined our simulation code used to generate the power results given in that paper and have examined the code you provided as well. It seems that the discrepancy between our results can be traced to the method by which you generate future values for comparison to the simulated prediction limits. The theory behind prediction intervals assumes that not only are the background measurements drawn at random from a (Normal) distribution, but that the future values to be compared against the prediction limits are also randomly drawn from the same population. That is, two sources of variability are built into the equation used to calibrate the width of a prediction interval: variability in the background measurements (accounted for by the quantity t. 9 . 1 and by 1/n under the root symbol) and variability in the future values (accounted for by adding 1 to 1/n under the root symbol). In your SAS code, the future values for a given effect size are always fixed at the expected mean level of the downgradient well. No variation is built into these numbers; consequently our power results differ. We have made an additional run of our simulations (based again on 10,000 iterations) to give you approximate power levels in the table below for each of the effect sizes you used. These results make sense from the standpoint that if the alternative mean is close to the background mean, adding variation to the future values should increase how often these numbers fall above the prediction limit and hence increase the power over what you derived. The reverse situation should te true when the background and alternative means are far apart, as seen in the table, for then the alternative mean will generally be above the prediction limit, and variability in the future values will tend to lower the power somewhat. Pnnted on Recycled Paper ------- EFFECT YOUR POWER OUR POWER 0.0 0.00(X) 0.0100 0.5 0.0008 0.0257 1.0 0.0051 0.0613 13 0.0301 0.1189 2.0 0.1116 0.2073 23 0.2698 0.3319 3.0 0.4756 0.4802 33 0.6946 0.6256 4.0 0.8473 0.7570 43 0.9386 0.8568 5.0 0.9801 0.9223 With regard to the article by Robert Gibbons in Ground Water (Vol. 29, No. 4, 1991), our basic reaction to the method Gibbons proposes for monitoring large networks of downgradient wells is not wholly unfavorable. There do seem to be advantages to employing some type of retesting strategy in order to verify results from wells that show possible contpmination. EPA has in fact already approved a proposal from the State of California that adopts a retesting strategy. However, the specific strategy put forward by Gibbons, that is, an initial tolerance interval followed by a prediction interval on any resainpled wells, may or may not be the best retesting strategy. The approved California proposal, for instance, consists only of prediction intervals with double resampling of downgradient wells that initially exceed the prediction limit. Both resamples must be immediately collected from the monitoring well, and both must pass the retest to verify that the initial failure was a false positive. In addition, Gibbons’ article raises a few questions concerning the statistical logic used. First, Gibbons’ basic example hypothesizes a network of 20 downgradient wells, each being monitored quarterly for five constituents. As Gibbons notes, this results in 100 sample measurements per quarter that must be tested statistically. It is not true, however, that all 100 values would be compared to single tolerance (or prediction) limit calculated from the background data. Rather, each constituent would have to be tested separately, leading to five separate tolerance (or prediction) limits each used to test 20 measurements. Clearly, it would not be the case that all five constituents would have similar distributions of concentration values. This point is not crucial to Gibbons case, but it is worth emphasizing that his hypothetical framework should actually lead to more conservative prediction limits than he describes. Another point is that Gibbons’ discussion of 1 ype I error rates when comparing the performance of tolerance and prediction limits without resampling, particularly in 2 ------- regard to Figure 1 on p. 568, is somewhat misleatiing. Gibbons argues for instance that “the 95% prediction limit for the next 1000 measurements achieves its nomiI1 l error rate of 5%. However, the false positive rate for the 95% confidence 95% coverage tolerance limit is over 70%. Even 99% coverage produces a false positive rate of approximately 17%.” What Gibbons means by false positive rate here is not the traditional Type I error probability rather, it represents the frequency with which any of the 100 sample measurements falls above the prediction or tolerance limit. For prediction limits these two definitions of error are the same, since the prediction limit is designed to contain all of the 100 samples. For tolerance limits, however, Gibbons’ definition of the false positive rate is not correct, because a tolerance limit is designed to “ mhz ’ a certain fraction of the tested measurements. Under 95% coverage, a tolerance limit is expected to miss appro7im2tely 5 out of eveiy 100 new samples. The tolerance limit only fails in the Type I error sense, if the actual coverage of the limit is less than expected amount (e.g., 10 out of 100 samples fall above the limit instead of the expected 5 or less). It is true enough that some measurements in a large enough sample will fall above the tolerance limit; however, this does not indicate a failure of the tolerance limit to do its job. If 100 new measurements were collected from a single downgradient well, and at least 95 of those values fell below the tolerance limit, there would be no need to designate the well as possibly contaminated. Granting the above comments, Gibbons does recognize a basic problem in applying a tolerance limit approach to a set of measurements taken one per downgradient well. That is, measurements which fall above the tolerance limit may indeed indicate contamination at particular wells, because distinct wells may have different distributions of the constituent being tested. If data from many downgradient wells are pooled together, the tolerance limit approach assumes that each well has the same distribution of sample values and that values fall above the tolerance limit only because a large enough sample from any (normal) distribution will have a few extreme measurements. ‘This assumption may not be true if just one or two downgradient wells have been contaminated, so that some of the extreme values are the result of contamination rather than just random variation in a large set of measurements. In other words, by allowing a certain fraction of the values to be above the tolerance limit (typically 1% or 5% of the concentrations), actual contamination at a vety few wells could be missed. One solution to this problem is as Gibbons suggests to retest each well for which the sample measurement falls above the tolerance limit. A more practical alternative not discussed in the article relates to the likely nature of contaminated wells for many constituents. Experience with monitoring data suggests that an actual spill or leak from a monitored facility results in concentration levels elevated typically by one or more factors of magnitude above background levels. Samples from wells contaminated in this way should be much greater in concentration than even extreme values from uncontaminated wells. Consequently, it may be easy to identify contaminated wells by 3 ------- comparing the relative magnitudes of those samples which fall above the tolerance limit, even in the absence of any retesting strategy. Your indinntion concerning ground-water sample independence with respect to quarterly measurements is consistent with our experience in evaluating ground-water monitoring data. Keep in mind, however, that the 40 CFR Part 264, Subpart F regulations require at least semiannual saznplin which may improve the likelihood of sample independence in slow moving ground water. Further, well purging procedures that are implemented prior to sample collection also improve sample independence. EPA is in the process of developing software for assisting Regional and State personnel in evaluating ground-water monitoring data. The system (GRITS-ground- water research information system) is an enhancement to an EPA Region VU data base that uses Lotus files for data input and will perform all of the Subpart F statistical procedures. We plan to provide tr ining on the system and the included statistical procedures throughout the late summer and fall of 1992 (Philadelphia or a nearby metropolitan area will be a host training site). I hope that these comments have been useful. Please contact me at (202) 260- 3240 if I can be of further assistance. Sincerely, - James R. Brown cc: Denise Keehner Vernon Myers 4 ------- Resampflng and Grounawater — Monitoring Notification Requirements As pan of the groundwater monitoring requfrements of 40 CFR Part 2 $4, Subpart F, ownersloperators of permitted hazardous waste landfills, surface impoundments, waste piles, or land rreatine,u wzus must hnple,nenr a detection monitoring program. Under this program, an ownerfoperaror samples the groundwater at least semi-annually for permir-spec fic iarocparametersa, , waste constiwen monitoriszg-fo statistically significant evidence-ofia release.fro,,uhe jt (p 26 4.98(a) and (* fr): If the ownerfop o/. . detennines that szit* evidence Vhéi.s • . - . . :requzred to no: fy the RegzonalAdmMjsrrajor . -in writing within seven daL) s sample the groundwaterfor hazar constituents listed in Part 26 ,AppendJx(J ; noting the constituents detected (5264.98(gXi) and(2.)) . The ownerloperoior has the•opdon .to - resample the groundwater within.one month and repeat the analysLz for the hazardous constituents ( 26 4. 9 8(g 3)). The ownerl operator an required ro submit to the Regionak AdminLstrato, an applica nfoi a permit modification to establish a compliance monitoring program within 90 days ( 2 d4.98(gX4)). If the ownerloperator.. chooses to resample, must she •submit her permit modifi cation within 90 days of the initial nonfication, or the resampling? -‘ Because the determination of the existence of statisticall ignificant evidence of a release may be affected by the rcsaznpling, the owner/ operator must submit any required permit modification within 90 days of the rcsaznpling. However, if the resampling shows that no statistically significant evidence of a release exists, the owner/operator would not submit a permit modification and would continue detection monitoring. If the resampling confirms the presence of statistically significant evidence of a release, the owner! operator must then submit an application for permit modification within 90 days of the -Many statistical procedures witten into • P ts .cOrnp1yj hihePart264, Subpart • F , up4 c p nitodng requiremencs ‘w pg4oc ctesdng pmcedures as a means tbsimulianeously ndô1TypeLqr ’ falsejiegative,” error rates and improve statistical power. With such pr djsi ic y. ignicte i4e çe of a e ease .froin , unit is not necessaril r in3e44 y.asingstatistiçaJsjgpffican ” exceedance. Instead, the results of the statistical test are not intcrpreted until all resampling and retesting activities have been completed. Thus, an initial exceedançe of a prediction limit, for example, could be followed by a single or double independent resampling and retesting procedure. Should either the fust or second independent retescs lie below the prediction limit, then no statistically significant increase should be inferred, and the owner/operator may resume detection monitoring without performing the complete Part 264. Appendix IX, analysis or conducting a permit modification. Details of these and other statistical procedures can be found in Statistical Analysis of Groundwater Monitoring Data at RCRA Facilities — Addendum to Interim Final Guidance (EPA53O-R-93-003). MONmLYHÔTLINE REPORT October1996 9481.1996(01) ti. __________ - ------- This Page Intentionally Left Blank ------- D 8T UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON. D.C. 20460 4 i 9481.1997(01) FEB 26 1997 OFFICEOF SOLID wASTE AND EMERGENCY RESPONSE Mr. James M. Kuszaj Ogletree, Deakins, Nash, Smoak, and Stewart, P.C. Suite 511 4101 Lake Boone Trail Post Office Box 31608 Raleigh, North Carolina 27622 Dear Mr. Kuszaj: Thank you for your recent inquiry concerning interpretation of the Resource Conservation and Recovery Act (RCRA) groundwater monitoring regulations (40 CFR Part 264, Subpart F). Please note that States approved to implement the RCRA program can exercise more stringency than the Federal government in promulgating standards or in issuing permits, and that you should work directly with the appropriate State agency to address your questions. However, we have prepared answers to your questions assuming that the State regulations are identical to the Federal standards. I. Can Appendix LX’ constituents that are not also Appendix VIII constituents, be made part of a facility’s groundwater protection standard under 40 CFR §264.92. §264.93, or §264.94? Interpretation: Appendix VIII to 40 CFR Part 261 lists chemicals that have been shown in reputable scientific studies to have toxic, carcinogenic, mutagenic, or teratogenic effects on humans or other life forms. Appendix IX to 40 CFR Part 264 is a list of constituents that can be analyzed for in ground-water samples, and that serve as reliable indicators of ground-water contamination. EPA’s strategy in developing the Appendix IX rule generally limited setting ground-water protection standards and requiring corrective action to chemicals listed on Appendix VIII (51 FR 26637; July 24, 1986). Constituents subject to the ground-water protection standard requirements are all members of the categories of constituents listed on Appendix VIII. Appendix IX to Part 264 is made up of those compounds on Appendix VIII to Part 261 for which it is feasible to analyze in ground-water samples, plus 17 chemicals that are routinely monitored for in the Superfimd program (52 FR 25943; July 9, 1987). Thus, the Appendix IX constituents not generally subject to the ground-water protection standard requirements are the 17 constituents routinely monitored for in the Superfund program. However, if any of these 17 constituents (or other constituents) are detected in ground water, and the Regional Administrator ------- -2- decides that they are a threat to human health or the environment, then he or she may use the “omnibus” authority of 40 CFR Part 270.32(b)(2) and section 3005(c)(3) of RCRA as amended, to set ground-water protection standards and require corrective action. 2. Under 40 CFR §264 99(g), f the owner or operator finds Appendix IX constituents that are not also listed Appendix VIII constituents in the ground-waler. and these newly identj/Ied constituents are not already ident /led in the permit as monitoring constituents, are those constituents automatically added to the ground-water protection monitoring standards under 40 CFR §264.99? Interpretation: These “newly identified” constituents may be added to the ground-water protection standard requirements by use of the omnibus authority (cited above) or section 3005(c)(3) of RCRA as amended, only after the Regional Administrator decides that they pose a threat to human health or the environment. 3. Who has the burden ofproving that an Appendix IX constituent that is not also an Appendix VIII constituent should be excluded from the list of hazardous constituents spec /ied in the ground-water protection standard in the facility’s permit? Interpretation: If a constituent not on Appendix VIII is detected in ground-water, the Regional Administrator may include the constituent as a hazardous constituent to which the ground-water protection standard applies if he or she decides that the constituent poses a threat to human health or the environment. 4. If the Regional Administrator, relying on the authority in §264.99(g), included an Appendix IX constituent that is not also an Appendix V/lI constituent on the ground-water protection standard of a facility’s permit, but has made no finding under 40 CFR §2 70. 32(b)(2) , what is the proper procedure to have that constituent removed from the permit? Interpretation: A permit modification would need to be issued to remove the constituent from the permit. The permit modification procedures are described at §270.42. S. Is an Appendix IX constituent thai is not also an Appendix VII! constituent eligible for a variance under 40 CFR §264.93(b) or an alternate concentration limit under 40 CFR §264.94? If not. what is the procedure for asking for an alternate concentration limit for such a constituent? Interpretation: If a constituent not on Appendix VIII is detected in ground-water and the Regional Administrator has included the constituent as a hazardous constituent to which the ground-water protection standard applies, then the constituent should be eligible for a variance under 40 CFR §264.93(b) or an alternate concentration limit under 40 CFR §264.94. EPA issued Alternate Concentration Limit Guidance in July 1 987(OSWER Directive 9481 .00-6C; EPA/530- ------- -3- S SW-87-0 17) and May 1988 (OSWER Directive 9481.00-11; EPA/530-SW-87-03 1). Copies of these guidance documents can be obtained by calling either the RCRA Hotline (800-424-9346) or NTIS (703-987-4650). I hope that you find these responses to your questions helpful. You may call Vernon Myers (703-308-8660) if you have any further questions. Sipcerely yours, lizabeu otswo , Acting Director Offi e f Solid Waste ------- i LAW OFFICCS OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. SUITE 511 4101 LAKE BOONE TPAIL POST OFFICE BOX 31608 RALEIGH, NORTH CAROLINA 27822 TELEPHONE (919) 787-9700 FACSIMILE (919) 783-94)2 OTHCR OrrICCS ALBANY N W YOPPI ATLANTA. GEORGIA GHARI.CSTON. SOUTH CAROI.INA January 31, 1997 COLUMBIA SOUTH CAROLINA GHCCNVILLC. SOUTH CAROLINA HOUSTON. TEXAS NASHVILLE. TENNESSEE WASHINGTON. 0 C WINSTON-SALEM. NORTH CAROLINA Michael H. Shapiro Director, Office of Solid Waste U.S. Environmental Protection Agency Mail Code: 5301 401 M Street, S.W. Washington, DC 20460 Dear Mr. Shapiro: I am writing to request the Agency’s interpretation of certain groundwater regulations in 40 CFR Part 264, Subpart F. My specific questions relate to how certain Appendix IX constituents become part of the groundwater protection standard in a facility’s RCRA permit. The questions, proposed interpretations and supporting discussions are set out briefly below. Questions 4 and 5 have no suggested interpretations. Question I: Can Appendix IX constituents that are not also Appendix VIII constituents, be made part of a facility’s groundwater protection standard under 40 CFR §264.92, §264.93 or §264.94? Interpretation 1: No. Appendix IX constituents that are not also Appendix VIII constituents may not be added to a facility’s groundwater protection standard under the provisions of 40 CFR Part 264. Subpart F. However, if one of these chemicals is detected in groundwater and the Regional Administrator can document a threat to human health or the environment, he may use the “omnibus” authority of 40 CFR §270.32(b)(2) and Section 3005(c)(3) of RCRA to set a groundwater protection standard. Discussion: When EPA first promulgated the groundwater protection provisions of 40 CFR Part 264, Subpart F, those provisions only referenced constituents on Appendix VIII [ see 47 Federal Register 32274, July 26, 1982]. Thus, only Appendix VIII constituents could be included as hazardous constituents in a facility’s groundwater protection standard under 40 CFR §264.93. In 1987, EPA revised Subpart F to replace some but not all references to Appendix VIII in Subpart F with references to Appendix IX. However, the reference to Appendix VIII in 40 CFR §264.93 was never changed. ------- Michael H. Shapiro Director, Office of Solid Waste U.S. Environmental Protection Agency January 31, 1997 Page 2 of 3 Appendix IX contains some chemicals that are routinely monitored in the Superfund program but are not listed as Appendix VIII constituents. In the preamble to the proposed rule adding Appendix IX, EPA explained that the constituents of Appendix IX that are not also Appendix VIII constituents would not be added to the groundwater protection standard by virtue of 40 CFR Part 264, Subpart F, but must be addressed under the omnibus provisions of 40 CFR §270.32(b)(2) [ 51 Federal Register 26637, July 24, 1986]. Question 2: Under 40 CFR §264.99(g) f the owner or operator finds Appendix 1X constituents that are not also listed Appendix VIII constituents in the groundwater and these newly ident fled constituents are not already identqfled in the permit as monitoring constituents, are those constituents automatically added to the groundwater protection monitoring standards under 40 CFR §264.99? Interpretation 2: No. Under 40 CFR §264.99(a), only hazardous constituents identified under 40 CFR §264.93 can be specified as part of the groundwater protection standard. The hazardous constituents identified in 40 CFR §264.93 are only those in Appendix VIII, not Appendix IX. The Administrator may add Appendix IX constituents that are not also Appendix VIII constituents to the groundwater protection standard, but he must first make a finding under 40 CFR §270.32(b)(2) that the addition of such constituents are necessary to protect human health and the environment. Appendix IX constituents that are not also Appendix VIII constituents are not automatically added to the groundwater protection standard by virtue of 40 CFR §264.99(g). Question 3: Who has the burden of proving that an Appendix IX constituent that is not also an Appendix VIII constituent should be excluded from the list of hazardous constituents specified in the groundwater protection standard in the facility’s permit? Interpretation 3: Since the Regional Administrator may add Appendix IX constituents that are not also Appendix VIII constituents to a facility’s permit only by virtue of 40 CFR §270.32(b)(2), the Regional Administrator would have to justify the inclusion of such a constituent on the basis that it is necessary to protect human health and the environment. Question 4: If the Regional Administrator, relying on the authority in 40 CFR §264.99(g), included an Appendix IX constituent that is not also an Appendix VIII constituent on the groundwater protection standard of a facility’s permit but has made no finding under 40 CFR §2 70.32(b) (2) , what is the proper procedure to have that constituent removed from the permit? Interpretation 4: None suggested. ------- Michael H. Shapiro Director, Office of Solid Waste U.S. Environmental Protection Agency January 31, 1997 Page 3 of 3 Question 5: Is an Appendix IX constituent that Lc not also an Appendix VIII constituent eligible for a variance under 40 CFR §264.93(b) or an alternate concentration limits under 40 CFR §264.94? If not, what Lc the procedure for asking for an alternate concentration limit for such a constituent? Interpretation 5: None suggested. If you have any questions, please call. Yours truly, OGLETREE, DEAKThJS, NASH, SMOAK & STEWART, P.C. ty D ‘9 J esMKuszaj jIg wp5 I c’t q&a.Itr ------- 1. Groundwater Monitoring: Appendix IX Sampling and Off-site Releases The groundwater monitoring regulations at 40 CFR Parr 264. Subpart F, require owners or operators offacilities with permitted regulated units (i.e., hazardous waste landfills, waste piles, surface impoundments, or land treatment units) to establish a detection monitoring program. During d ection monitoring, owners or operators observe indicator parameters to determine if there has been statistically sign jficant evidence of a release of waste constituents from their regulated unit(s) (p264.98(a)). Upon determining that such evidence of a release exists, the owner or operator is required to notzfy the Regional Administrator in writing within seven days and immediately sample the groundwater for the constituents listed in Part 264, Appendix IX ( 264.98(g)(i) and (2)). According to §264.98(g)(6), an owner or operator may demonstrate that the contamination originated from a source other than the facility’s regulated unit(s). If an owner or operator were planning to demonstrate that the source of the release was off-site would helshe still be required to conduct sampling for Appendix IX constituents? However, a single failure of a statistical test does not necessarily constitute evidence of a release from a regulated unit because of the high false positive rates associated with single test methods. Yet while complete Appendix IX sampling would be required after the specified statistical method (the initial test and any retests) indicates a release of waste constituents from regulated units, the owner! operator may specify a statistical method which features test and retest phases and background levels that can indicate whether or not the release is from the facility’s regulated unit(s). In some situations, a facility may be able to demonstrate that the contamination came from an off-site source before declaring evidence of a release statistically significant. For assistance, owners or operators can look to their implementing agency or groundwater statistics documents such as Statistical Analysis of Groundwater Monitoring Data at RCRA Facilities , PB89- 151 047, and Statistical TraininE Course for Groundwater Monitoring Data Analysis , EPA53O-R-93-003. If the statistical methods specified in the facility’s permit validate evidence of a release to groundwater, §264.98(g)(2) requires the owner or operator to immediately sample for Part 264, Appendix DC, constituents. MONTHLY HOTLINE REPORT March 1997 948 1.1997(02) ------- This Page Intentionally Left Blank ------- Containers (Subpart I) ------- 9482 - USE AND MANAGEMENT OF CONTAINERS Parts 264 & 265 Subpart I ATKI/1104/41 kp ------- UNiT ) ‘rE $YIRONM riTAL. P QI ‘A 9482.1985(01) NOV 2 6 1985 Honorable 8i11 Alexander Member, United States Rouse of Pepresentatives Gathinas Buildinc, Room 211—A 615 South t1.ain lonesboro, Arkansas 72401 Dear Mr. Alexandere This is in response to your letter of October 21, 1985, requesting assistance for your constituent, Mr. Jack Hendricks, President of Crown Rotational Molded Products Inc., regarding the development of a container for the safe and economical storage, transport, and disposal of hazardous waste. While EPA does not directly reaulate the manufacturing of containers, we do regulate the storage of hazardous waste in con- tainers (40 CFR, Part 264, Subpart I). A copy of these standards is enclosed. These performanc. standards r.quir. that hazardous waste not he stored in containers that leak or are incoinpatitle with the wastes. Anyone who stores hazardous Waite in containers must obtain a RCPA p.rmit and comply with this. standards. In many cases hazardous wastes are stored in containers made to meet Department of Transportation (DOT) standards. Por waste handling and safety reasons, it is freauently cost effective for a aenerator to store his hazardous waste in the same container in which it will be transported and, often, ultimately disposed. As a result, most containers storina hazardous waste are ulti— ratelv slated for transfer to a disposal or treatment facility (e.a., landfill, incinerator). CPA as concluded that containers that reet DOT standards for the transportation of containerized i’aterials (49 CFP, Part 173) are also acceptable froi an envirc n— ,re’ntal nrotection persnective for the storacte of hazarr ous waste. ------- 2 If Mt. Hendricks is interested in pursuing EPA assistance with his research project, his first step in the process of seekina a grant is to submit an application for Federal assistance. Mr. Hendricks can obtain the necessary forms from: Crants Operations Branch (PM—216) Grants Administration Division Environmental Protection Aaency 401 M Street, S.W. Washincton, D.C. 20460 However, it r ay be to Mr. Hendricks benefit to discuss the technical aspects of his research project with EPA’S Office of Research and Development prior to submitting any paperwork to the Grants Administration Division. Such a discussion would ensure that the salient technical points are addressed in Mr. Hendrick’s application arid mic’ht also give him an indication of the merits of his proposal. If Mr. Hendricks is Interested, he should contact: Mr. Don Carey (RD—675) Office of Exploratory Research Off ice of Research and Development Environmental Protection Agency 401 N Street, S.W. Washington, D.C. 20460 Phone: 202/382—7899 Since regulations addressina container design specification are primarily within the realm of DOT, Mr. Hendricks may also want to contact DOT regarding his proposal for hazardous waste containers. If you need further information on this topic from EPA, please call Mr. William Kline in the Office of Solid Waste at (202) 382—7917. Sincerely, J. Winston Porter Assistant d inistrator Fnc lo ures ‘cc: Don Carey ------- UP4ITED TES EPIVIROP4MENTAL PROTECTION I NCY 9482.1986(01) ‘ 21 “r. ioserh J. rior 1 a).ue, Pr s ent Connelly Cortainera, Inc. !3ala— Cynwyd, Pennsy1vi nia 1S OO4 Dear Mr. Donahue: At the request of P4r. Irvin A. Lavine of ?‘ason, Ferjwjc)r and Lawrence law office., I a writing to you to explain the role of the Envjroruiiental Protection Agency (EPA) with regard to approving containers for the storage of hazardous waste, particularly with respect to the design of such. EPA prOr’ulqated interim status and perrnitting standards for the stcraae of hazardous waste in container, on Hay 19, 1980, and January 12, 1981, respectIvely. A copy of these standards Is enclosed. These standard. are simply perforirance ztandard. that require container. ui.d to store hazardous waa ?r Tto be com- patible with the hazardous waste stored. In t ’e rroce.. of developing these regulations, EPA considered promulgating design standards for containers. Since rost container, stoiinc, hazardous waste are ultimately slated for transfer to a disposal or treat— rent facility (e.g.. landfill, incinerator), however, it is most cost effectiv, for the generator to stOre his hazardous waste in the same container in which it will be transported. a EPA has concluded that container, that reet Departrent of Transportation (to?) standard, for the transpcrtation of contain- erized materials (4 CPR, Part 173) are also acceptable from an environmental protection perspective. As part of the permit application, the owner or operator nust indicat• that the container he plans to use will be com- patible with the waste to be stored, as required in *264.172. If compliance with this and the other Subtitle C requirements is deronstrated, EPA can then approve the permit to store hazardous waste in containers. ------- 2 To confirr tie point rade in your Jetter, a manufacturer of containers cannot apply for a storaae perr it in lieu of t)e actue] Owner or operator cit the facility seeking the permit. it however, be advisable that the Ovner or operatc,r obtain confirma- tion from the container manufacturer that the container. being purchased will be corpatihie with t)e wC,fe to e stored. I hope that we lave satisfactorily addressed your concern. If you should have any questions, please feel free to call Bill Kline of my staff at (202) 382—3081. Sincerely, •‘ ‘i John P • Lehman Director Waste Manaa.ment and Economics £ ivi io Enclosures ------- 9482.1993(01) HOTLINE QUESTIONS AND ANSWERS November 1993 RCRA 1. Containment Buildings as Independent Hazardous Waste Management Units EPA recently promulgated standards for a new hazardous waste management unit called a con:aznnten: building under 40 CFR Parts 264 and 265, Subpart DD (57 E& 37194, August 18, 1992). EPA also amended §262 34(a)(1). allowing large quanruy generators to accumulate arid treat hazardous wastes on•sue in containment bwldings for 90 days or less without a permit or interim status. Must large quantity generators accumulating hazardous waste in containers or ranks under § 262.34(a)(l)(i) or (u) now construct containment buildings to house their container or rank accumulation areas? No, the new containment building regulations do not affect hazardous waste container, tank, or drip pad management standards at generator faciliucs and neamient or storage facilines operating under permits or interim status. EPA developed the containment building standards to provide large quantity generators and ueatment and storage facilities with a new management unit for bulky, nonliquid hazardous wastes (e.g.. lead-bearing materials from batteries) not amenable to accumulation. storage. or ueamicnt in containers or tanks. Although a containment building can serve as a secondary containment system for hazardous waste tanks under certain conditions, there is no federal regulatory requirement to house existing containers, ranks, or other RCRA hazardous waste management units within a containment building (57 37215; August 18, 1992). Containment buildings are intended to serve as independent hazardous waste management units. A large quantity generator accumulating hazardous wastes solely in containers, in tanks. or on drip pads in accordance with 40 CFR § 262.34(a)(1)(i), (ii), or (iii) is not required to comply with the standards for containment buildings specified in §262. 34(a)( I )(iv. ------- tO 1, z UNITED STATES ENVIRONMENTAL PROTECTION AGENCY / WASHINGTON, D.C. 20460 9482.1994(01) SEP 2 ‘004 OFFICE OF SOLID WASTt AND EMERGENCY RESPONSE Mr. Raymond P. Berube Deputy Assistant Secretary for Environment U.S. Department of Energy Washington, D.C. 20585 Dear Mr. Bex-ube: I am pleased to respond to your July 13, 1994, l3tter, in which you identify concerns about the applicability of a proposed hazardous waste regulation to certain of the Departme t of Energy’s (DOE’s) radioactive mixed wastes. Your lett?r references the Environmental Protection Agency’s (EPA’s) May 19, 1994, workgroup draft of a final rulemaking notice which would address the control of organic air emissions from hazardous waste tanks, surface impoundements, and containers (RCRA do ket F-91- CESP—S0509). In particular, your letter takes issue with that provision of the May 19, 1994, draft final rule (40 CFR 264.1085(b) (1) (i)) that would require that hazardous waste must be place I in a container that is equipped with a “tight” cover that Dermits no detectable organic emissions when it is closed and se 1ed. According to your letter, such a container could give rise to an explosive risk when used to contain certain of DOE’s radioactive mixed wastes. This risk arises from the potential geieration of hydrogen gas within the container as plastics and oth3r organic materials undergo radiolytic decomposition. Your let:er requests that the final rule allow alternative approaches for facilities managing mixed wastes in containers. In response to the comments that were submitted y the Department to EPA in October 1991, language was added in section 265.1087(d) of the May 19, 1994, draft final rule tha: would allow one or more safety devices that vent directly t’) the atmosphere to be used on a container. This provision would require that the safety device not be used for p1anne or routine venting, and would also require that the safety devic? remain in a closed and sealed position, except in cases where opening the device during an unplanned event is necessary to previ?nt physical damage to the container. When this provision was add’?d to the draft rule, it was our understanding that it would address DOE’s concerns with respect to container management of mixed wastes. ------- 2 Your July 13, 1994, letter clarifies several additional mixed waste management practices required under the Waste Acceptance Plan for the DOE’S Waste Isolation Pilot Plant (WIPP) in Carlsbad, New Mexico. Under these practices, the nixed waste drums are punctured to release any buildup of hydrogen gas, and a NUCFIL filter vent is attached to the drum to retain the radionuclides. As your letter suggests, this procedure would not appear to be in compliance with the Nay, 1994, draft rule’s requirements, since it allows volatile organic compounds to be released to the atmosphere. Please be assured that I ant aware of the Department’s concerns about the safety of storing mixed wastes in tightly covered containers. As we continue to develop the final rule, we will attempt to address the situation appropriately. Thank you for your interest in Air Emissions Standards rulemaking, and for sharing the Department’s concerns with me. / cc: Matt Hale Michele Aston Docket Rulemaking (F—91—CESP—S0509) H. Shapiro of Solid Waste ------- Department of Energy Washington, DC 20585 July 13, 1994 Mr. Michael H. Shapiro. Director Office of Solid Waste (OSW.300) U. S. Environmental Protection Agency 401 M Street SW Washington, DC 20460 Dear Mr. Shapiro: On October 21, 1991, the Department of Energy (DOE) submitted comments to the Environmental Protection Agency (EPA) on the “Hazardous Waste Treatment, Storage, and Disposal Facilities; Organic’Air Emission Standards for Tanks, Surface Impoundments, and Containers: Proposed Rule,” 56 FR 33490, July 22, 1991. In its October 1991 comments, the Department raised a number of issues with respect to the application of the proposed requirements to tanks, surface impoundments, and containers utilized for the management of radioactive mixed wastes at DOE facilities. While DOE’s concerns regarding the proposed VOC standards have been partially addressed in the May 1994 version of the draft final rule, we are concerned that one particular issue specific to the management of radioactive mixed waste (RMW) has not been addressed. This outstanding issue constitutes the most serious concern raised in the original comments (i.e., the potential explosior hazard associated with the management of RMW in unvented containers). Proposed provision 40 CFR 264.1086(b)(1)(i) indicates that hazardous waste must be placed in a “container that is equipped with a cover which operates with no detectable organic emissions when all openings (i.e., lids, bungs, hatches, and sampling ports are secured in a closed, sealed position.” As noted on page 22 of our original comment package. RMW containers cannot be tightly sealed due to unacceptable pressure buildup of hydrogen gas to levels which can potentially cause rupture of the drum or create a potentially serious explosion hazard. The generation of hydrogen gas is a result of the radiolytic decomposition of organic compounds (i.e., plastics) and/or aqueous solutions within the container. Plastics are commonly used as a barrier to alpha radiation both in handling operations and in waste packaging. Over time, the alpha particle causes the hydrolysis of chemical bonds within the plastic material which results in the release of hydrogen gas. Likewise, radiolysis of aqueous solutions will yield hydrogen. Additionally. radiation induced degradation and biodegradation of organic ion-exchange resin waste, which are also RMW, generated during water treatment at nuclear facilities, can result in the production of gaseous products (i.e.. hydrogen and carbon dioxide) which in turn can result in pressure buildup and failure of containers. High integrity containers arc used as alternative to solidification as a means of stabilizing ion-exchange resin wastes for disposal. ------- Because of pressure buildup inside the container, a vent for gaseous compounds may be necessary to prevent failure of a high-integrity container (i.e., vent designs incorporated into high integrity containers restrict the release of radionuclides from the container into the environment).’ The Department believes a requirement for ‘tight” covers on containers of RMW may ultimately be more harmful to human health and the environment than the current practice of venting these containers. If the Department is required to maintain tight covers on RMW containers, there will be an enhanced potential for explosion due to a buildup of gas in the container. In addition, if an explosion involving radioactive and hazardous waste components were to occur, the personnel exposures to radiation and the costs associate with the cleanup of the radioactive and hazardous components released would offset any benefit realized as a result of requiring closed “tight” containers. Finally, numerous DOE nuclear facilities produce and store a variety of RMW, including transuranic (TRU) radioactive mixed waste. Since 1970, TRU wastes have been packed in drums for temporary storage at certain DOE sites. Much of this waste is ultimately destined for final disposal/storage at the Waste Isolation Pilot Plant (WIPP), Carlsbad, New Mexico. In accordance with the WIPP Waste Acceptance Plan (WAP), wastes that are to be shipped to the WIPP must be in containers that are vented to prevent the buildup of pressure. 2 The vents must be filtered to ensure that no radioactive waste components are released. In order to comply with these requirements, at the Idaho National Laboratory Drum Vent Facility, a drum lid is punctured to release any buildup of potentially explosive hydrogen gas and a NUCFIL filter vent is attached. The function of a NUCFIL filter vent is to retain radionuclides inside a container while allowing hydrogen and other gases to pass through to the atmosphere. In particular, the carbon composite membrane used in the filter vent does not inhibit the passing of VOC’s from the container into the atmosphere. Because it is an unsafe practice to store RMW drums with tight covers, and because the WIPP WAP requires that containers be vented for shipment to the WIPP, many DOE facilities may be unable to meet the tight cover control device criteria as specified in the draft final rule. P. L. Piciulo, “Technical Considerations for High-Integrity Containers for the Disposal of Radioactive Ion-Exchange Resin Waste,” United States Nuclear Regulatory Commission, NUREG/CR-3 168, p. 76, October 1983. 2 Section “3.4.7.2 TRANSPORTATION: WASTE PACKAGE REQUIREMENTS (TRUPACT-Il Requirements) of the Waste Acceptance Criteria for the Waste Isolation Pilot Plant (WIPP , WIPP/DOE-069, Revision 4, UC-70, December 1991, requires that the gas generation and release characteristics of the waste containers of the waste containers shall be controlled by requiring that (1) all waste containers, including overpacks, shall be vented with filters, and (2) any rigid drum liners used in the waste containers shall be either be filtered or punctured meet the specifications described in the TRUPACT-II SARP (NuPac, “Safety Analysis Report for the TRUPACT-Il Shipping Package (SARP). Docket No. 71-9218, Revision 9, or current Revision. The TRUPACT-Il SARP limits are based on the radiolytic gas generation capabilities of the waste and a requirement for ensuring that any hydrogen generated in the innermost waste bag will not exceed five volume percent over a 60-day transport period. ------- Therefore, DOE is requesting that the final rule be modified to allow alternate approaches to compliance for TSDFs managing RMW containers subject to the Subpart CC requirements for “no detectable organic emissions.” The modifications would allow these facilities to comply with the proposed regulations in a safe and cost effective manner while also complying with WIPP requirements. Sincerely, 1&m Deputy Assistant Secretary for Environment cc: Ms. Sally Katzeri, Administrator Office of Information and Regulatory Affairs Office of Management and Budget New Executive Office Building Washington, DC 20503 Mr. Matthew Hale Deputy Division Director Permits and State Programs Division Office of Solid Waste U. S. Environmental Protection Agency 401 M Street SW Washington, DC 20460 Ms. Michele Aston Chemical and Petroleum Branch Emission Standards Division (MD-13) U. S. Environmental Protection Agency Research Triangle Park. North Carolina 27711 ------- This Page Intentionally Left Blank ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 9482.1995(01) ju 301995 aFFaOF SOLO WASTE AlO EMERGENCY RESPONSE William C. Hopper Industrial Hygienist Brown & Davis, Incorporated 1201 Main Street, Suite 1915 Columbia, SC 29201 Dear Mr. Mopper: This is in response to your May 30, 1995 letter requesting clarification of regulatory language with respect to permitted hazardous waste container storage facilities. You specifically request clarification regarding the term “sufficiently impervious” as it occurs in 40 CFR 264.175(b) (1), and ask whether coatings and liners are required in conjunction with concrete containzfleflt pads. The regulations at Section 264.175 address containment requirements for container storage areas only. Specifically, §264. 2 .75(b) addresses the design and operational requirements for containment systems, and requires that container storage areas consist of a base underlying the “containers which is free of cracks or gaps and is ufficiiUtlY impervious to contain leaks, spills, and accumulated precipitation until the collected matérial jg detected and removed.’ There is no specific definition of “sufficiently impervious’ with respect to container storage areas provided in the regulations, and there is no mention that liners or coatings must be used with concrete pads. However, the intent of “eufficientlY impervious’ may be understood by considering preamble language from the January 12, 1981 rule (46 2802). SpecificallY, at 46 2829, the Agency states that bases underlying containers be ‘constructed of concrete or asphalt but latitude has been incorporated to allow for other materials of construction.” Further, the important consideration is that the containment system in its entirety be capable of collecting and holding escaped wastes and contaminated precipitation.’ The container storage regulations also require that the base must be sloped or the system must be designed so that liquida resulting from releases can drain and be removed, and that any waste that has spilled or leaked into the secondary containment area, or any accumulated precipitation. must be removed in a timely £ y R.CydSd/RSCYdIbIO Pd , d W10 Soy 1*0 1 1 p e 10% ts.. Usd 11* ------- Your letter mentions that certain policy correspondence regarding surface impoundments and waste piles indicated that concrete is not considered sufficiently impervious. Those statements addressed the appropriate materials for primary containment units are that are designed to operate in direct continuous contact with hazardous waste. This is fundamentally different than the question you ask regarding a container storage area where the concrete pad functions as a secondary containment device to catch any spillage of hazardous waste in the event of container failure. The container provides the primary containment, while the concrete base provides the secondary containment. Finally, although the regulations at 6264.115 do not specifically require a liner or coating to be used in conjunction with a concret base, States may.have more stringent requirements for container storage areas, as deemed necessary to protect human health and the environment. For site-specific requirements, you should contact the appropriate State regulatory agency. If you have any further questions, please call Jeff Gaines of my staff at (703) 308-8655. Sincerely, CC: Matt Hale, OSW Jim Michael, OSW Jeff Gaines, 0 5W Ross Elliott, OSW Brian Grant, OGC G. Alan Farmer, Region IV McAlister, Chief Permits Branch (5303W) Office of Solid Waste ------- Brown & Davis, Inc. 1201 Main Street, Suite 1915 ‘hone: (803) 748.1226 • Fax (803) 748.1288 Columbia, S.C. 29201 May3O, 1995. Sylvia K Lowrj Qei5irectOr Office o eI1 Waste Uni d tates Environmental Protection Agency (USEPA) W1 hington, D.C. 20460 - Dear Mrs. Lowrance, I am wiiting you in regards to the container storage standards for permitted facilities as specified in Part 264, Subpart I in title 40 of the Code of Federal Regulations. Specifically, I am confused about the-words “sufficiently impervious” found in 264.175 (bXl). My understanding as to themeaning of the word impervious is that itmeans something that is incapable of being penetrated, or incapable of being affected. This would indicate to me that conthinnient for a storage arr ’ a used to store liquid volatile organics would require an impeiyious coating or liner. ,In addition, the Sept. 2, 1988 Federal Register, which discusses the containment requirements.for “new” tanke systems, states that concrete is not sufficiently impervidus. Also, several policy letters I have read regarding waste piles and surface impoundments also state that concrete is not sufficiently impervious. Are permitted container storage areas required to have coating oriinercoveringoveraconcretedpad? Ifèo,isthisarequirementineveiycaseOrOfllY under certain circumstances? I appreciate your time and effort in providing me with assistance regarding this. matter. If need be, I can be reached at (803) 748-1226. 2 e: 4/4P/95 ir.r r . William C. Hopper Industrial Hygienist ------- This Page Intentionally Left Blank ------- |