United States Solid Waste and EPN53O-R-98-012K /
Environmental Protection Emergency Response July 1998
Agency (OS-343)
RCRA Permit Policy
EPA
Compendium
Volume 11
9523.1980 - 9528.1996
Permitting Procedures (Parts 124 & 270)
• Applications
• Conditions
• Changes
• Interim Status
TechLaw I/5949/Coversl I 2
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1 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
« WASHINGTON. O.C. 20460
November 18, 1985
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
OSWER Directive #9523.50-1A
MEMORANDUM
SUBJECT: Post-Closure Permit Part B Requirements
FROM: Marcia E. Williams, Director \A
Office of Solid Waste v
TO: Waste Management Division Directors,
Regions I-X
This office has recently received a number of inquiries
concerning information requirements for Part B post-closure
permit applications. Outlined below is a brief discussion of
those requirements and a list of information elements which
should be included in such applications.
40 CFR 270.14 establishes the information requirements for
RCRA permit applications. Because of the inherent differences
between an operating permit and a permit covering only post-
closure care activities, some of the information requirements for
an operating permit will not be applicable to a permit for the
post-closure care period. Section 270.10(c) gives EPA and States
the authority to determine that an application is complete
whenever an application form and supplemental information are
completed to the satisfaction of the Director. We therefore
recommend that the Director only require information be submitted
which is relevant to post-closure care activities. Relevant
information may be determined on a case-by-case basis. At a
minimum however, it should include:
A. Pre-HSWA Regulatory Requirements (§270.14):
- A copy of the post-closure inspection schedule
(§270.14(b)(5))
Floodplain information (§270.14(11)(iii - iv))
A copy of the post-closure plan (§270.14 (b) (13))
- . Documentation of the notice in deed or an appropriate
alternative instrument (§ 2 7 o.14(b)(14))
- Cost estimate for post-closure and post-closure
financial mechanism (§270.14CbUiJi>)
— A copy of \fAe state financial instrument 1C
(§270.14)(b)(18))
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Groundwater data and information demonstrating
compliance with requirements for detection monitoring,
compliance monitoring and corrective action, as
applicable ( 27O.l4(c))
B. New information required by HSWA, including at least:
— Information on solid waste management units and
releases from those units ( 264.lOl; see RSI #3)
- Financial responsibility for corrective action (if
applicable)
- For landfills and surface impoundments, exposure
information ( 27O.1O(j)) (Note that lack of exposure
information would not result in an incomplete
application, but would be a separate violation).
As stated above, this list represents the minimum
information that should be required. In some cases, it may be
appropriate to require additional information depending on the
nature of the facility, waste characteristics and other factors.
For example, if a facility is expected to handle wastes (e.g.,
].eachates) during the post-closure period which could potentially
cause environmental or public health damage if mismanaged or if
accidents were to occur, it may be advisable to require a
contingency plan ( 27O.l4(b)(7)).
If you have any further questions, please contact George
Faison at 382—2221.
cc: R RA Branch Chiefs
Permit Section Chiefs
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OCT 22 NITED STATES ENVIRONMENTAL PROTECTION AGENCY 9523.1982(01)
Existing Incinerators and Data
in Lieu of Trial Burn
OM rector
State Programs and
Resource. Recovery Divison (WH-563)
° Division Directors, Regions t—X
Having spoken with many EPA regional hazardous waste
program personnel and operators of existing incinerators, it
has become apparent that some confusion exists concerning
trial burn plans and data in lieu of trial burns. The purpose
of this memo is to make clear that existing incinerators may
submit data. in accordance with the provisions of Section 122.25
(b)(5)(iii) on wastes that have been combusted during interim
status. These facilities do not need to submit a trial burn
plan for approval.
Section 122.25(b)(5)(iii) sets out the requirements for
submitting data in lieu of a trial burn. A variety of
information 5 required including a waste analysis plan and
analytical results, incinerator engineering description, and
actual sampling and analysis results demonstrating 99.99%
destruction and removal efficiency of the principal organic
hazardous constituent(s). Also required is information on
incinerator operating parameters which will, lead to operating
permit conditions under §264.345.
The clear purpose of §l2 25(b)(5)(iii) is to provide
data to specify operating conditions that will ensure compli-
ance with the performance standards in §264.343. Note that
the standards in §264.343 ar. clear and explicit. The
incinerator must demonstrate 99.99% DRE as calculated by the
formula given in the regulation: an incinerator producing MCi
emissions of more than 1.8 kg/hr must control HC]. emissions
to 1% of the uncontrolled amount or 1.8 kg/hr (whichever is
more): and particulate emissions must be controlled to
180 mg/d.cm corv.cted for the amount of oxygen in the stack
gases. Thee. thr..p.rfor!flaElCe standards provide the only
authority under the existing regulations for controlling
emissions from hazardous waste incinerators.
Th . standards for accepting data in lieu of a trial burn
are found in the regulations. Section 122.25(b)(5)(iv)
provides that the Regional Administrator ( 0 th. Director”)
must approve a permit application without a trial burn if he
finds that the wastes and the incinerators are sufficiently
similar and the data provided is adequate to specify operating
conditions ensuring ... “that the performanc . standards in
§264.343 of this Chapter will be met by the incinerator.”
Clearly, an existing incinerator that obtains data on the
waste it has coxnbusted under interim status standards satisfies
£P& F . 13$4 (I... 3 .7ê)
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the requirements for similarity of waste and incinerator design.
Sim .lariy, to satisfy the third requirement, the applicant
need only present the operating paranreters (as outlined in
§264.345) used when compliance with §264.343 was demonstrated.
These operating parameters then become permit conditions. Thus,
the Regional Administrator lacks the regulatory authority to
require the owner or operator of an existing incinerator to
submit a trial burn plan for approval before the operator
gathers performance data.
Of course, many operators of existing facilities may wish
to submit trial burn plans voluntarily. The emissions sampling
and analysis required is quite expensive and the selection of
POECS is critical to the acceptability of data in lieu of
trial burn plans. In order to avoid repeating the tests, an
operator may submit a proposed trial burn p] an. In this case,
the Director can review and approve an acceptable plan [ see
§122.27(b) (4)].
Finally, while reviewing the 24 June 1982 incinerator
regulatiOn5 one should keep in mind that the certification
requirement at l22.25(b)(5)(iii)(E)(3) should have been
deleted. You received a memorandum dated 26 August 1982
that this is being corrected.
I hope th _h r ived the confusion regarding the
submission of data in lieu of a trial uxn. If you have any
questions . contact Randy Chrismon at 382—4535.
S
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9523.1983(32)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
FEBRUARY 83
, Quest .on: es any rzrt of a ntainer stor e Part B pe nit application
need to be certified by a profeesional er ineer; and, if so, does
the professional erçineer need to be reistered in the State the
facility is in?
answer: No te nical data needs to be certified fcr ntainer storage.
Other imits like tanks that do require certification are not
1 xnited to State certified Pt’s, t the R icn s .aid be n-
suited.
Sa. rce: nave Feqan
Research: Irene 3orner
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9523.1933(03)
JUN I 7 983
MEMORANDUM
SUBJECT: Land Owner Signature on Part A
FROM: Jonn Skinner
Director
office oi Solid Wastes (iiH—562)
TO: Torn Devine
Director
Air & waste 4anagement Division
Ragion 4
Pursuant tO 5270.10 both the owner and operator are required
to sign a permit application for a hazardous waste management
facility. This dual signature requirement is the sub)ect ot a —
recent proposal in the Federal Register (July 23, 1983) which •
modifies the requirements for both signatures so that, in certain
identifiable situations, the owner’s signature may be waived by
the Director. The preamble to the proposal summarizes the legal
basis behind the present signature requirements. These
regulations were proposed as a result of the NRDC settlement.
They will have no effect on your questions.
The answers to your specific questions are:
1. Are incorr.at signatures a criminal violation? yes, if the
signer knowingly signs the permit application either zalsely
or incorrectly.
2. To what extent should we try to ascertain ur o is the property
owner (title search)? You should enerallj assume the person
claiming to bs the property owner is the property owner. A
title search is an inappropriate use of resources unless you
have good reason to believe the applicant is not the property
owner.
3. What risk and liability does EPA encounter if we issue a
permit to the wrong party based on the part A which is
incorrect? None, however a permit writer wno accepts a
signature that he Knows is false or incorrect and whose
conduct is fraudulent under appliesole state or Federal law,
may be guilty of fraud.
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4. Whose Tesources should be used to cneck proper title? In the
rare case where a title search is needed, the permitting
authority should conduct the title Search.
5. Should we be concerned at all, or just let the Public Notice
serve to inform and if no$ one comes forward assume the
Part A signature is correct? EPA must assume applicants are
dealing in good faith, except in those situations where EPA
has good reason to believe the applicant is not. Public
notice should serve to inform the public as to who owns and
who operates t e facility. If members of the public know of
an error, tney shouid so inform EPA.
cc: Hazardous Waste Branch Chiefs Regions I—x
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9523.1983(06)
RCRA/SUPERFUND HOTLINE SUMMARIES
SEPTEMBER 83
If a facility is In the process of filing Part B of its permit application,
can the application Include any of the changes which were proposed
(April 4, 1983, 48FR14472) for the new definition of solid waste?
No, the permit application must reflect the hazardous waste regulations
which are In effect at the time of filing. If the regulations change,
it might be necessary to modify the draft permit or the permit.
Source: Steve Levy
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9 523.1984(01)
JAN IiJ 84
- aret•n OdIand
8L3 Forest Road
La Cran je Park, Illinois 60525
Dear Mr. Odlandi
The Office of enoral Counsel sent your letter of October 3,
1983, to this office for a reply to your questions coc2c.rnin the
r ’equire enti for obtaining a hazardous va*t• manaç. erie facilLt ’.
p.rit under the Resource Conservation and Recovery Act (RCR.A) .-.-.
The Office of Solid Wait. is responsibl, for both the technieal ’ .
standar i and p.rnit re ulations under RCRA. This letter CODfLr S
the tel’ ;ho e conversation you had with a eober of y staff on
• this subject and aus arLzes his dL cusston of EPA ’s position,
• .; ‘‘ Zn yoãr letter you discussed the prebless ausedby.róqui ing
an estiaate of the ex& .cted date of closure in the perait •pplic.-
tion for a hazardous waste Isanaçenent facility.. As you pointed
out, it is difficult-to doter, in. the expected closure Get. of
a nanufacturing facility sine, there is of ten..no intention to :‘ -.
close. !ou’aleóez;ressed your reluctance tocertify in the . -
• erait application that all the tnfortnaejon is true and accurate
if thi facility does, not intend to close,: -- ‘ .•
P. ’does not require a specific date of closure.’OurreQu1a
• tions only recjuire an estiaate of the expected data qt closure, ‘- -
This expected date. then allows EPA to .det.rein. if the financial
assurance nechanis .s for. closure are adequate, -‘-YoU can .aot*’ i :.-
the application that the dat. provided is only an •sti at ....inc.
thor. ire no current plans to close the facility. This nay ’ ‘*:
-‘alleviat, your concerns about th. certiftcatton , Additionally, - .
the estisated dats of eloaur. ban b ehangedas lIev’jnforp tton
becoi es availebi. or facility plans change. -‘:
— - - - -• _-, S • ‘ ‘ - S . 0 • ‘ — & _ — . . I ,•_ - —— ,. _ — ,
- .Iapprociat. your bringing this ttirtor’ att.ntj ,
If you have any further questions, pleas. do not, has itat. to
call upon Mr. haz Miller of the Permits Branch. Lie say be . -.
reachád at IhI. ’IPA,’Offie. ”oC Solid.Waste,’ Penajts Drench,’ ‘ -
40 1M atr..tS.w., wosnington,.D.ç,. 20460,.’(2o2) 82—4s3s.
Sincerely yours,
:- .
Brueó’ R.”- Ve’ddl•
- Actinj Dir.ctor r. ;
‘ ‘PernLta and Stats Progra*s’Dt ’ision
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APR 3 g NITED STATES ENVIRONMENTAL PROTECTION AGENCY 9523.1984(02)
DATE
Guidance on Petroleum Refinery Waste knalyses for Land
.jECT Treatment Permit Applications
= OM John Skinne. ,__DireCtOr, L44.M1’
Office of Solid Waste
, Hazardous Waste PermitUBranch Chiefs,
Regions I—X
Introduction
The purpose of this memo is to provide permit writers
guidance on evaluating petroleum refinery waste analyses submitted
in land treatment permit applications. A list of Appendix
VIII hazardous constituents suspected to be present in petroleum
refinery wastes and a special analytical method for refinery
wastes are provided.
Background
The general Part B information requirements specified
under 5270.14(b) require the submittal of (1) chemical and
physical analysis data on the hazardous wastes to be handled
at the facility including all data that must be known to treat,
store, or dispose of wastes properly in accordance with Part
264, and (2) a copy of the waste analysis plan. In addition,
the specific information requirements under §270.20 require an
owner/operator of any facility that includes a land treatment
unit to submit “a list of hazardous constituents reasonably
expected to be in, or derived from, the wastes to be land
treated based on waste analyses performed pursuant to §264.13.”
Also, 5270.20(a) stipulates that the description of the treatment
demonstration plan must include a list of potential hazardous
constituents in the waste.
Because the design and management of a land treatment
unit is based on the goal of attaining treatment of hazardous
constituents (i.e., constituents listed in Appendix VIII), it is
very important that the presence of these constituents in the
land treated wastes be accurately identified and quantified.
This is best achieved through a comprehensive waste analysis
for all Appendix VIII constituents. However, due to the cost
and analytical difficulties associated with these analyses,
many applicants have submitted requests to conduct analyses
for some subset of Appendix VIII, which are “reasonably expected
to be in or derived from the wastes to be land treated.” To
date, the majority of wastes proposed for land treatment have
been petroleum refinery wastes, specifically the listed wastes
K048—K052.
EPA Form 1320.6 (Ri.. 3.76)
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The evaluation of these Appendix VIII subsets for each land
treatment a pp.Lication has been difficult due to the lack of
published information on specific organic compounds in refinery
wastes, and also due to the variability of waste characteristics
within the refinery industry. However, OSW has gathered sufficient
information from EPA research studies, in—house waste studies
and analyses, and refinery process evaluations to develop a
conservative list of hazardous constituents that are suspected
to be present in petroleum refinery wastes. This list is
provided in Attachment 1. This list should be used by permit
writers as a guide in determining which constituents may and
may not be eliminated from consideration when completing waste
analyses for a land treatment permit application. Additional
explanation of the derivation and use of this list is provided
below.
Derivation and Use of List
The list of hazardous constituents suspected to be present
in refinery wastes was derived from a review of data on petroleum
refinery wastewater and sludge characteristics from the following
sources: (1) literature, particularly EPA research reports;
(2) in—house waste analyses completed by EPA research laboratories;
(3) preliminary data from the OSW refinery waste study; and
(4) an evaluation of petroleum refinery processes. Although
these four sources were used, the data base on specific hazardous
organic constituents in sludges was still limited. Considerable
weight was placed on wastewater data as indicators of sludge
characteristics (e.g., API separator sludge).
Also, the list in Attachment 1 is a generic list developed by
combining waste anal ’sis data on all five listed refinery wastes
(K048—K052). Due to the lack of extensive data, no attempt
was made to differentiate between the characteristics of these
five refinery wastes. Until sufficient information is available
to allow development of separate lists for each waste, the
attached list should be considered applicable to dissolved air
flotation float (K048), slop oil emulsion solids (K049), heat
exchanger bundle cleaning sludge (1 (050), API separator sludge
(1(051), and leaded tank bottoms (1(052).
To compensate for the limited data base and variability among
refineries, the attached list is purposely comprehensive.
It includes a total of 89 hazardous constituents or groups
of constituents (e.g., trichlorobenzenes). All of these con-
stituents have been identified as possibly being present in
the above referenced wastes. Many of the compounds on the
list may be present at low concentrations and others may not
be present at all in certain wastes at some refineries.
The permit writer should use the attached list as a guide
to the Appendix VIII constituents that should be addressed in
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the up—front waste analyses and waste analysis plans for Part B
applications, that propose land treatment of petroleum refinery
wastes. A perirtit applicant may further refine this list by
providing detailed evidence that certain hazardous constituents
cannot be present in the listed wastes at that particular
refinery. In most cases, however, waste analysis data on the
constituents listed in Attachment 1 will be necessary to make this
showing.
Analytical Methods
To assist in the analysis for specific organic constituents
in petroleum refinery wastes, OSW has developed a column cleanup
procedure which is provided in Attachment 2. This draft method
is used specifically to separate semivolatile aliphatic, aromatic,
and polar compounds in the waste matrix. The method should be
used only by experienced residue analysts. Volatile compounds
are determined using method 8240 with PEG (tetraglyine) Extraction.
Test method 3050 should be used for all metal analyses. These
methods are described in SW—846,
Relationship to Delisting and Listing Efforts
Finally, the attached list is consistent with the waste
analysis information that EPA has requested from delisting
petitioners. Many petroleum refinery operators who are preparing
Part B applications for land treatment facilities also have
submitted delisting petitions to the Agency for one or more of
their wastes. It is important that the waste analysis data
requested by the Agency for permitting and delisting be consistent,
although there may be differences in the extent of data necessary
in certain cases. Therefore, the list of Appendix VIII constituents
provided in Attachment 1 is also being used in refinery delisting
actions. Additional information on non—Appendix VIII constituents,
however, is being collected as part of OSW’s new waste assessment
and listing efforts for petroleum refineries. These compounds,
which are listed at the end of Attachment 1 for your information,
may be added to Appendix VIII in the future. Although it is
not required at this time, permit applicants should be encouraged
to provide information on these waste constituents.
If you have any questions on the listing of specific
hazardous constituents in Attachment 1 or on the recommended
test methods, please contact Ben Smith (382—4791) of the Waste
Identification Branch. Other questions pertaining to the use
of the above guidance in permitting land treatment facilities
should be directed to Mike Flynn (382—4489) of the Land Disposal
Branch.
Attachments
CC: Jack Lehman Matt Straus
Fred Lindsey Bruce Weddle
Ken Shuster /eter Guerrero
Eileen Claussen
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ATTACHMENT 1
Appendix VIII Hazardous Constituents Suspected to be Present in Refinery Wastes
**Acetonltrjle (ttffanenitrile)
**Acrolein (2-Propenal)
**Acry1onitr1 e (2—Propenenitrile)
Aniline (Benzenamine)
Antimony
Arsenic
Ban urn
Benz (c) acridine (3,4-Benzacridine)
Benz (a) anthracene (1,2—Benzanthracene)
**Benzene (Cyclohexatri ene)
Benzenethiol (Thiophenol)
Benzidine (1,1—Biphenyl—4,4diamine)
Benzo(b)fluoranthene (2,3—Benzofluoranthene)
Benzo(j )fluoranthene (7 ,8—Benzofluoranthene)
Benzo(a)pyrerie (3 ,4—Benzopyrene)
**Benzyl chloride (Benzene, (chloromethyl)-)
Beryllium
Bis (2—chioroethyl) ether (Ethane, 1,1—oxybis (2-chioro—))
Bis(2—chloroisopropyl) ether (Propane, 2,2-oxybis (2—chloro—))
tt Bis (chloromethyl) ether (Methane, oxybis (chioro))
Bis (2—ethylhexyl) phthalate (],2—Benzenedicarboxylic acid, bis (2-ethyihexyl) ester)
Butyl benzyl phthaIate (1,2—Benzene icarboxylic acid, butyl phenylmethyl ester)
Cadmium
Carbon disulfide (Carbon bisulfide)
p—Chl oro—m—cresol
**Chlorobenzene (Benzene, chloro—)
**Chlorofo (Methane, trichioro—)
**Chloromethane (Methyl chloride)
2— Chloronapthalene (Naphthalene, beta—chloro—)
2-Chlorophenol (Phenol, o—chloro—)
Chromi urn
Chrysene (1 ,2-Benzphenanthrene)
Cresols (Cresylic acid) (Phenol, methyl—)
**Crotonaldehyde (2-Butenal)
Cyanide
Dibenz(a,h)acridine (1,2,5,6—01 benzacridine)
Dibenz(a,j)acridlne (1,2,7,8—Dibenzacrldine)
Dibenz(a,h)anthracene (1,2,5,6—Dibenzanthracene)
7H—Dibenzo(c,g)carbazole (3,4,5,6—Dlbenzcarbazole)
Dibenzo(a,e)pyrene (1,2,4,5—Dibenzpyrene)
Dibenzo(a,h)pyrene (1,2,5,6—Dibenzpyrene)
Dibenzo(a,i )pyrene (1,2,7,8—Dlbenzpyrene)
1 ,2-Dibrornoethane (Ethylene dibromide)
Di-n-butyl phthalate (1,2—Benzenedlcarboxylic acid, dibutyl ester)
•Di chi orobenzenes
1 ,2-Dichloroethane (Ethylene dichioride)
**trans..] ,2—Dichloroethene (1,2—Dichiorethylene)
**1,1..Ojchloroethylene (Ethene, 1,]—dichloro—)
• t Dichloromethane (Methylene chloride)
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**Ojchloropropane.
Di chioropropanol
Diethyti phtha ,1a.te (1,2-Benzenedicarboxylic acid, diethyl ester)
7 ,12-Dimethyl -benz(a)anthracene
2,4—Dimethyiphenol (Phenol, 2,4—dimethyl-)
Dimethyl phthalate (1,2—Benzenedicarboxylic acid, dirnethyl ester)
4,6—01 ni tro—o—cresol
2,4—Dinitrophenol (phenol, 2,4—nitro—)
2,4—Dinitrotoluene (Benzene, 1—methyl-2,4—dinitro—)
Di-n—octyl phthalate (1,2—Benzenedicarboxylic acid, dioctyl ester)
1 ,4—Oioxane (1,4—01 ethylene oxide)
1,2—Diphenyihydrazine (Hydrazine, 1,2—diphenyl—)
**Ethy1e ejmjne (Azridine)
**Cthylene oxide (Oxirane)
Fluoranthene (Benzo (j,k) fluorene)
**Forma) dehyde
Hydrogen sulfide (Sulfur hydride)
Indeno (1,2,3-cd)pyrene (1 10(1,2-phenylene)pyrene)
Lead
Mercury
Methanethiol (Thiomethanol)
3-Methyichiolanthrene (Benz(j)aceanthrylene, 1,2—dihydro—3-methyl—)
**Ilethyl ethyl ketone (MEK) (2—Butanone)
Naphtha1ene
Ni ckeI
p—Nitroaniline (Benzenamine, 4—nitro—)
Nitrobenzene (Benzene, nitro—)
4—Nitrophenol (Phenol ,pentachloro—)
Pentachiorophenol (Phenol, pentachioro—)
Phenol (Benzene, hydroxy-)
Pyridine
Selenium
‘, tt Tetrachloroethanes
**Tetrachloroethylene (Ethene, 1,1,2,2—tetra chioro—)
**Toluene (Benzene, methyl-)
*Trj chi orobenzenes
* ,**Tri chioroethanes
**Trichloroethene (Trichioroethylene)
t Tri chi orophenols
Vanadium
* If any of these groups of compounds are found, the specific
isomers listed In Appendix VIII should be identified.
** Use Test Method 8240 for these volatile compounds.
‘ Use Test Method 3050 in SW-846 for all metals; see
Attachment 2 for semivolatile organic compounds.
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Non-Appendix VIII Constituents of Concern (may be added to App. VIII )
Cobalt Indene
1-Methylnapthalene 5—Nitro acenaphthene
Styrene Quinoline
Hydroquinone Phenanthrene
Anthracene Pyrene
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ATTACHMENT 2
Column Cleanup of Petroleum Wastes
Introduction
The following procedure is intended for application to the
analysis of semivolatile organic compounds in oily waste
samples. Its application is necessary in those cases where
the conventional cleanup procedures (Methods 3510, 3520,
3540, 3550) fail to provide suitable detection limits (approx-
imately loppm) for the semivolatile compounds specified in
Attachment 1. Analysis of the cleaned—up extracts should be
perfocmed according to Method 8270, a capillary GC/MS technique.
It should be noted that this procedure is in draft form. It
may be modified as more experience is gained.
Cleanup Techniques
It is anticipated that after a sample is subjected to
conventional extraction procedures (Methods 3510,3520, 3540,
and 3550) or after dilution, a cleanup step may be required
to remove matrix interferences and yield acceptable detection
limits for compounds of interest. Determination as to whether
an extract needs to be cleaned can usually be provided by either
examination of the sample itself or by knowledge of the
particular waste stream that was sampled. It is also possible
to estimate whether or not the extract is suitably clean for
GC/MS analysis. An aliquot of the methylene chloride extract
can be evaporated to dryness and the total amount of material
in the aliquot weighed. In general, if the extract contains
less than a few milligrams of material per millilitre of
solvent, it is probably clean enough for capillary CG/MS. If
it contains more materials, it will likely require additional
preparation.
In most instances, some type of cleanup technique will be
necessary in order to achieve suitably low detection limits
for the target compounds. If much aliphatic material exists
in the sample it will mask the compounds of interest. Mere
dilution will not remedy the situation as detection limits
are raised by the dilution,
If acidic compounds such as phenols are suspected of
being present in the sample, a separate fraction containing
these acids can be created using the organic extract obtained
above. Methods 3530, a base/neutral acid cleanup extraction
technique, may be applicable to the cleanup of certain sample
types. Modifications tO Methods 3530 are as follows:
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a) In Section 7.6, the organic and aqueous phases are both
treated as containing compounds; and
b) Sec. .i.on 7.15 will not be necessary.
The aqueous phase, when transferred to organic solvent after
Section 7.13, will contain acidic compounds. The organic
phase contains basic and neutral compounds. En most instances,
the acidic fraction will be clean enough for GC/MS analysis.
The base/neutral extract, however, may require further cleanup.
Thus, a cleanup procedure has been devised for base/neutral
extracts that minimizes the interferences caused by high
concentrations of aliphatic and polymeric materials.
Although the cleanup procedure is thoroughly described in
the next section, one generally proceeds as follows. The sample
is subjected to cleanup by placing a representative aliquot
of the sample on an alumina column and successively eluting
with hexane, methylene chloride, and diethyl ether to yield
3 fractions containing the aliphatic (hexane fraction), aromatic
(methylene chloride fraction) and polar compounds (ether
fraction). The rnethylene cloride fraction is then concentrated
to about 1 ml. and then is analyzed by GC/MS for the compounds
of interest. The hexane concentrate can be screened by
GC/MS to determine if compounds were eluted into the hexane
fraction. However, this usually will not be required. If
polar compounds are of interest, the ether fraction is also
analyzed.
Quantitation of the semivolatile constituents in Attachment 1
is to be performed using the reverse search technique.
Additionally, tentative identification should be attempted
for the ten organic compounds detected at the highest concen-
trations. Identifications should be made via a forward
search of the EPA/NIH mass spectral library. Concentrations
should be approximated by comparison of the compound response
to that of the closest eluted internal standard. A procedural
blank, matrix spike, and duplicate should be analyzed for
every batch of samples.
Accuracy and precision control charts should be maintained
for indicator constituents. The percent recoveries of spiked
surrogate standards for a given sample type should be plotted
versus sample identification number. Table 1 contains a list
of the surrogate compounds to be employed for the analysis of
semivolatile organic compounds, and recovery limits. Recovery
limits are based upon obtaining a final extract sufficiently
clean, such that the surrogate compounds should be present at
50 ppm or higher in the extract. If dilution of the sample is
still required, detection of the surrogates may be difficult
and the associated recoveries imprecise or non—existant.
Such samples should be spiked with higher surrogate levels
and resubjected to the cleanup procedure.
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Table 1. Surrogate Standards for Semivolatile Organic
compound Analysis
Recovery Limits
Acid surrogates
phenol—d 5 40—115%
2—f luorophenol
2,4, 6—tribromophenol
Base/neutral surrogates
ni trobenzene—d 5
5—fluorobiphenyl 50—120%
terphenyl—d14
acridine—dg
pyrene—d 10
The precision control chart should consist of the percent
difference for indicator constituent concentration determLned
in duplicate samples of a given sample type versus sample
identification numbers.
Column Clean Up of Petroleum Wastes
Scope and Application
This method is used to cleanup samples containing hLgh
levels of aliphatic hydrocarbons, such as wastes from petroleum
refining. It is used specifically to separate aliphatics,
aromatics, and polar compounds in the waste matrix. This
method is applicable to API separator sludges, rag oils, slop
oil emulsion, and other oily wastes derived from petroleum
refining. This method is recommended for use only by or
under close supervision of experienced analysts.
Summary of Method
Take a 200 rag aliquot of the waste/rnethylene chloride
concentrate from step 7.13 of Method 3530. Dissolve the
aliquot in hexane and spike with 10mg each of dg—acridine,
d 5 —nitrobenzene, d 5 —phenol, 2—fluorobipheriyl, tribromophenol,
dl4—terphenyl, 2—fluorophenol, and dlO—pyrene. Apply the mixture
directly to the alumina column.
The column is eluted sequentially with hexane, methylene
chloride, and diethyl either and the corresponding three
fractions are collected. An aliquot of the CH 2 C I 2 fraction
is evaporated under a gentle stream of nitrogen and weighed to
determine the appropriate concentration factors prior to
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GC/Ms. If pyrene or terpheny]. is recovered at less than 50%,
the procedure should be repeated.
Interferences
Matrix interferences will likely be coextracted from the
sample. The extent of these interferences will vary considerably
from waste to waste depending on the nature and diversity of
the particular waste being analyzed. The use of additional
cleanup extractions can be used as necessary for specific
compound identification and quantitation.
Aop a rat us
Glass Column: 30 cm long x 1 cm I.D. with glass frLt or
glass wool and stop clock.
Aluminum weighing boats: Approximately 2 in. in diameter.
Analytical Balance: Capable of weighing to +0.5 mg.
Concentrator Tube, KD, 10 ml
Evaporative Flask, KD, 250 ml
Snyder Column, KD, three—ball micro
Snyder Column, KD, two—ball micro
Steam 3ath
Boiling Chips: 10—40 mesh carbarundum. Heat to 450°C for 5—
10 hours.
Syringe: 1 ml glass
50 ml beaker
250 ml beaker
Reagents
Hexane: Distilled in glass (B&J) or equivalent
Methylene Chloride: Distilled in glass (B&J) or equivalent
Diethyl Ether: Distilled in glass (B&J) or equivalent
Alumina: Dried overnight at 130°C, neutral 80—325 MCB
chromatographic grade
Sodium Sulfate: Washed with CH 2 C1 2 and heated to 150°C for 4
hours
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Procedure
Weigh out.J...Q..0 gm of alumina and add to the chromatographic column
that LS filled to about 20 mL with hexane.
Allow the alumina to settle and then add 0.5 g in sodium sulfate.
Let the solvent flow such that the head of liquid in the column
is about 1 cm above the sodium sulfate layer. Stop the flow.
Add the aliquot equivalent to 100—200 tug of material.
Start the flow and elute with 13 ml of hexane. Collect the
effluent in a 50 beaker. Label this fraction “aliphatics”.
Flute the column with 100 ml of rnethylene chloride and collect
the effluent in a 250 ml beaker. Label “aromatics”.
Elute the column with 100 ml of diethyl ether and collect the
effluent in a 250 ml beaker. Label “polars .
Weigh three sample boats to the nearest 0.5 tug. Reduce the
volume of each fraction using the KDs to between 1 and 5 vul.
Record the volume of each and place 1/2 of each sample in the
respective boat.
Evaporate the liquid in each boat under a gentle stream of
nitrogen. Reweigh each boat and record the weight of each fraction.
Calculate the weight of each fraction as a proportion of the
total sample. For example, fraction 1 is 56.3 tug, fraction 2
is 25.4 tug, and fraction 3 is 85.0 mg.
Calculate the amount of sample in the fractions and adjust
the volumes so injection will permit determination of various
components on scale
12.7 mg/2500 ul = 5.1 ug/ul
Dilute each of the three fractions obtained by a ratio so
that the sample entering the capillary column does not exceed
2.5 ug. For example, if the calculated weight of the fraction
as a proportion of the total sample is 12.7, and the amount 3f
sample in the fractions is 5.1 ug/ul. as in the above example,
dilute the sample 1:1 with methylene chloride.
Quality Control
Before processing any samples, the analyst should demonstrate
through the analysis of a distilled water method blank that
all glassware and reagents are interference—free. Each time a
set of samples is extracted or there is a change in reagents,
a method blank should be processed as a safeguard against
-------
chronic laboratory contamination. The blank sample should be
carried through all stages of the sample preparation and measure—
ment. Sta.o.dard quality assurance practices should be used
with this method. Laboratory replicates should be analyzed
to validate the precision of the analysis. Fortified samples
should be carried through all stages of sample preparation
and measurement; they should be anlayzed to validate the
sensitivity and accuracy of the analysis.
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9523.1984(03)
RCRA/SUPERFUND HOTLINE SUIOIARY
APRIL 84
4. Must a co’ any’s Part B permit application submission include a closure date if
the colTvany has no plans for closure In the near future?
Yes; 270.14(b)(13) requires a closure plan to be submitted with the Part B
application, and the estimated closure date Is part of that closure plan
(26 4 .112(a)(4)). Later, If the estimated closure date changes, the closure
plan rrIjst be amended as a minor modification to the permit (2 7 0. 4 2(g)).
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9523.1984(04)
RCRA/SUPERFUND HOTLINE SUMMARY
MAY 84
The Perint Applicants Guidance Manual for Hazardous Waste Land Treatment.
St3rage. and Disposa Facihties (final draft, SW—970), provides check lists
f all tne i’ formation requirement; and associated permitting standards
tna: a appj’cant for a land treatment. storage, or oisposal facility may neeo
to address. Are these check lists to be be used as a format for preparlny
a Part B application?
The check lists can be used as an application format. The check
lists are provided as a tool for both the applicant and permit reviewer
to use as a reference to ensure that all information required Is
included in the application. The check lists Should be includeø in tne
application to aid the reviewer. The check lists all i an applicant to
indicate the location In the application of information responding to
each requirement. There are no formal application format requirements.
Source: Art Day
Research: Gordon Davidson
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9523.1984(06)
PERMIT POLICY Q & A REPORT
TRIAL BURN
SEPTEMBER 10, 1984
Trial urns
1. Questionz as the A ericy issued any RCRA permits .for incinera-
tion art the basis o data suthitted in lieu of a trial burn? 40
CPR 270.19Cc) and (d).
Ansverz The A;ency has not yet issued any P.CRA incineration
perrnits on e e basis of data obtained froi other incinerators in
lieu of a trial burn. In order for data subniteed in lieu eta
trial burn to be acceptable, the incinerators and the wastes must
be sufficiently sirnilar so that the permit writer can cor.fiden;ly
t ?ltsh L ci eratCr oreratir’5 c nc’itiOna for th second incinerator
enefit of a t Al ‘-
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9523.1984(07)
PERMIT POLICY Q & A REPORT
DEFINITION
SEPTEMBER 10, 1984
2. Question: Cars SPA declare a Part B a plicatlon cor ,lete
even though t e a ;licant has not •ubr itted çround—water t’ oni—
torinç (G’.,’9) data? 40 CF 264 Su part F and 40 CPR 270.14(c)
Answer: tee. The e cy cannot declare a pe it application
ccrt leto without around water i onitoring data. The Agency can
use en orce ent to secure facilities’ ectipliance with Part 265
grcur d water r onitorin require .nts, 53013 orders if a substan-
tial hazad Is sus?ected, and the authority of 40 CF . 270.14Cc .)
to obtain the necessary ground water i’ onitorin information.
More detailed guidance on this issue will be issued shortly.
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9523.1984(08)
PERMIT POLICY Q & A REPORT
PART B INFORMATION REGARDING FUTURE POTENTIAL EXPANSIONS
SEPPEMBER 10, 1984
S. Question: Can an applicant eubv’it infor ation along with
his Part IS, for potential expansion3 to his facility and obtain
a ;orr it for those expansions when he has no definite expansion
date. 40 CFR 270.10(f).
Answer: Y S. Trte applicant, however, oust subMit infor,iatjori
at trie sai e lovel of detail as if construction were to begin
ir ediately upon receipt of a RCL permit or at a later date,
conatstent with a schedule of conpitance specified in the permit.
The Part B application nust be in such detail that tho permit
writer can draft an enforceable permit and so that there can be
anir.gLul ubl .i participation and review of the ;roposed facility
and permit conditions. In other words, he gust fully satisfy
all the information requirements of a Part ft application and
the Part 2o4 standards for a new facility. This is.difficult to
do in the absence of specific plane. Zn addition, when the
applicant does finally decide to undertake th. expansion, he
must confor exactly to th. plans and specLf ications contained
in the permit. Applicants without firm expansion plans should
be encouraged to restrict their pernit application to the existing
facility and to request a najor Dodification when the expansion
plans and schedule ar. definite. The applicant, however, should
be warned that a major z odification of this nature could, in
effect, constitute a new application. The applicant should also
•b. advised of any relevant regulations r.garding th..procedures
for expanding the capacity of a permitted facility.
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st ) )“
JNITE ST TES ENVIRONMENTAL PRcTE: :cN AGENCY 9523.1984(10)
____ .v . 5HINGiCN. D.C 20460
t .
-i;: c
= .i—.3 -‘.;
. I • :--
MEMORANDUM
SUBJECT: Recent Clarifications of RCRA Authorities
FROM: Peter Guerrero
Branch Chief
Permits Branch (WH —563)
TO: Section Chiefs
Regions I—X
The attached documents clarifys your authority in two important
aspects of the RCRA permit program. First, you will find a decision
issued by the Chief Judicial Officer in the case of City Industries,
Inc . That decision reversed the ALIVS holding that EPA lacks the
authority to assess penalties under Section 3008 of RCRA for failure
to submit a complete RCRA permit application.
The second attachment is a technical change, announced in the
Federal Register, which clarifies our authority to apply Part 265
standards until closure and post closure responsiblities are ful-
filled, previouslys the wording of S265.l implied that once a
facility’s interim status was terminated the facility would no
longer have to meet S265 interim status standards, i.e . closure,
post closure, and financial responsibility. However, EPA has the
statutory authority under Section 3004 to enforce the Part 265
standards at facilities which no longer have interim status. The
revisions to S265.l makes it clear that Part 265 requirements apply
to RCRA facilities until either a permit is issued or until all
applicable Part 265 closure and post closure responsibilities are
f u if i 1 led.
Attachments
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MEMORANDUM
DATE:
SUBJECT:
6—
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 COU ?LAND STR CC?
ATLdIP4 A CO GIA3O3S5
November 29, 1984
Administrator’s Decision Regarding Authority Under RCRA
Section 3008 to Assess Penalties for Failure to Submit
a Complete and Adequate Part B Application
FROM: James N. Sargent
Regional Counsel,
TO:. Lee Thomas (WH—562A)
Courtney Price (LE—133)
Lisa Friedman (LE—132S)
Regional Counsels
Regions I-Itt and V—X
Attached is a copy of the decision issued by the Chief
Judicial Officer on November 21, 1984 in the case of City
Industries, Inc. , Docket Mo. 83—160—R— j4C. That decision reversed
the AU’s holding that EPA lacks the authority to assess penalties
under Section 3008 of RCRA for failure to submit a complete and
adequate Part B RCRA permit application. This affects many pending
enforcement cases in the regions and reaffirms our authority to
seek penalties for deficiencies in Part B RCRA permit applications.
Attachment
cc: RCRAJCERCLA Team Leaders
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REFORE THE ADMI 4tSTRAT0R
U.S. ENVIaONMENTAL PROTECTION AGENC!
WASHINGTON, D.C.
In the Matter of: )
)
City Industties, Inc., ) RCRA (3008)
) Appeal No. 83—4
Respondent )
RCRA 83-160—R-KNC
ORDER
This appeal is from an order of an Administrative Law
Judge (presiding officer) dismissing an administrative complaint
1/
brought against City Industries, Inc. (respondent). — In
that order the presiding officer held that it was inappropriate
to assess a civil penalty against respondent for its alleged
2/
failure to submit Part I . of its ECRA permit application.
For the reasons stated below, the initial decision is reversed
and this proceeding Li remand.d to the presiding officer for
further proceedings consistent vith this order.
1/ 40 CPR 122.20(b) provides that such an order constitutes an
initial decision. An initial decision is appealabl, to the
Administrator or his delegates pursuant to 40 CFR 522.30.
2/ The Resou ge Conservation and Recovery Act of 1976 (RCRA),
as amended, 42 U.S.C. 16928(a)(1) et seq., requires any person
who owns or operates a hazardous vast. management (HWM) facility
to obtain a RCRA permit from the Agency. Pursuant to Agency
regulations, owners or operators of facilitie, in existence on
November 19, 1980, are allowed to continue in operstios, pending
the Agency’s final permit leterminatton, if, among other things,
they submitted Part A, and subsequently, Part 8 of the RCRA permit
application. See notes 4 and 5, infra, for descriptions of
Part A and Part 5 of the RCRA permit application.
-------
—2—
Background
Respondent owns and operates a hazardous waste storage
facility which was doing business in Orlando, Florida on November
3/
19, 1980. — RCRA regulations provide for a bifurcated permit
application procedure for facilities in existence on that date,
i.e., so called “existing facilities.” An ovner of an existing
facility is required to submit Part A of its permit application
4/
first. Subsequently, at the Agency’s request, the owner of
such a facility is required to submit Part B of its permit
Si
application.
Respondent timely submitted Part A of its permit appLication
6/ -
and, accordingly, attained interim status.” — Kovever, when
3/ Although respondent is no longer receiving hazardous waste at
this facility, it continued to stoTe hazardous waste for some
period of time thereafter and accordingly was required to have
a permit. See 40 CPR 5270.1 (1983). See EDT v. Lamphier, 714
F.2d 331, 335 (4th Cir. 1983). The record does not show whether
respondent is currently storing hazardous waste.
4/ Part A must contain the information Listed in 40 CFR 5270.13
T1983). This includes a description of the hazardous waste
activities which are conducted at the facility, the name and
location of the facility, certain information identifying the
facility’s operator and owner, a scale drawing of the facility,
a description of what processes wit] take place at the facility,
e.g. treatment, storage, disposal, the design capacity. of
these items, identification of the hazardous vasts to be handled
at th. facility, the quantity of hazardous waste to be handled at
the facility, and a topographic map.
5/ Part B must set forth information relating to a facility’s
operational procedures, such as security arrangements, closure
plan, flood plan, detailed plans for ground water monitoring,
etc. 40 CFR 55270.14—29 (1983). The information required to be
submitted as Part 3 of the permit application is more extensive
and detailed than that required for Part A.
6/ When a Part A application for a facility is submitted to
the Agency (together with preliminary notification of hazardous
waste activity required by &CRA 53010), the facility is authorized
to operate on an interim Status basis, i.e., pending the Agency’s
final decision on the facility’s permit application.
-------
—3—
EPA Region IV subsequerttly requested Part B of the application,
the materials which responde t submitted were unacceptable to
7/
the Region. Consequently, the Region filed an administrative
complaint against respondent charging that it vioLated 40 CYR
S270 .10(e) which requires an existing facility to submit Part B
of its permit application when so requested by the Agency. A
civil penalty of $5,000 was sought in the complaint for this
alleged violation.
In its answer to the complaint, respondent contended that
its Part B application was adequate and the Region should have
accepted it. Alternatively, respondent contended that failure
to submit (an adequate] Part 3 application is not an action
cogntzabl. under the Resource Conservation and Recovery Act for
purposes of assessment of civil penalties . (Emphasis added.)
The presiding officer agreed with this latter contention and
dismissed the administrative complaint with prejudice. This
appeal followed.
Discussion
The sole issue on appeal is whether a civil penalty can
be assessed against an owner of an eztsting HWX facility who,
despit. the Agency’s request to do so, fails to submit an
7/ The Region gave respondent a number of opportunities to
Zorrect deficiencies which it had identified in respondent’s
Part 3 application. Although respondent made attempts at
correcting them, it failed to submit a Pert 3 application which
was acceptable to the Region. Whether respondent’s Part 3
application was in fact adequate (and therefore was erroneously
found unacceptable by the Region) is an issue to be determined
on remand.
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—4.-.
adequate Part 3 RCRA permit application. Central to the reso—
lution of this issue is RCRA S3OO8 g) which states that the
Agency is authorized to assess civil penalties only for viola-
tions of RCRA requirements :
Civil Penalties — Any person who violates any
requirement of this subchapter [ Subchapter III —
Hazardous Waste Management) shall be liable to
the United States for $ civil penalty in an
amount not to exceed $25,000 for each such
violation. Each day of such violation shall,
for purposes of this subsection, constitute
a separate violation. 8/ (Emphasis added.)
The presiding officer held that RCRA contains no requirement
that an owner or operator of an HUM facility apply for a RCRA
permit or submit an adequate permit application. Accordingly,
the presiding officer held that respondent’s failure to submit
an adequate Part 3 application is not a violation of any require—
aent contained in RCRA. I disagree.
40 CTR 5270.l0(e)(4)(1983) clearly requires submission of
9/
a Part 3 permit application after the Agency requests it: —
8/ See also RCRA SS3008Ca)(t) & (a)(3).
9/ Iplicit in 1270.1O(.)(4)’s requirement to submit a Part I
srmit application is the requirement to submit an adsj j 5 (or
complete) Part I application. Of course, no rsgulatory require-
ment La violated wher, an owner or operator initially submits an
inadequate or incomplete Part I application but subsequently
corrects it before expiration of th. six month deadline referenced
in 5270.1O(.)(6). However, if the owner or operator fails or
refuses to correct such deficiencies within the six month
period, *124.3(d) allows the Agency to deny the permit and
assess an appropriate civil penalty:
Cd) If an applicant fails or refuses to correct defi-
ciencies in the application, the permit may be
denied and appropriate enforcement actions may be
(next page)
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—5-
At any time after promulgation of Phase I I (opera-
ting standards] the owner and operator of an existing EUM
facility may be required to submit Part 3 of their permit
application. The State Director may require submission of
Part 3 . . . if the State . . . has received interim
authorization for Phase It or final authorization; if not,
the Regional Administrator may require submission of Part 3 .
Any owner or operator shall be allowed at least six months
from the date of request to submit Part B of the application.
(Emphasis added.)
40 CFR 270.10(e)(4) was promulgated pursuant to the statutory
authority found in RCRA. 13005 which directs the Agency to
promulgate regulations requiring RCRA permits for owners and
10/
operators of RWX facilities. Accordingly, violating any
requirement contained in 60 CPR 1270.10(e)(4) is tantamount to
11/
violating a requirement contained in ECRA itself. Therefore,
(Footnote Ho. 9 eont’d)
taken under the applicable statutory provision
including RCRA section 3008, SDWA sections 1423
and 1424, CAA section 167, and CVA sections 308,
309, 402(b), and 402(k). (40 c a 1124.3(d).)
(Tb. presiding officer interprets 1124.3(4) as allowing assess-
ment of a civil penalty if, and only if, a facility continues
to operate after notification by the Agency that its interim
status has been terminated for failure (or refusal) to correct
deficiencies La its Part 3 permit application. However, there
is no support for the vi v that 1124.3(d) was meant to envision
such a sequential approach, and it La hereby rejected.)
10/ The text of ICRA 13005 reads in relevant part as follows:
(a) Permit requirement.. —— lot later than eighteen
months after October 21, 1976, the Administrator
shall promulgate regulations requiring each person
owning or operating a facility for the treatment,
storage, or disposal of hazardous waste identified
or listed under this subchapter to have a permit
issued pursuant to this section.
11/ Agency regulations promulgated pursuant to statutory authority
ve the force and effect of law. Service v. Dulles, 354 U.S.
363 (1959); Rodrtgues v. Dunn, 128 P. Supp. 604 (1955), aff’d
(next page)
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—6—
it is clear that failing to •ub it an adequate Part B application
is a violation of a RCRA requirement, and the presiding officer’s
12/
holdiflg to the contrary is reversed. — -
This case is remanded to the presiding officer for further
13/
proceedings consistent with this order. —-
So ordered.
Ronald 1.. McCalLum
Chief Judicial Officer
Dated: NOV 2 I9
(Footnote No. 11 cont’d)
269 F.2d 958 (1951). See also Parur vs Philadelphia Lice.
Co., 329 F.2d 3 (1964); Atwood’s Transport Liner, Inc. v. U.S.,
211 F. Supp. 168 (1962), aff’d 373 U.S. 377 (1963); 3 Nezines,
Stein & Gruff, Administrative_Law, *13.03 (1977).
It should be noted that interpretive rules, i.e., rules
promulgated by an Agency which interpret a statutory provision
may not, in certain circumstances, have th. force and effect of
law. 40 CFR 1270.10 is not an interpretive rule; rather it falls
into the category of a legislative rule, i.e., a rule which Con-
gress has specifically authorized the Agency to promulgate and as
such has the fore. and effect of law.
12/ It is not necessary for purposes of this decision toconsider
whether the failure of an existing facility to submit a Part A
application is also a violation f a RCRA requirement. Therefore,
that issue is neither addressed nor resolved here.
jj/ See note 7, supra.
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CERTIFICATE OP SERVICE
I certify that copies of the foregoing Order In the Matter
of City Industries, Inc., RCRA (3008) Appeal No. 83—4 were
delivered to each of the foLlowing persons 1 in the eanner
indicated:
By 1st CLass Mail, Arthur Greer
postage prepaid: President,
City Industries, Inc.
3920 Forsythe Road
Orlando, PT.. 32807
eLth N. Caito
Assistant Regional Counsel
U.S. EPA, Region I V
345 Courtland Street, N.E.
Atlanta, GA 30365
Sandra A. Beck
Regional Rearing Clerk,
U.S. EPA, Region IV
345 Courtland Street, N.E.
Atlanta, GA 30365
Thous B. Yost
AdainLstratLve Law Judge
U.S. EPA, Region IV
345 Courtland Street, N.E.
Atlanta, GA 30365
By Rand Delivery: Besets Ra atsl
Rearing Clerk
U.S. EPA aeadquartsrs
401 K Street, S.W.
Washington, DC 20460
! LGL 1 U 9 £ /
K. Gail Uioge
Secretary to the Chief
Judicial Officer
Dated: NOV 2 1.1984
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952 3 . 198 4 (1 1)
RCRA/SUPERFUND HOTLINE SUMMARy
MARCH 84
Must the .mer or ocerator of a container stcrae facility in a downtwn
area check all nearby busi sses for t. e possibility of injection or
w th awal wells in ac xdance iith the 2 O.l4(b)(l9)(ix) t -, çrahic
ap reçuir nt?
io , the owner or operator of the container storaçe facility does
not have to check with the indivi&al businesses in the city. He
cculd however, check with the ctty water deçar ent for potential
iells. _ - state or city ay also have a well illers licensth
bcar which could ovide that infor atin.
Soizce: ?I!y Mills ar Bixnell Vincent
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9523.1985(01)
FEB25 1985
Mr. John R. knight
Manager of Refining —.
Flying J, Inc.
P. 0. Box 2328
Wi]liston, North Dakota 58801
I*1
ar Mr. nightv
In your letter of February 1, 1985, you asked for EPA’s
position concerning a situation wher. the property owner
refuses to co—sign a Part B application made by th. operator e
of a hazardous waste facility.
In your case, I vnd.rstand that th. U.S. Corps of Engineer.
is the ovn.r of property on which you are operating a RCRA regu—
lated surface impoundment. Th. Corps of Engineers apparently
prefers not to co—sign the Part B application you submitted.
Our regulations require that the owner must also sign the permit
application made by an operator of a facility [ 40 CFR 270.10(b)].
If th. owner chooses not to sign the application then a RCRA
permit cannot be issued. EPA would then deny the permit. Upon
denial of the permit, the owner or operator must submit a closure
plan and close in accordance with 5265.112(c) and 5265.228.
EPA encourages Plyinçp J, Tnc. and the Corps of Engineers to
work together to develop a cooperative cours, of action concerning
the future of the unit.
Sincerely yours,
John H. Skinner
Director
Office of Solid Waste
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9523.1985(02)
RCRA/SUPERFUND HOTLINE MONTHLY Stfl(MARY
MARCH 85
Part B Application
3. A facility’s Part B permit application is due after a Federal Register
announcement of a final rule affecting the facility’s hazardous waste
management activities but prior to the effective date of the final rule. Is
the permit applicant required to address applicable sections of the new final
rule In the Part B permit application?
Since -e new final rule Is not effective when the initial Part B
applicr n is due, the permit applicant Is not required to address
the new inal rule provisions In the initial Part B application.
However, all permits issued must reflect afl applicable Part 264
requirements in effect on the date of issuance. Therefore, In most
cases, if the new final rule will be in effect prior to permit Issuance,
the initial Part B application should be modified to reflect the new
rule. If the new final rule will become effective shortly after permit
issuance, the applicant may still want to address the requirements of
the new rule in the Part B application rather than throu i a permit
modification at a later date.
Source: Terry Grogan (202) 382—2224
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9523 • 198 5 (05)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
OCTOBER 85
5. Personr l aining D .ring Post-Clos xe
The ir*r/operatoc of an interim status s .rf e thtpour& nt is caiçleting closire.
All standing hazardous waste liquids have been r ved; Pt ver hazardous
waste residtas and contaitinants will reMin in p1 .. refcxe, the r/operatx,
per 5265.228(c), will provide post-cloetze care as for a 1ar il1. Dare will be no
tw. i n enent of hazardous waste or hazardous waste learhate dtxirtg the post-
c losire period. In the poet-c losire permit application which the ner/operatcz
must sibnit, is he required to seet the ‘personr.l training requireMnt listed
in 5264.16?
me ner/operator of an irt.rla status sirf e thçoun i*nt must 1ress
all the infxTIlation requireMnts in 5270.14 aid 5270.17. If the po3t—
closire permit application does ircli.d the irtont ation covering training
pr aIts as required by 5270.14(b)(12), the r r/operat must ircltde a
justification for not ting this requireMnt.
The perecnrel training requirei nt of S264.16 is desigred priniarily to ensze
the fecility’s c liarce with the requireMnts of Part 264. If the ovr*r/
rator of the closed sizfece impour& rit is ro longer tively managing
hazardous waste, then personnel training may not be required diring the poet-
closire operating period. Post-closi.r. permit guidar e, being prepared by
the Permits ard stat. Pro s Division of the Office of Solid Waste, will
address technical aid ai i iinistrat ive requir rits for the post-c lostre care
period. Th. permit iu iter continias to have ait ity to ask for ncre irif or-
mation fran the ovrer/operatcr as the situation may require.
Sorce: Lillian Bagus (202) 2—469l
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9523.1986(01)
RCRA/SUPERFtJND HOTLINE MONTHLY SUMMARY
MARCH 86
1. RA Permits for Mobile Treatment Units
A canpany would like to build a rtobile hazardous waste incinerator. The
cai pany suk nitted a Part B permit application. Under the preconstruction
ban of §270.10(f), a canpariy must have a permit before hecinning construction
on a unit. Is there any way to begin construction earlier?
RCRA §3005 C a), as amended by the Hazardous and Solid Waste z er&ents
of 1984, requires owners and operators of all hazardous waste treatment,
storae, and disposal facilities to obtain a RCRA permit prior to
constructing a RA facility. A nubile treatment unit ( YI1J) can be
prefabricated and transported to the proposed treatzient site, but
construction of the site itself, such as pourir concrete foundations
and connecting the M’rtl to physical structures on—site cannot occur
until the RA permit .s issued (RCRA S1004(2)).
EPA is developing a policy to streamline the permitting process for
M’IlJ’s and is considering the concept of statewide permits. A draft
policy is expected on March 30, 1986.
Source: Mancy Paterleau (202) 382—4500
Research: Jennifer Brock
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9523.1986(02)
July 31, 1986
Dr. Barry L. Johnson
Associate Administrator
ATSDR
Chamblee 28—South
1600 Clifton Road, NE
Atlanta, Georgia 30333
Dear Dr. Johnson:
I am responding to your letter of May 28, 1986, which raised
several important issues regarding the procedures EPA has
developed for interacting with ATSDR in conjunction with reviews
of exposure information under RCRA §3019. We discussed these
issues in our meeting on july 7, 1986, with Mr. Porter.
Before responding to your letter, let me briefly explain how
I view the process we use for reviewing Exposure Information
Reports (EIR). The review of an EIR follows the same basic steps
we use in reviewing a RCRA Part B Permit application, i.e., a
general completeness review followed by a technical evaluation.
The purpose of the EIR completeness review is to determine if the
applicant has submitted all the necessary pieces of information.
Because the EIR is based in large part on information from the
Part B application, the EIR and Part B for a facility are
generally reviewed concurrently. Once the EIR is determined to
be complete, the permit writer will conduct a technical review
and look for evidence of significant prior or continuing releases
from the facility.
If the writer determines there is no evidence of a
significant release, he will consider any impact of potential
future releases and will consider the addition of special permit
conditions to mitigate potential exposure. If significant
releases are known (or suspected) to have already occurred, a
more detailed examination of the exposure potential will be
conducted and a health assessment may be initiated. If the EIR
and Part B information submitted to date does not clearly show
whether there is exposure from a release, the permit writer will
request additional information from the applicant so a firm
decision can be made.
This document has been retyped from the original.
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—2—
In response to your concern about ATSDR’s role in this
process, there are specific areas where EPA (and authorized
states) will need ATSDR expertise and assistance. The prime
areas is, of course, to conduct health assessments where there is
known or probable exposure to the public from releases. In
addition, we will ask ATSDR to provide technical assistance in
defining what additional information to request from applicants
where the level of public exposure is not clear from the
information submitted to date.
In many cases, the Regions will turn to EPA Headquarters for
assistance in defining and reviewing this additional information.
As you know, within my office we have created Permit Assistance
Teams (PATS) which are groups that draw on a variety of expertise
as needed for the particular facility under review. Ralph Touch
is one of the people we intend to include in the resource pool
for these PATs. We will also continue to ask for Ralph’s
participation in PATS or workgroups that are developing general
procedures and guidance to implement §3019.
We are asking the Regional Offices to provide us with a list
of facilities where they expect to need ATSDR either to initiate
a health assessment over the next six months, or to provide
technical assistance for further defining and reviewing
information from applicants where the level of exposure is not
clear. We will share this information with you so that we can
work together in defining the specific areas where we will need
your help for these facilities.
As I understand your request, you believe ATSDR’s role
should be broader than I have outlined above. Specifically, you
suggest ATSDR should also review all EIR’s, and that EPA (and
authorized States) should routinely consult with ATSDR in all
cases where there is evidence of release, even if it is clear
there is no public exposure. At this time, I do not believe
ATSDR assistance in these activities is necessary (for example,
ATSDR expertise would not be required in cases where there is a
remote landfill which shows no evidence of release of hazardous
wastes). If experience dictates otherwise, we will, of course,
request the involvement of ATSDR in the EIR reviews. We will be
happy to make all EIR’s and other supporting information
available to ATSDR. However, we would consider these reviews to
be outside the scope of our Interagency Agreement and the
Proposed Draft Memorandum of Understanding, except in cases where
we request your assistance.
This document has been retyped from the original.
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—3—
Your letter also raised a question about the estimated cost
range for ATSDR’s services. There seems to be some confusion
over the substance of the April 16, 1986, letter from Bruce
Weddle to Ralph Touch. The purpose of that letter was to request
ATSDR to review monitoring data compiled for the BKK landfill,
rather than to request a health assessment. The questions to be
addressed by ATSDR related to the adequacy and quality of the
existing data, and the appropriateness of the procedures to be
used by EPA contractors in evaluating the data. Ralph Touch
estimated that this limited review of the BKK data would cost
about $3,000 and require three weeks to complete, therefore, we
chose to use these specific numbers in our response. However, we
recognize the potentially wide-range of costs for health
assessments and provided for it in the Interagency Agreement
between EPA and ATSDR for RCRA S3019. The Agreement indicates a
range of $2,000 to $5,000. Although this range is lower than the
$3,000 to $10,000 you suggest, the range in the Agreement is only
an estimate and the higher range may be more accurate for some
cases.
Please contact me if you have any further comments or
questions.
Sincerely yours,
Marcia Williams, Director
Office of Solid Waste
cc: Bruce Weddle
Eileen Claussen
bcc: Ken Shuster Peter Guerrero
Art Glazer Reva Rubenstein
Terry Grogan Jack Lehman
Bob Kayser Art Day
Ralph Touch Jon Perry
This document has been retyped from the original.
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9523.1986(03)
RCRA/SUPERF!JWD HOTLINE MONTHLY SUPOIARY
AUGUST 86
7. RCRA Carpliance Orders
Is a RCRA cat liance order issued to the ier of a facility or its
operator? *io is responsible for cai lyLr, with the ordeL?
EPA has al ys held that both the ner arx the operator are
equally responsible for carpliance with the permit issued to
a facility. Section 3005(a) of RCRA requires “eath person
nirig or cperatirg” a treat1 nt, storage, or disposal facility
to obtain a permit. The permit regulations require both er
and operator to sign the permit a lication accordir to 40
CFR 270.10(b). The pei:mit will be issued to both the rier
and operator.
Prean*,le discussions in the P y 19, 1980 Federal Register
confirm this cepe of dual responsibility at 45 FR 33169
and 45 FR 33295. th discuss ions specifically re!rence
situations ttere the operator nay be different fran the
land ier or facility rier. EPA considers both the ner
(or ners) rx3 operator of a facility to be res s ible for
regulatory ca liance. Pbr this reason, EPA nay initiate an
enforcei t action a inet either the ier, the rator, or
both. bmnal1y, the uj4iance order i.s issued to the person
responsible for the daily operations at the facility because
this person is n et likely to be in the position to correct
the prthlei . If the operator is unable or triwilliz to
rectify the p 2 lere then EPA nay issue a separate canpliartce
order to the ier.
Soi ces: !Ibny Baney (202) 382—4460
C rrie Wehling (202) 475—8067
Researth: Kim B • Go ls
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9523.1986( 35)
tO! 21 86
L’ r. Barry L. Johnson
d sqocf ate Ady’ jnjstratc,r
Agency for Toxic Substances and Disease Pegistry
Chamblee 2R South
1600 Clifton Poad, UP
Atlanta, Geor’2ja 30333
Dear Dr. Johnson:
Thank you for your r.cent letter of October 30. I aore
stat we should meet to discuss ATSOR health assessments under
RCP1 !3019. I would aJso like to foll.w—up on several igsue
that you raised.
The Proce’iura] ( iuir1ance for Reviewinci Pxposure In or, ation
under RCRA Section 3019 alluded to in your letter was isssie.i in
final form and distributed to the Reciong on September 2 , l 6.
This document alerts the Pegions to the possibility of the publirl
submittinçp release and/or exposure information to ATBDR, as well
as to EPA or the State. The nuidance (nage 9) goes on to state
that ATSDR should forward copies of these ubmi sions to th’ rPA
Real on, and encoursoes the Regions to coordinate any response
with ATcDR’S activities. I believe that we still need to work
out the details of this process in future meetings.
While 30l9 allows public subm’s.ione, the statute does not
explicitly provid, for public petitions to ATSDR for health
assessments. However, we recoqnjye that public petitions for
assessments at RCRA sites may be forthcoming under th. new
Superfund provisions. For this reason, vs agre. that published
procedures for responding to petitions should cover RCRA facilities,
as well as Superfund sItc’s. I look forward to working with
OERR anti ATSDR to develop these procedures.
In your letter you also souriht clarification o the role
of Mr. Ralph Touch as part of the Permit Assistance Team (PAT).
Let me assure you that Mr. Touch will he involved in all phases of
the PAT dscision-makinq process, including workload planning end
preliminary technical assistance, as well as formal referrals to
ATSOR for a health assessment. To dat•, no formal PAT meetinas
have been convened to recomn’r 4 referrals, and Regional requests
for site-specific assistance have been fairly limited.
-------
—2—
On October 28, we forwarded the attached letter to Mr. Touct
which sununarizes the results of our survey of the Regions for
sites likely to need ATSDR assistance in the near future. Since
then, we also sent to Mr. Touch the data for one site in Reojon
IV (B.F. Goodrich. Kentucky) for ATSDR review. In this ease we
are seekinc technical assistance in performing a preliminary
evaluation of the potential impact of apparent exposure to the
public, caused by releases into the Tennessee River, I,, order t
determine the need and extent of further evaluation. We will.
Continue to keen Mr. Touch informed by phone of the staP.u of
other S3019 sites and will send him the necessary data as our
Reajons aenerate it.
I look forward to mPeting with you soon to discuss these and
other issues. Ralph Touch will be meeting with my staff to
discuss the status of funds for ATSDR activities, the list of
candidate facilities for ATSDR assistance, and procedural issues.
I suggest that we meet shortly after this so that we can take
advantaqe of our staff’s discussions. Please have your secretary
contact my office to arrange our meeting.
Sincerely Yours,
i v
Marcia Williams
Director
Office of Solid Waste
Attachment
cc: Ralph Touch
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9523. 1987( 02)
UNITED STATES ENVIRONMENTAL PROTECTION AGEN Y
WASHINGTON D.C. 20460
I 4 a’i
0F I OF
$01.10 WAITI APdOIU( GEpICy ISFOp.
LETTER TO STATE ENVIRONMENTAL C0MMISS O p.
In recent months I’ve noted a number of actions by State
legislatures aimed at preventing the siting of new hazardous
waste management facilities, or otherwise limiting new capacity
to deal with these wAstes. In addition, some States have set
moratorja on completing permit decisions, or on approving char ges
to permits needed for expanded waste management capacity. Another
potential action being considered is limiting the amount of waste
coming into a State from other States.
I’m sure you share my concern that if this trend continues,
it will become increasingly difficult to site or permit new waste
management facilities. The irony is that t ese new facilities
are often safer and better designed than older, existing facilities.
Also, the resulting capacity shortfalls in some areas could mean
that wastes would be shipped longer distances for handling. Such
transportation of hazardous wastes increases, of course, the risk
of spills and leaks.
I’m particularly concerned about actions designed to limit
much needed treatment capacity. Sound, permanent treatment is
usually preferable to continuing the storage or disposal of
wastes in or on the land. Also, there is already a nationwide
shortage of commercial hazard us west, incineration capacity.
The Coapr.h.nsjv. Environmental Response, Compensation, and
Liability Act, as amended by the Superfund ‘ alendments and Reauthori-
zation Act (SARA) requires States to certify by October 1989 that
adequat. capacity to handle hazardous wastes is available in their
States, or through arrangements with other 3tates. This certifica-
tion is a requirement for continued Superfund funding in a State
after October 1989. Erecting statutory barriers to hazardous
waste management in a State may not be consistent with the required
capacity certification.
-------
—2—
Most States are authorlz.d by EPA to manage thur own Resource
Conservation and R.cov.ry Act (RCRA) program. Although RCRA
requires an authorized State program to b. consistent, it also
allows States to be more stringent. EPA took both of these pro-
visions into account when developing rules that required authorized
States to avoid unreasonable restrictions and prohibitions on
waste movement and management. We nay be compelled to initiate
withdrawal, of RCRA authorization from a State which takes an
action in violation of these requirements.
We recognize, however, that States must balance public health
and environmental concerns with the need for adequate waste manage-
ment capacity. EPA has not opposed, for example, legitimate
State measures to protect areas with vulnerable hyrogeology from
the effects of waste disposal. Nor has EPA discourag.d States
from providing greater public involvement in permit decisions. We
are concerned, however, that States not usu their authorities
arbitrarily to prohibit environmentally sound waste management
practices.
I hope I can count on your support in this vital matter.
Please let me know if you have any questions or comments on thi.
letter.
Sincerely,
c 2 ;% j 2
3. Winston Porter
Assistant Administrator
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9523.1987 (03)
RCRA/SUPERFUND HOTLINE MONTHLY SUNMARY
NOVEMBER 87
2. Exposure Inforrtation Reguirenerits
Section 27 O.lOj requires that exposure inf rr ctti n acLrl ..an
P4rt B ap .’1ications for landfills or surface i.npoundrieriis. I,
subr ission of exposure inforr ation a condition for pernit
issuance? shat should the exposure lnforrtdtion include?
No. Section 270.10(c)
Part B perrut is not
or operator fails to
described in Section
exposure inforr ation is
3019 of RCRA.
states that an aD l icdtlori f
considered 1nconp ete if th’- u n.-
subnit the exposure inf rru.itiun
27O.10j). Failure tt. ‘ ILb!it
a separate violation (if S .t u t
At a nininun, the exposure infornation should add :. c . :i
potential pathways of hunan exposure to hazardous
or constituents resulting frori releases dLnLncJ a iderit
and nornal operations. includiny releases assrJc Lat,::li Ltrt
transportation to or fron the unit. These path av’,
include ground-water. surface water, air erussions. food
chain contanination, and nulti-nedia contanindtlclrl. Th.
potential riagnitude and ndture of the hunari e’c ,sur
which r ay result fron the reledses shou also be
addressed.
Source: Bob Kavser
Research: Tish Zinr ernirs
(202) 382—453b
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RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY 9523.1988(01)
NOVEMBER 88
5. Contents of Part B Permit Application: Ceneral Requirements
The Part B of the permit application must contain general information
requirements. One of these requirements is information on the traffic pattern.
estimated volume and control of traffic, descriptions of access road surfacing, and
load bearing capacity of roads (Section 270.14(b)(1O)).
Why is this information required?
Is the information limited to on-site traffic, or must the traffic patterns
surrounding the facility also be described?
The intent of requiring submittal of the traffic related information is to
ensure that movement of hazardous waste will be conducted safely to
minimize the risk of accidents. The traffic related information is only
required for that area inside and immediately surrounding the hazardous
waste management facility.
There are no standards in Part 264 with which traffic related items must
comply. However, the overriding concern is safety. Permit applicants should
ensure that the movement of waste into, out of, and within the facility will be
conducted in a manner that minimizes accident potential. Additionally,
general traffic movement should not be such that hazardous waste managed
at the facility will be disturbed by the traffic. In order to present traffic related
items effectively, the Agency recommends that both a discussion and a
drawing be provided with the Part B permit.
Permit applicants should provide a thorough description of both the pattern
of general traffic and the pattern of traffic moving hazardous waste within the
facility. The applicant should also provide a description of traffic on roadways
traveled by the public which intersect with access roadways to the facility. The
following items should be considered for inclusion in the discussion of traffic
patterns and volumes: routes traveled; distances traveled; number of
vehicles; types of vehicles; waste movement; sampling and unloading
locations; and amount of pedestrian traffic.
Permit applicants are also required to submit a description of roadway
surfaces and load bearing capacity. The intent here is to insure that the
roadways are appropriate for the type and number of vehicles that will be
using them. If the road surface is such that it will require periodic
maintenance, the frequency and type of maintenance could also be described.
Finally, the reviewing agency may also be concerned with the amount of dust
that will be generated by vehicular traffic in and around the facility.
Source: Permit Applicant ‘s Guidance Manual for the General Facility
Standards of Part 264
Research: Chris Bryant
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tOS74? . 9523.1991(01)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
J WASHINGTON. D.C. 20460
..IkAR I 3 1991
OFFICE OF
SOLID WASTE ANO EMERGENCY RESPONSE
Honorable Glenn English
House of Representatives
Washington, D.C. 20515
Dear Mr. English:
Thank you for your letter of February 4, 1991, regarding the
Environmental Protection Agency’s (EPA’S) authority to consider a
permit applicant’s history of compliance with the Resource
Conservation and Recovery Act (RCRA).
As Mr. Robert Layton stated in his January 15, 1991, letter
to you, RCRA section 3005(c) requires that EPA (or the state)
shall issue a permit to a hazardous waste treatment, storage, or
disposal facility once the EPA determines that the facility is in
compliance with the requirements of sections 3004 and 3005 of
RCBA. Neither section 3004 nor 3005 explicitly requires a permit
applicant to have complied with RCRA in the past, or requires EPA
to deny a permit if past noncompliance has occurred. However,
the statute provides a broad “omnibus” authority that the EPA may
use to address a facility’s compliance history when developing
permit conditions or making permit decisions. The scope of this
omnibus authority and our implementation of this provision are
described below.
Section 3005(c) (3) provides that permits issued under that
section shall contain whatever terms and conditions EPA
determines are necessary to protect human health and the
environment. When issuing a permit, EPA may invoke this omnibus
authority to address past noncompliance in two ways. First, EPA
may include permit conditions that specifically address areas in
which the facility has a history of noncompliance if EPA
determines that such conditions are necessary to protect human
health and the environment. In addition, in perhaps a more
extreme and unusual case, some instances of serious past
noncompliance could conceivably lead EPA to conclude that
noncompliance in the future is inevitable. If EPA cannot draft
conditions to ensure protection of human health and the
environment in this type of case, then EPA may invoke its omnibus
authority to deny the permit (see the enclosed page from the
Federal Reaister notice). It is important to note that the
omnibus provision is invoked on a case by case basis, and only
where EPA believes that the usual permitting conditions will not
provide adequate human health and environmental protection.
.
Pnnfed on Recycled Paper
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Furthermore, EPA need not rely completely on the potential
for permit denial to encourage compliance with RCRA prior to
permit issuance.. Section 3008 of RCRA authorizes EPA to take
enforcement actions against facilities prior to permit issuance,
including those already operating under interim status. Thus,
even though previous violations of the interim status standards
of Part 265 may not ultimately prevent the issuance of a permit,
a facility owner or operator is still subject to civil and
criminal penalties for those violations (including penalties for
each day of non-compliance).
After issuing a permit, EPA has several mechanisms in place
to address noncompliance. The regulations at 40 CFR 270.43 (a)
allow EPA either to terminate a permit or to deny its renewal
if the owner or operator fails to comply with any term of the
permit or if the facility’s operation endangers human health or
the environment. In addition, EPA may invoke enforcement
authority under RCRA section 3008 to remedy noncompliance at a
permitted facility.
In light of the above statutory and regulatory authorities,
it does not appear necessary to modify the regulations at this
time. If you have any further questions on this matter, please
have your staff contact Devereaux Barnes at (202) 475—7267.
We appreciate your interest in the safe and effective
management of hazardous waste.
Sincerely yours,
/s/
Don R. Clay
Assistant Administrator
Enclosure
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4
% •T
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
4) ( pqØ ’
OCT — 1 i993 9523.1993(01)
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORMiDUX
SUBJECT: Clarification of “Definition of Facility” and Part A
Mapping Requirements
,.;? .- : . ?‘r
PROM: (J’effery D. Denit, Acting Director
Office of Solid Waste (OS—300)
TO: L ’ Hazardous Waste Division Directors
Regions I — X
The purpose of this memo is to clarify two items that
surfaced during a review of five RCRA Information Collection
Requests (ICRs) related to hazardous waste permitting. The first
issue pertains to the definition of “facility”; the second
pertains to mapping requirements on the Part A form.
1. Definition of Facility
It was brought to the attention of the Office of Solid Waste
(OSW) that the use of “facility” in the different contexts of 40
CFR sections 270.14(c) (7) (i) and 270.14(d) may cause confusion,
which we would like to clarify for permit writers and inspectors.
Section 270.14(c) (7) (i). requires “a description of wastes
previously handled at the fac1 .ity” if releases of hazardous
constituents have been detected at a land disposal unit subject
to Subpart F requirements. “Facility” in this context should be
understood in its narrower sense as referring to the regulated
facility for permitting purposes, as defined in 40 CFR section
260.10 (i.e., solid waste management units (SWMUs) brought in
through section 3004(u) are not subject to this requirement).
“Facility” in the context of section 270.14(d) should be
understood as it is for section 3004(u) corrective action (that
is, all contiguous property under the control of the facility
owner/operator).
2. Part A Mapping Requirements
The Part A map does not have to b a topographic map; the
regulations specifically allow other maps “if a topographic map
is unavailable” [ see 270.13(1)]. Also, facilities may use a USGS
or other readily available map in order to meet the Part A
requirements. It is not required to have surveyors come in to
develop a topographic map specifically for this purpose.
Printed on Recycled Paper
-------
—2—
If you have any questions on this memorandum, please contact
Patricia Buzzell of my staff at (703) 308—8632.
cc: Margaret Schneider
Ken Gigliello, OWPE
Evi Huffer, OPPE
-------
- HOTLINE QUESTIONS AND ANSWERS
RCRA.
1. PermIt Application and Renewal
In order to treat, store, or dispose of
hazardous waste, a facility owner or operator
must apply for and receive a RCRA permit.
Once a RCRA permit has been approved, it is
valid for a period of up to ten years (40 CFR
§270 JO). If an owner/operator wishes to
co,uinue an activity regulated by the permit
after its expiration date, the owner/operator
must appy for and obtain a new permit
( 2 70.30(b)). What are the application
reqwrements for obtaining or renewing a
hazardous waste permit?
To obtain the original hazardous waste
permit, the owner/operator must submit a two
part application, consisting of part A and part
B. The part A (form 8700-23) requires
owners/operators to supply basic information
such as facility name and address, description
of hazardous waste processes, and
topographical maps. For the part B, owncrs/
operators must fulfill the information
requirements of §g270. 14-29. These sections
require an owner/operator to detail, in a
flarrative format, how they will demonstrate
compliance with the general TSDF standards,
as well as the unit-specific requirements
( 270. 1(b)).
parts A and B, revised as necessary to reflect
changed conditions since the previous
application. The revised part B should: fulfill
all the requirements of a new permit
application; incorporate any new regulations
that were promulgated or came into effect
since the issuance of the permit; and include
any approved permit modifications.
The owner/operator may continue
operation under the existing permit beyond the
permit’s expiration daze while the renewal
application is being considered if the owner/
operator submits the revised part B at least
180 ys before the expiration date of the
existing permit ( 270. 10 (h)) and the Regional
Administrator, through fault of the
perrninee, does not issue a permit with an
effective date on or before the expiration date
of the existing permit ( 270.5 1(a)). Failure to
file a timely application would require the
owner/operator to cease operations under the
expired permit and apply, as a new applicant.
for a new hazardous waste permit
When an owner/operator reapplies for a
hazardous waste permit. the owner/operator
must submit an permit application , including
9523.1994(01)
September 1994
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This Page Intentionally Left Blank
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9524 - PERMIT
CONDITIONS
Part 270 Subpart C
ATK1/1104/58 kp
-------
9524.1983(01)
Recurring Permit Issues: Interpreting Regulatory
Authority for RCRA Permit Conditions
Other Federal Atities
A related issue that has arisep in sa of the first permit
reviews is whether A permit writers st .ild insert permit 4itions
whidi ild require permittees to meet requir eents established
under other Federal laws and regulati Permit writers s x ld
realize that the A regulations have been specifi 1 ly written
to avoid duplication of verage with other Federal authorities.
The supporting infr rm tiOn behind the Part 264 regulations points
it that the Içency has excluded £& the reulati many prcçosed
Part 264 standards that i1d have required permittees to meet
other Federal laws and regulations (see 45 33171; May
19, 1980.) ThereC e, as a general matter, permit writers sk .ald
r t include in A p&mits c itiOflS based on other Federal
aut) ities merely for repetition or e hasis. th a iditions
s ild only be used if the permit writer decides they are nseded
to meet A regulaty requirwents.
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9524.1984(01 ,
oci
P1 PMC PI ’DrTM
SUR3 CT, Use of Conpliance Schedules in PCPA Per jts
ruce R. Weridlo
Division Director
Pernits and State Pro rams Dtvjsjo
TOs Hazardous Waste Directors, Region I—X
Many Regions have requested guidance on th. appropriate
use of conplianc. schedules in RCRA perriite, In response to
those requests, the Por its branch Pas developed the attached
guidance.
To surr arjze the riain roints, cor pliance echedules in RCRi
pernits cannot be used to satisfy, after the permit haq been
issued, the infor ’ation requirer ents of Part 270. Cor pljance
schedules can be used to allow facilities to cote into co!’tpli—
ance with Part 264 standards that are not required under Part
265.
Please distribute this guidance to your respective staffs,
Any questione regarding when conpliance schedules can be used
in 1 CRA pernits should be referred to £lizaheth Cotsvorth at
FTS 3 2—475l.
Attachment
WK—563:RChrisnon:srruS243:24691:8/12/84:pandy’s disk Mer os
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USE OF COMPLIAnCE S( FDULES
tN CPA P.’;ITS
r u bet of Reçir ns ha ’e sk. d out P.t 4 a pronriate use f
cc, Lt nco schedules in RCRA pernits. The foll wtng ex latns
;. ncy policy on this issue.
Cr. inlt nce Schedules in Per ’it
In c]eneral, cov:ipliince schedules in pernits should be used to
allow the construction or installatinn cit eq’atpricrit that is
required under Part 265 but that is required to cc ply with Part
2 4 standards. To be acceptable, cortpliance schedules rust be
specific, enforceable, allow for public notice and corrent on
the detailed perz it condition, and allow the applicant additional
tioe only where that tine is legitirately needed.
Specificity neans that the compliance schedule must set forth,
in detail, what the applicant is suppc ed to do, when t e applicant
is supposed to do it, and when the work is to be completed. Th’is,
the schedule should include the desil)n and construction s;ecjf i —
cations, interim nilestones for construction, and a specific date
for conçletion. The schedule nuet also require the applicant to
notify the flirectar within 14 days of each tnterin date and the
final completion date.
Enforceability means that the requirei ents inposed by the
cor.pli.ance schndule on the owner/operator can be achieved and
that the Açency can confirm that the owner/op.rator has suc-
cessfully ¶et his responsibilities. It also neans the qch ,du1 , d
activities rust comply with the technical tanciarr’s of ‘art 2c4.
The er it writer rust have an opportunity to evaluate the details
of desiçn, construction, and operation to assure their ade u cy in
light of Part 2 4 requirer ents. -
The cnmplote ccr pliance schedule i ust be included in the
draft pernit so the public will have an opportunity to cori ient
on its content. The ecnpltance schedule uet be coriplote as to
the details of what is to be done, when, and by whori.
Su e ted Oses c,f Co plisnco Schedules in RC°A Pernits
1. Should a compliance schedule in a RCRA pernit he used to
hrinc a facility into coPpliance with Part 265 standards?
-------
No. A facility Should be in compliance with Part 265 stan-
dards at the time a RCRA permit is issued. In situations where
° f cility is not in cOmpliar ce with the requirements of Part
265, especially when compliance problems will prevent development
of a draft permit, the permit writer should refer the case to the
enforcement staff. The enforcement staff will make decisions as
to the appropriate enforcement action to pursue. When enforcemertt
actions result in administrative orders, a compliance schedule
may be included in the order.
2. Can a compliance schedule be used to allow a facility
additional time to provide Part B application information after
the permit is issued?
No. Use of a compliance schedule for this purpose is unac-
ceptable and may be illegal. For example, the RCRA regulations
provide that the Director must specify detailed ground—water
monitoring conditions in the facility permit. To develop these
permit conditions, Information on ground—water monitoring at the
facility is necessary and, generally, should be drawn from the
Part B permit application. Without adequate ground—water moni-
toring data, it is impossible to know whether a facility should
be conducting detection or compliance monitoring or corrective
action. In addition, there may be no information that would
support the details of a ground—water monitoring plan, such as
number, location and design of wells. Without this information,
the Agency cannot develop a permit that complies with the Subtitle
C regulations. Additionally, the public is not given adequate
notice or opportunity to comment on the ground—water monitoring
program. Because the Agency does not have adequate information
on these items, it cannot issue a permit .
3. Can compliance schedules be used to bring a facility into
compliance with Part 264 standards not required under Part 265?
Yes. Where a facility, which is in compliance with Part
265, must undertake new construction or installation of equipment
in order to comply with Part 264, a RCRA permit should be issued
with an attached compliance schedule.
For example, although an interim status storage facility
does not require secondary containment, secondary containment is
required under Part 264. Accordingly, the permit applicaflt must
submit design, construction and operating specifications for a
secondary containment system in his application. The permit
writer may then approve those specifications and make them part
of the draft RCRA permit. A compliance schedule would be includel
in the draft permit, setting forth milestones for various tasks,
a final completion date for construction and a requirenent for
the permitee to notify the Director within 14 days of complying
with each interim date and the final date. See S270.33.
Incorporation of the compliance schedule in the draft permit
would provide the public with notice of the details of the prc;ose
design, construction, and operation of the secondary contairtr ent
—2—
-------
ystar , and also the proposed schedul, for c pletion of the
work. - After addressing the public corwients, the permit writer
can issue the final permit arid attached compliance schedule.
Note the i aportant factors of this scenarios
A. All information requirements of Part 270 are satisfied
before th. draft perriit is written.
B. The permit writer has an opportunity to assess the
adequacy of the design. construction, and operation details.
C. The cor plianc. schedule is specific as to what is to be
done, who is responsible for seeing that activities are corpleted,
and when those activities are to be conpl.ted.
D. Th. public has a full opportunity for notic. and comi’ent.
4. Should a compliance schedule be used to issue a pernit and
allow modifications to an existing incinerator that has failed
the trial burn? .
. -‘ No. The Agency should not issue a permit to a facility which
has failed to demonstrate, in accordance with Part 270, coopliance
with the Part 264 performance standards.
-..- •p - - -. —. — -.
- This scenario appears to be similar to the secondary contain—
ment situation described previously. There is, however, a fund-
amental difference between the two situations. With respect to
secondary containment, it can be ascertained from the applicant’s
proposed designs and specifications that the containment structure
will comply with the Part 264 technical standards. With respect
to an incinerator, however, there i . a 1u uch higher level of
uncertainty that proposed modifications will result in the
incinerator achieving compliance with the performance standards
in Part 264, Subpart 0. The Agency cannot issue a permit to an
incinerator that cannot demonstrate its ability to comply with
the regulations.
G.nerally, tho permit writer has several options. The Agency
can delay any final action, send a letter to the applicant saying
that we will deny the permit unless we get trial burn results
demonstrating compliance with the Part 264 performance standards
within a specified time period. The Director could also issue an
administrativ, order to achieve th. same results. The applicant,
of course, can submit a new trial buri plan using different
operating parameters or modify the facility and submit a new
trial burn plan incorporating the new modifications. This order
likely would contain a cemplianc schedule. Finally, in some
circumstances, it say be appropriate to deny the permit. -
-3—
-------
5. For incinerators, should a RcRA permit be issu. with an
attached compliance schedule to bring an existing incinerator
into corrliancewith Part 264 monitoring requirements necessary
for an adequate trial burn? -. -
No. All continuous monitori instrtimentatiori should be
installed for the trial burn. Under SS270.19(d) or 270.62(b)(5),
the Director r%uat find that the trial burn will allow bin to set
operating conditions for the unit befor, he can approve the trial
burn plan. If the continuous monitoring equipi’ ent is not installed
during the trial burn, the Director cannot set operating conditions.
Therefore, under the authority of Part 270, the Director can
require continuous monitors to be instatlod befor. the trial burn -
is conducted and the permit issued. -
6. Should pe rmits with compliance schedules be used to correct
deficiencies in interim status ground—water monitoring data?
Where the ground—water monitoring data are lacking or question-
able due to poor sampling and analytical techniques, improper well
placement, or lack of monitoring, the Agency cannot issue a RCRA
permit with an attached compliance schedule to develop adequate
data. Rather, the permit writer should refer the case to the
enforcement office for action. . Close coordinatIon between the.
permits and enforcement staffs will, of course, be necessary to
ensure that the relief sought through enforcement action will bä -
consistent and compatible with the Part B information requirements.
V .t•.•- — •• -: - —
7. May the permit writer develop permit conditions in areas
where the Part B is deficient? For example, if an applicant
fails to specify information regarding fire prevention and control
can the permit writer still draft pörmit conditions in that area?
:- Yes. It should be kept in mind that the applicant is not
the sole source of information available to the permit writer.
For example, the permit writer’s knowledge of safety codes, such
:. the National Fire Protection Association Code, can provide
the basis for permit conditions. The permit writer can impose
draft pernit conditions on necessary fire prevention and control
moasures based on the NFPA code, even though the applicant has :
failed to specify this information in the Part B application.
The permit writer, in essence, is completing the application for
the applicant by drawing on his own knowledge and beet engineering
judgment. - • . - • -
For More Information
The above examples cover tne situations where us. of ccu”pli —
ance schedules has been suggested. Headquarters ytl l be working
with the Regions to establish a national clearing house for sharing
model permits, permit conditions, PODs, and compliance ichedules.
-. In the meantime, any questions regarding when compliance schedules.
can be used should be referred to Elizabeth Cotaworth at PTS-8— 1 -
382—4751. - -
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9524.1984(02)
____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON D.C. 20460
“ 4& uuØ
cCTIM9e4
o•c’cI o.
SOuQ WASTE AND (u( Ep.Cy S$POP. ,5
SUBJECT: Recurring Permit Issues: Extent of Permit Conditions
and the Velsicol Decision
FROM: Bruce Weddle, Dires. 4..ii ,.a 7g4 __.
Permits and State Programs Division (WH—563)
TO: Hazardous Waste Division Directors,
Regions I—X
Attached to this memo is a copy of the Administrator’s
Decision in the Velsicol Appeal. Velsicol challenged its RCRA
permit on the grounds that EPA lacked the authority to incorporate
parts of the permit application into the permit as enforceable
conditions and on the grounds that this incorporation would lead
to an inflexible permit with conditions that exceed RCRA’g
requirements. Velsicol had submitted a permit application that
described both RCRA and non—RCRA activities at a chemical plant.
The application led to a permit that was not limited to the RCRA
storage facility at this plant.
The Administrator, citing the need for flexibility in writing
permit conditions, declared that a permit writer can restate
the requirements of the regulations, incorporate parts of the
permit aplication directly into the permit, or write a completely
original permit condition. The latter two approaches are
permissible as long as the permit conditions are ‘based’ on the
appropriate substantive provisions of the regulations and are
‘necessary to achieve compliance with the Act and regulations.”
This ruling upholds the approach used in the Model Permit.
The Administrator also found that both Vels ice], and the
Region had failed to take full advantage of the permit process
to work together in preparing the permit conditions. As a result,
permit conditions were written that, as the Region conceded, were
too broad. For this reason, he remanded the permit to Region IV
for additional public comment and potential revision of the
permit after public comment. In the new public comment period,
Velsicol can submit the information necessary to limit the permit
to the regulations.
In summary, this decision allows permit writers to continue
using the Model Permit as the basis for RCRA permits, and to
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—2—
continue to incorporate parts of the permit application in the
draft permit or to, when necessary, write completely original
permit conditions. Permit writers must also ensure that appli-
cants are aware that parts of the permit application can be put
into the permit as enforceable permit conditions. Accordingly,
the applicant should be encouraged, through NODs and requests for
additional information, to identify and remove information that
is not needed to demonstrate compliance with RCRA. The permit
writers are also free to excise extraneous information from
those parts of the application that are incorporated into the
permit.
This guidance replaces our earlier guidance of January 20,
1984, entitled Recurring Permit Issues: Extent of Permit
Conditions.
Attachment
cc: RCRA Branch Chiefs, Regions I—X
RCR.A Permit Section Chiefs, Regions I—X
OSW Permits Branch
-------
BEFORE THE ADNINISTRAToR
tieS. ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C.
In the Matter of: )
)
V.1sicol Chemical Corporation, ) RCRA Appeal No. 83—6
)
Applicant )
)
Permit No. TND—06l—314—803 )
)
REMAND AND PARTIAL DENIAL OF PETITION FOR REVIEW
1/
In a petition filed pursuant to 40 CFR Sl24. 19 (1983),
Velsicol Chemical Corporation (Applicant) requested review of
a Resource Conservation and Recovery Act (RCRA) permit issued
to it for operation of a hazardous waste management (mill)
facility at its chemical manufacturing plant in Chattanooga,
2/
Tennessee. — The contested permit was issued on September 28,
1983. by the Director, Air and Waste Management Division, Re-
gion IV, U.S. Environmental Protection Agency. According to
the Appitcant, the permit is inflexible due t3 Region I v’s
/ 40 CFR 5124.19 provides in pertinent part:
(a) Within 30 days after a RCRA . . . final permit
decision has been issued . . ., any person who filed
comments on the draft permit . . . may petition the Ad-
ministrator to review any condition of the permit decision.
2/ The Applicant is currently operating its facility under the
authority of Nlnterim Status, a provision in RCRA which allows
persons who own facilities which were in existenc, on or before
November 19, 1980, to continue in operation until final action
is taken on their permit applicatio ,s.
-------
2
extensive incorporation of Velsicol’s (permit] applicatjon
into the permit itself . . . . The Applicant’s specific
objections to the permit fall into two broad categories:
(1) the Region lacks the authority to incorporate substantial
(C.. portions of th. permit application in th. permit as enforceable
conditions; and (2) Such incorporation l.d to a permit which
is inflexible and contains conditions that are stricter than
3,
required by th. RCRA regulations. —
As explained below, insofar as the Applicant questions the
Regional Administrator’s authority to incorporate portions of
the permit application in the final permit, the Applicant has
,< not carried its burden of showing, in accordance with 5124.19(a)
(1) and (2), that the permit determination is clearly erroneous
or involves an exercise of discretion or pol .:y which is impor-
4,
tant and which should be reviewed as a discretionary matter. —
Therefore, review of that aspect of the permit is denied.
3/ Se . VelsjcoL Chemical Corporation’s Reply to Region I v’s Re—
iponse in Opposition to Vslsicol’s Petition dated January 20,
1984. In its petition, the Applicant requests review of eighteen
conditions in th. permit. In scm. instanc.s. it is not possible
to discern th precis. basis for the Applicant’s challeng, to
a specific condition.
4/ The preambli to the r.gulatiorts containing this standard for
ccepting review states that this po r of review should be
only sparingly exercised (andj . . . most permit conditions
should be finally determined at th. Regional leve l . . . ..
45 Fed . 33412 (May 19. 1980).
-------
3
Howev4r, with respect to the challenges to specific permit
conditions on grounds that they an, inflexible and too strict, ‘-‘
the permit determination is remanded to the Region for the
purposes of reopening th. comment period and revising the
permit conditions where.appropniate.
A.
There is no compelling reason to question the Region’s
authority to incorporate portions of the permit application in
the Applicant’s permit. The regulations confer broad discretion
on the Regional Administrator to either: (1) restate the require-
ments of the regulations as permit conditions (which he did in
some instances); or (2) to establish other ;ermit condjtjons
which meet the regulatory standards. 40 CFR S270.32(b (Es—
tab]ishing Permit Conditions). The text reads as follows:
(b) Each RCRA permit shall iricluds permit
conditions n.csssary to achieve compliance with the
Act and regulations, including each of the applicable
requirements specified in 40 CFR Parts 264, 266, and
267. In satisfying this provision, the Director
(Regional Administrator or authorized representativej
may incorporat. applicable requirements of 40 CFR Parts
264, 266, and 267 directly into the permit or establish
other permit conditions that are based on these parts.
When the Regional Administrator elects to establish other per-
mit condjtions, instead of simply restating trte requirements of
the regulations, he can choesi between incorporating parts of
the permit application directly in the permit or crafting a com-
pletely original permit condition in his own words. No legal
significance attaches to his choice, however, for in either
t ‘ 1
‘—..& .‘— ‘ ‘ c —
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4
instance th.scl. test of legal sufficiency is whether the
requirements of S270.32(b) are satisfied, i.e., whetr e the
permit conditions are based on th. appropriate substantive
provisions of the regulations and are necessary tO achieve
compliance with the Act and regulations.• Therefore, the con.
terttiori that the Regional Administrator is without authority
5,
to incorporate portions of the application is rejected.
Similarly, there is no basis for contending, as Ve]$jco]
does, that restating the requirements of the regulations should
be preferred over incorporation of the permit application. The
permit issuer needs to have broad discretionary powers in de-
ciding which of the several approaches to writing permit con-
ditions under S270.32(D) is most appropriate: permits are
issued for many different kinds of hazardous ‘aste facilities,
ranging from those which only store small amounts of hazardous
waste on a temporary basis, to those which are in the business
of disposing of large quantities of hazardous waste on a contjn—
5/ In some cases, the regulations actually direct the Regional
dministrator to incorporate approved plans from the application,
thus depriving the Regional Administrator of ciscretion to do
otherwise. ?or example, 40 CFR 5264.112 (Clos.are Plan)
provides:
(a) The owner or operator of a hazardous waste
management facility must have a written closure plan.
The plan must b. submitted with the permit application,
in accordance with S270.14(b)(13) of this chapter, and
approved by the Regional Administrator as part of th.
permit issuance proceeding under Part 124 of this chapter.
Zn accordance with S122.29 of this chapter, the approved
closure plan will become a cond3tion of any RCRA permit.
-------
S
uous basis. Zn so cases, a restatement of the regulatj
will be sufficient to insure the safe handling of the waste;
in others it will not. Similarly, in some cases Incorporation
of . permit application will be sufficient; in others it
will not. Finally, in some cases it may be necessary to cievise
new language that is tailor—made for the specific circumstances.
Therefore, any suggestion that any single approach to writing
I ,
‘4’permit conditions is preferable in all circumstances is cate—
gorically rejected.
A
The Applicant argues, however, -that even if incorporation
I
is authorized by the regulations, it is bad policy. According
to the Applicant, it results in inflexible permits which will
have to be modified in the future, thus wasting valuable Agency
and applicant resources. This argument also fails to persuade
me that the permit should be reviewed. There is no r•ason to
assume, as the Applicant evidently does, that incorporation will
inevitably produce an inflexible permit needing modification.
I,)
On the contrary, th. outcom. depends in large part on what the
2’
Applicant has submitt•d and on whether the procedures forde-
e — — — _________ —
veloping permits ar. used_effectively, so that unnecessary con-
flicts over the terms and conditions of the permit are minimized.
Based on th. record before me, I am convinced that the Applicant
and the Region have not taken advantage of the permit procedures
-------
6
6/
to avo d the present controversy.
B.
The applicable procedures for permit issuance conteinpiat.
that the permit issuer and th. permit applicant will work t —
- 7/
gether in developing a permit. To that end, the regulations
provid, that if the permit application does not contain the in-
formation required to write a permit, the Regional Administrator
may issue a notice of deficiency. requesting the information
necessary to complete the application. 40 CFR 5124.3(c). After
the application is officially complete. the Regional Admi is—
trator may still request additional information to clarify what
... - has already been submitted. 40 CFR 5124.3(c); and still later,
after the draft permit determination is issued for public comment,
the Regional Administrator may modify th. permit (and r.open the
comment period) if the Region receives comments from the Appli-
cant (or the public) that appear to raise substantial new ques-
tions concerning the permit, 40 CFR S124.14. flaturally, if the
comments indicate that the permit would be contrary to the Act
6/ For much the sam. reason I do not believe that it is necessary
o address the Applicant’s contention that incorporation of major
portions of its application leads to the inclusion of permit eon
ditions that, under 5270.32(b), allegedly are not nec•ssary to
achieve compliance with the Act and regulations. (Emphasis added.)
There is no reason to assume that incorporation inevitably leads
to inclusion of unnecessary conditions. In any •vent, whether or
not a particular condition is necessary can be judged on a case—
by—case basis and corr.cted as appro riate.
7/ See generally , 40 CFR Part 124 (1983).
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7
or th. r.gulations, the Regional Administrator can always
deny th. permit a ]icatio9aft.r proper notice, i Cludi g
circulation of a revised statement of basis) if the Region
lacks the information necessary to make the permit conform to
the law, 40 CFR SS124.3(d) and 124.6(b). In other words, the
regulations provide an o 2.E nity for an exchange of informa-
tion between the Region , the licant, and the
developing th. terms of the permit. In the present case,
however, it appears that neither the Region nor the Applicant
4 took full advantage of this opportunity and the result, as the
( Region concedes, is a permit that contains provisions which are
too detailed or that cover portions of th. facility which are
8/
not directly related to hazardous waste operations.
8/ The Region nevertheless justifies issuing the permit in its
present form on the grounds that it is the Applicant’s responsi-
bility to provide th permit issuer with the information needed
to prepare the permit, and if ths resulting permit is too in-
flexible or embraces matters not properly within the scope of the
regulations, the permit Applicant is at fault, for the permit
merely reflects the information supplied by the Applicant. And
if that information produces an inflexible or overly broad permit,
then the permit Applicant has no one to blame other than itself.
The Applicant’s remedy, according to the Region, is to seek a
modification of th. permit.
The Applicant, on the other hand, responds by pointing out
that it gave the Region the information it requested; that th.
Region is under a duty to prepar, an adequate permit: and that,
regardless of the over or underabundance of the information sup-
plied by the Applicant, the Region is not authoriz.d to put
conditions in the permit that are beyond its authority.
-------
8
For reasons which are not apparent from the record,
9,
the Region did not request clarifying information, — or
issue a notice of deficiency, or reopen th. public comment
period for the purpose of considering modification of the pro-
posed permit or denial of the permit application. The record
does show, on the other hand, that the Applicant did raise its
concerns about inflexibility and overbroadness in its comments
on the draft permit. However, the record also shows that the
Applicant’s comments were not accompanied by the information
which the Region would have needed t chartge the permit so
— 10/
that it would conform to the regulations.
Since the Region concedes that some of the conditions in
the permit are too broad, it is my conclusi rt that the Region
erred when it issued the permit. Given the Region’s stated
willingness to entertain proposals to amend certain permit con-
ditions, the Applicant should be given an opportunity to submit
the information that will enable a permit to be prepared that
is narrower and distinguishes between the A; licant’s hazardous
9/ The Region did request other information from the Applicant
o clarify some of the submitted material, but that request did
not address the matters in question here.
10/ See , for example, 40 CFR S124.13 (Obligaeion to raise issues
ii d provide information during the public comment p.riod). Of
course, it is a settled principle of law that the party who is in
possession of information has the burden of producing it. See
McCormick on Evidence (2d ed. 1972) (A doctrine often repeated by
the courts is that where the facts,with regard to an issue lie
peculiarly in the knowledge of a party, that party has the burden
of proving the issue.).
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9
and n 9 phazardous waste operations, and otherwise conforms to
the regulations. Therefore, I am remanding th. permit to the
Region so that the comment period can be reopened under 5124.14.
thus giving the Applicant another opportunity to submit that
information.
Conclusion
Accordingly, for the reasons stated above, it is my con-
clusion that review of the RCRA permit is not warranted at this
time. The petition for review is denied insofar as it chal-
lenges the Regional Administrator’s authority to incorporate
portions of the permit applicatLen in th. final permit. However,
regarding Applicant’s objection to specific conditions in the
permit. the permit determination is remanded for the purposes
of reopening the comment period to provide an opportunity to
obtain th. additional information needed to revise those permit
11/
conditions. — If the information is not forthcoming and the
Region is, therefore, unable to write a permit that complies
with the Act and the regulations, the Region is instructed to
issue an appropriate notice of its intent to deny the permit.
11/ Of course, only the permit conditions contested in the
plicant’s petition for review will be the sub.ct of the
reopened comment period.
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10
My final permit determination shall reflect the Region’s
response to all eo nents. Ther.after, th. Region’s permit
12/
determination may be appealed in accordanc, with 5124.19.
So ordered.
William D. Rucke1sh ui
Administrator
Dated: SEP14 84
12/ For purposes of judicial review, final Agency action occurs
ilter a final RCRA permit is issued by the Regional Administrator
arid Agency review procedures are exhausted. S . . 40 C!’R 5124.19
(f) (1).
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9524.1985(01)
Mr. Thomas M. Hellinan, Ph.D.
Manager
Health, Safety and Environmental Protection
General Electric
Fairfield, Connecticut 06431
Dear Dr. Heliman:
Thank you for your letter of June 13 regarding RCRA
incinerator permits. Specifically, you inquired as to whether an
incineration facility which is intended to burn non—hazardous
waste and/or hazardous wastes banned from land disposal, but is
overdesigned to meet RCRA requirements, can secure a RCRA permit
at a future time.
RCRA Section 3005(a) and 40 CFR 270.10 prohibit physical
construction of a hazardous waste management facility without a
RCRA permit. When applying this requirement, the intent of the
owner in constructing the facility is the primary factor of
consideration. A permit is required prior to construction if the
owner intends for the facility to handle non—hazardous waste for
a period of time, and them apply for a permit to handle hazardous
waste (including hazardous waste banned from land disposal) at a
later date. If the facility is intended to burn only solid non-
hazardous wastes, a permit prior to construction is not required.
If an incinerator is constructed with the intention of
burning only solid waste and those wastes are listed as hazardous
wastes sometime in the future, the facility would be eligible to
receive a permit provided that all permitting requirements are
met. Such a facility would have to comply with any additional
standards applicable to that treatment process which have been
adopted subsequent to the construction of the incinerator.
RCRA allows an exemption from the requirement to have a
permit prior to construction for facilities constructed pursuant
to an approval issued under section 6(e) of the Toxic Substances
Control Act for the incineration of polychiorinated biphenyls.
any person owning or operating such a facility may file an
application for a RCRA permit to incinerate hazardous wastes
after construction or operation of that facility.
This document has been retyped from the original.
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—2—
We endorse your decision to seek environmentally sound
alternatives to land disposal in your hazardous waste management
strategies. In regard to this issue, I also recommend that you
contact the State RCRA permitting agency since Connecticut is
authorized to issue RCRA incinerator permit. For further
information, please contact:
Stephen Hitchcock
Hazardous Material Management Unit
Department of Environmental Protection
State Office Building
165 Capitol Building
Hartford, Connecticut 16106
If we can be of further assistance, please contact Art
Glazer of my staff at (202) 382—4692.
Sincerely,
John Skinner
Director
Office of Solid Waste
cc: Stephen Hitchcock, Connecticut
Dennis Huebner, Region I
This document has been retyped from the original.
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9524.1988 (01)
,
, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON 0 C. 20460
1
O ,CE oc
SCL WA.,TE L’ L E%,aERC-E ,
FEB 23988
Ms. M. Therese Yasdick
Environmental Counsel
Chemical Waste Management, Inc.
3303 Butterfield Road
Oak Brook, Illinois 60521
Dear Ms. Yasdick:
This is in response to your letter of November 24, 1987 in
which you requested clarification of the reporting requirements
of section 270.30(l)(lo) of the RCRA regulations. As you know,
that section, on its face, requires permittees to report all
instances of non-compliance not reported under other paragraphs
of section 270.30.
In your letter, you raised the concern that this
requirement, read literally, would require owners and operators
to notify EPA of every instance of non-compliance, however
trivial. You suggested, instead, that the Agency adopt three
specific criteria for when reporting would be required under
section 270.30(l)(j.O). You expressed concern that, if the
Agency failed to adopt those criteria, the result would be an
unnecessary burden on industry and a chilling effect on internal
environmental audit programs. After careful review of your
suggestions and concerns, we agree that there are certain
instances of non-compliance with permit conditions that do not
warrant reporting under section 270.30(l)(lO). However, we
believe these are limited to minor facility recordiceepjng,
reporting, and similar oversights that are immediately corrected
once discovered. We further agree that the reporting
requirements of this section are limited to non-compliance only
with permit conditions and not to other Federal, State, or local
requirements. We have addressed individually below the criteria
you suggested and the concerns you raised about application of
the reporting requirements of section 270.30(l)(lo).
First, you suggested that reportable instances of
non-compliance should be limited to violations of 40 CFR Part
264. we do not believe, however, that reporting requirements
sheuid be limited in this rp r. .fiGfl2 permits may g ntain
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2
provisions that do not extend from the regulations of Part 264
yet are extremely Significant. For example, the omnibus
provision of section 3005(c)(3) of RCRA allows the Agency to
impose such permit conditions as it determines are necessary to
protect human health and the environment. Conditions imposed
under this provision might fall Outside of the scope of Part 264
but would also, by definition, be significant. Violations of
those provisions would likely be significant as well and would
require reporting under section 270.30(l)(lO). Similarly,
violations of air emissions standards, which have been proposed
under 40 CFR Part 269, also may be significant. On a related
point, you asked whether section 270.30(l)(lO) requires
reporting of any non—compliance with any other Federal or State
requirements that are not part of the RCRA permit. We do not
believe that is the intent of section 270.30(1)(lO). Other
subsections of section 270.30(1) refer to reporting of
non-compliance with termit reauirements . For example, section
270.30(l)(2) requires reporting of anticipated activities that
might result in “non—compliance with permit requirements.” The
reference to “non—compliance” in section 270.30(l)(l0) is
intended to be the same; that is, it refers to non-compliance
with the permit requirements.
Second, you suggested that instances of non-compliance
reportable under section 270.30(l)(l0) should be limited to
instances that “significantly and adversely affect the sound
environmental operation of the facility.” We disagree with this
suggestion on the grounds that the standard is overly
subjective. Furthermore, the purpose of the reporting
requirement is not simply to identify specific instances of
non-compliance leading to actual harm, but rather to indicate
overall records of compliance and patterns of non-compliance.
This end would not be served if reporting were limited to
instances of non—compliance that met the suggested standard.
Finally, you suggested that all reportable instances of
other non-compliance should exclude matters discovered and
addressed by an internal environmental audit program. You
expressed concern that a literal interpretation of section
270.30(l)(1O) would I ave a chilling effect on internal
environmental audit programs and pointed out that the Agency’s
policy on environmental audits acknowledges industry’s need to
“self—evaluate environmental performance with some measure of
privacy” (51 FR 25004). However, that policy also states that
“audit reports may not shield monitonng, compliance, or other
information that would otherwise be reportable and/or accessible
to EPA” (id). Further, it explicitly states that the policy
“does not alter regulated entities’...obligations to monitor,
record, or report information required under environmental
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3
statutes, regulations, or permits... (id). Therefore, while
the Agency encourages and supports environmental auditing, it
does not support the use of environmental audits to shield
otherwise reportable violations. At the same time, the Agency
believes that its enforcement policies do in fact provide a
strong incentive for environmental audits by facility owners or
operators. In the gr ]. R aister notice announcing its policy
on environmental auditing, the Agency noted that while
environmental auditing cannot substitute for regulatory
oversight, it can help facilities become subject to less
regulatory action by helping them improve their performance.
For this reason, we do not believe that the reporting
requirements of section 270.30(l)(lO) will have a chilling
effect on environmental auditing.
Although the Agency believes that the specific criteria
that yc suggest are inappropriate, we acknowledge that
re;uir ng nctificat c f.r every instance of pcrtit
non—compliance, however trivial, Could be extremely burdensome,
both to the facility owner or operator and to EPA, without
providing significant benefits. The Agency did not intend such
a result in section 270.30(l)(]O). Instead, we believe that
this reporting requirement should not apply to minor
recordiceeping, reporting, and similar oversights that are
immediately corrected once discovered. Under this
interpretation, violations such as the example you cited in your
letter, that is, failure to put the time of an inspection on an
inspection form, need not be reported. Also fitting into this
category would be failure to maintain all aspects of personnel
training plans up to date and minor deviations from time
deadlines, such as time for submission of biennial reports. The
Agency believes, however, that even seemingly insignificant
violations become significant if repeated. Therefore, it should
be noted, that if a violation meeting the above criteria is part
of a repeating pattern, reporting is required.
I hope this clarification of the reporting requirements of
section 270.30(l)(l0) answers your questions about its
application and alleviates your concerns about unnecessary
burden to industry imposed by that section. If you have any
questions on this issue, please contact Frank McAlister of the
Office of Solid Waste (202) 382-2223.
Since ely,
,Act j1g,4 i ctor
£ Off of Solid Waste
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9524.1989(Qj)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D C 20460
94,
‘L
FEB 27
C C ICE O
SOL %.r.STE Al Q EMERCE .C RESPC. .SE
MEMORANDUM
SUBJECT: Use of Omnibus Authority to Control Emissions of Metals, HC1,
and PICs from Hazardous Waste Incinerators
FROM: Sylvia K. Lowrance, Directorj\ 1 i
Office of Solid Waste
TO: Hazardous Waste Division Directors, Regions I-X
Questions have recurred regarding the implementation under omnibusauthority of
the forthcoming proposed amendments to the hazardous waste incinerator standards, and
the relationship between implementing the controls and meeting the November 8, 1989,
permitting deadline. This memorandum provides OSW’s policy on these issues.
We are concerned that the existing standards for hazardous waste incinerators under
40 CFR 264.340 may not be fully protective for all facilities with respect to emissions of
toxic metals, hydrogen chloride (1-IC !) and products of incomplete combustion (PICs). We
have developed proposed amendments to the standards to better address the hazards posed
by these emissions. The proposed rules have completed the internal Agency review
process and are under review by the Office of Management and Budget. We anticipate that
the proposed rules will be published for public comment in the spring of 1989.
In the interim, until the rules are promulgated, EPA permit write s should use the
authority provided under Section 3005(c)(3) of the Resource Conservation and Recovery
Act (RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984
(HSWA), to apply additional permit conditions as necessary to adequately control these
emissions. This provision, often called the “omnibus” authority, gives permit writers the
authority to apply additional permit conditions as necessary to adequately protect human
health and the environment. Thus, EPA permit writers have the authority and the
responsibility to consider, on a case-by-case basis during the permit process, whether
controls based on the current regulations are fully protective, and, if not, to establish
additional p mir conditions as necessary top human health and the environment.
The use of the omnibus authority is clearly within the initial intent of Congress in
including the omnibus provision in the statute, as evidenced by the legislative history at S.
Rep No. 284, 98th Cong., 1st Seas. 31(1983), which states:
“ [ the omnibus authority] can also be used to incorporate new or better
technologies or other new requirements in permits, where EPA intends to
add such technologies or requirements to the regulations but has not yet
issued a final regulatory amendment.”
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Guidance Documents
To assist permit writers, we have developed two guidance documents: Guidance on
\ teta!s and Hvdro en Chloride Controls for Hazardous Waste Incinerators , December 29.
1988 (Draft final report); and Guidance on PlC Controls for Hazardous Waste Incinerators .
December 30, 1988 (Draft final report). These guidance documents recommend a step-by-
step approach to develop permit conditions consistent with the regulatory requirements the
Agency plans to propose. We recommend that permit writers use the guidance documents
to develop appropriate permit conditions. However, in using the guidance documents or
other information to establish permit conditions under the omnibus authority, the permit
writer must provide the applicant and other interested parties due process. The permit writer
must explain arid document what the concern is, and thoroughly discuss why the additional
permit conditions are needed to ensure protection of the public health and the eflvronment.
Through the permit process, he must provide the time and opportunity for comment, he
must fully respond to those comments, and he must include the responses in the
administrative record of the permit. In short, the permit writer must provide a sound
technical basis for inclusion of the permit conditions under the omnibus authority.
Permit writers need not wait to use OSWs guidance documents until the documents
have been issued in final form. Like the proposed rules, the guidance documents have
completed the internal Agency review process. We anticipate that the documents will be
published in the spring of 1989, and made available through the National Technical
Information Service. Permit writers should use the guidance notwithstanding its draft status
because, as indicated above, the permit writer must justify thoroughly and, in writing, any
requirements applied under the omnibus authority.
The permit writer cannot simply refer to the guidance document to support the
conditions included in the permit. Moreover, we anticipate that the guidance may change
over time as permit writers and applicants gain experience dealing with the issues and as
additional information becomes available (e.g., health effects data; improvements in
dispersion models). We plan to revise the documents as needed after publication and to
provide notice in the Federal Register of the availability of subsequent editions.
By considering the need for additional conuols under the omnibus authority on a
case-by-case basis, permit writers can avoid petitions from interested parties asserting that
the permit is not adequately protective. The Mzninisrrazor has already ruled in favor of a
petition for review of a RCRA incineration permit that argued, in part, that adequate con ols
on metals and P lC emissions were not provided in the pemñt . The Administrator
subsequently directed the Region to consider adding permit conditions addressing PICs and
metals.
State Permit Writers
We encowage State permit writa to implement the guidance if the State has an
omnibus authority in its statute. EPA permit writers should review the draft State permit to
determine if it adequately protects human health and the environment, particularly with
respect to emissions of metals, hydrogen chloride, and PICs. If the State permit does not
provide adequate con ols, the EPA perui t writer should provide these controls in the
HSWA portion of the permit, given that the omnibus authority is a HSWA provision.
HSWA provisions musi be implemented by EPA in authorized States until the State obtains
authorization for HSWA provisions as well. To date, only one State, Georgia, has been
authorized under HSWA.
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Impact on Permirnn Deadline
We do not believe that considering the need for additional controls for metals, HCI.
and PLC emissions during the permit process will cause the Regions or States to miss the
November 8, 1989, permitting deadline established by HSWA. We developed the guidance
documents to enable the permit writer to apply appropriate controls on a site-specific basis
and to explain to interested parties the need for those controls. in addition, we have
conducted four training workshops for Regional and State permit writers on how to use the
guidance documents. Finally. Headquarters staff in the Combustion Section, WMD, and
the Alternate Technology and Support Section, PSPD, are available to assist permit writers
as necessary. Limited conu aczor funds are also available to handle special problems that
may anse.
Some permits, however, may have already progressed to a stage where issuance of
the permit would be substantially delayed if a thai burn was required to demonstrate
conformance with the metals and PLC controls recommended by the guidance documents.
Examples are when the trial burn has already been conducted or where the thai burn plan
has been approved. In these cases, the guidance documents recommend that permit writers
esublish conservative, but reasonable, interim controls until the owner or operator conducts
a trial burn to demonstrate that the intenm requirements (or less stringent requirements) will
not result in an exceedance of the limits recommended by the guidance documents. Methods
for determining these interim limits are presented in the guidance documents. In applying
these interim controls, however, the permit writer must still thoroughly explain in writing
the basis for imposing such conditions and provide interested parties due process through
the RCRA permit procedures.
Nonetheless, if a State believes that it may not be able to meet the November 8,
1989, permitting deadline because of the policy on implementing connols on metals, HCI,
and PlC emissions, the State should discuss the situation with the Regional Office. If site-
specific guidance is needed, the Regional Office may discuss the situation further with
Joseph Carra. Director, Permits and State Programs Division.
cc: State Hazardous Waste Division Directors
Incinerator Pemut Writers’ Workgroup
Jeffety H. Denit
David Bussard
Robert Tonetti
Joseph Cam
Steven Silverman
James Berlow
Bob Holloway
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9524.1989(02)
P4iR2
_____
MEMORANDUM
SUBJECT: Ecolotec Permit Remand Order and Use of the Omnibus
Provision
FROM: Joseph S. Carra, Director
Permits and State Programs Division
TO: B. G. Constantejos, Director
Waste Management Division, Region V
This memorandum is in response to your request of January 9,
1989 for guidance on the use of the Agency’s omnibus authority
under section 3005(c) (3) of RCRA and 40 CFR 27O.32(b)(2). As
you stated in your memorandum, the Administrator signed a Remand
Order on the Ecolotec RCRA permit appeal that directs the Region c
to reconsider its decision in light of the Agency’s omnibus
authority. You expressed concern that the Remand Order could
have significant implications for the RCRA permitting process by
broadening substantially what the Agency must Consider in
connection with permit issuance. You then posed several.
questions about use of the omnibus authority in light of the
Ecolotec appeal decision.
We understand your concerns about the uncertainty that
omnibus authority creates in the permit process. However, we
believe that the Remand Order of the Ecolotec permit appeal
should not have any substantial impact on what the Agency must
consider in connection with permit issuance. The Remand Order
instructs the Region to reconsider the Ecolotec permit because
the Region failed, in making the original permit decision, to S
recognize the Agency’s authority under the omnibus provision to
deny a permit. As stated in the decision, “(t]he Region is
simply directed to reconsider the facility and the permit under
the proper legal perspective, j ., one that includes denial of
the permit....” We do not believe that the Order should be
interpreted to criticize the manner in which the Region used the
omnibus authority to impose permit conditions. In fact, the
Order specifically states that Region V recognized and properly
exercised its discretion under the omnibus provision to imbose
permit terms on Ecolotec beyond those required by EPA
regulations. Nor does this Order reduce the ability of the
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—2—
Region to rely on the Federal regulations as establishing the
appropriate level of human health and environmental protection,
as long as there are no site-specific circumstances that
indicate otherwise.
We address below the questions that your memorandum raises
about the omnibus authority.
1. How broad is the Agency’s authority to gather information
not reauired by the reaulations ?
Under §270.10(k) of the RCRA regulations, the Agency has
broad authority to require information from permit applicants
concerning permit conditions issued under §270.32(b)(2) (the
omnibus provision) when necessary to protect human health and
the environment. The Agency discussed the extent of this
authority in the preamble of the Final Codification Rule
published on December 1, 1987 (53 FR 45788). That preamble
states that, while the authority to collect information under
§270.10(k) should be used sparingly and not for random and
unjustified fishing expeditions or for conditions unrelated to
hazardous waste activities, it can otherwise be used in specific
circumstances where existing regulatory requirements may require
supplementation to ensure that human health and the environment
are adequately protected.
2. Will we be reauired to conduct risk assessments at everv
site Drier to Dermit issuance ?
The omnibus provision does not impose an obligation on the
Agency to conduct risk assessments at every site. Further, as
discussed above, we do not believe that the Remand Order on the
Ecolotec appeal requires the Agency to routinely gather
additional information when issuing a permit or to routinely go
beyond the regulatory standards. The Agency continues to be
required to examine all relevant data and information that are
available when issuing a permit. If, based on this normal
quantum of data, the Agency determines that site-specific
circumstances exist that require further investigation, then
additional information may be gathered from the applicant under
the authority of §270.10(k).
3. When is use of the omnibus Drovision aDDropriate ?
As a rule, the Agency’s position is that EPA’s regulations
are protective of human health and the environment and that
permits implementing these regulatory standards will also be
protective. As you know, however, there may be site—specific
environmental circumstances in which regulatory requirements may
need supplementation and use of the omnibus provision may be
appropriate. The decision to invoke omnibus authority must be
made on a case—by—case basis and only when the Agency, after
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—3—
examining all relevant data supplied during the permitting
process, determines that such Circumstances exist. The most
Obvious use of the omnibus authority is to impose additional
permit conditions reflecting stanc3ards that have been proposed
but are not yet in effect. Another use of the omnibus might be
to impose permit Conditions not required by the regulations but
detailed in guidance documents issued by the Agency. This
latter example is not, however, a broad directive to turn
guidance into regulatory requiremen • Rather, it would be most
appropriate when guidance specifically identifies particular
situations where current generic regulations might need to be
supplemented. In any case, while there will be other
circumstances in which the omnibus authority can and should be
used to impose permit conditions or deny permits, such
situations should be UnCOmmOn.
4. What are the legal limits of the omnibus Drovision i.e.. do
we have authority to deny a Dermit even though the facility has
submitted a comDlete and technically adeguate apD].ication ?
In the preamble of the July 15, 1985 Codification rule, the
Agency clearly stated that in order for the omnibus authority to
accomplish its intended effect, the authority to issue permits
containing conditions deemed necessary to protect human health
and the environment must encompass the authority to deny permits
as well. The Agency further discussed the legal limitations of
our omnibus authority in the preamble of the December i, 1987
Second Codification rule. There, the Agency pointed out that
the intent of the provision includes authorization to impose
permit conditions beyond those mandated by the regulations.
Thus, even if a facility submits a permit application that is
complete and technically adequate as defined by EPA regulations,
if due to environmental circumstances at the facility,
compliance with the regulations will not assure protection of
human health and the environment, and the Agency cannot impose
additional Conditions that will provide adequate protection,
then the Agency can and should invoke omnibus authority to deny
the permit.
I hope this answers any questions you might have about the
effect of the Ecolotec Remand Order on use of the omnibus
provision. If you have any further questions, please contact
Barbara Foster at FTS 382—4751.
cc: Tina Kaneen
Lisa Pierard
Waste Management Division Directors, Regions i-iv, vi-x
Barbara Foster
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9524.1989(03)
MEMORANDUM
SUBJECT: Postponement of a Land Treatment Demonstration for
Navajo Refining Company, Artesia, New Mexico
Authorized by the New Mexico Environmental
Improvement Board
FROM: Joseph S. Carra, Director
Permits and State Programs Division (05-300)
TO: Allyn M. Davis, Director
Hazardous Waste Management Division (6H)
This memorandum is in response to your request of December
29, 1988 for guidance on certain permitting issues related to
land treatment facilities. You mentioned that the questions
arose because the New Mexico Environmental Improvement Board
delayed the start date of a land treatment demonstration for an
interim status land treatment unit owned by Navajo Refining
Company. As you explained in your memorandum, the postponement
occurred as follows:
1. On January 22, 1988, the State of New Mexico issued a
two-phased permit to the facility in which it required
that the land treatment demonstration phase (Phase I) be
effective for a period of one year from the effective date
of the permit unless terminated, revoked, or reissued.
2. On March 22, 1988, Navajo Refining Company appealed the
state-issued permit and requested a novo hearing,, which
was held on May 31, 1988. In its appeal, Navajo Refining
submitted Proposed Findings and Reasons which alleged that
the Board has the authority to reverse a decisions of a
Director under various circumstances. Navajo suggested
that the Board change the start date of the treatment
demonstration Phase I period to a later date.
3. On August 12, 1988, the Board considered the appeal and
tentatively decided to postpone the start date of the land
treatment demonstration until August 8, 1990. EPA stated
its opposition to delaying the demonstration, but the
Board nevertheless rendered its final decision to postpone
the start date of the Phase I land treatment demonstration
until August, 1990.
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—2—
You asked several questions about the status of the facility
and the state appeal. Because New Mexico is an authorized
State, your questions are governed by New Mexico law, and we
have no reason to comment on state law matters. In addition,
most of your questions appear to be of a generic nature about
land treatment demonstrations and permitting. We have answered
your questions in a similarly non-facility-specific vein,
assuming that federal law is applicable. We emphasize that our
comments do not analyze the Navajo Refining situation as a
matter of applicable state law.
1. Can a permit be appealed based on reasons other than those
received during the public comment period?
Yes. Section 124.19 of the RCRA regulations governs who may
appeal a RCRA permit under federal law. That section provides
that any person who filed comments on a draft permit or
participated in the public hearing may petition the
Administrator to review any condition of the permit decision.
Section 124.19 does not limit the subject matter of the appeal
unless the person failed to file comments or participate during
the public hearing on the draft permit, in which case the
person may only petition for review to the extent of the
changes from the draft to the final permit decision. Note,
however, that New Mexico state law could differ significantly
from §124.19.
2. Is the permit a legally enforceable document if it does not
require the land treatment demonstration until a future date?
Under federal regulations at §270.63, the Agency may issue a
two-phase facility permit, such as the permit issued to Navajo
Refining, to a facility with a land treatment unit. Such a
permit becomes effective, thus enforceable, according to the
procedures in Sl24.l5, that is, 30 days after issuance unless a
later date is provided in the permit or the permit is
appealed. Under federal law, the effective date of a treatment
demonstration phase would not affect the effective date of the
facility permit.
3. can a permit be issued for Phase II without Phase I being
implemented first?
Yes. As discussed above, the federal regulations at S270.63
provide for issuance of a two—phase permit to a facility with a
land treatment unit. Such a permit normally contains general
facility standards and two portions related to the land
treatment standards of Subpart M. The first portion, Phase I,
provides for the treatment demonstration; the second, Phase II,
contains conditions to attempt to meet all Subpart M
requirements based on substantial, yet incomplete or
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—3-.
inconclusive information submitted in Part B of the permit
application ( see §270.63(b)). As is disscussed above, all
portions of the permit are issued at once, and the “facility”
permit becomes effective per S124.l5. The Phase I portion
becomes effective as provided in the permit. The Phase II
portion becomes effective only after the Phase I treatment
demonstration is completed and, based on the results of the
Phase I treatment demonstration, all necessary permit
modifications are made per §270.63.
4. What is the regulatory status of a facility when a
two-phase permit is issued under §270.63?
Under federal law, a facility is “permitted” once the permit
goes into effect. At that time, the facility becomes subject
to general facility standards under Part 264 as well as
corrective action provisions of the permit. The land treatment
unit is subject to the standards of Part 264 insofar as it is
used for the treatment demonstration, the remainder of the unit
complies with interim status Standards until Phase II of the
permit goes into effect pursuant to S270.63(d.
5. Can EPA require a treatment demonstration through the HSWA
omnibus provision?
At the time that the HSWA portion of the permit was issued, the
Agency could have required a treatment demonstration using
omnibus authority if such a requirement were necessary to
protect human health and the environment. However, whether the
omnibus authority is appropriate for use after initial permit
issuance, such as when a permit is renoticed as a result of
changes made in response to an appeal, is an issue still under
consideration by EPA at this time.
6. Is a State’s administrative process for changing a permit
to reflect a different start date for the land treatment
demonstration subject to major modification requirements
including public notice and opportunity for comment?
The State’s administrative process is a matter of state law.
Under federal law, any change made as the result of an appeal
decision need not be made as a permit modification because the
contested portion of the permit has not yet become a final
permit decision under S124.15. However, if the change is
substantial, then public notice and opportunity for comment may
be advisable. Once the permit becomes effective, any change to
it must be made as a permit modification. If the State has
procedures similar to the previous federal major/minor
modification system, a change of the start date for a land
treatment demonstration would likely be a major modification
and subject to public notice and comment.
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7. Can EPA prompt a State to require the land treatment
demonstration by providing comments pursuant to S271.19 if and
when the State opens the permit for a major modification that
proposes a delayed start date?
Comments under §271.19 are intended to assure that a state
permit meets authorized state law permitting Standards, we
should comment pursuant to §271.19 if the state modification
does not comport with authorized state law. On the issue of
delaying treatment demonstrations at interim status land
treatment units, as a matter of federal policy we do not favor
delayed start dates, particularly since Congress clearly
indicated that land disposal units should be under permitting
standards by November of 1988. Therefore, it is appropriate
for us to file comments urging the State not to allow the
delay. However, if the delay is permissible under authorized
state law, and the State chooses to exercise its discretion
under authorized state law and allow the delay, our comment
cannot by itself support enforcement action under §271.19 as
there will be no violation of law to enforce. it is the law
that our comment identifies, not the comment itself, that
imposes obligations with which facilities must comply. It
should be noted that unwarranted delays in implementing
permitting standards could result in a state program that is
less stringent than the federal program.
I hope this information about federal law related to land
treatment facilities helps to answer your questions about the
Navajo facility. If you have any further questions, please
call Barbara Foster at FTS 382-4751.
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tO S?4,
j UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/ WASHINGTON. D.C. 20460
9524.1994(01)
JUL 19 1994
SOLID WASIF AND EMERGEN:Y RESPONSE
Mr. Keith E. Coltrain
Ogletree, Deakins, Nash, Smoak & Stewart
4101 Lake Boone Trail
P.O. Box 31608
Raleigh, NC 27622
Dear Mr. Coltrain:
This is in response to your letter of June 21, 1994
addressing EPA’s current interpretation of the reporting
requirements of 40 CFR S270.30(l) (10), as discussed in Jet fery
Denit’s February 23, 1988 letter to Chemical Waste Management,
Inc. Your letter also presents five scenarios, and asks whether
these situations involve reportable non-compliance pursuant to
S270.30(1) (10).
Mr. Denit’s letter remains-as the current Agency
interpretation regarding a permittee’s obligation to report
non-compliance with RCRA permit conditions as specified in
§270.30(1) (10), which requires the permittee to “report all
instances of non—compliance not reported under paragraphs (1),
(4), (5), and (6) of this section”. We believe that this
regulation generally does not apply to minor recordiceeping,
reporting, and similar oversights that are immediately corrected
once discovered. The Agency believes, however, that even
seemingly insignificant violations become significant if
repeated. Therefore, it should be noted that if a violation
meeting the above criteria is part of a repeating pattern,
reporting is required. The non-compliance reports under this
provision do not have to be submitted immediately, but are to be
included the next time the• facility submits monitoring reports to
the regulatory agency.
We have reviewed the five scenarios presented in your letter
(see attachment). Because each instance of non-compliance must
be addressed on a case—by-case basis in view of all the facts, a
final decision as to whether these situations constitute
reportable non-compliance cannot be made without additional
information. With the information you provided, it is difficult
to tell if the described incidents are one-time occurrences of
minor significance, or if they are a part of a larger pattern of
non-compliance. In addition, such site—specific issues are more
appropriately made by the State or EPA Regional permitting
authorities. However, based on..the limited information provided;
-------
our judgment is that the scenarios 1, 2, 4, and 5 probably
involve reportable non—compliance.
The situations presented in scenarios 1, 2, and 5 appear to
directly involve hazardous waste management activities. These
situations might indicate potential flaws in waste handling
procedures. The requirement to report non-compliance assures
that the Agency is notified of and can assess compliance problems
at a particular facility. In addition, reporting non—compliance
creates a strong incentive on the part of the peraittee to
institute mechanisms to prevent recurrence of non-compliance. It
is important that these mechanisms be developed, especially for
substantive waste management requirements. The scenarios
presented do not appear to fit within the narrow exception for
“minor recordkeeping, reporting, and similar oversights.”
Scenario 4 raises questions regarding on-site safety. No
information is provided about the identity of missing items, but
if items identified in a contingency plan are missing, it may not
be possible to implement the contingency plan fully. The failure
to have on-site all equipment required in a peraittee’s
contingency plan does not appear to be a minor recordkeeping or
reporting oversight. Note that contingency plans are often
written to allow replacement and maintenance of emergency
equipment, and such routine maintenance vouid not trigger
reporting requirements.
Scenario 3 involving a fallen sign appears to be a general
facility maintenance concern. Unless this is a recurring
situation, and assuming this problem was immediately corrected,
this probably would not be reportable non-compliance.
I would like to reemphasize that additional information
would be necessary to make a complete evaluation. Overall, we
believe that the exception from the requirement to report all
non-compliance is a narrow one for rare individual instancesof
non-substantive violations. When in doubt, a facility should
report any non-compliance.
Thank you for the opportunity to respond to your requests
concerning reportable non—compliance. If you have any questions,
please contact Jeffrey Gaines at (703) 308-8655.
Sincerely,
uLp-’ MichaØ )ShapirO, Director
office of Solid Waste
Attachment
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LAW OFFICES
OGLETREE, DEAKINS, NASH, SMOAK & STEWART
4101 LAI E BOONE TRAIL.
POST OFFICE BOX 31608
RALEIGH, NORTH CAROLINA 27622
TELEPHONE (919) 787-9700
FAX (919) 783-9412
OTHER O FICCS
GRECNVILI.C SOUTH CAROLINA
WASHINGTON. 0 C
ATLANTA GEORGIA
COLUMBIA SOUTH CAROLINA
June 21, 1994
ALBANY NEW YORR
Michael Shapiro
Director, Office of Solid Waste
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, DC 20460
RE: Scope of Duty to Repoil Noncompliance
Under 40 CFR §270.30(l) (10)
Dear Mr. Shapiro:
I am writing to request EPA’s current interpretation of the reporting requirements of 40
CFR §270.30(l)(1O). That regulation requires permitted facilities “to report all instances of
noncompliance not reported under other paragraphs.”
To date, I have found only a 1988 letter (copy attached) from Jeffery D. Denit, Acting
Director, Office of Solid Waste, addressing the scope of 40 CFR §270.30(1)(10). In that letter,
Mr. Denit states that Section 270.30(l)(l0) should not apply to minor oversights that are
immediately corrected once discovered.
I am seeking your confirmation that the 1988 letter still reflects EPA’s current
interpretation of 40 CFR §270.30(1)(10). I would also appreciate copies of any more recent EPA
guidance documents or letters interpreting the requirement to report other instances of
noncompliance. Specifically, has EPA defined in any way what instances of noncompliance are
not reportable because they were “immediately corrected once discovered?” Has EPA defined
what constitutes “immediate correction?”
In order to put this request in more concrete terms, I have drafted five (5) questions for
you to consider. We request the Agency’s position on whether any of these situations would be
reportable noncompliance pursuant to 40 CFR §270.30(l)(10):
-------
Michael Shapiro
Director, Office of Solid Waste
U.S. Environmental Protection Agency
June 21, 1994
Page 2 of 2
Thank you for your attention to this matter. I look forward to hearing from you.
Yours truly,
OGLETREE, DEAKINS, NASH,
SMOAK AND STEWART
keith E. Coltrain
Enclosure
jIg wp5 1\*4Uetters epainter.Itr
-------
OUEST!ONS
40 CFR §264.315 requires that containers must be crushed, shredded or similarly
reduced in volume to the maximum practical extent before burial in a landfill. The
landfill operator deposits a bulk load of waste directly into the landfill and then discovers
several containers entrained in the load. Those containers were empty and had not been
crushed or shredded. The operator removes the containers, crushes them or fills them
with inert material and returns them to the landfill. If this reportable noncompliance?
2. 40 CFR §264.3 14 requires that placement of bulk liquids containing free liquids in a
landfill is prohibited. The landfill operator deposits a bulk shipment directly into the
landfill and observes a small amount of liquids. The operator immediately absorbs the
liquids. Is this reportable noncompliance?
3. 40 CFR §264.14 requires a warning sign to be posted at various locations. The facility
operator posts such sign but later discovers that one sign is not visible because it has
fallen to the ground. The operator replaces the sign. Is this reportable noncompliance?
4. 40 CFR §264, Subpart D requires the owner or operator of a hazardous waste facility
to have a contingency plan for his facility. In reviewing the contingency plan, the
operator discovers that certain items listed in the plan have been used and are not on-site.
The owner orders and obtains replacement items before the contingency plan is
implemented. Is this reportable noncompliance?
5. 40 CFR §264.173 requires that containers holding hazardous waste must always be
closed during storage, except when it is necessary to add or remove waste. The owner
inspects the container storage area daily. On Monday he notes all containers are closed.
On Tuesday, he discovered a partially opened container and immediately closes it. Is
this reportable noncompliance under 40 CFR §270.30(l)(lO)?
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This Page Intentionally Left Blank
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9525 - CHANGES
TO PERMITS
Part 270 Subpart D
ATK1/1104/S9Icp
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9525. 1982 (01)
January 29, 1982
MEMORANDUM
SUBJECT: Proposed Mechanism for Handling Mobile Treatment Units
FROM: John H. Skinner
Director, State Programs
and Resource Recovery Division (WH-563)
TO: Howard Zeller
Acting Director
Enforcement Division, Region IV
This is in response to your memorandum of September 25,
1981, requesting concurrence with your proposed mechanism to
handle mobile treatment facilities.
We agree with Region I v’s interpretation of the regulations,
that interim status and RCRA permits are site specific and
therefore, mobile treatment units alone cannot receive permits
(or interim status) but must be permitted (or receive interim
status) for use at a particular location. We have written at
least one letter to that effect. (See letter from John Skinner
to Timothy Vanderver of Chemf ix Technologies, Inc. dated June 2,
1981, sent to the Regions on that date).
The following approach, which is somewhat similar to the one
suggested in your memorandum, will enable mobile treatment units
to operate within the scope of the RCRA program. This approach
has been developed after meeting with several mobile treatment
companies. We have divided the approach into the following four
situations:
(1) Non-emergency situations at a site which has
interim status;
(2) Non—emergency situations at a site which has a
RCRA permit (e.g., periodic use of mobile
treatment units during the operating life of the
facility, use at closure);
This document has been retyped from the original.
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—2—
(3) Non—emergency situations at a site which does not
have interim status or a RCRA permit (e.g.,
remedial actions at inactive sites);
(4) Emergency situations (e.g., spills, emergency
response).
(1) Non—emergency situations at a site which has interim status
This approach would enable a mobile treatment unit to
operate during interim status under one of three alternatives.
(Alternative (C) will be proposed soon as an amendment to 40
C.F.R. §122.23, changes during interim status).
(a) An interim status facility which intended to use mobile
treatment equipment, but did not include it in the original Part
A permit application, may amend its Part A application to include
the mobile treatment process. The Agency would treat these
facilities as it would any facility which submitted an incomplete
Part A permit application. The only requirement is that the
equipment must have been in existence on or before November 19,
1980,1 and the facility must have qualified for interim status.
(b) Mobile treatment may be added to a facility as a new
process or an increase in the design capacity of an existing
process under the allowable changes during interim status, 40
C.F.R. S122.23(c)(2) or (c)(3). Under these sections, a mobile
treatment unit may be added to a facility if it is necessary
either to prevent a threat to human health and the environment
because of an emergency situation; to comply with Federal
regulations or state and local laws; or because of a lack of
available treatment, storage, or disposal capacity at other
facilities. It should be noted, however, that these sections
will change with the amendment to §122.23.
11 Because mobile treatment units are unique in that they are
used intermittently at different sites, they will be considered in
existence if they were operating at any site on or about November
19, 1980. Normally, a unit would have to be operating on or about
November 19, 1980, at a site which qualified for interim status to
be considered in existence.
This document has been retyped from the original.
-------
—3—
(C) The proposed amendments to 122.23(c) will include a
section which will allow interim status facilities to add tanks
and containers used for the treatment or storage of hazardous
waste. Such tanks and containers may be added for any reason,
whether or not the facility previously had tanks or containers,
or any treatment or storage process. The facility must have
qualified for interim status, however. This amendment, if
promulgated as proposed, will enable most interim status
facilities to add mobile treatment done in tanks or containers to
their facilities.
(2) Non—emergency situations at a site which has a RCRA permit
A mobile treatment unit may be added to a permitted facility
under §122.15 as a permit modification. Section 122.15(a) (1)
allows a permit to be modified, or revoked and reissued when
substantial alterations or additions to the permitted facility or
activity occur.
We will be proposing amendments to §122.17 which, in some
limited circumstances, may allow the addition of mobile treatment
units to be considered minor modifications to a facility.
(3) Non-Emergency situations at a site which does not have
interim status or a RCRA permit
Our approach is to require a permit before a mobile
treatment operator may begin operation at a non—emergency site
which does not have interim status or a RCRA permit. In most
situations where the mobile treatment company is handling the
clean-up, it will be considered both owner (of the equipment) and
operator, and must apply for a permit. If there is another owner
involved as well, e.g., owner of the land, that owner may also
have to sign the permit application.
(4) Emergency Situations
There are two emergency mechanisms already in place in the
RCRA regulations. First, storage or treatment done in immediate
response to a spill of hazardous waste may occur without first
obtaining a RCRA permit. (See 40 CFR §264.1(g) (8), 45 FR 76630,
November 19, 1980).
Second, there is a provision for an emergency permit in 40
CFR §122.27. This is a temporary permit to be used in the event
that treatment, storage, or disposal of hazardous waste must take
place due to an emergency situation.
This document has been retyped from the original.
-------
—4—
Your concept of a generic permit would allow the mobile
treatment operation itself to obtain a permit, and then require
public notice before the mobile treatment operation is used at
each individual site. The concept is obviously a departure from
the present RCRA scheme of site specific permits. We will look
into this suggestion further. In the meantime, the approach
described in this memorandum must be used.
We would appreciate any comments you have on our approach to
handling mobile treatment units. If you have further questions
or comments, please contact Deborah Wolpe at (202) 755-9107.
cc: Directors, Air & Hazardous Materials Division, Regions I,
III—x
Director, Water Division, Region II
James Bunting
Martha Prothro
Dotz Darrah
This document has been retyped from the original.
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9 525.1984(01)
RCRA/SUPERFUND HOTLINE ST.ThO(ARIES
AUGUST 84
3. An Interim status facility undergoes a transfer of stock while
the name of the owner/operator remains the same and the facility
operations do not chance. Does this change require a modified
Part A permit application unoer §270.72(d)?
If stock is transferred from an interim status facility,
the transaction ea st be scrutthlzed by the Agency. In
situations where a majority of the conpany’s stock Is
transferred to another cor any, operational control and
the financial status of tne conpany may change. In
these situations, It is appropriate to require a modified
Part A. If, however, only a minority Interest Is transferred,
operational control and financial status may not change.
In these cases a modified Part A is not necessary
(assuming no name change).
Source: Susan Schmedes.
Research: Tom Gainer
.
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9525.1985(01)
RCRA/SUPERFUND HOTLINE MONTHLY SU)D(ARY
OCTOBER 85
4. Permit M ification
An owner/ erator has a RA permit to store hazardoi.zs waste in containers and tanks.
The owT r/ erator also generates hazardous waste on-site. The owner/ erator intend
to construct an additional storage area for the purposes of storing hazardous wastes
for 90 days or less. buld the constri.ction of this new storage area cOflsLdere
an action that uld require modification to the facility’s RCRA permit S270 .4l r
S270.42)? -
Constriction O the 90-day Storage area uld not require rT if icat ion of t e
facility’s storage permit. A generator may accuttu.late hazardous aste On—site
for 90 days or less without a permit or interun status provided that all. S252.34
require nts are ri t. 90-day storage area provision only applies to hazar:o_s
waste generated On-site,
In order to avoid potential Confusion regarding cortstri.ction, modification, a
permitting, the following s .çgestjons are reca rded:
(a) the owner/operator should cont t in writing the appropriate U.S. EPA
qional off ice or Stat. office, if aut ri , and inform both the Director
and the appropriate eriorcei nt personnel regarding the constrtct ion of the
90-day storage area and the owner/operator’ S intent to Caiçly with S262 .34
requ1ren nts in that area; and
(b) poet a sign or notice in a visible place to identify the 90-day storage
area to distinguish it fran the permitted container area and storage tanks.
Soizce: Narcy Pa rleau (202) 382-4500
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UNITE.P STATES VIR0NMEPjj4L PR0T . TtON at, CY
9525.1986(01)
Mp 24 86
Geraldjne Cox
Che jcal Manufacturer’s Assoc.
2501 M Street, N.W.
Washinqton, D.C. 20037
Dear ’ Coxi
I apoloqjze for the delay in responding t , your letter of
February 10, 1986, concerninq the final rul. to list solvent
mixtures (50 PR 53315, December 31, 1985).
Facilities that were permitted to anacje EPA Hazardous
Waste tios. FOOl—P005 before December 31, 1985, may handle
the newly listed solvent mixtures wthout major permit
modifications. Thus, you are correct in statLnr that major
pernit modifications are required when a facility is not
already permitted to manaqe the apDlicabje POOl—POOS wa8te.
If you have additional questions, please call Jacqueline
Sales of my staff, at 382—4770.
Sincerely,
Alan S. Corson
Chief
Studies and Methods Branch (WH—562 )
S .S 19S4—436.136
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j UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
J WASHINGTON D.C. 20460
‘ L 9
525. 1986(02)
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
-‘ ‘
Robert T. Stewart
Jones, Day, Reavis and Pogue
2300 LTV Center
2001 Ross Avenue
Dallas, Texas 75201
Dear Mr. Roberts:
Thank you for your letter of February 10 concerning RCRA
permit modifications. In that letter, you requested advice as
to whether a facility with a RCRA permit would need to have
its permit modified because of the amended definition of solid
waste. Your letter described two separate scenarios, each of
which is addressed below.
In the first case, a facility had received a RCRA.permit
and a unit at that facility was handling an unregulated material
described in the Part B application. Through the redefinition
of solid waste, the material is now defined as a hazardous waste.
In this instance, the need for a permit modification would have
to be determined on a case—by—case basis. If the handling of
the previously unregulated material was not detailed in the
draft permit that received public comment, or if conditions
contained in the permit specifically exempted that unit from
RCRA standards, then a permit modification would be required.
If the unit and the waste was fully detailed in the draft permit
and was subject to full RCRA standards, then a permit modification
would not be required.
In the second case, a facility had received a RCRA permit
which included a unit that was handling an unregulated material,
however, the material was not described in the Part B application.
The applicable law in this case is Section 3005(e)(l) of RCRA
which provides that any facility in existence on the effective
date of RCRA statutory or regulatory changes that render the
facility subject to the requirement to have a permit or interim
status may qualify for interim status. Section 3005(e)(l),
however, is limited to facilities which become subject to the
requirement to have a permit. Units at facilities described
above are not eligible for interim status since interim status
terminated upon issuance of the permit. In order f or these
units to handle a newly regulated waste, a facility must apply
for a permit modification before the effective date of the
statutory or regulatory amendment mandating such change.
-------
—2—
Your letter also Stated that allowing newly regulated units
to obtain interim status would be consistent with 40 CFR 270.j(c)(4)
which allows partial permitting of a facility. We disagree with
your interpretation, however, that the section also extends to
eligibility for interim status. Finally, your letter stated that
requiring permit modifications would put permitted facilities at
an unfair disadvantage with interim status facilities. We agree
that the procedures for adding new wastes are less burdensome for
interim status facilities. However, newly regulated units at
such facilities are not automatically eligible for interim status.
Under 40 CFR 270.72, a revised Part A permit application must be
submitted prior to any change during interim status. If the
change results in an increase in the design capacity of the facility,
approval may only be granted because of a lack of available treatment,
storage, or disposal capacity at other hazardous waste management
facilities. In no event can a change during interim status exceed
fifty percent of the capital cost of a comparable new facility.
We recognize that current requirements for adding new
hazardous wastes at permitted facilities place a difficult burden
on both the owner/operator and the permitting authority to Submit
and process modification applications in a timely manner. We are
currently exploring regulatory alternatives that would provide
some relief in this area.
If you have any further questions on this subject, please
contact Peter Guerrero, Chief Permits Branch, at 382—4470.
Sincerely,
( ‘J k\
Marcia E. Williams
Director
Office of Solid Waste
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- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9525.1986 (04)
Mr. Craig A. larney
Ro and Hats
Research Laboratories
727 Norristo Road -. - -
Spring House, Pa. 19477
Dear Mr. arn.y:
Thank you for your letter of July 16. regarding the management
of scintillation vials containing DOOl wastes. I will respond to
your questions in order.
1. If a RCRA facility (either permitted or with interim
status) intends to manage waste other than those identified
in its Part A permit application (whether as a result of
handling mixed waste or otherwise), it must submit a revised
Part A permit application to apply for a permit modification
or a change during interim status, whichever is applicable
(see 40 CFR 270.41 and 270.72). The same is true if the units
or processes in which those wastes are managed will change as
a result of accepting wastes previously not included on the
Part A. Only where none of the intormation on the existing
Part A changes may a facility manage radioactive mixed
wastes without any notification to EPA or the authorized
State.
2. If the facility is not changing the hazardous wastes it
is handling or th. units or processes in which the wastes
are handled, then the RCRA permit need not be amended.
However, the facility must comply with any applicable NRC
licensing requirements, as veil, if it wishes to begin
storing radioactive mixed waste.
3. The waste must be manifested in accordance with both
RCRA and LEA requirements.
However, radioactiv, mixed waste is not subject to LEA
requirements if the Nuclear Regulatory Coemtss ion has designated
the radioactive components of that waste as below regulatory
concern”. This has been done for liquid scintillation media with
0.05 sicrocurtes or less of hydrogen...3 or carbon-14, per gram of
.edit used for liquid scintillation counting (see attached
Federal Register notice).
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9525.i986( 5)
RCRA/SUPERFtJND ROTLINE MONTHLY SUIOCARY
OCTOBER 86
5. Termination of Permits
A rmitted facility closes all its tanks and container storage areas,
its only RA—regulated units. The region na i wishes t3 terminate
the rmit because the facility no longer has any active units and is
not subject to the t—closure care require ents of 40 CFR 264.117.
The facility has canplied with all the rnu.t conditions and has
disclosed all relevant facts for the permit. On what basis may EPA
terminate the facility’s g rmit?
40 CFR 27 0.43(a) resents the reasons for which EPA may terminate
a facility’s rmit or deny a rmit renewal application. EPA
may terminate a rmit if the facility fails to canply with any
condition of the gsrmit, or if the rmittee fails to fully disclose
relevant information during the rrnit application or issuance xocess.
EPA may also terminate a rmnit if the permittee misrepre sents any
relevant facts, or if the permitted activity endangers human health
or the environment. A different type of permit termination occurs
when a permit is revoked and reissued during transfer of a permit
to a new ner/operator, per §270.30(l)(3) and S270.41 (b)(2) or
the Regional A±ninistrator and the permittee agree to termination
in the course of transferring permit res ns1bility to an authorized
state under §271.8(b)(6). Nothing in the regulations all s for
permit termination because permit conditions no longer apply to a
facility. Normally the mer/o .erator of a facility that has
closed all its RCM units and has no st—closure care requiremenc,s
would allc the permit to expire. Although the lner/operator is
still subject to Part 264 standards, there are no hazardous waste
manage *nt activities to regulate. The vner/operator’s financial
res nsibilitjes should end after the region receives certification
of closure (S5264.143(j), 264 .l47(e)). According to Sl24.5(a) the
permittee may request termination, but EPA may still only terminate
a permit for the reasons given in S270.43.
Nevertheless, EPA does have authority to !Tcdi fy a permit if the Director
receives new information, or there are material, and substantial alterations
to the permitted activity, that justify permit conditions different fran
those in the existing permit (S27O.41(a)(])(2)). According to 5270.50, the
maximum permit duration is ten years, but a permit may cover a shorter time
period. In this situation, EPA could ncdify the permit so that it would
expire shortly after the earlier closure date.
Source: Matt Hale (202) 382—4740
Research: Jennifer Brock
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9525.1986(06)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
NOVEMBER 86
4. Termination of Permits
A permitted facility closes all its tanks and container storage areas,
its only RCRA-regulated units. The region n v wishes to terminate the
permit because the facility no longer has any active units and is not
subject to the post—closure care r uirements of 40 CFR 264.117. The
facility has couplied with all the permit conditiona and has disclosed
all, relevant facts for the permit. On what basis may EPA terminate the
facility’s permit?
40 CFR 27 0.43(a) presents the reasons for which EPA may
terminate a facility’s permit or deny a permit renewal
application. EPA may terminate a permit if the facility
fails to conply with any condition of the permit, or if
the permittee fails to provide co ip1ete information
relevant to the permit application or issuance process.
EPA may also terminate a permit if the permittee mis-
represents any relevant facts, or if the permitted
activity endangers human health or the environ, nt.
A permit may also be revoked and reissued during transfer
of a permit to a new amer/operator, per S270.30(l ,)(3) and
S270.41(b)(2). Nothing in the regulatior al1 s for
permit termination because permit Conditions no longer apply
to a facility. Normally the ner/ erator of a facility
that has closed all its R( A units and has no Post-closure
care reguirements would all v the permit to expire. Althcugt
the owner/operator is still subject to Part 264 standards,
there are no hazardous waste management activities to
regu..ate. The owner/operator’s financial responsibilities
should end after the region receives certification of
closure (SS264.143(j), 26 4.147(e)).
If a facility owner/operator wishes to terminate its permit
before the termination date in the permit, it should r uest
a major permit ncdificatjon under S270.41. According to
S270.50, the maxiln.un permit ó.iration is ten years, but a
permit may cover a shorter time period. In this situation,
EPA could ITodify the permit so that it uld expire shortly
after the earlier closure date.
Source: Matt Hale (202) 382—4740
Research: Jennifer Brock
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9525. 1986(07)
RCRA/SUPERFUND HOTLINE MONTHLy SUMMARY
DECEMBER 86
17. Treat t Capaci.ty
In n effort to su ly greater treat rit capacity for restricted
stes, h rtay an rmer/operator incorporate ri haste strears into
us existing permitted Lreatz nt erat .on?
To in ease the availability of treatz nt facilities for
restricted stes, the qency has added a provision to the
permitting standards, §270.42 [ 51 FR 40653], wh.ich all s for
the addition of n ste streait an existing permitted
facility as a minor permit ricdification. The conditions under
which a permittee rtay incorporate such a minor rTcdification are
(1) the hazardous ste t iist have been prc1 ibited fran land
disposal under Subpart C of Part 268, (2) the treat rit is in
accordance with the standards established under § 268.41 • or a
variance p.irsuant to § 268.44, (3) handling and treatnerit of the
restricted ste will not present risks substantiauy •i fferent
u those of stes listed in the permit and (4) the ri or
permit L!cdification is Federally or State .ip roved and the
changes wiLl, not require rtcdification of treatment proc2sses or
1 thysical equLm nt.
Jacqueline Sales (202) 382-4770
Research: ve i.iilipa
Kris Andersen
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9525.1988(01)
2. Corrective Action and Permits
If a release of hazardous waste or hazardous constituents
from a solid waste management unit (SWMU) is identified after
the issuance of a permit, can EPA reopen the permit and
modify it to include additional inves gation and/or
corrective measures? Does the “permit as a shield” provision
in 40 CFR 270.4(a) protect the facility from such action
until the permit comes up for reissue?
Permits issued prior to November 8, 1984, the date of
enactment of the Hazardous and Solid Waste Amendments,
cannot be reopened to establish a Section 3004(u)
corrective action program until reissuance. Permits
issued after November 8, 1984, address releases from all
solid waste management units (SWMUs) at the facility.
During the permitting process EPA conducts a RCRA
Facility Assessment (RFA) to determine whether there has
been a release from any SWMD located within the
facility’s boundaries. The RFA also determines whether
any further investigations or corrective measures are
necessary. EPA will then develop a custom-made
corrective action program which will be incorporated
into the permit. Most permits currently being issued
contain a reopener clause for newly identified releases
after permit issuance. Absent such a reopener clause,
if the Director receives information about a new
release, then the authority under Section 270.41(a)(2)
could be employed. Section 270.41(a)(2) states that
when the Director has received new information that “was
not available at the time of permit issuance (other than
revised regulations (see Section 270.41(a)(3)],
guidance, or test methods) and would have justified the
application of different permit conditions at the time
of issuance” the permit may be modified during its
term.
The “permit as a shield” provision in Section 270.4 does
not provide a shield when new information such as
o mentioned above is obtained after permit issuance. The
“permit as a shield” provision applies to standards that
are established in the permit which cannot be
arbitrarily changed by the Director during the term of
the permit. Section 270.41(a)(3) allows a permit to be
modified during its ter. due to amended standards or
regulations at the request of the permittee (see 52 FR
45793). Section 270.41(a)(3) also allows the Director
—2—
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RCRA/SUPERFUND HOTLINE MONTHLY SUNMARY
FEBRUARY 88
2. Corrective Action and Permits (Cont’d )
to Rmodify the permit when the standards and regulations on
which the permit was based have been changed by statute or
amended standards or regulations such as the land disposal
restrictions in 40 CFR Part 268.
Source: Matt Hale (202) 382-4740
Dave Fagan (202) 382-4497
Research: Deborah McKie
4
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9525.1988(02,
iIO S1 .
I UNITED STATES ENVtRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
4 t
I OFFICE 3F
JUL i 1988 SOLID WASTE NO EMEPGE’ Cv E5POl js
KEMORANDUM
SUBJECT: Guidance on Permitting Issues Related to the Dupont
Edgemore Facility
.
FROM: Bruce R. Weddle, Direc or
Permits and State Programs Division
TO: Robert E. Greaves, Chief
Waste Management Branch
Region III
This is in response to your memo of June 6, 1988, in which
you requested guidance from Headquarters on several permitting
issues related to the Dupont Edgemoor facility in Delaware.
You explained in your memo that the facility was granted a
construction and operation storage permit by the State and a
HSWA permit by EPA. The State permit expires on September 30,
1989; the HSWA permit on March 1, 1989. You also explained
that the facility never built the storage unit for which the
permit was requested and no longer wishes to do so. You raised
several issues about the status of the permit in light of the
above. Each issue you asked is addressed individually below.
Please note that, for clarity, we have reframed a few of the
issues.
1. As the unit was never built, is the State DOrtion of the
permit effective ?
The question of whether construction is necessary for the
State portion of the permit to become effective is one of State
law. Under the Federal regulations, construction is not
required far the permit to become effective. A final permit
decision becomes effective 30 days after the Regional
Administrator issues notice of the decision unless: (1) a
later effective date is specified in the decision; (2) review
is requested; or (3) no comments requested a change in the
draft permit, in which case the permit shall become immediately
effective § 124.15(b)). Thus, if the State law is similar
to the Federal, construction is not required for the permit to
become effective.
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-2—
2. If the State Dortjpn of the permit has not been _
effectuated. (that is. Construction of the unit has not taken
place), can the corrective action portion of the permit be
en forced ?
Section 3004(u) of HSWA specifically states that “permits
issued under section 3005 shall contain schedules of compliance
for ...corrective action ....“ Since the full RCRA permit
(State and Federal portions) in this case has been issued, the
statutory requirement for corrective action has been
triggered. Therefore, the corrective action portion of the
permit can and should be enforced even if construction under
the State portion has not occurred.
3. Is revocation of the permit a State. Federal. or combined
action ?
Revocation and reissuarice of the full RCRA permit is a
combined action because issuance is a combined action. To
revoke and reissue the State portion, State procedures must be
followed; to revoke and reissue the Federal portion, the
procedures of Part 124 must be followed. It should be noted
that this does not preclude a joint proceeding; however, two
separate decisions must be made. Most important, the State has
no authority to revoke and reissue the Federal portion or vice
versa.
4. If it is ossib1e to seøarate the State portion from the
corrective action portion during revocation of the permit, can
the corrective action portion of the ermit be enforced
separately if the State portion is revoked ?
Yes. If the State portion is revoked or terminated, or if
it expires, there is no effect on the HSWA portion of the
permit. Once the permit is issued, the MSWA portion can
continue on its own.
5. What can be done, if anything, to extend the terms of the
corrective action Dortion of the kermit beyond March 1. 1989 ?
We believ, there are three ways to extend the terms of the
corrective action portion of the permit beyond March 1, 1989.
A. Permit Modification . Under section 270.41, the Agency
can modify a permit if cause exists under paragraph (a) or (b)
of that section. The Agency could use this authority to extend
the expiration date of the corrective action portion of the
permit by means of a permit modification. There is no
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—3—
requirement under the regulations that the permittee agree to
the extension. Using this approach the permit life could be
extended until September 29, 1995 since section 270.50(b)
limits such an extension of the original permit life to a total
of 10 years.
Modification of the permit under section 2 7 0.41(a)(2) to
increase the permit term is allowed if the Agency receives
information that was (1) not available at the time of permit
issuance and (2) would have justified the application of
different permit conditions at the time. To determine whether
these grounds can be satisfied, we suggest that you investigate
(1) whether the facility RFA, when completed, will result in
new information about releases at the facility that would have
justified a longer term for corrective action; and (2) whether
Dupont’s subsequent decision not to operate is new information
that would have ]ustified a different term for the corrective
action portion of the permit because of the change in the
expected duration of Dupont’s active interest in the site.
B. Revocation and Reissuprtce . Section 270.41 provides
for revocation and reissuance of permits. Under section
270.41(a) (2), the causes for revocation and reissuance are the
same as those for permit modification discussed above; however,
the permittee must agree to the revocation and reissuance.
Section 270.41 also provides that if a permit is revoked and
reissued, it is reissued for a new term. Thus, the permit term
could be extended for a period of up to 10 years from the date
of reissuance.
C. Continuation of Permit . If the Agency does not take
action under A or B above, the permit will expire. There are
two ways to continue the HSWA permit at expiration. First, if
the facility submits a timely application for a new HSWA
permit, the existing permit conditions continue in force under
section 270.51(a) until a new permit is issued. Second, if, at
the time of expiration, the facility is not in compliance with
the terms of the permit, then the Agency can invoke section
270.51(c) (3) of th. regulations, which allows the Regional
Adminigtra to issue a new permit under Part 124 with
appropriate óond it ions. Of course, this procedure requires the
Agency to dmonstrate that the facility is out of compliance
with its permit. In this case, the Agency could demonstrate
non-compliance if, for example, the facility failed to complete
the RFA required by the HSWA portion of the permit.
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—4—
6. If the mermit exDires and the Region is therefore unable to
enforce the corrective action DOrtiofl of the Dermjt. is Section
3013 the øro er enforcement vehicle to address corrective
action ?
Section 3013 allows the Agency to require monitoring,
testing, analysis, and reporting, and therefore this section
can be used to require such activities to investigate the need
for corrective action. However, the Agency cannot compel
corrective action under that section. Either section 3008(a)
or 7003 would be an appropriate enforcement authority to carry
out corrective action. Note that under section 7003, the
Region would have to demonstrate that there is imminent and
substantial endangerment. In summary, the most effective
response is to pursue permit modification, revocation and
reissuance, or continuation as discussed above, prior to the
time that the HSWA permit expires. Otherwise, EPA ’s ability to
pursue any needed corrective action at the facility is a
potentially more complex process.
I hope this answers your questions regarding the Dupont
Edgemoor facility. If you have any questions, please contact
Frank McAlister at 382—2223.
cc: Matt Hale
Frank McAlister
Barbara Foster
Fred Chanania
Jackie Tenusak
RCRA Branch Chiefs, Regions I-X
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RCRA/SUPER ’TJND HOTLINE MONTHLY sui u e. y 9525.1989(01)
MAY 89
2. Enterirn Status vs. Permit Modification for Newly Regulated Units
At owner or operator of a fully permitted facility manages RCRA
hazardous waste in several surface impoundments This waste will become
subject to Subtitle C regulation if the Toxic Characteristic Leaching Procedure
(TCLP) for waste identification becomes final and effective.
a) Will the surface impoundments qualify for interim status? If a permit
modification is required, what modification class would be applicable?
Newly regulated units at fully permitted facilities do not qualify for Interim
status. Interim status is granted to facilities and not to individual units per
Section 3005(e) of RCRA. Instead, the permittee would follow the permit
modification procedures in Section 27 0.42(g). First, as of the time the TCLP
rule becomes effective, the Class 1 permit modification process must be
followed for the permittee to continue managing the newly identified waste.
Under these procedures, the permittee notifies EPA and the public. Six
months after the TCLP rule’s effective date, the perrnittee must then apply for
a Class 2 or 3 permit modification, depending on the modifications necessary,
and follow the appropriate procedures. Permittees that have not previously
managed the newly identified waste may not use the process in Section
27 0.42(g) and must complete the applicable permit modification procedure
prior to treating, storing, or disposing of the waste. (See 53 37912, 37922)
b) Section 3005(j)(6)(A) of RCRA states that surface impoundments that become
subject to Subtitle C due to the promulgation of a new listing or characteristic
for identifying a waste as hazardous will have four years from the date of
such promulgation to meet the retrofitting requirements under Section
3004(o) of RCRA. Does this provision apply to existing surface
impoundments which become newly regulated but are not authorized to
operate under interim status?
Yes. EPA currently interprets Section 3005(j)(6)(A) as being applicable to units
at facilities requiring permit modification due to a new listhtg or characteristic
for identifying a waste as hazardous. Therefore, newly regulated units at fully
permitted facilities will have four years from the date of promulgation of a
new listing or characteristic to comply with the retrofitting requirements.
Source: Wayne Roepe (202) 382-4740
Resource: Debbie Doherty (202) 382-3112
2
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RCRA/SUPERFUND HOTLINE SUMM
9525.1990(01)
AUGUST 1990
I. SIGNIFICANT QUESTIONS AND RESOLVED ISSUES—AUGUST 1990
RCRA
1. Public Comment Periods for Permit Modifications
When submitting a Class m permit modification request, the permittee,
per 40 CFR Section 270.42(c)(2), must hold a public meeting and provide
the public with at least 60 days to comment on the request. According to
Section 270.42(c)(6), “after the conclusion of the 60-day comment period,
the Director must grant or deny the permit modification request according
to the permit modification procedures of 40 CFR Part 124.” According to
Section 124.10(b)(1), the public must be provided with a 45-day comment
period. Do these comment periods serve the same function? If so, could
just one comment period suffice in lieu of the other?
The 60-day comment period in Section 270.42(c) and the comment
period in Section 124.10(b) are separate and distinct because they are
designed for two different purposes. The 60-day period allows
comment on the permitee’s request and assists the Director in
deciding whether to prepare a draft modification or a tentative denial;
the 45-day period allows comment on the Director’s proposed action.
The review periods must occur separately. The differences are
summarized in the table below:
WRITTEN ORAL COMMENT
INITiATED BY: COMMENTS ON: FORUM :
60-DAY PE1 IOD
The perrnittee
The perrnittees
request
A publlcmeetiflg
conducted by the
permittee
45-DAY PERIOD
The Director
The draft
modification
or tentative denial.
A publlcheanng
conducted by the
Director’
* Not mandatory
The 60-day comment period is the first to occur and is initiated by the
permittee. The permittee must hold a public meeting no fewer than
15 days after the meeting notice or no fewer than 15 days before the
end of the comment period. After the conclusion of the 60-day
comment period, the Director will issue a draft permit modification
and allow the public 45 days to comment on the draft. The Director
will hold a public hearing if requested.
Source: Wayne Roepe, 05W (202) 475-7245
Research: Kevin Dunn
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9525.1990(02)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
- WI- / WASHINGTON. D.C. 20460
qL lIAO1
OCT 17 I O
OFFICE OF
SOLID WASTE AND EMERGENCy RESPONSE
Mr. James T. McVey
Executive Vice President
Diversified Scientific Services, Inc.
P. 0. Box 863
Kingston, Tennessee 37763
Dear Mr. McVey:
This is in response to your letter of August 8, 1990, in
which you request the Environmental Protection Agency’s (EPA)
consideration and advice on your proposal to treat some
radioactive mixed waste prior to disposal. Currently, your
permit, which was issued under the authority of the Resource
Conservation and Recovery Act (RCRA) for treatment, storage, and
disposal (TSD) of hazardous waste, does not include provisions
for the management of the specific type of mixed waste you
propose to treat. I understand that my staff has discussed this
issue and the delay in our response in earlier telephone
conversations with you.
Specifically, you propose to stabilize 825 drums of barium
chloride salts (D005 wastes) containing low concentrations of
uraniinum prior to disposal of the waste in a licensed nuclear
waste burial facility. This waste would be shipped from its
present location at Westinghouse Materials Company of Ohio in
Fernald, Ohio, to Diversified Scientific Services, Incorporated’s
.(DSSI’s) TSD facility in Kingston, Tennessee for treatment. The
State of Tennessee, which is authorized for both the radioactive
mixed waste program and radioactive materials licensing
activities, has denied your request to treat the D005 waste under
the existing conditions of your RCRA permit. The State has
determined that your RCRA permit must be modified to include
specific provisions for the management of D005 waste, prior to
treating the waste for land disposal. EPA concurs with the
State’s assessment that this waste may not be treated at the DSSI
facility without first obtaining the necessary modification to
DSSI’s RCRA permit.
Before addressing the permit modification procedures, please
be advised that D005 waste is subject to the land disposal
restrictions which are provisions of the Hazardous and Solid
Waste Amendments (HSWA) to RCRA. Among other things, HSWA
Pri cd R.cycled Pope
-------
prohibits restricted wastes from land disposal unless the wastes
meet the treatment standards established by EPA. For D005 waste,
EPA has prescribed a treatment level of 100 mg/i as the
characteristic level for barium. In your letter, you indicated
that the D005 mixed waste would be disposed at a licensed nuclear
waste burial site after treatment. Therefore, the waste must be
treated to meet the land disposal restriction program’s
prescribed tL ..atment level prior to such disposal.
In regard to RCRA permit modification procedures, there are
two procedural avenues available for obtaining the necessary
modification: through State procedures or through Federal
procedures. Since Tennessee is authorized to control D005 mixed
waste, you could apply to the State for appropriate changes to
your RCR.A permit. In this case, you would follow the State’s
permit modification process. Alternatively, since Tennessee does
not have authorization for the land disposal restrictions, EPA
administers and enforces this program, as mandated by HSWA, until
the State is specific ly authorized to do so. Pursuant to this
Federal authority, EPA may add conditions to your RCRA permit to
allow treatment of the D005 wastes so that the land disposal
restrictions will be met. In this case, the Federal modification
procedures in 40 CFR 270.42 would be used. Please note that on
March 7, 1989, EPA created expedited modification procedures to
allow facilities to add new waste codes and/or treatment
processes to comply with the land disposal restrictions, if the
specified conditions are met (54 FR 9596; see enclosure).
However, you should also note that a Federal change to the RCRA
permit will not override more stringent state requirements. In
this regard, you should confirm with the State that such Federal
approval will also satisfy the State program.
I encourage you to work closely with the EPA Region and
State authorities to obtain the permit modification required to
treat the D005 waste. Mr. Wayne Garfinkel in the RCRA program
office, USEPA Region IV, in Atlanta, Georgia may be contacted at
(404) 347—3433 for further assistance on this matter. In
ddition, Mr. Dale Ozier of the Solid Waste Management Division,
‘Department of Health and Environment in Nashville, Tennessee may
be contacted at (615) 741—3424, for assistance from the State.
Also, we have a strong interest in following the development
of safe and environmentally sound treatment and disposal methods
for mixed waste, particularly in view of the current shortfall in
treatment and disposal capacity. As part of our effort to
maintain current information in this area, I invite you to work
closely with my staff to exchange information on technology
development, as well as existing permitted facilities involved in
the management and disposal of radioactive mixed waste.
-------
If you have general questions regarding the Federal permit
modification procedures, please contact Wayne Roepe of my staff
at (202) 475—7245. Please contact Jared Flood of my staff at
(202) 475-7066, if you have any questions concerning our
activities on radioactive mixed waste.
rector
Office of Solid Waste
Enclosure
cc: Wayne Garfinkel
USEPA, Region IV
Dale Ozier
Solid Waste Management Division
Dept. of Health and Environment
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I—
HOTLINE QUESTIONS AND ANSWERS
January 1996
3. Conversion of Per, tItted or interim
Status Units to Gen rator
Accumulation Units
A treaDnent,s:oragé, or disposal facility
(TSDF) stores hazardous waste in permitzed
storage units. The owner or operator wishes
to convert some of the pèrnutted storage units
into generator 90-day accumulation units used
to manage wastes that are generated on site.
.Whaz requirements must the owner or operator
comply with before a permitted unit may
operate as a generator 90-day accumulation.
unit?
Generally, an owner or operator removing
a unit from the jurisdiction of a RCRA permit
must first close the unit in acëordance with all
of the applicable closure provisions for
permitted units. In this case, since the
converted units will continue to store
hazardous waste, conversion will not trigger
closure requirements because the unit will not
have received its final volume of hazardous
waste (40 CFR Par c 264.113(a)). Once the unit
receives waste for the last time, the owner or
operator must comply with the more stringent
permitted closure provisions in 4.0 CFR Part
264 (Subpart G and the unit specific closure
provisions), tather than the closure provisions
for generator accumulation units referenèed in
§262.34(a). In addition, the owner or operator
must maintain financial assurance pursuant to
Part 264, Subpart H, until closur of the unit is
complete (57 ER 37254; August 18, 1992). To
9525.1996(01)
J indicate that hazardous waste management
activities in the converted unit are no longer
covered by the facility’s permit, the facility
must submit the appropriate permit
modification:
Owners or operators converting interim
status units to 90-day accumulation units also
need not begin final closure until .after the final
receipt of hazardous waste (40 CFR Part
265.113(a)). Upon final closure, the owner or
operator must comply with the interim status
closure provisions in Part 265 (Subpart G and
the unit specific closure provisions). As with
permitted TSDFs, the owner or operator of
interim status facilities must maintain financial
assurance pursuancto Part 264, Subpart H,
until final closure is comple;ed.
I .
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This Page Intentionally Left Blank
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9527 - SPECIAL FORMS
OF PERMITS
Part 270 Subpart F
ATK1/1104/60 kp
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—2—
non-site-specif IC information from the first application, a copy
of the first permit, and the site-specific information for the
new location. This site-specific information must include any
variation in the equipment or wastes from those permitted at the
first site. The permit writer should use the non-site—specific
permit conditions from the first permit (to the extent that
variations in equipment and wastes do not require otherwise) as
conditions in the second permit and draft new permit conditions
for the site-specific items only.
The Agency can also rely on previous responses to comments
for comments dealing with non—site-specific permit conditions
received in a second (or subsequent) proceeding if the same or
similar comments were raised on an earlier permit. Response to
public comment concerning non—site—specific issues should be as
follows: If a comment is similar to a comment raised in an
earlier permit issuance proceeding, any response should be the
same as that given in the first proceeding. If, however, a
significant comment addresses an issue differently than it was
addressed in the first proceeding, or a significant comment
raises an issue not addressed in the first proceeding, the
Regional Administrator must, of course, respond to that comment
before the permit may be issued.
The reuse of part of the initial permit application and the
resulting permit conditions will allow EPA to streamline the
permit process for mobile treatment units and for multiple
facilities that use the same type of equipment to handle similar
or identical wastes. This policy is likely to be first applied
to EPA’s mobile incinerator which is currently being permitted in
Region II.
I have discussed this approach with Dr. John A. Todhunter,
Assistant Administrator for Pesticides and Toxic Substances, and
he has indicated that it is consistent with and similar to the
approach his office will use to permit mobile facilities
disposing of PCB’s.
For more information or guidance on the policy outlined in
this memorandum, contact Jeff Detlefsen, of my staff, at EPA
Headquarters, 202-382-4500.
cc: Dr. John A. Todhunter
This document has been retyped from the original.
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9527 1985(01)
‘ CV 19
r . wis .. .:alker
c-ruty ror Environrent, -atety and
‘ ccuj’ac.icnal Lealtn
( ILL)
r-OO 2L613
entaccn
St&iflgtOfl, L .C. 2031u—C103
tear £lr. .alker:
t’y 3tdtt and I have reviewed the Technical Locurent r aterj
27 June 1985, which was sub nitted by the U.S. ‘ rr’y Cher ica1
: ent/!iunitions System (CAMDS) Cirectorate, to consjler the
CA 1 ;t)S site at Tooele .\rr’y repot in Tooele, Utah as a totally
enc.Loseø treatr ent tacility and thereby exenpted frr,r PCR
u titl C requirements. The substance or this docurertt was
preseritec to technicdl, policy, and legal. FPA’statf at a r’eetinri
on Septerr ber 5, 1985, by several Cepartr ’ent of Detense (roe)
1 ersonnel. -
A totally enclosed treatrent tacility under CPA is
uefined in 40 C.F.P. 26O.l0 as:
a facility for the treatnent at hazardous waste which
is ciirectly connected to an in ustrial production rrncess
and which prevents tt e release of any hazardous waste cr
any constituent thereof into the environment curinc’ treat—
r ’ent. An example is a j ipe in which waste acid is neutra-
lized.
The CAMDS facility does not meet this definition for two
reasons. First, the objective of CAMDS is to destroy otsolete
che iicai r unitions this activity constitutes treatrent as
efined in 260.1O and is not directly connected to an industrial
production process. Second, this treati’ent involves incineration
r hasardaus waste, thus releasing e isaions of hazardous con—
stitu•nts to the envirorw’ent. Ihese emissions (e.g., byproducts
or Ii . coi buation process ouring nori al operation and during
u set conditions before tI wastefeed is shut off) are ir.herent
in the nori al operation of a hazardous waste incinerator. Fv r
a niqhly efficient incinerator will not estroy 100 rercent of
all constituents of the hazarc ous wastes that are fed into it.
V e reçiulatory exclusion of a totally enclosed treat’rent Facility
:ertains only to treatr’ent that prevents releases of hcth r azar cr ,.
h otes nd their constituents.
-------
—2-
e realize that r Ol) dY SOOn be r’andated to completely
.estroy 90 percent of the ulitary stockpile of lethal cher jcal
-Ac,ents and r unitions by September 30, 1994 (K.R. 1872, 13].
Ccnc. nec., ;.o. C7, June 26, 19a5). Consequently, PoD intends
to use the CAt CS facility to develop and demonstrate the incjn—
E rac1On technology to accomplish this proposed statutory objective.
in view Ct the structural nodifications and/or orerating chanr es
neccssary to provide DoD and Conaress with information about t e
efrectiveness of incineration to de” j]jtarjze cher!’jcal a ents
an munitions at the CAMDS facility, we rec np end that the r:, •
Arriy apply tor a research, development, and demonstration (PP&r.)
rermit under 40 C.F.14. 5270.65 a full PCRA incinerator Derrjt
issued under 40 C.F.R. Part 264, Subpart o would not provide
tlexibility in r oaifyinq tne design and operation of the tacility.
AiX intended modifications to the facility must he identified
in the RD&D permit. However, unlike a Subpart 0 permit, a trial
burn for each nodificatjon is not required to demonstrate compliance
with S264 requirements since this would be counter to the intent
ot an RD&D permit. You should note, however, that before the
racility may be operated outside the Conaitjon 5 specified in the
kLi,D permit (i.e., structural or operational 1’odifjcatjons) the
RD&D permit must be re—drafted to reflect the modifi atjona
required and must be made available for public notice and coru ent
for 45 days (S270.41). Therefore, I recQnmend that attention be
oiven to planning the project so that it is not delayed for this
reason.
RD&D permits are limited to one year of operation (365 days
ut actual operation treating hazardous wastes), may be renewed
three times, and must specify the type and quantities of hazardous
waste intended for treatment (5270.65(a)( 1) and (2)). The Congress
and EPA intend to limit these quantities of hazardous waste to
the r ’inimum necessary to demonstrate the feasibility of the
incinerators. In order to expedite the review and issuance of
the 1’D&D permit, the EPA Regional Office can tailor the RCRA
permit application and procedural requirements of 40 C.F.I .
I’arts 124 and 270 (except for the public participation procedures
and financial assurance requirements) to the research objectives
of the CAI%DS facility (S270.65(b)).
Until the RD&D permit is issued, the CAPIDS facility can
contjflu to operate under interim status, providing it continues
to operat• according to the requirer ent of $270.71. flurinq the
‘C&D testing, CAIIDS could apply tor a full RCRA incinerator
permit if you intend to continue using the incinerators to demil-
itarize stockpilss of chemical agents and munitions following
the term of the RD&D permitj in this case, data from the PD&D
activity may be submitted in lieu of a trial burn (see enclosure
1, Research Plan B).
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.o tsSiSt the er icn l ‘ ft ice. e r vic- .’ ?d the f r - ti,.-.r
.c recP nicai c cur.,r t j’r rac e relirinary r eter ir itir r
.c :t the adciiticn j tire -f i’forT’ation rec isarv rr’ rarc
ç:.• Ic-te rC& r ’1icat ori (C t enClosure 1). 1 c . escrl-. r
c e yre f j rtcrrance • ata ‘- ‘hich ieot:Id e necessar ir. ti -i
(.rr.(.uct1r .. a trial L’i. rn, tt’erety accoleratin4 ’ the ‘er—ittlr..—
.: i.’i1ar zarcou3 waste Incinerators basen urcn e “
‘ c’str t.Lcr’s. . 1so, e . rc enclcsin a CON’ of t.’.e t’r3rt
. nce ‘ar.ua] tor )esearc’,, Velnr’-nt, ant’ ‘4 rorstr jr r
•errtt9 , ctatei ct ter 3, 1?t E., to Ist r u fr rrcr irir -’
L r Lilcatlon (..cee enclosure ).
e .ucncy is ncour cyinq the Ccvejr)prent and c 4 e n trat n
L r # ar.u ajternative fect nolo’ iee and rroc s to treat anr
-lrir.izd n zardous 4asteg. L.e r co n1ze tt’e critical nee.i tc r
r to ‘er 1lLtarize cherical a :ent ‘unitions, iarticularlv ir
vIew ot the lirite tectrical .lata on rroceesee anti techno1 j -
ar. i tt’e lack ct facilitics to treat these ‘ stes.
iju sriouit contact “r. Larry :a ensky at (3t 3) 29 —1€62 .
(r 1 j(.t, j C.:A ?err’its section, ‘A— e !ion VU! & out rrcceesina
tnu LeLJ applicatLon.
inccreiy,
Orig a SiSa.d y
ManIa 1.
arcia L. Villiars
r iroctor
C’ftice of Solid ;asta
nc losuree
cc: L?ruee 1 edd1.
Peter (u rrero
r aett LCeare
;-rt lazer
ancy Poaerleau
obin Anderson
L’Ov Wsitiian (L.E—132S)
rer Gray (tE—132&)
Jack !ah an
i.arrn Hull (A ’1O4)
Larry da onsky, i . ion v ii!
lc E . 2arker, Ph.r., state at ttah
teqional azardous Waste ranch Chief3 9 Pe jions I—X
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UNITED STATES ENVIRONMENTAL P ’
9527.1986(01)
WASHINGTON. D.C. 20450
opp,cI op
$01.10 WA$TE AND ( MI GUNCV IIPOS4$(
Mr. Philip E. Hoffman
House of Representatives
State Capitol
Lansing, Michigan 48909
Dear Mr. Hoffman:
Thank you for sharing your concerns about the detonation
of a hazardous explosive within Waterloo Township in your
May 15, 1986, letter. Lee Thomas, the present Administrator
of the Environmental Protection Agency (EPA), has asked me to
respond.
In accordance with our regulations (40 CFR 270.61),
EPA’s Region V office issued an Emergency Permit to the
Drug and Laboratory Disposal Inc. facility to detonate 50
pounds of hazardous explosives. The permit was Sf fsctjve
frau April 14 to May 14, 1986. This permit was issued only
after the facility had conducted an extensive search for
alternative method. of disposal. Because there was no feasible
alternative, and due to the unstable nature of the material,
EPA decided that this permit procedure was the proper cours.
of action. Our regulation. do not require us to provide a
45—day public notice when issuing emergency permits. However,
we ar. required to provide public notic.. Region V provided
this notice by making public announcements through the local
newspaper and radio station.
In addition, you raised a concern about EPA’s possible
violation of Waterloo Township’s ordinanc. •5. In issuing
any permit, EPA includes a clause requiring that the p.rm.tttee
obtain all Stat. . nd local approvals. If the p.rmitt.. failed
to do so. EPA could take an enforcement action to address the
violation. It is my understanding that Region V will discuss
this matter with the State to determine if an •nforcement
action is warrant.d.
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i.- .i YDuI I ; ‘. I tLL,r . j. L’’ . I1.: :i5 trus
‘ ‘t r, r1, sc r)itact 1CI. r • - V o rLc ,-
I :c .-1r,. 1 r. rr u-) cirl r t (.i L..) 6i3 .
1r. r /,
J
• ss i stant Ad’- j rt is trato r
bcc: Rjch rd Tra , ion V
.J Akexn r 1
Cii d ’ By , OWPE
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9527.1987(02)
LAUG 3 1987
Mr. Dic Olsen, Sales Manager
Fenton Company, Inc.
1608 N. B.ckl.ey
Lancaster Texas 75134
Dear Mr. Olsent
Thank you for your letter of June 30, 1987, in which
you requested information on the regulatory status of sludge
dehydration equipment which is part of a waatewaeer treatment
facility.
Your understanding of the requiren.nts contained in
40 CFR 2701.(c)(2)(v) is correct. Sludg. dehydration .quipment
that is part of a wastewater treatment syitme is excluded from
the n.eu to obtain a RCPA permit provided the equipment meets
the definition of wastewater treatment unit as defined in.
40 CFI 2b0.1O, and actually is used to evaporat, water fron
tne sludge.
It is important to not. that the exclusion provided by
270.l(c)(2}(v) do.. not apply to conventional incinerators.
Such devices are sub)ect to Subpart 0 of Parts 264 or 265 even
when part of a wastewater system.
I must caution you that various States hat. requirements
that are different from the Federal standards. Under their own
authorities, States can establish r.quirem.nts that are mar.
stringent than th. Federal r.quir.nts. In this instance, the
owner or operator is required to comply with the more restrictive
requirements. Thus, I encourag. you to contact an appropriate
State official to d.tszmin. what the rsquirements will be for a
specific nUt.
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2
If you have any further questions regarding the Federal
requirements, please contact Mary Cunningham of my staff at
(202) 382—7935.
Sincerely,
Ziarcia E. Williams
Di rector
Of fic. of Solid Waste
cc: Mary Cunningham
Steven Silverman, Esq.
bcc: R. Holloway
B. Wedd].e
S. k udzjnskj
R. Dellinger
M. hale
C. Garland
i . Perla
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9527. 198 8 (03)
..s to s’l,,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. 0 C 20460
4( p 0 L
f JG I
c
SOLD .•J& Er.1 G;
Mr. Phillip C. McGuire
Associate Director, Law Enforcement
Department of the Treasury
Bureau of Alcohol, Tobacco, and Firearms
Washington, DC 20226
Dear Mr. McGuire:
This letter is in response to the issues raised recently by
the Bureau of Alcohol, Tobacco, and Firearms (BATF) with respect
to compliance with the Resource Conservation and Recovery Act
(RCRA). Specifically, your staff has requested EPA guidance for
two situations: (1) when a BATF agent is called to a location
where there is an immediate safety threat, and (2) when
explosives or explosive related materials that do not present an
immediate safety threat are stored in BATF secured lockers for
analysis and possible use in law enforcement proceedings.
The guidance given below for these two situations is based on
the federal RCRA program as administered by EPA pursuant to 40
CFR Parts 260-271. In authorized States (which are 43 in
number), EPA has delegated the hazardous waste program to the
States pursuant to statutory provisions in RCRA. Although each
authorized State program must be consistent with and at least as
stringent as the Federal program, a State is free to be more
stringent. Hence, any guidance given below must be followed up
by a BATF analysis of any different provisions that an authorized
State may have chosen to enact.
1. Explosives That Present an Immediate Safety Threat
According to our discussions, this scenario involves
identification by a trained BATF agent of explosives that create
an immediate safety threat, removal of those explosives from the
original location to a safe area (often a local law enforcement
agency’s bomb disposal site or a nearby military installation),
and immediate destruction, normally by detonation or open
burning.
Under current RCRA regulations (40 CFR Sections 264.1(g)(8),
265.l(e)(l)(i), and 270.l(c)(3)), all activities taken in
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—2—
immediate response to a discharge of hazardous waste, or an
imminent and substantial threat of discharge of a hazardous
waste, are exempt from the RCR permitting and substantive
requirements. Since the explosives in question would be
hazardous by virtue of their reactivity and ignitability, any
BATF actions taken to eliminate the imminent and substantial
danger would qualify under this exemption. If the response
actions involve transportation to a remote site for destruction,
then the transportation as well as the destruction would be
exempt. However, the transportation is exempt only to the extent
necessary to respond to the immediate threat. Hence, we expect
the transportation would normally cover a relatively short
distance.
Should there be any question about the exempt or nonexempt
status of the BATF action, the RCRA emergency permit regulations
(Section 270.61) can be used for destruction activities. s
these regulations provide, an emergency RCRA permit can be issued
by an EPA Regional Office or by an authorized State official via
telephone or in writing. These permits may be issued when the
Region or State finds that an imminent and substantial
endangerment to human health or the environment exists, according
to the requirements of Section 270.61. This permit can address
both treatment and storage of hazardous waste. (Under RCRA, open
detonation or burning of explosives waste qualifies as thermal
treatment.) If necessary, transportation can also be authorized
by a provisional identification number, obtainable by telephone.
To reiterate, however, no permit is necessary when a BATF agent
determines that an immediate safety threat exists.
2. Explosives Material Storage During Analysis and Law
Enforcement Proceedings
When a hazardous material (such as explosives and certain
types of explosives—related material) is discarded, it becomes a
hazardous waste and therefore subject to RCRA. Although the
situation may vary, we believe that explosives and explosive
material become waste when the court (or BATF) no longer has any
use for them (i.e., when no longer needed for evidence, referred
to as “judicial forfeiture” by your staff in our discussions).
When explosives are stored pending judicial proceedings, they are
not subject to the hazardous waste regulations. However, when
they are to be discarded, they become waste. At that point, RCRA
requirements pertaining to waste generation, transportation, and
treatment, storage, and disposal (40 CFR Parts 260-271) become
applicable.
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—3—
Under 40 CFR Section 262.11, generators of Solid waste must
determine if their wastes are hazardous. “Generator” is defined
by person and by site. Thus, for example, each of your storage
locker areas would be a generator site. Except for generators
who meet the conditional exemption in Section 261.5, generators
of hazardous waste are subject to all applicable Sections of Part
262. [ In the case where a BATF field office generates less than
100 kilograms (kg) per month, Section 261.5 allows the disposal
of the explosive waste at a permitted or interim status hazardous
waste facility, or at a facility permitted, licensed or
registered by a State to manage municipal or industrial solid
waste.] Among other requirements, generators of hazardous waste
must have EPA ID numbers (40 CFR Section 262.12). Each BATE
field office must apply for an EPA ID number for each site at
which hazardous waste is generated in excess of 100 kilograms per
calendar month. This is a simple process involving the submittal
of one short form for each generator site. These fornrs can be
obtained from EPA Regional Offices or we at Headquarters will be
glad to supply them to you.
We note that, under 40 CFR Section 262.34, hazardous waste
may be stored in tanks or containers without a permit for up to
90 days. So, even after a material becomes a waste (i.e., an
intent to discard is present), the generator has 90 days to make
necessary arrangements for transportation, treatment, or
disposal, according to applicable regulations in 40 CFR Section
262.34, and Parts 264, 265, 266, 268, and 270. As a general
matter, we believe the Bureau should consider a policy that would
require removal of explosive material stored in BATF lockers
within 90 days from the time the material becomes a waste.
Otherwise, RCRA storage permits may be required.
BATF may transport hazardous waste explosives themselves, or
may hire a transporter. In either case, the transportation is
subject to the requirements in 40 CFR Parts 262 and 263.
Transportation of hazardous waste of f the site of generation is
subject to manifest requirements (40 CFR Section 262.20). The
generator must designate on the manifest a facility that has the
proper RCRA permit or interim status to receive the waste.
In general, destruction of explosive waste by open
detonation/open burning is thermal treatment that must be
conducted at a RCRA interim status or permitted facility in
compliance with Parts 264, 265, and 270. In the event that the
destruction is being done under court order or under directions
from the U.S. Attorney’s office, RCRA is not automatically
waived. The Bureau should therefore locate facilities nearest to
its field offices that have the appropriate RCRA permits or
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—4—
interim status for open detonation/open burning of explosives.
wastes. Some of the military facilities already used by the
Bureau may have the necessary permits or interim status, and
these facilities may accept BATF explosives wastes, under the
terms of their permit or under the provisions of Part 270,
Subpart C, without any special permission from EPA. Other
facilities with RCRA permits or interim status could handle the
open detonation/open burning of BATF explosive materials via
permit modifications (Section 270.41-270.42) or changes during
interim status (Section 270.72). In those cases where a permit
modification or change during interim status is needed by a
facility that agrees to manage BATF wastes, these must be
approved by the appropriate State agency (or EPA Regional office)
in advance of the initial receipt of the BATF wastes.
Finally, we understand that stored explosives material
sometimes deteriorates to the point where a safety hazard
exists. In this type of situation, the discussion on emergency
response activities in Section 1., above, would apply.
I trust that this letter provides you with guidance helpful
to the Bureau’s efforts to comply with RCPA requirements. I
understand that my staff has provided BATF with a list of
facilities that may have the appropriate permits or interim
status and a list of EPA Regional contacts for your field
offices. If you need additional assistance, please do not
hesitate to call me or have your staff call Michael Petruska
(475—9888).
Sincerely,
Solid Waste
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9527.1992(01)
)•l
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
Mark Hansen 3 Ocf’CEO ’
Facilities Manager SOLID %Asrc A O EMERGENCY RESPONSE
Corpcr te Office
Environmental Products
& Services, Inc.
P.O. Box 315
Syracuse, NY 13209—0315
Dear Mr. Hansen:
Thank you for your letter of September 28, 1992 in which you
ask about the transportation and disposal of shock sensitive or
explosive materials. Specifically, you requested EPA guidance on
how to handle materials like picric acid and ethyl ether while
removing old laboratory chemicals.
Under EPA’s RCRA regulations (40 CFR 270.1(c) (3)), all
activities taken in immediate response to a discharge of
hazardous waste, or an imminent and substantial threat of
discharge of a hazardous waste, are exempt from the RCRA
permitting and substantive requirements. Since the chemicals in
question would be hazardous by virtue of their reactivity, any
actions you take to eliminate the imminent and substantial danger
would qualify under this exemption. If the response action
involves transportation to a remote site for destruction, then
the transportation as well as the destruction would be exempt.
However, the transportation is exempt only to the extent
necessary to r: d to the immediate threat. Hence, we expect
the transportation would normally cover r l .- tively short
distance and would occur in special transportation equipment such
as bomb trailers.
Should there be any question about the exempt or non—exempt
status of removing a certain chemical, the RCRA emergency pernit
regulations (40 CFR 270.61) can be used for destruction
activities. As these regulations provide, an emergency RCRA
permit can be issued by an EPA Regional Office or by an
authorized State official via telephone or in writing. These
permits may be issued when the Region or State finds that an
r; inent and substantial endangerment to human health or the
c-vironment exists, according to the requirements of 40 CFR
Z?O.6l. This permit can address both treatment and storage o
hazardous waste. If necessary, transportation can be authoriz•1
at the same time the emergency permit is authorized by obtain i
a provisional identification number. To reiterate, however, r
permit is necessary when the safety official determines that
immediate safety threat exists.
Panted on Reciceø aoe’
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The guidance given above is based on the Federal RCRA
program as administered by EPA pursuant to 40 CFR Parts 260-271.
In authorized States, EPA has delegated the responsibilities of
the hazardous waste program. Although each authorized State
program must be consistent with and no less stringent than the
Federal program, a State is free to be more stringent (e.g., some
States may not offer emergency permits). In the end, you should
check with the authorized State where your facility is located to
ensure that there are no additional (more stringent) management
standards.
I trust that this letter provides you with guidance helpful
to your efforts to remove old lab chemicals. If you need
additional assistance, please call Chester Oszman of my staff at
(202) 260—4499.
Sincerely,
Director
Office of Solid Waste
cc: .hester Oszman, OSW
Ken Gigliello, OWPE
RCRA Permit Section Chiefs, Regions I—X
—2—
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bcc: Sonya Sasseville
Jim Michael
Jeff Gaines
Karen Randolph
—3—
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9527.1993(01)
tDIT4 p••
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON D.C. 20410
FEB 9 1993
Mr. Wil1ja 7. Vore
UsPCI
515 West G4eens Road, Suite 500
Houston, T 77067
Dear Mr. Vdre,
OPFICE OF
SOLID WASTE AND EMERQINCV RESPONSE
Thank ‘I’ou for your letter of December 22, 1992, which asks
for a clarj jcatjcr of the temporary authorization provision in
40 CFR 27042( ). ..ecifical ly, you ask whether a tem .crary
authorjzatjl,n reguesc that would be classified as a Class 3
permit aodjtjcatjon must meat all of the criteria for approval
40 CFR 27 O.42(e) (3) (ii) (C) through (E), or just one of these
criteria.
I hope Ihat thi reply adequately clarifies this provision.
If you have 4ny further guestion , please call Wayne Roepe of my
staff at (701) 308—8630.
ire ctor
0 ce of Solid Waste
in
A temp
criteria to
The regulat
requirement
modificatjo
authorjzatjC
2 7 0.42(e) (3)
will also pr
already list
one of the c
These requir
Permit Modif,
LB 37912, at
rary au horjzatjon request need not meet all of the
approval in 40 CFR 27 O.42(e) (3) (ii) (C) through (E).
Dns at 40 CFR 27 O.42(e) (2) Ci) (B) establish the
for a temporary authorization for any Class 3
According to that section, a temporary
request must meet the criteria in 40 CFR
(ii) (A) pr (B) or, if the temporary authorization
)vide improved management of a hazardous waste
d in thØ facility permit, the request must meet any
iteria In 40 CFR 27 O.42(e) (3) (ii) (C) through (E).
ments are discussed in the preamble to the final
cation rule published on September 28, 1988 (see 53
37920).
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9528 — INTERIM
STATUS
Part 270 Subpart G
ATKI/1 104161 kp
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OSW POLICY DIRECTIVE *9528.00-1
‘ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON D.C. 20460
i’ IL juucs tc:
25 NOV 87
OFFICE O
4ENO RAND tTM
SOLID WASTE ANO EMERGENCY RESPONSE
SUBJECT: Interim Status Expansion to Add an Incinerator
-
FROM: Marcia Williams, Director ( jj j,u’— ‘ -
Office of Solid Waste (WH—562) ‘
TO: Allyn M. Davis, Director
Hazardous Waste Management Division (6H)
This is in response to your memo of October 22, 1987
regarding a request from U.S. Pollution Control Incorporated
(USPCI) to the State of Oklahoma for approval of an interim
status expansion to add an incinerator at its Lone Mountain,
Oklahoma facility. You requested an opinion on the question of
whether an incinerator may be added to a facility as a change in
interim status under the authority of 40 CFR 270.72(c).
Section 270.72(c) allows EPA or an authorized State to
approve the addition of a new unit at an interim status facility
if the change is determined to be necessary to comply with a
Federal, State, or local requirement. On its face, this
provision authorizes the addition of an incinerator as a change
in interim status; however, section 270.72 allows the Director
to exercise discretion in approving or disapproving changes
under that section. Generally, we have significant concerns
about new incinerators being added as changes in interim status
without the benefits of a trial burn and public participation.
While we do not believe that the Director may be arbitrary in
deciding to approve or disapprove a change in interim status, we
believe that it is important to Consider protection of human
health and the environment and the rights of the public, and
that it is generally unwise to allow operation of a new
incineratot without a trial burn and opportunity for public
comment.
As an authorized State, Oklahoma may implement its own
hazardous waste program and interpret its OVfl regulations.
While the State of Oklahoma has the authority un er section
270.72(c) to allow addition of this incinerator as a change in
interim status, we believe that the preferable approach would be
to include the proposed incinerator in the ongoing permit
process for USPCI. Since the facility’s permit is scheduled for
issuance in 1988, the incinerator activity could be pursued as
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OS tR POLICY DIRECTIVE 49528.00-1
2
a subsequent Permit modification. k1though the prooose
incinerator Would not be subject to the 1989 permitting
adline for incinerators, i would recommend that the
Regional Office work closely with the State to establish a
priority for developing the incinerator portion of the
permit.
If you have any questions a.bout this issue, please
contact Frank McAlister (FTS 382-2223) or Barbara Foster
(FTS 382-4751) of the Permits Branch.
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OSWER POLICY DIRECTIVE 9528.OQ—j
, 1%0 SP. ,
i i3. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION VI
4 AlLIED BANK TOWER AT FOUNTAIN PLACE
1445 ROSS AVENUE
DALLAS. TEXAS 75202
TOBER 22, 1987
Z RANDUM
SUBJECT: Interim Status Expansion to Add an Incinerator
FROM: Allyn M. Davis, Director Q1T ’ Out )
Hazardous Waste Managament Division (6H)
TO: Marcia Williams, Director
Office of Solid Waste (WH—562)
Attached is a recent request fran U.S. Pollution Control Incorporated
(US I) to the State of Okiahana for approval of an interim status expansion
to add an incineratQr at its Lone Mountain, Okiahana facility. The Okiahana
State Dapartnent of gealth (OSDH) requested EPA’S Opinion on this issue.
Since this appears to he an issue of national importance and precedence,
Region V I r uests your opinion on (E I’s request, as wall as the issue
in generaL.
US I wishes to add an incinerator to its Lone Mountain facility as an
expansion un i r interim status • As stated in the attached argument, US i
claims this expansion is necessary to satisfy requiren_e of the land
disposal restrictions. The August 14, 1987, preamble to the proposed
changes to 40 R 270 appears, to sane extent, to support this position.
Howaver, such a change would be a drastic departure fran US I’s historical
waste disposal practices at the Lone Mountain facility. (JSPCI has never had
an incinerator at the facility, and has not incitried a planned incinerator in
its Part B application. Allowing such an expansion under interim status
would allow USP 2I to construct and to operate a hazardous ste incinerator
with no permit, no public participation, and no trial burn. In fact, such
an incinerator would not appear to be subject to the 1989 permitting deadline.
(The land disposal permit for tEP.1 is expacted to be public noticed in
July 1988 with final determination in the fall of 1988.)
The Region viewa this as a vitally important issue, since there are
other cnu.ercj j. disposal facilities which would like to avoid the permitting
process by adding interim status incinerators. The Region is not aware of
any cases in which such an expansion at a c mercial facility has been approved
in the past.
Your iimnedjate attention to this issue is requested since OSDH imist
respond to rE i soon. If you need further information, please contact me,
or have your staff contact Bill Honker at FrS—255—6785.
Attact inent
.
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Joa n IC. L•avltt. M.D
— :——
So., of I4.aItJ
— :. MC
OKLAHOMA STATE
OEPARTMENT OF HEALTH
P.O. BOX S3SSI
1000 N.E. TENTH
OKLAHOMA CITY, OK 73152
OSWER POLICY DIRECTIVE $9528.00-i
S Carr.cae ::
..ar es C: . ,
.ca 1 . Cr’s.:r
M r
Jia;e’
A ø
/7 ,
September 22, 1987
Mr. Sam Becker, P.E., Chief
EPA Region VI
1445 Ross Avenue
Dallas, TX 75202—2733
Dear Sam:
Attached is an application for a proposed modification at the IJSPCI Lone
ouncain facility. I need your assistance in evaluating this proposal.
In readjfl? the cover letter, the argument offered sounds reasonable.
Please advise me of EPA’s position.
In the interest of responding promptly to this issue, I have taken the
liberty of prescheduling a conference call for Thursday, September 24 at
3:30 p.m., at which time I will initiate the call to your office. If the
time is inconvenient, please let me know.
Thank you for your assistance.
Sincerely,
Robert A. Rabatine
Programs Manager
Waste Management Service
.—
-
— . . C
--, ,.....-
RAR / 1 p
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OSWER POLICY DIRECTIVE *9528.00-1
-L..UTION
‘TROL, INC. SFP
- :f ct
eptezr er 2, 1987
Dr. Dwain Farley
Chief of Waste ManagEr r t Services
Oklah State Depr er t of Health
P. 0. Box 53551
0klah ra City, Oklahcxna 73152
Subject: Changes Under Interim Status
Incinerator at Lone t intain Facility
ar Dr. Farley:
U. S. Pollution Control, Inc. requests that the Ok1ak ia State
DepartYent of Health approve the revision to the Part A
application for the Lone frt’unta.in Facility which ld all the
iristallat.ion of an incinerator. Authority for this action i.s
four.d under 40 CFR 270.72(c):
“... adr i tional processes may be aIid Qd i. f the ner or
operator suheits a revised Part A app1 .cation prior to
such change (along with a justification explaining the
need for the change) and the Director approves the
change because:
(2) It is necessary to ccz ly with Fedfrral regulations
(incli 1ing interim status standards at 40 R Part
265) or State or Local laws.”
The land disposal restrictions (40 CFR 268 for solvent wastes
pub1.isk in the Noveiber 7, 1986 Federal R ister (pages
40572—40654) r uire the incineration of F00l—5 solvent wastes
prior to landfill disposal. Lone ? inta.th Facility received in
excess of 2000 tons of FOOl thr agh F005 wastes in calendar year
1986. Al.l ing the adjus nt of 1986 vol ies to reflect the
land restriction applicability in Novsiter and De rber,
maintenance, startup, deb .igging, and waste volizre variability,
U. S. Pollution Control, Inc. has chosen a U 2-ton per
hour incinerator as the necessary unit for ai lianca with the
land disposal restriction for solvent wastes F001-F005.
The State’ s authority to approve this change was ccnfirued by
telephone with Mr. Matt Hale who .s the ( ief of the Permits
Branch, Office of Solid Waste, U.S. ‘A Headquarters (telepk e
202—382—4740). 1 approach was also discussed at length with
2000 Classen Center • Suite 400 South • Ok’ahoma City. OK 73106-6078 • 405/528-8371
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0SW POLICY DIRECTIVE *9528.00-1
e:ter to . ain ar e’
Sept nber 21, 19E7
Page 2
and ccnfir! ed by Mr. ee Haze of u .S. EPA Regicn V i (:ee nor.e
204—655—6750).
Attached to t letter s a bcokiet titled, “Questions and
z swers on .and Disposal ?estr .cti .ons for Solvents arid
Dioxiris” ( A/530—SW—87—020 May, 1987). The foLl ing
rnetorical question is raised and aris red on page 31.
Q: Can a new treatxi ent process be ç1oyed under interim
status?
A: Yes, a new trea tent process can be introduced at an
i.nterim status facility as long as the conditions of
Section 270.72 are riot. Prior to such change, the
facility im.ist sube it a revised Part A application and
a justification for the change to EPA for approval.
EPA xt y approve the change if the faciLity has
d nstrated that it is necessary to caiply with
Federal, State, or local require ents. Ebwever, the
extent of changes to an interim status facility is
limited in that capital expend3.thres xiay not exceed
50% of the cost of a new facility.
The cost of tius stall incinerator will not exceed three million
dollars ($3,000,000). The kxok value of Lone L bunta.in facility
including depreciation is over thirteen million dollars
($13,000,0000). Replac ruent value for Lone buntath considering
miru.nuu technclogy r ui r nts for units 1 through 8 is far in
excess of original cost.
USPCI does r t anticipate that the final Part B permitting of
this incinerator will interfere with permitting of the rest of
the facility. &i permitting of individual units of a facility
is aUc ed under 40 ‘R 270.1(c) (4), which states:
(4) Permits for less than an entire facility. EPA
issue or deny a permit for one or re units
at a facility witk ut sii .iltar*ecu.sly issuing or
denying a p rmit to all of the units at the
facility. 1 interim status of any unit for
which a permit has r t been issued or denied is
z t affected by the issuai e or denial of a
permit to any other unit at the facility.
Accordingly, USPCI anticipates that the Part B permit
application will be called for slxrtly after the approval for
the change in interim sta s. Allowing 180 days for preparation
of the application i].d leave rr re than eighteen (18) ttutths
for permit review prior to t he statutory de liy for permit
issuance of incinerators by Nove er 1989.
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OSWER POLICY DIRECTIVE #9528.00-1.
Letter o r. ai Far.ey
Sepc r er 21, 1987
Page 3
Saie cOr.fusion v save been raised y a :csed crance
iblished in the FederaL . egise: or ? ugus .4. 1987. That
article proposed ei r - at g e currer t_y effect ;e f:f:y
ercent (50U econstruc .on for interirn status chances
:nvolvi .ng tanxs and contai.ners. That proposal snould not be
confused with eliru..nating inter .m status cnanges for
.1.ncl.rlerator5 which is not proposed. The fifty (50%)
reconstruction rule governing trea nt processes other than
tanks will r i.n intact under the proposal.
In way of further buttressing of our request, the August 14,
1987 Federal Register article observed on page 30572 that t
current regulations
“provide i çortant flexibility in aU ing changes in
or additions to processes necessary to cat 1y with
Federal or other reqw.re rents such as 1ar
disposal restrictions
A copy of that article is attached for your reference.
We need to ke the decision to proceed on this pro)ect by
September 30, 1987 in order to secure equiprent and adequate
professional staffing. Your expeditious handling of this itatter
is a reciated.
Sincerely,
ri. S. POLWTI t4 cx.wr L, INC.
K+n Jackson
President
Ia/cam
Attac t
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9528.1982(01)
SUgJECT: Changes to Ha:ardous Waste :LanaSecgent FaciiitLe Dugin
interin btac.us; .urrent 40.1 1 roposed aelatiuns
John tt. Skinner
Director, State Prograns and
aesource Recovery Division (Wd563)
Ste.pi ea (. Wassersu
irsccor, Air, Toxic, and
hazardous L1ateria1 I Division
e ion ILL
t our neetinZ on iay 19, 1982 you asked fur a status report on
the re u1atIoas overnin cbanges to azardous waste .Ianagcl.aeat
( iw i) facilities duriag interin status. In response, I ai. outlining
wtaat ae reguidtione currently require; what changes we agreed tu
iropose under the sectisnenc agreement in the NRDC lawsuit, ( :4RDC v.
E ’A , u. 0V—ib 7 and consolidatdd caee (D.C. Cir., filed June .,
198U)); and on what provisions of the settlezaent oi this is u w
have reop ced vettlenent discussions with the litibanta in the
lawsuit.
Cucrnnt Re , ulations: 4u CFR ?art 122.23
Section 122.2J(c) now re uiates tour types of chanbes duriLl 6
i terin status. Th•s. regulated changes nay only be na4e for the
reasons listed in tns regulations, as follows:
• a 1. New hazardous ws tes cay be added for treatnent,
scorabs, or disposal if. the owner or operator iubnita a : vi ca
dart A psrnit application prior to adding toe new waste.
2. The design capacity o processes used at a facility
may be increased if:
(a) the owner or operator submits a revised Part A
pernit applicaLion prior to the cflan e, along witt a .justiiication
explaining the need for th. change; and
(b) tbe D:.a ... r p. roves the change because:
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(i) of a lack of avaiiaole trc ataent, stora , ,
or iapo a1 Capa iCy at Other L . ..i fa ilit’es;
(ii) it is neucasary to prevent a threat to
tiu .ian health or tne eavironeent because of an e er a y situation;
or
(Lii) it is uecess.ry to couj 1 s u.’Lt e. L gj
regulations (iacludia Part 26 ) or State or local i. s.
3. Additions of new processes or ChaUSeB in roc ae 3 .jjj
o ur onLy if:
(a) the owner or operator submits a revised Part A crnit
appli atioa prior to the change and a justification explai.iin t. e
need zor the change; and
(b) the Director approves the chani e oscause:
(1) it is necessary to prevent a threat to hunan
health and the environnent becauae of an energency situation; or
(ii) it La necessary to coQply with Federal re&uia—
tions (including Part 265) or State or local laws.
4. CLiaa es in the ownership or operational control of a
facility may be made if:
(a) a revised Part A is submitted 90 days before tne
cnan e; and
(b) t e new owner or operator can demonstrate conpltance
with the rinancial responsibiLity requirements.
t addition, there is an overriding reconstruction cost Unit.
Section l22.23(c)(3) states that no change shall be nade to an h M
xacility which amounts to reconstruction of the facility, i.e.,
when the capital investment in the changes exceeds xifty percent
of the capital cost of a comparable entirely new HUM facility.
Changes to l22.23 agreed to under the $ettlecieat agree& ent
Section 122.23 was c a1l.n .d by the litigants in ftEC v. E1 A
as being too restrictive. Tb. A ency negotiated and si aed a
settlene.t agreement in November, 1981, which requires EPA to
propose amendments to this section, among others. ic..La important
to notS that we have not yet propose 4 rh . ... anges. Furthermore,
any actual change in the reg t—.” would have to follow such
prooo 1 anda - bI4 . Period.
—4—
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J.he aoend ent3 we a rted tO tODOS to 1Z2.23 would a113w oce
ctlanbes during interim status than tnc current re ulac.iond allow.
Aa i22.23 appears in the settlenent agreenenc,:
1. New hazardous wastes may be anded Dy submitting a revised
at permit application prior t adding the new wasc, . ( o cLian.,e
to this section is proposed.)
2. t i design capacity of processes may be increased:
(a) up to lOh if th. owner or operator submits a revisec
A permit application prior to making the change;
(b) trom lU Uh if the owner or operator submits a revised
z art A permit application at least 180 days before increasing the
capacity;
(c) any amount if the process increased is storage or
treatment in containers or tanks, if a revised Vart A permit
application is submitted at least bO days before increasing the
capacity.
(4) any amount if it isnec.ssary to comply with Federal,
State, or local laws or regulations (including Parts 264 and 2o5).
3. New processes may be added if:
(a) the owner or operator submits a revised Part A prior
to the change; end
(b) (1,) the Director approves th. addition because it is
necessary to comply wita Federal, State, or local laws or regula-
tions (including Parts 264 and 2e5); or
(ii) the addition or cban e is storage or treatment
in containers or tanks.
4. Units may be replaced if:
(a) it is replacement of tanks r containers for stora e
or treatment, or units replaced at exactly t1 e same location, with-
out submitting a rsvta.d Part A;
(b) for any ocher process, or units replaced at a
ditfereut location, a revised Part A is •ab tcrad bU days befort.
‘-onstruccion begins.
. The aec.. o an changes in the ownership or operational
control of a facility has not been changed.
—3.’.
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o. Th overridjn reconstruction cost I1 2iC t as been elinina—
7. A provision has been added that all aavance notice periods
cay be shortened for áooc cause shown.
enegotiatton or the settleoent agreecent
S in e •i ning the settLenent a reenent in Noveiaber, l9bl, there
flave .een soea chao&ea in £PA’s ability to issue pernits. £k A will
be in a position to issue permits to ezistin land ai posal facili-
ties six months after promulgation of the Part 264 standards. In
addition, the ency viii have the ability to pernit existing
incinerators when the technical standards for exLstin incinerators
are reevaluated. auth of these aevelopszents are tz3zainent ano
encourage a caande in the settleiaent a reenent on this issue.
We have reo asn.d sett.lenent discussions on tnts issue. The
position we currently favor would allow increases i” deei n
capacity up to 101 of the capacity of a process as reflected in
tne f&cility’s initial Part A. Any increase above 1 Jh would require
a percit. All other provisions of the proposal specified in the
settlenent a reeeent would renain the sams.
I realize that the existing re ulatLons are difficult to work
with. Since we have not yet nade any aneodments to *122.23, we
cannot reconmend as a general natter that you allow changes which
would not be allowed under the current re ulations. In the ceno—
randue from Christopher Capper of November 20, l sdl on the settle—
neat oi the RCRA—related issues in the N&DC v. EPA lawsuit, however,
we su 6 ested that the A sucy nay exercise its enforcement discretion
in dealing with situations which nay be handled differently should
EPA pronulgace th. amendments. *11 situations where enforcecent
discretion is considstsd should be handled at headquarters by the
Office of Le a1 and Enforcement Counsel. br further ..nlornation
concerning the use of .nforeenent discretion in individual cases,
call z .athy Summerles at 382—3110. if you have further questions
eonee:nin 40 CPE *122.23 or the settlement of this issue calL
&iebor*h Wolpe at 3 s —47 4.
cc: i(athy Sumnerlee
Dotz Darrab
Deborah Jolpe
Dire tors, Air aizardous Materials Division, &sgioas I
—4—
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9528.1982(02)
July 20, 1982
Honorable Barbara A. Mikuiski
House of Representatives
Washington, D.C. 20515
Dear Ms. Mikuiski:
Administrator Anne Gorsuch appreciates your June 22 letter
requesting clarification of the requirements under the Resource
Conservation and Recovery Act (RCRA) for expansion of existing
hazardous waste management facilities. The Administrator has
asked me to reply.
Specifically, you asked for an interpretation of the
provisions of 40 CFR §122.23(c)(5). That section provides that
“In no event shall changes be made to an HWM facility during
interim status which amount to reconstruction of the facility.
Reconstruction occurs when the capital investment in the changes
exceeds fifty percent of the capital cost of a comparable
entirely new HWN facility ” (emphasis added).
Your questions and our responses are:
1. Question : If a State-owned site is expanding, would the
cost computations for a comparable new facility assume no
land—purchase cost since a comparable new facility would
also presumably be built on a State-owned site?
Response : The cost computations for a comparable entirely
new HWN facility would include the fair market value of the
land necessary for such a facility, whether or not the
expanding site is State-owned. Land has value whether or
not it is State-owned. Therefore, EPA would use the fair
market value of necessary land in its cost computations.
2. question : If a site is expanded, would construction of off—
site access to a freeway concurrent with the expansion be
included in the capital costs of expansion?
Response : No. Off-site access to a freeway is not part of
the hazardous waste management (HWM) facility, as defined in
40 CFR §122.3 of the regulations. A HWN facility means all
contiguous land, and structures, other appurtenances, and
improvements on the land, used for treating, storing, or
disposing of “hazardous waste . . . “ (emphasis added). Of f-
site access roads would not be included, therefore, in the
capital cost of the changes to the facility.
This has been retyped from the original document.
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—2—
3. Question : If a site is expanded more than once, would the
cumulative costs of expansions since November 19, 1981, be
used for a determination of what constitutes a
reconstruction under 40 CFR §122.23(c) (5)?
Response : Yes. The cumulative costs of capital investments
in the changes since November 19, 1981, are used to
determine what constitutes a reconstruction. Any other
interpretation would allow facilities to spread out the
costs of expansion over several different changes at
different times, defeating the purpose of this regulation.
4. Question : If a site is to be considered for expansion, what
criteria will be applied by EPA in determining the
relationship of the capital costs of a comparable facility
on the following matters: acquisition of land, acquisition
of construction materials, transportation of materials and
structuring of the site, construction of groundwater
monitoring and control features, and construction of access
to the site?
Response : The capital cost of a “comparable entirely new
HWM facility” is the cost in today’s dollars of building a
hypothetical facility comparable to the facility which
qualified for interim status in both area and capacity, but
using current state—of—the—art technology.
Acquisition of land : The fair market value of
necessary land would be included in the cost of a
comparable entirely new facility.
Acquisition of construction materials : The fair market
value would be included.
Transportation of materials : These costs would be
included in the cost of acquiring construction
materials.
Structuring of the site : The construction costs would
be included.
Construction of groundwater monitoring and control
features : The costs of such features would be
included.
Construction of access to the site : These costs would
not be included in the cost of a comparable facility,
for the reasons stated in the Response to Question 2.
This has been retyped from the original document.
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—3—
5. Question : If a site is to be considered for expansion, what
criteria will be applied by EPA in determining the
relationship of the capital costs of a comparable facility
in the relocation of adjacent communities including selling
of homes and adjacent properties; moving expenses for both
residents and community institutions, and repurchase of new
homes?
Response : The calculation of costs for a comparable,
entirely new facility would not include the cost of
relocating the residents of adjacent communities. As
explained before, “facility” means the land, etc., used for
treating, storing, or disposing of hazardous waste.
Adjacent communities are not part of an HWM facility.
6. Question : Under the provisions of 40 CFR §122.23(c) (5),
what alternatives must be considered for purposes of
establishing that no alternatives to the proposed expansion
exist? Must any of the following be considered:
incineration; shipment to other facilities in the region or
the nation; recycling programs to promote at-source
recovery; some combination of these or other alternatives?
Response : EPA may approve requests for increasing the
design capacity of existing facilities because of a lack of
available treatment, storage, or disposal capacity at other
hazardous waste management facilities. This determination
is made by the EPA Regions on a case—by—case basis. The
Agency would consider all of the above—mentioned factors in
evaluating the technical feasibility and cost constraints of
the alternatives available within the time that the capacity
is needed. EPA would explore issues such as: How far are
similar volumes of waste shipped? Would the additional cost
of shipment to an alternative facility be so great that it
would not be practical or reasonable to do so? Does the
waste require specially designed vehicles, e.g. , is the
waste extremely flammable or dangerous? Would at—source
recovery be feasible and practical within the time that the
additional capacity is needed? Is incineration or alternate
treatment at other facilities technically or economically
feasible?
You have also requested information on any applications for
the expansion of existing hazardous waste sites which are
pending, or have been approved or rejected by EPA, under the
provisions of 40 CFR §122.23(c). As mentioned earlier, these
decisions are made at the Regional level. We are collecting this
information from our Regional Offices and will forward the
results to you.
This has been retyped from the original document.
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—4—
In addition, you have requested information on any lawsuits
brought under the provisions of S122.23(c). There have been no
lawsuits challenging the use of §122.23(c) in specific
circumstances. There has been a generic challenge to the
provisions of §122.23(c). In NRDC v. EPA , No. 80-1607 and
consolidated cases (D.C. Cir., filed June 2, 1980), several
industry associations and other groups challenged this provision
as too restrictive. EPA entered into a settlement agreement in
which the Agency promised to propose some changes to §122.23.
EPA recently reopened settlement discussions on §122.23(c) with
the petitioners and, to date, has not issued a proposal.
We appreciate your interest in these matters, and I hope
this information will be helpful to you.
Sincerely yours,
Rita M. Lavelle
Assistant Administrator
This has been retyped from the original document.
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9528.1983(01)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
MARCH 83
3 r t torts M interim It J2 facility wiaha to id a n hazardcua imate
mana e flt t it. Is this i,ttt s j.ct to th 4. 18 set unic
st arda if tt irift n added ac rdi ç to 122.23(c)
(3) a’ d (51? Ii tPe n wsit mS j.ct to 264.1w if the e ier/
has ccesdsd r.. tructiCr ta ar has to mi iti t a
full pemit plLcatt ’ f t . wdt?
(1) If the d arQe can made digirç int.tlsi atab s, the witt is
n to the .eie”ic stan . The clef initi t of iztivij
facility is satisfiad, ard a facility can have ral unttii.
(2) Part 264.18 plies to n facilities, ar this tviit is still
p.Lt of an .ststirç facility.
S css David Pagan 1 David Stwmfl
Reasarthz tre a 1 ner
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9528 .1983(0
RCRA/SUPERFUND HOTLINE SUMMARIES
SEPTEMBER 83
One con any leases a site and has interim status to store hazardous
waste in containers at that site. The operator has submitted a
closure plan to the Regional dmln1strator but the plan has not
been approved. Can the owner of the site lease the property to
someone else for their use prior to certification of closure?
Yes, the site can be used by the second leasee prior to certification
of closure as long as the owner, current operator, or original
operator ass snes responsibility for carrying—out closure.
Source: Carole Aoshe es and Dov Weitman
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9 528.1984(01)
PERMIT POLICY Q & A REPORT
IMPROVEMENTS TO SURFACE IMPOUNDMENTS UNDER INTERIM STATUS
SEPTEMBER 10, 1984
• 4• Questicfl$ At the tine an lbS facility has its Part q applica-
tion c3lled, storaQe surface i o ..ndnent3 are being re ’utlt with
clay liners. DceS this cc stitute an incroa e in desi 3n capacity
or a chance in process under 270.72(b) and Cc)? If so, can the
BA refuse to allcw the chan’0 under ISS and rec utre the surface
i ;ound efltS to eet.th0 Part 264 standar s7 40 CF? 27C.72.
Answer: No. If the capacity of th4 surface inrnunirleflts is not
enl rG 3d and no ew units are beinc3 addec , irprove entS to the
surface ir;ound entS are a per %isSible cP ançe under ISS as long
as the reconstruction provision of 7O• 2(.) is not viol3ted.
This is not a change in procesS. Re—built surface tnpcunt r nt5
will be tre3ted as exiStifl’3 units for purposes of conpliance with
Part 2 4 standards. At the tine the ie existinç units are
per 1tted ho’jever, oi%ly the oxistinij porticns. i.e., t .e latd
surface area upon which wastes are pieced prior to per it issuance,
will be ox rpt from Part 264 rcçuireiefltS to install lin3rS and
leachate collectiOn syste! S.
The owner/operator should be in orit cd of all. appropriate
Part 264 t ,chniCal stanc ardS and should be encouraçed to
voluntarily adopt those standards as part of reconstruction.
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9528.19 85(01)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
DECEMBER 845
An interim status facility has a surface impoun nt for storing a hazardous
waste • This facility wants to build another storage surface iiTçourónent for
a new product line which will produce a hazardous waste that was not designated
on the facility’s Part A application. Would building such a storage surface
i çourtói nt for accepting a generated ,*rdous waste new to the facility be
considered an increase in design capacity (5270.72(b)) or a process change
(S270.72(C))?
Adding a new storage surface impour IEnt would be an increase in design
capacity. This would not be considered a process change since the process
is not changing; the new unit is also a storage surface inpounc nent
(designated S04 on a Part A) • An increase in design capacity requires the
owner/operator to sul xnit a revised Part A application, which includes a
justification for the change, and to obtain approval fran the Regional
ninistrator or State Director (3270.72(b)). Also, the owner/operator
im st catçly with S270.72(e) concerning reconstruction of the facility.
Source: Debbie Wolpe (202) 382—4754
Research: 1 Gainer
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9528.1985(03)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
SEPTEMBER 85
L s of Interi.m Status
4. The 1984 HS n1 ents requir. that th eria Status ]kld dis aJ. facilities t.’.a-
wish to c nti.nue operation after t1o iei bc 8, 1985, st su it Part B applica
3fld er ify liance with gr ndwatec r nitorirç and financial responsibilit,
eq ents by iovetcer 8, 1985. 4tich types of facilities are requi.ed to Ce : :...
e at t.tey are in c liance witfl all. applicable gr ndwate r itorirç and financ:al
: esp tsility : equire nts7 Is tiers a specific f for csrtifyirç c ç1iance?
In the S.pr.a bec 25, 1985 F. al (50 FR 38947), the ?gertcy interprets
the term tand disp e ’l faciLity ’ to encozçasas landfills; land tea nent
units; surface thç r nt3 for disposal. tea ertt or storeg.: waste seoraçe:
waste piles; and Class I hazard s waste undsr nd in .ctia waUs.
Cn July 15. 1985, 52 O.73 was chat .d to reflect the certification : equirei nts
of the 1 Q k n nts. The certification shoild be su itt.d in eddition to
and r t as pact of the Part S application. Th, certification statei nt was
published in the Septenb.r 25, 1985 Federal ! E (50 FR 38949). The c. t —
fication requires that the facility be in Y” i3.anc. with ll gro.zndwat.r
nj t and financial reepaisibility :.quir.i nts of 40 ‘R Parts 265 Subparts
p at ii or all Stat. gr .tnd-water iitcri and financial responsibtity requ
nts wIiich are ana1a a.as to Part 265 as part of the State’s authorized hazar s
waste ogr wider section 3006 of Copies of a facility’s certificatIon
and Part S or Stat. final ratin perisit application u.tst be s itted to bot.i
the A Regional office arid the Stat. in %ic2t ths facility is Lorated. Factlitie
in a Stat, with a federally run A prr need only su eit these docunent.s t
the Region.
S irce: Jackie Tenusak (202) 475-8729
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9528. 1985(04)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
OCTOBER 85
7. Changes During Interim Status
A hazardous waste storage facility operating under RCRA
interim status standards (40 CFR 265) undergoes a corporate
reorganization in which the original company becomes a
parent holding company with five subsidiaries. There is no
change in ownership or operation of the facility. In
effect, the company changes in name only. Must the
owner/operator notify the U.S. EPA of the change? If so,
what procedures should the owner/operator follow?
40 CFR 270.72 and 270.10 address the changes during
interim status which require the submission of a
revised Part A permit application. Because name
changes are not included under these sections, the
facility would not need to submit a revised Part A in
this situation. Rather, the facility should notify the
Administrator or Director of the clerical change in the
permit application using any reasonable method. For
example, the owner/operator could send a letter to the
Regional Administrator to make the appropriate
correction on the Part A application. Note that if the
owner/operator name change involves a facility located
in a State that has interim or final authorization to
manage the hazardous waste program in lieu of the
Federal RCRA program, the owner/operator should contact
the State on this issue. The State program authorized
by U.S. EPA may include additional requirements that
are stricter or broader than those of the Federal
program (e.g., the State may require submission of a
revised Part A application).
Source: Carrie Wehling (202) 475—8070
This has been retyped from the original document.
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9528.1985(05)
RCRA/SUPERFUND/OUST HOTLINE
MONTHLY REPORT QUESTION
OCTOBER
1985
2. Loss of Interim Status
C insrs or erators of land disposal facilities which have interim status prior to
Noventer 8, 1984, will have their interim status terminated On Noventer 8, 1985,
unless a Part B permit application is suI nitted prior to that date and the oinsrs/
erators certify that the facilities are in caiçlianoe with all applicable gra.ind-
water i nitoring and financial responsibility requirenentS per S270.73(c), of the
July 15, 1985, Federal ister (50 FR 28753). The notice of Inplenentation and
enforcenent policy for thts provision in the Septeu er25 1985, Federal Register
(50 FR 38946), states that to certify iv1iance a facility nust be in “physical
cczipliance ” with the Federal or State ground-water ncnitoring and financial responsi-
bility requireitents. What is “physical xztpliance ” for the Federal gr md—water
rrcnitoring requi ui nts?
Qrarers or c erators niast certify “physical cczipliance ” with applicable ground-water
ncnitoring requirenents defined in 40 CFR Part 265, Subpart F (see Appendix A, 50
FR 38949). “Physical ccxiçlianoe for parposes of certification under 53005(e) ans
that unless the iner/cperator neets the waiver requir nts under S265.90, the
facility mast have a ground-water rtcnitoring system which neets all of the specifica
tions of S265.91. This system iTu.ist be physically in place at the unit for which
certification is required and sanpling and analysis under 5265.92 mist be underway.
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9528.1985(09)
21
Mr. Robert 0. Chesler
Lowenstein, Sandier, Brochin, kohl,
Fisher, Boylan & Meanor
65 Livingston Avenue
Roseland, New Jersey 07068
Dear Mr. Chesler:
Thank you for your letter of November 15, 1985 regarding
storage and treatment facilities and the Loss of Interim Status
provision. While the essence of your letter is correct, there
are a few misunderstandings I would like to clarify.
Your letter states that storage and treatment facilities
would not los, their Part A interim status if they lost their
sudden and accid.ntal coverage and if those facilitie, could
demonstrate that they were making and continued to make qood
faith efforts to purchas, such insurance cOverage. It is correct
that the Loss of Interim Status provision in S3005(e)(2) of th.
Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act, as amended, applies only to land disposal
facilities. Generally, it do.. not apply to storage and treatment
facilities. However, EPA published a notice of implementation
and enforcement policy regarding this provision on September 25,
1985. The notice states:
For the purpose of section 3005(e), the Agency interprets
the term ‘land disposal facilities’ to encompass the
following types of facilities: landfills, land treatment
units, surface impoundments for disposal, treatment, or
storage: waste piles; and Class I hazardous waste
underground injection veils.
All such facilities which did not certify compliance on November 8,
1985, with financial responsibility requirements (among other
aspects) have lost interim status.
A distinct issu. from loss of interim status is the continuing
obligation of all interim status treatment, storage, and disposal
facilities to comply with the RCRA insurance requirements. EPA’.
Enforcement Guidance for a Constrained Insurance Markst, issued
-------
on April 12, 1985, stated that EPA would not enforc. against
those who made good faith efforts to comply with the insurance
require.snt .. Mov.ver, that notice, by its terms. was in effect
only until No! b.r 8. 1985.
Your letter also states that loss of sudden and accidental
insurance would not prevent a treatment and storage facility from
being granted fina.L authorization. It goes on to say that in
such a situation, EPA can approve final authorization and
place the facility on a schedule of compliance for the insurance
requirements. I am assuming that when you us. the term final
authorization you mean the issuance of a Part B permit.
Compliance with the financial regulations is required before a
Part B permit can be issued. The Agency has not yet developed
its policy on implementing these requirements for facilities
seeking a permit. For intormation regarding the status of this
policy, you may wish to contact David Pagan of the Permits Branch
On 382—4457.
I hope this clarities your understanding of the Loss of
Interim Status Provision regarding storage and treatment facilities.
Sincerely,
Carols 7. Anshsles
Manager, Financial Responsibility
Program (WH—562B)
CC: Dave Pagan (05W)
Jackie Tenusak (OWPE)
Joe Freedman (0CC)
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9528.1985(11)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
DECEMBER 85
Burning and Blending and Interim Status
7. A canpany blends listed hazardous wastes (40 CFR u parts C anc i r c a e s
the lends.a9 hazarcous waste fuel. The cartpany is neither trte ereratcr nor
the burner of the r azaraous waste derived fuel. The operator of a cer nt kiln
currently uses virgin oil as fuel but plans to switch and use the hazardous waste
tuel blends tO po r the kiln. Tanks wtucn previously held virgin oil. are
being converted to store hazardous waste fuels. The cement kiln operator has
asked if ne must “physically” have the hazardous waste fuel. in his storage tanks
prior to the effective deadlines set in the November 29, 1985, Federal çister
(50 FR 49164) for Part 266, Subpart D burning/blending, in order for the facLiLt ’
to obtain interim status for storage.
Currently, the hazardous waste fuel to be burned is exempt fran any
regulations because the fuel was obtained fran a blender who neither
generated nor burned the fuel (50 FR 667, S266.30 (a)). This exemption is
pursuant to the redefinition of solid waste (-50 FR 614). Per the
tbvember 29, 1985, final burning and blending regulations, which re
pranulgated pursuant to the Hazardous and Solid Waste Men *nts of 1984
(HS ), hazardous waste fuel will be regulated when blended by the c içarty,
(50 FR 49204, §266.30(a) and §266.34 as nded) and when the fuel is
burned by the cement kiln operation (50 FR 49204, §266.30(a) as T rx ed,
50 FR 49205, S266.35 as aTended). Hence, the ceTent kiln operator needs
interim status or a permit to store the hazardous waste fuel, prior to
burning.
qualify for interim status, a facility owner/operator must rTeet the three
criteria set Out ifl Section 3005(e)(1) of RA as mnended. First, the owner/
operator must nave an “existing tlazardous Waste Manag nent (1M4) facility,”
defined as a facility which was in operation or for which construction
caTi T encea on or before bvember 19, 1980, (40 CFR 260.10), or a facility
“in existence” on the effective date of statutory or regulatory n nents
under the t that render tr facility subject to having a RAI permit.
Second, the owner/operator must file a notification of hazardous waste
activity per Section 3010 of LCRA; and third, subsit a Part A application
(50 FR 28753, S270.70). In order for the ce nt kiln operator to be “in
existence” for the purpose of obtaining interim status for converted tank
storage, he should be storing hazardous waste fuel in his tanks on the
effsctiv. date of the burning and blending regulations under Part 266,
Subpart D (50 FR 49164). H ver, a facility at which tanks are empty on
the effective site but which are intended to store hazardous waste fuel. may
also qualify for interim status under certain conditions. Ib be in interim
status such a facility must, by the effective date, have obtained all
Federal, State, and local approvals or permits necessary to begin storage
of hazardous waste fuel in the tanxs ar have objective evidence, such as
contractual obligations which cannot be cancelled or ricdified without
substantial loss, which clearly indicate the intent to beyin storage of this
waste in the tanks within a reasonable time.
Source: Carrie h1ing (202) 475—8067
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9528. 1986(01)
Susan Lubick
Room 2419
Rayburn House Office Building
Washington, D.C. 20515
Dear Ms. Lubick:
On October 28, 1985, you met with Clem Rastatter of my staff
to discuss the CECOS International site in Niagara Falls, New
York. As a result of the meeting, you requested the following
additional information concerning: (1) administrative
requirements and location standards applicable to the
construction of the new Cell #6 at the CECOS facility; and (2)
applicability of the “omnibus provision” of the Hazardous and
Solid Waste Amendments of 1984 (HSWA) to the expansion of the
facility.
As you know, the CECOS facility is currently operating
under interim status standards. Facilities operating under
interim status are normally required to submit a revised Part A
application and meet the requirements of 40 CFR 270.72 for any
change during interim status. Part 270.72 requires EPA’S
approval for: (1) any increase in design capacity not previously
identified in the Part A of the permit application, and (2) any
process change or the addition of processes not currently
identified in the Part A . However, the construction of Cell #6
was detailed in CECOS’ original Part A application. Therefore,
the construction of Cell #6 is not considered to be a change
under §270.72, and the facility can proceed with the construction
of Cell #6 without any permitting action by EPA. The facility
must also install in Cell #6 at least two liners and a leachate
collection system above and between the liners as required by
Section 3004(0) of RCRA. The design and installation of this
liner system is not required to be reviewed or approved by EPA
(or the State) before construction has begun. However, design
specifications and other information on this system have been
voluntarily submitted to EPA and the State of New York and are
currently under review.
EPA Region II and the State of New York are jointly
reviewing CECOS’ Part B permit application for the entire
landfill facility. In their review, EPA and the State will apply
draft criteria EPA has developed for evaluating acceptable
locations for hazardous waste land treatment storage and disposal
facilities. Those criteria include:
(1) the inherent geologic, hydrologic, and pedologic
features of the site;
This has been retyped from the original document.
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(2) ability of the site to provide a stable foundation for
the engineered containment structure;
(3) ability of the site to produce adequate ground-water
monitoring data;
(4) site compliance with Federal statutes and standards
regarding protected lands.
These criteria are based on current regulations under 40 CFR
Part 264, which specify design and operating requirements for
hazardous waste facilities and establish ground—water monitoring
and corrective action requirements. While Part 264 does not
contain explicit location standards based on hydrogeologic
considerations, the ground—water monitoring, corrective action
and design and operating regulations contain performance
standards that implicitly involve hydrologic and geologic
factors.
Guidance on application of the four criteria has been issued
in draft form. Guidance on a fifth topic (definition of areas of
vulnerable hydrology) is currently being developed and will be
issued in May 1986. In 1988, EPA intends to propose regulatory
standards for the location of new and existing hazardous waste
facilities. These last two activities are mandated by the HSWA.
You also inquired as to the applicability of Section
3005(c) (3) of RCRA to the construction of Cell #6. Section
3005(c) (3) (also called the “omnibus” provision) provides that
individual RCRA permits “shall contain such terms and conditions
as the Administrator (or State) determines necessary to protect
human health and the environment.” Given that CECOS does not
require any EPA approvals before proceeding to construct Cell #6
while operating under interim status, the question you raised was
whether the omnibus provision gives EPA the right, and thus the
responsibility, to impose conditions (including denial of the
right to construct) during interim status. The answer is that
the omnibus provision applies only to permit conditions, and EPA
has the legal basis under this provision to impose additional
requirements (beyond the minimum technology requirements outlined
in the statute) on the construction of Cell #6 during the interim
status period.
At this time, we expect New York to receive authorization to
issue RCRA permits in March 1986. As the processing of the CECOS
permit application is not expected to be completed before that
date, the final decision regarding issuance of the permit will
rest with the State. We suggest, therefore, that you also
contact the State agency regarding the status of the CECOS
application. The appropriate contact in New York is:
This has been retyped from the original document.
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—3—
Norman H. Nosenchuck, Director
Division of Solid and Hazardous Waste
Department of Environmental Conservation
50 Wolf Rd. Room 209
Albany, New York 12233
(518) 457—6603
If I can be of further assistance, please let me know.
Sincerely,
Marcia Williams, Director
Office of Solid Waste
cc: Norman Nosenchuck
This has been retyped from the original document.
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9528 . 198 6 (04)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
JANUARY 86
4. taining Interim Status
A hazardous waste man ement facility has received a final permit, pursuant to
Section 3005 of RA to store and treat hazardous wastes. The facility al
has sol waste wta ement units (SIIU) on—site • If t1 solid wastes Ln ti e
US becare RA hazardous waste because EPA lists tr n as hazardous wastes,
can ti facility obtain interim status for thase newly—regulated units?
Interim status, under Section 3005(e) of ERA, is granted to facilities .
Interim status is not yranted on a unit-by—unit basis. refore, fully
permitted facilities n y not receive interim status for newly regulated
units .
rully permitted facilities will be all d to treat, store, or dispose of
wastes vered by new hazardous waste list irvjs if the iner/operator
s’ ts an ai rx ed permit application pursuant to 40 CFR 124.5 and the
ps it has been iicdified pursuant to 40 CFR 270.41 or 270.42.
Source: Carrie *hling (202) 475—8067
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9528. 1986 (06)
RCRA/SUPERFUND HOTLINE MONTHLY SUPO(ARY
JULY 86
A. RA
1. tnterirn Status for Recejvir G Waste
faci.lity owner/ooerator (0/0) ou1d like to Obtain interim status
to receive wastes fran small Quantity cenerators ( Gs) that cienerate
bet een 100—1000 kg. of hazardous waste oer rYonth. These SDGs will
he subject to new reQuirements effective September 22, 1986. rlnder
the new regulations, these SDGs are subject to notification, manifest
reaui rements, recordkeer,ino and S C ial generator accunulat ion
reQuirements (see the March 24, 1986 Federal Register , 51 FR 10146).
In addition, 100—1000 kg/n onth generators will no 1or er bTal1o
the disposal options of 40 CFR §261.5(q) (3), hut must send their
wastes destined for disposal to permitted or interim status RCR
facilities.
(a) If a facility is currently permitted under TSCA to mana e CB waste,
but intends to receive hazardous wastes fran 3)Gs, can it be
considered an “existirx facility” on September 22, 1986 for interti
status ourposes?
Yes. A facility that is “in existence” on the date of regulatorii
charxes which first subject it to the RA Permit requirement
may qualify for interim status under cection 3005(e). A facility
is “in existence” if it is in operation or “under construction”
as defined in 40 CFR 260.10. Thus a facility which is man ir
)G wastes on or before Septe ber 22, 1996 may qualify for
interim status because it will be newly subject to the requjremer
to obtain a RA permit on that date (4fl CFR 270.70(a), 50 FR
28753). The fact that this facility is also maneQir PCBs has
no bearir on the RA interim status of this facility. The PC
wastes must continue to be vnanaled at the facility accord ir to
the terms of the 1’SCA permit.
(b) If a facility receives interim status to rnan e 95G waste, may
it then begin to accept full—generator hazardous waste also?
facility *tich is in existence” on the effective date of
regulation subjectir it to the RA permit requirement must
also submit a Part A permit aoplication and file a RP Section
3010 r tjfjcatjon (if applicable) in order to obtain interim
status • The type and a ount of waste for which the facility
obtains interim status depends on the Part anplicatjon. An
interim status facility must submit a revised Part A apo].ication
and comply with the requirements of 40 CFR 270.72 in order to
man e wastes not identified by the Part A or to increase the
capacity of the facility. Therefore, if the facility was not
accept ir full—generator waste before September 22, 1986, it is
not automatically covered by its newly’-acauired interim status
to handle waste fran GS, hut must submit a revised Part A and
cu uply with 40 CFR 270.72.
Source: Nancy Pcmerleau (202) 382—4500
Bob Axeirad (202) 382—5218
Research: Jennifer Brock
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9528.1986(07)
19
SUBJECT: Interim Status of th. Freeman Chemical Incinerator
Arthur Glaser, Chief
Incineratjon/Stora . PAT Sectinn
Wladjs jr CuIevfcp , Director
Vireinja Bureau of I azardous Waste management
This mepterandu i is in rasponse to your request for aaefstanc
in deter injnc whether the incinerator conatruct.d by Freeman
Chewical Corporation in Chathas , Virainja has int.rj,r statua.
As our staffs have discussed, this determination was CO upllcated
by two fact.. First was Freeman Che I .]’, reference to ti.
regulatory amendp .nt to ehanoe durint, interim status which EPA
was considering as a result of the settlepent of NRDC v. EPA .
but which has not been prorosed. Secondly, Freeman Chernicil
would like to resume incineration of reaction water which was
previously wistakenly elaselff j (initially by Freeman Chemical
and subsequently by EPA) as nonhagardous.
The NRDC vs. E case cited by Pr.eman Chemical was conelude i
by a settleiient agreement under which EPA would propose certain
amendments to the r.qulatjon. coverinc Ch nQ•* during interim
status. The proposal was to contain specific provision, on
replacement units. Bovev.r, sinc, no such changes to the regula-
tions bav• been mad. to date, the NRtIC v. EPA case baa no bearing
on this issue.
Under lsdial rsg a1atjon. at 40 dR 270.73, interim stitus
terminates wb.n final adminlstrati,. disposition of a permit
application is made, when action is taken to t•rwiriat interim
status du. to late or ineo.tpl.te submittal of Part B Information,
or when a facility loses interim status under the new Loss of
Interim Status (LOIS) provisions. caua. no n. of these situations
has occurred, the facility has Interim status. Thus, because
replacement is a chance during interim status, the construction
of a new unit must c ply with the State’s an.lo y to 5270.72.
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—2—
The question of wh•th.r construction of th. new waits/fume
incineration unit is allovabi. a. a change during Interim status
depends en whether or not the reconstruction cost liMIt of 5270.72
is exceeded. This subsection prohibits changes amounting to
reconstruction of a hasardous vast. mena eaent facility during
int.rim statma. •Reconstruction oscurs when the capital tn,.st-
ment in the changes to the facility exceeds fifty percent of the
capital cost of a cosparable entirely new facility. As no financial
Information has been supplied to us, we have mad. no atteipt to
make such an •valuation. Your offic. should apply the 50%
rule to determine whether th. construction of the new incin—
•rator is allowable as a change during interim status.
If you have any questions on our response or on application
of the 50% rule, fee] free to contact Sonya Stelnack of my staff
at (202) 312—4500.
cci en Shuster
Gary Gross
Sony. Stelmack
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9528. 1986(09)
October 27, 1986
Mr. Frank L. Deaver
Corp. Environmental Services Mgr.
Tektronix, Inc.
Tektronix Industrial Park
P.O. Box 500
Beaverton, Oregon 97077
Dear Mr. Deaver:
Thank you for your letter of October 1 bringing to my
attention the problems you have encountered in trying to comply
with the RCRA interim status standards (40 CFR Part 265) while
simultaneously developing a permit application to address the
permit requirements of 40 CFR Part 264. Mr. Ken Feigner in EPA’s
Regional Office in Seattle, Washington is responding to your
questions regarding the particular circumstances of the
permitting efforts at your facility and the inspection conducted
last February by EPA and the State of Oregon.
As you are aware, interim status facilities must comply with
the Part 265 standards (or State counterparts, in authorized
States) until final disposition of the RCRA permit. If some of
the common elements of Parts 264 and 265 are improved in the
process of developing a permit application (e.g., waste analysis
plan), then it may benefit the facility to replace or append the
interim status document with the newer version. I agree with you
that the problem of trying to meet both sets of standards is
probably shared by other existing facilities that are pursuing
RCRA permits. I will relate your experience to others in the
Agency who are involved in enforcing the RCRA program. My office
will also continue to ensure that enforcement activities are
coordinated with any concurrent permitting work at a facility.
This has been retyped from the original document.
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—2—
If I can be of further assistance you, please let me know.
Sincerely,
Marcia E. Williams
Director
Office of Solid Waste
cc: Ken Feigner, EPA Region 10
Fred Hansen, Oregon DEQ
Gene Lucero, EPA OWPE w/copy of incoming
Lloyd Guerci, EPA OWPE w/copy of incoming
Regional H.W. Branch Chiefs w/copy of incoming
This has been retyped from the original document.
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ø•’ ... I.
9528.1986(1C
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
1 WAS ,UNGTON 0 C ZO 60
1
P V 131986
o..Ics 0.
G(PuI a.. C0 J’S (I.
Richard G. Stoll
Karen M. Wardzinski
Freedman, Levy, Kroll & Simonds -
washington Square — 1050 Connecticut Ave., N.W.
washington, D.C. 20036
Dear Karen and Dick:
This letter is in response to your request of September 25,
1986 for a written interpretation of the interim status qualifi-
cation requ rementS as they apply to hazardous waste fuel (MW ?)
storage facilities. Specifically, you have asked whether in
order to qualify for inter m status an NW? storage facility must.
1) submit a 3010(a) notification by January 29, 1986 even where
the facility does not begin hazardous waste activities until
after that date or 2) begin actual storage of hazardous waste
fuels by May 29, 1986, the effective date of the MW ? regulations.
As discussed below, we believe that the answers to both questions
is “no.
Under RCRA Section 3005(e)(1), a facility may qualify for
interim status if it 1) is in existence on November 19, 1980 or
on the effective date of regulatory changes which render the
faci lity subject to the requirement to have a RCRA permit, 2) is
in compliance with applicable 3010(a) notification requirements.
and 3) submits Part A of the two—part RCRA permit application.
Sectio’ 3010(a) of RCRA, as amended in 1984, requires the owner
or operator of any facility which produces, burns, or markets
hazardous waste fuel to file a notification of hazardous waste
activity by February 8, 1986. On November 29, 1985, EPA issued
final rules regulating hazardous waste fuels. The requirements
for MW? storag. facilities became effective on May 29, 1986.
Your first question concerns the application of the 3010(a)
notification requirement to facilities which begin hazardous waste
fuel storage activity after January 29, 1986, which is 60 days
after the promulgation of the NW? regulations. The November 29,
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-2-
1985 HWY rule did not distinguish between the statutory 3010(a)
notift atioC1 requirement and regulatory notice requirements.
did h. rule explicitly address HWY storage facilities which
begin operation after the promulgation of the HWY regulations.
Both of these issues require clarification in order to answer
your question.
First, the November 29 HWY rule implies that the applicable
date for HWY storage notification under the statute is January 29,
1986. This is incorrect. The applicable date for HWF storage
notification under 3010 is February 8, 1986, and this date is
unaffected by the November 29 rule. The notification requirement
under Section 3010(a) of RCRA for HWY facilities is self-imple-
menting. See H.R. Rep. No. 198, 98th Cong., 1st Sees. 40 (1983).
Under that provision, all facilities which produce, burn or
market hazardous waste fuel must submit a notification of their
hazardous waste activity by the date 15 months after the enac ent
of HSWA, i.e. February 8, 1986. Although the HWY regulations
promulgat ” Tn November, 1985 contain several notification
requirements, those notices are in addition to, not in replacement
of, the February 8 notification requirement under Section 3010(a),
However, a notification under the rule, by January 29, would satisfy
the 3010(a) require’nent to notify by February 8.
Second, under Section 3010(a), the February 3 notification
requirement is not applicable to any facility for which the
Administrator waives this requirement. The November 29, 1985
HWF rule does not require 3010(a) notification from any facility
not in existence on that date and was intended to waive the
statutory notification requirement for all such facilities.
Because ‘ WF storage facilities not in existence on November 29,
1985 were exempted from the 3010(a) notification under the November
29, 1985 H JF rule, no 3010(a) notification requirement is applicable
to facilities which cax’ e into existeice after november 29, 1985.
Thus, to answer your specific question, an HWY storage facility
which begins storage of hazardous waste fuel ifter January 29,
1986 was not required to submit a notification of hazardous waste
activity in order to qualify for interirn status on May 29, 1986.
Your second question concerns the interpretation of the
requirement that a facility be “in existence” on the date of a
regulatory chang. subjecting it to the RCRA permit requirement
in order to qualify for interim status. This question was not
addressed in the November 29, 1985 HWF rule, and in fact, is not
directly addressed in any of the RCRA regulations. The federal
RCRA regulations do define “existing facility”, but only with
respect to facilities “in existence” on November 19, 1980.
S. . 40 CFR 260.10. Moreover, the “existing facility” definition
does not specifically address the situation of a facility which
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—3—
Lncends to handle hazardous waste but for which no physical
constructiOn is necessary.
However, as we indicated to you in our earlier conversations
we believe that the question of whether storage faciUtieg incertdina
to convert to hazardous waste fuel storage are “in existence” on
May 29, 1986 should be resolved by analogy to the “existing
facility” regulations. In order to be an “existing facility” for
the purposes of qualifying for interim status prior to i9 ie, a
facility had to be “in operation” or under construction on
November 19, 1980. A facility is “in operation” if it is actually
managing hazardous waste. Thus by analogy, a facility is “in
existence” on the effective date of a regulatory change which
subjects it to the RCRA permit requirement if it is actually
managing hazardous waste on the effective date of the regulations.
A facility could also qualify for interim status as an
“existing facility” if it “commenced construction” by November
19, 1980. Under 40 CFR 260.10, “commenced construction” is further
defined to mean a facility which has obtained all necessary
preconstruction permits and either 1) has begun continuous onsite
construction or 2) has ente red into construction contracts that
cannot be cancelled without substantial lois. Although not
directly addressed by the regulation, EPA has interpreted “commenced
construction” to also include facilities which have obtained all
necessary preconstruction permits and completed construction
prior to November 19, 1980. 46 FR 2344 (Jan. 9, 1981). Titus a
facility converting to hazardous waste storage would be “in
existence” on November 19, 19S0 if by that date the owner or
operator has obtained any necessary preconstruction permits
required f3r modification of the facility and can objectively
demonstrate an intent to handle hazardous waste within a reasonable
time. Id. We believe that this interpretation is equally appli-
cable to facilities intending to convert to hazardous waste
management on the effective date of regulatory changes which
would subject it to the permit requirement. Titus a storage
facility may be “in existence” for the purposes of qualifying for
interim status if by May 29, 1Q 6 it was actually storing hazardous
waste fuel, under physical construction as a HWF storage facility,
or is converting to hazardous waste fuel storage.
If I can be of further assistance to you on these i gues,
please do not hesitate to call.
Sincerely,
I’
Mark A. Greenwood
Assistant General Counsel for RCRA
Solid Waste & Emeraency Response
Division
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9528. 1986 (11)
DEC %O
M!PE)RANDUP
SUBJECTi Peraitting Units or Pacilitfe. That Rave Lost
Interim Status
ppGpl• Gene A. Lucero. Director
Off Ic. of Waste Programs !nforc.pnt (WR 527)
arcia E. williams, Director
Offic. of Solid Waste (WR—562)
TO! Allyn M. Davis, Dir.ctor
9aiardous Waste Management Division (6B)
Region Vt
Your letter of Octob.r 15, 1916, raise. several issues ——
some generic and some specific to the Eagle Picher !l.ct ’o-Opti
Materials (BOM) Loss of Interim Status (LOIS) case.
The first specific issue is whether the M surface impound-
mer t ha. lost interim status. Your l•tter indicates that an
enforcement action asserting that the PI untt lost interim
status may not he resolved for many nth.. If the result of th
en? orceeient action is that the 5DM surface Impoundment has lost
interim status, then the appropriate inlunctive relief and penalties
will be imposed through the enforcement action.
A second, broader issue ii what actions should ha tak.n, an’
in what priority, for land disposal units or facilities that are
seeking operating permits and ar. closing un ’er the SWA t.OI
provision. In the case of 5DM, the unit’s los, of interim
status has not finally besn dstermine4l. Thsrefore. review of
the permit application should proceed in a manner similar to
other land disposal oermlt applications. In cases where loss
of interi, status has been determined, an owner or operator
still has the right to ursue a permit. Where that option is
pursued, the Agency is obligated to review the p.rmit application.
These cases present a special challenge, however, sine, the
facility is also required to have submitted an int.rlm status
closure plan 15 days after the Loss of interi, status. The
Agency may be in the position of concurrently evaluating a closure
plan (submitted as a result of the facility or unit’s loss of
interim status) and permit application for the same facility or
unit.
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Revi.w, approval, and implementation of th. closure plan
should oced without regard for any pending permit application,
according to priorities outlined in the RCRA Implementation Plan
and Regional or State Strategies and facility management plane.
The Agency considers it good practice to close hazardous waste
land disposal units or facilities after they lose int.rim status
in order to minimize the likelihood of enviroswental and human
health damage. Therefore, units that are recuired to close
should be closed expeditiously. In like manner, permit appli-
cations for LOIS facilities or units should he reviewed in
accordance with established land disposal permitting priorities.
Within the overall priority schei’ e, several considerations should
be kept in mind during the closure plan/permit application
review process:
(1) The statutory loss of interim status provision
requires that the affected unit or facility stop
receipt of hazardous waste. Resumption of waste
receipt cannot occur unless and until a final RCRA
permit is issued.
(2) The LOIS unit or facility must begin closure activ-
ities according to th. schedule provided in Part .265
Subpart G. Extensions to the time allowed for closure
at LOIS units or facilities under S265.l13(a)(l)(ii)
and (b)(l)(ii) should not be aranted solely on the
basis of a pending permit application, or on the
basis of future capacity to receive hazardous waste
since the loss of interim status abroaates the legal
authority to continue to receive waste.
(3) In some cases, final closure activities may need to
be delayed for physical reasnns or to increase the
effectiveness of closure (e.a., delay of final cover
placement to allow for waste settlement). Other
closure activities (e.g., control of run—on/run—off,
treatment of waste, freeboard maintenance, etc.)
will still need to be implemented, according to the
routine closure schedule.
(4) If a final RCRA permit is issued before completion
of all closure activities, the terms of that permit
(including the permit’s closure plan under Part 264)
may supercede the interim status closure plan. (See
s265.l(b).) In reviewing the proposed Part 264
closure plan. permit writers should attempt to ensure
technical consistency between it and th. interim status
closure plan.
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(5) At tsr a facility or unit loses interim status futur.
ictivities say be governed by new NSWA requjre e 5 ,
Cl vre activities conduet.d at units subssqu.nt to
loss of interim status may, in some cases, recuire
impl.msntatjon of the RSWA minimum technological
recuirementa if a permit is subsequent ly issued for
reuse of that unit, since closure activities could,
in some cases, cause the unit to be defined as a
rep]ac.m.nt unit under S3004(o)(l)(A) (e.g., where
all or substantially all of the waste in the unit ii
removed). However, for the purposes of section
3OO4( ), units that have lost interim status will
not be considered new units unless they first received
hazardous waste after November 8, 1984.
cc: Hazardous Waite Division Directors’—
Recions I-V and VII—X (with incoming)
Hazardous Waste Permit Section Chiefs .—’
Regions I—X (with incoming)
Bruce Wsddls
Lloyd Gu.rcj
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9528.1987(01)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
JANUARY 87
4. Does the authority grant under RCRA Section 3008(h) extend to
facilities that have lost interim status ( Rp 3005(e))?
EPA has interpreted section 3008(h) to apply to the folL gj g.
1) facilities that have applied for and are r operating under
interim status; 2) fac jj j 5 that treat, store, or dispose of
hazardous waste but have not obtained interim status because
they did not fully caTply with section 3010 notification
req ir nts or sukinit a timely Part A; and 3) un.its or
facilities at which active operatjor have ceased and interim
status has been terminated pursuant to 40 CFR 124 or Sectio
300 5(c) and 300 5(e) (2) of RCRA. Section 3008(h) sPecifically
provides that the interim status rrect ’.,e action orders may
include a Susper sion or revocation of the authority to operate
under interim status, as wall as any other resp nse neCess tj
to prote ht nan health or the enviroi,, t. Accordi 1y
Section 3008(h) can be used to c e1 responses to releases at
facilities that lost interim status prior to a secti 3008(h)
action. PA believes this approach to be ccnsjst with
Congress ional intent to assure that sigfljfj t env1ro fltal
pro are addre ed at facilities that treat, store, or
dispose of hazard jou wastes but do not have a final RCRA
operating or Poet l 1x .e permit. H. Rep. b. 1133, 98th
C ngre , 3d. Sess. 110—112 (1984). (fran “Interpretation of
SscUo 3008(h) of the Solid Waste Disposal Act”, J.
ter, I cenber 16th, 1985.)
Saarce: Swan O’Keefe (202) 475—93
Ginny Steiner (202) 475—9329
Research: 1 borah McKie (202) 382—3112
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9528. 1987( 02)
WASHINGTON. D.C. 20410
O ICE 0$
SCUD WAJIS AND IMt G(NCv (SPoNsE
t4 R II9BT
MEMOR DUM
SUBJECT: Regulatory Status of Contaminated Ground Water
1 / . iCGr j .
PROM: Jack McGraw, Deputy Msi.tant Administrator
Office of Solid Waste and Emergency Response
TO: Robert Duprey Director
Waste Management Division
Region VIII
Thank you for your February 17, 1987. memorandum regarding
applicable requirements for units in which ground water con-
taminated with hazardous waste is to be treated as part of a
corrective action program.
Your first question centered on whether a treatment system
at an interim status facility can operate without a permit
if 4270.14 and Part 264 standards are incorporated into a
43008(h) order. Since the facility in question is operating
under interim status, the treatment system should be handled
as a change during interim status under 4270.72(c) in conjunc-
tion with issuance of the 53008 (h) order. The Part 264 standards
for permitted facilities or 4270.14 permit application infor-
mation requirements are not applicable unless the changes at
the facility amount to reconstruction under 5270.72 (s). If
the changes would amount to reconstruction, a permit would be
required for th. treatment system.
Your s•cond question concerned the leakag. of hazardous
waste co ounds from process areas, and whether such leakage
met th. definition of di.card.d in 4261.33 and 4261.34.
Such activtty doss meet the discard.d definition of 4261.33,
as long as the leaked material was not being beneficially
used or reused, or legitimately recycled or reclaimed (4261.2,
5261.3).
The last question focused on whether a hazardous waste
treatment unit which is to b• constructed for the purpose of
treating contaminated ground water at a facility without
interim status would be required to obtain a permit. S.ctions
264.3(g)(8) and 265.1(c)(11) provide a regulatory .z. ptiOfl
from interim status and permitting standards for tr.ataent
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and containment activities during immediate response” to
hazardou s waste discharges and imminent and substantial
threa s of discharges. The effect of this exemption is to
promote hazardous waste discharge prevention and control by
relieving persons engaged in immediate response to discharges
and serious threats of discharges from time consuming
requirements.
If the activity in question could be considered an
“immediate response,” the exe tion from permitting and
interim status standards for the treatment units would be
appropriate. Once the immediate response is over, however,
the units would have to comply with permit requirements
under Parts 270 and 264. It should also be noted that if
the treatment system in question were to meet the definition
of a “wastewater treatment unit” in §260.10, the system
would not require a permit nor be required to meet Part 264
standards ( 27O.l (g)(6)). Please note that, in any case,
Part 264 standards would not be imposed under a Section
3008(h) order. Rather, as described in our response to your
first question, interim status standards would apply.
If you have any further questions regarding these issues,
please contact George Faison at FTS 382-4422.
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9528.1987 (03)
RCRA/SUPERFUND HOTLINE MONTHLY SUXMARY
MARCH 87
7. Constx’.zctica [ X2ring Interim Status
A facility obtained interim status for container storage. It later
c.’ Jpletely os all storage units. Can the ner/operator no 1 ,
build a treatz t unit under interim status or is a fuU. permit
required?
ce a facility has been granted interim status, the facility
w Ill retain its interim status until, either 1) the final
disposition of a permit application by that facility has been
nude, 2) the interim status is terminat d per 40 CFR 27O.10(e) (5)
or under Section 3008(h). or 3) the facility loses interim
status under 40 “R 27 0.73(c —(f). (see 40 ‘R 270.73). If
the ner/aperator of the facility in questior nted to bu.i. Id
and cperate a treatn nt unit after all of the tairaer storage
urUts had been closed, the owrler/aperator % culd have to
with the foll ,thg A regulatj . First, the cost of the
constuction of the treat t unit could r t exceed 50% of the
cost of b.zilding a container storage area sizni liar to the one
for 4 ith interim status s originally granted according to
40 CFR 270 . 7 2(e). Se , the ner/ ç ra r “culd have to
subnit a rtcdified Part A and have the activity approved by the
Director (40 C ’R 2 ?O. 7 2(c)). If the cost to build a new
treat, t unit exceeds the 50% re stz,ictj ,on threshold • then
the nerfq erator culd need a RA permit prior to starting
construction of the r treatn t unit.
Source: Hatthew Hale 382-4740
Research: borah McKie 382-3112
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9528.19 87(04)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARy
MARCH 87
6. C atructjon D.iring Inter im Status
A facility c vner/operator obtained interim status for several different
wuts. Sara of the units re later closed. The ner/ccerator r
.nts to build arcther unit. 40 ( R 27 0.72(e), prc* ibjts any
constuc j during interim status that .LLd cost ncre than 50% of
the cost of building the existing facility. ! these provjsi
apply to the facility as it originally s when it s granted
interim status and all units re cpen, or does it apply to the
facility as it is r , with only a rtion of the origina.]. units
open?
The provisions verning construction activities at a facility
operating under interim statue (40 ( ‘R 27 0.72(e)) a ly to the
facility as it a t en its Part A s first subnitted and
interim status s granted. Also any structjon ts are
additive. Fbr exanple, if there is ea reconstruction at the
facility hi costs the uivalent of building 25% of the
existing facility, any a iticnaj. construction could cost r
ui re than 25% of rebuilding a r i facility. nstr 1ction costs
ar ’s based on arrent estimates in current dollars.
S i : 1’ tthe, Hale 382—4740
Researd’ : f ”orah t’tXie
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9528 .1987 (09)
RCRA/SUPERFTJND HOTLINE MONTHLY SUMMARy
AUGUST 87
1. Changes at Interim Status Tank FacL 1jtj
According to 40 CFR 270.72, an owner/operator who
wishes to make changes in an irtteri’n status facility
must submit a revised Part A permit application and a
Justlftcatjon for the change to the Regional
dminLstrator (or State Director). The revised Part A
application is required for management of new hazardous
waste at the facility, increases in design capacity,
changes in the facility’s p-rocess for treatment, Storage
or disposal, and changes in ownership or operatjo
control at the facility.
An interim status tank storage facility plans to
upgrade its tanks to meet the new secondary containment
standards of Section 265.193 (see 51 FR 25422). Does
upgrading a tank to meet secondary containment
requirements Constitute a “Change during interrn status”
under Section 270.72?
Yes. TJpgrading a tank to meet the hazardous waste
tank secondary containment requirements does
constitute a change subject to Section 270.72.
According to Section 27 O. 7 2(c), an owner/operator
who wishes to make a change at an interim stat’js
facility must submit the revised Part A application
and the justification for the change prior to
iaking the change.
In general, Section 270 .72(e) does not allow a
change under interim Status where costs exceed
fifty percent (50 ) of the capital cost of
construction of a comparable new facility.
Nevertheless, Section 27 O.72(e) Coflt 5jns an
exception to this prohibition for tanks that must
be retrofitted to comply with Section 265.193 (see
51 FR 25486). Therefore, the cost of retrofitting
a ti k to comply with Section 265.193 would be
allowed to exceed fifty percent (50 ) of the cost
of constructing a new tank facility. Retrofitting
to meet the secondary containment Standards of Part
265 Subpart J is still considered to be a change
requiring submittal of a revised Part A application
and justi fication.
Source: Carrie Wehling (202) 392—7706
Research: Jennifer B. °laraert
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9 528.1987(10)
i T
Mr. rant Trigger
Clark, Klein & Reaumont
1600 First Federal Building
1001 Woodward Avenue
Detroit, MI 48226—1962
t’ear Mr. Triggeri
This is in response to the April 1, 1987 request on behalf
of the St. Mary’s Peerless Cement Company of Detroit, Michigan
(St.Marv’s) for an opinion on whether the St. Mary’s cement kiln
aualifies for interir status to burn hazardous waste fuels under
section 3005(e) of the Resource Conservation and Recovery Act.
(RCRA) as amended. This lett.r also responds to the arguments
raised on behalf of Petro-Chem Processing, Inc. (Petro—chem),
opposing any interpretation of section 3005(e) that would aLlow
St. Mary’s to begin operation prior to receiving a RCRA p.rmjt.
Conclusion
On the basis of the information submitted by St. Nary’s,
we believe that St. Mary’s may qualify for interim status under
section 3005(e). The remainder of this letter iseusses our
interpretation of the section 3005(e) requirement. as they pertain
to the St. Mary’s facility and the condition, under which St. Mary’s
may obtain interim statue.
Background
Under section 3005(a) of RCRA, no facility say treat, store,
or dispose of hazardous waste witnout a permit after Nove er 19,
1980. However, under ssetion 3005(e), a facility may be treated
as if it h a permit for the interim period pending r.vi.w of
its permit application. To operate under this ‘interim status,’
a facility must meet three conditionsa (1) the facility suit
be ‘in ezistence’ either on November 19, 1980 or on the effective
date of statutory or regulatory chanq•s under RCRA that subject
it to the permit requirement, (2) th. facility must comply with
applicable notification requirements under section 3010(a)
of RCRA, and (3) the facility must submit a Part A permit appli-
cation. Section 3004(q)(2)(C) requires that any cement kiln
located within a municipality of greater than 500.000 population
that burns fuel containing any hazardous waste after Novs .r 8,
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—2—
1984 lust be treated as a hazardous waste incinerator. Such
kj] s were not subject to RCP.A permit requirements prior to
November 8, 1984.
St. Mary’s is a cement kiln located within the boundaries of
the city of Detroit, Michigan, a city of greater than 500,000
population. In 1982, St. Mary’. conducted a trial burn of waste-.
derived fuels as part of its developing secondary fuels program.
Between 1982 and 1986, St. Mary’s and th fuel supplier who had
provided fuels for the 1982 test burn continued to discuss the
prospect of future burning of hazardous waste fuels. In early
1987, St. Mary. contracted for waste—derived fuels from that
waste fuel supplier. To burn hazardous waste fuels, St. Mary’s
does not need to process or store the fuels on—sit., and no
modification of the facility is necessary. St. Mary’s ha. not
submitted a Part A permit application or a 3010(a) notification.
Discuss ion
1. Interim Status under Section 3004(q)(2)(C)
The basis for St. Mary’s argument that it qualifie, for
interim status for its fuel—burning operations is that it was
Nj existence on November 8, 1984, the dat. of the statutory
amendment adding section 3004(q) to RCRA, which was th. statutp;y
change subjecting the cement kiln to RCRA permit requirements
as a hazardous waste incinerator.
Although the language of section 3004(q)(2)(C) appears
only to require big city cement kilna to comply with incinerator
standards, whether as an interim status or permitted facility,
Comments by the author of this aaer a.nt on the floor of the
House indicate that the intent of this paragraph was to prevent
cement kiln operation in big cities w ti1 permitted as a hazardoui
waste incinerator. 129 Cong. Rec. H 8154 (daily ed. October 6,
1983) (statement of Congressman Frost). Petro—Chea thus argues
that under section 3004(q)(2)(C), St. Mary’s may not operate
under interim status.
However, on its face, section 3004(q)(2)(C) only requires
that big city cement kilns burning hazardous waste fuels •fu]ly
compiCy) with regu lations....which are applicable to incinerators’
Incinerators may operat. under interim status standards. Noth*nq
in the statutory language suggests any limitation on the ability
of big city cement kiln. to operate pursuant to interim status,
as would any other existing hazardous waste incinerator.
3•caus. the statutory langag. is unambiguou. with respect
to this issue, we believe that it is inappropriate in this context
to imply limitations solely on the basis of legislative history.
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—3—
Therefore, section 3004(q)(2)(c) does not prevent St. Mary’s
fror” o ’erat1n - r ’ursI. ant to section 3005(e).
2. Int rirn Status Recuirements — ‘In Existence’
The first of three interim status recuirements is that
St. Mary’s must P ave been in existence on the data of a statutory
or reoulatory chanc e that subjects it to RCRA permit reaulrements.
St. Mary’s argues that the change that rendered st. Mary’s subject
to RCRA permittina ani thus eligible for interim status, was tne
enact ” ent of section 3004Cq)(2)(c) on November 8, 1984 which made
certain kilrie hazardous waste incinerators.
Unler 40 C.F.R. 26 .lO, EPA defines ‘In existence’ to
mean tnat either the facility is ‘in operation’ Ci. .. , actually
treatjnc, storina, or disposing of hazardous waste’) or a
facility ‘for which construction has commenced’ on the relevant
date. 1/ Because St. Mary’s was not burning hazardous wait. en
November 8, 1934, it must be a facility for which construction
had commcncej on that late in order to cualify as an •zisting
facility.
‘Jnc er aection ‘ O.lO, a facility is ‘under construction’
if it has received all hazardous waste control approvals necessarj
f r physical construction and either d continuoUS, on—sue
construction orograrn has begun or the facility has accepted
subctar.tjal contr ctua1 obligations for sucn construction, to ce
con leted within a reasonable time. St. Iary’s did not need to
undertake any modification of its facility to convert to hazardou3
waste fuels. Althoucth not directly addressee by the reguiaticng,
EP hes interrreted under construction’ also to include facilities
that have comoleted construction On the relevant date. See
46 Fed. Pen. 2344 (January 9, 1981). Under this interpretation,
since no r’odification of the facility was necessary, St. Mary’s
1/ Section 260.10 only defines ‘existing facility’ in terms
— of facilities in existence on November 19, 1980, the only
relevant dat. for interim status prior to ths Hazardous and
Solid Waste Am.ndm.nts of 1984 (PSWA). HSI A amended S•ctaon
3005(e) to allow facilities also to obtain lntsria status if
they were in existence on the date of statutory or regulatory
charmes which subject them to PCRA per ittjnc. Although the
encv has not vet made the conforming change to its requla—
tionc defininc ‘existinc, facility’ to reflect the HStIA chance
to section 3005(e), £‘A interprets the same definitions to
arrly to all facilities ‘in existence’ under section
3005(e) Cl) (A)( ii).
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—4-
may qualify as an existing facility if it Can objectively
demonstrate an intent to handle hazardous waste within a reason-
able time after November 8, 1984. See id,
St. “ary’s demonstration of ir%tant Primarily includes a
1992 test burn of hazardous waste fuels as part of a secondary
fuels prooram at the facility and verbal agreeme 9 with the
fuel suoplier , beainning prior to the test burn and continuing
through 1986 when they were reduced to a written contract,
signed in early 1987. eased on this information, st. Mary’s
has object lvelv demonstrated an intent to handle hazardous
waste within a reasonable time after November 8, 1984, and thus
was an existing facility on that date.
3. Interim status Requiremen g — Submission of
30 10(a) Notice
The second condition for interim status is that a facility
rwst comply with any applicabl, notification requjremen under
RCPA section 3010(a). Because there are no 3010(a) notifica-
tion requirements applicable to St. Mary’s, th. facility has
co ” p1jed with this requirement.
Petro—Chem argues that St. Mary’s was rsquir.d to file a
notification under the 1984 amendment to section 30 10(a).
section 3010(a) requires notification by February 8, 1 86 for
any facility that produces, burns, or distributes hazardous
waste fuel. However, this requirement applies Only to facjljtjea
actually handling hazardous waste fuel on November 8, 1984 (and
cont1nujnt to handle suen wastes on February 8, 1986; see 52
Fed. Req. 11,819 (April 13, 1987)).
This section.3010(a) notification is intended to be a
snapghot of current hazardous waste fuel production, distri-
bution, and burning. H.R. Rep. 1o. 198, 98th Cong., 1st Sese
40 (1983). Contrary to Petro—Chem’s suggestion, EPA did not
intend to ilPoly in the Aoril 13, 1987 notice clarifying this
requirement that undr construction• facilities must provide
such notices. Rather, the purpose of this notic, was to clarify
that the hazardous waste fuel notification requirement should be
interpreted consistent with earlier section 3010(a) notifications,
and thus that the reauir.ment applied only to facilities actua11 ,
handling the hazardous waste on the relevant date. S• . 45
Fed. Rec . 76,631 (November 19, 1980).
4. Interim Etatus Requirements — Submission of Part A
The final condition for interim status is that the
facility subi’it a part A permit application. Under 40 C.F.R.
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—5—
section 270.10(e). existing facilities must submit the Part A
no later than six nths after the publication of rgulations
requiring compliance with technical standards, or thirty days
after they first become subject to the technical standards.
whichever is first.
Because St. Mary’s has not filed a Part A permit application,
the facility does not now qualify for interim status. However,
the regulations under section 270.10(e) are unclear about when
the submission of the Part A should have been made. In fact,
a possible reading of the regulations suggests that th• Part A
would not be due until 30 days after St. Marys actually begins
burning hazardous waste fuels. Although we believe that the
permit application was due within 30 days after St. Mary’s
became subject to RCRA requirements on November 8, 1984, we
acknowledge that there could be substantial confusion for
cement ki]ns subject to RCRA under section 3004(q)(2)(C) and
that the confusion may be attributable to serious ambiguities
in the interim status and hazardous waste fuels regulations
with respect to these facilities.
As a result, EPA has decided to exercise its discretion under
section 270.lO(e)(2) of its regulations to extend the date for
Part A submission by Federal Register notic. for cement kilns
subject to section 3004(q)(2)(C). Because St. Mary’s has met all
of the other requirements for interim status,, the facility will
be able to operate pursuant to section 3005(e) if it complies
with the Part A submission requirements in the Federal
notice, to be published in the next few days.
As a matter separate from the ability of St. Mary’s to
obtain interim status, the Agency believes that recycling,
reuse, recovery, and treatment of hazardous wastes are the
preferred management alternatives. Cement kiln. have d.aonstrated
that they can effectively recover energy from c.rtain hazardous
wastes and fuels containing hazardous waste while, at the same
time, greatly reducing th. quantity of waste materials. Therefore,
the Agency believes that if St. Mary’s obtains interi, status,
environmental benefits will result from the energy recovery
and waste treatment that will be performed, and the operation
of the facility will be held to the relevant interim status
and state standards for incinerators.
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—6—
Thank you for the information you prov d d to the Agency
regarding the situation Of St. Mary’s cement kiln. If you have
any further questions or comments on this issue, please contact
Frank McAljster of the 3ffice of Solid Waste (202—382—2223) or
Caroline .4ehlinc of the Office of General Counsel (202—382—7706).
Sincerely,
Marcia E. il1iams
Director
Office of Solid Waste
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jIlIlCIs Cr cIftUflM t1 IAi. t,Ci.)( LF,ON AGENCY
9528.1987(12)
3EP 8
Honorable Martin Frost
House of Representatives
dashington, D.C. 20515
Dear Mr. Frost:
The Environmental Protection Agency (EPA) has made a
final decision regarding St. Mary’s Peerless Cement Company.
The company requested an opinion on its qualification for
interim status to burn hazardous wastes as a secondary fuel
source in its cement kiln located in Detroit, Michigan In
your April 20, 1987, letter you expressed interest in the
Agency’s decision and offered important background inf mation
regarding the Frost’ amendment to the Resource Conservation
and Recovery Act (RCPA).
The Agency has dscided to extend the date for submission
of RCRA Part A permit applications for cement kilns subject
to Section 3004(q)(2)(C) of RCRA (i.e., those kilns burning
hazardous waste fuels in municipalities of greater than
500,000 population). As a result of this extension, cement
kiln. subject to Section 3004(q)(2)(C) will b. able to file
Part A permit applications and, if they comply with the
other requirements of Section 3005(e), will qualify for
interim status. Sased on the information we have received,
we believe that St. Mary’s will qualify for interim status
if the company files a Part A permit application before the
new submission dats.
The Agency is taking thi, action pursuant to its authority
under 40 CPR 270.10(e)(2) because of confusion under EPA
regulations concerning whether and when the affected cement
kilns were required to file Part A applications. In about
one week, EPA will announce its decision in a Federal
notice (copy enclosed). Th. new Part A subaistadIThS
will be mix months from the date of publication of the notice.
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In your letter, you raise the issue of whether, based
on legislativ, history, Section 3 004(q)(2)(c) should be
interpreted to prohibit cement kiln operations in large
cities until they receiv, a final permit as hazardous waste
incinerators. fiowever, on its face, Section 3004 (q)(2)(c)
only r.quires that large city cement kiln. burning hazardous
waste fuels fully compiCy] with regulations...w j are
applicable to incinerators. The EPA regulations provide
that incinerators may operate under interim status standards.
Nothing in the statutory language suggests any limitation on
the ability of these cement kiln. to operate pursuant to
interim status, as is provided for any other existing hazardous
waste incinerator.
Because the statutory language is unambiguous with
respect to this issue, we believe that it is inappropriate
in this Context to imply limitations solely on the basis of
legislative history. Therefore, we do not interpret Section
3004(q)(2)(C) as preventing st. Mary’s from operating pursuant
to Section 3005(e).
As a matter separate from the ability of St. Mary’s to
qualify for interim status, the Agency believes that recycling,
reuse, recovery, and treatment of hazardous wastes are the
preferred management alternatives. This preference was
embodied in the 1984 amendments to RCRA. Cement kilns have
demonstrated that they can effectively recover energy from
certain hazardous wastes and fuels containing hazardous
waste while, at the sam. time, greatly reducing the quantity
of waste materials.
I appreciate the background information that you provided
regarding the Prost amendment. I assure you that the Agency
carefully considered your information when it reviewed st. Mary’s
rquest. If I can be of further assistance, please let me
know.
Sincerely,
J. Winston Porter
Assistant Mainistrator
Enclosure
.
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9528.1987(14)
2. 9 7
MEMORANDUM
SUBJECT: Regulation of Radioactive Mixed Waste at Department of
Energy Facilities
FROM: J. Winston Porter
Assistant Administrator -
TO: Lee A. DeHihns, III
Acting Regional Administrator, Region IV
I received your memorandum of October 23, 1987, in which you
requested Headquarters’ assistance on two issues pertinent to
the regulation of mixed waste.
You have requested Headquarters’ opinion on whether, or not
interim status will be made available to owners and operators of
facilities handling mixed waste. Currently, we are developing a
notice for publication in the Federal Register which will
outline the applicability of interim status for owners or
operators of treatment, storage and disposal facilities (TSD’s)
that manage mixed waste because they are now subject to the
Resource Conservation and Recovery Act. This Notice will give
owners and operators of TSD’s in authorized states six months
from the date of the state’s authorization for mixed waste to
submit a Part A in order to qualify for interim status.
Similarly, owners and operators of TSD’s in unauthorized states
will have six months from the date of publication of the Notice
to submit Part A permit applications and qualify for interim
status.
You also questioned the applicability of the totally
enclosed treatment unit and the wastewater treatment exemptions
to the Department of Energy’s Savannah River Plant radioactive
mixed waste operations. Headquarters staff are currently
reviewing the intent and applicability of these two exemptions.
I anticipate the assessment will not be completed by
November 15, 1987. However, it is our objective to provide you
with a final Headquarters opinion by November 30, 1987. If you
need further details, please contact Betty Shackleford, of my
staff, on TTS 382—2221.
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9528.1987(16)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
NOVEMBER 87
1. Section 270.72 Changes in Interim Status
A container storage facility has interim status. The owner
wishes to sell one-half of the container storage facility to
a person who wishes to set up a solvent recovery operation
on the site. The solvent recovery operator wishes to gain
interim status for storage by doing this. The old owner
will have no operational control or interest in the half of
the facility that is sold. The area will now be two
facilities under completely separate ownership and
operational control. Is this allowed under Section 270.72,
changes during interim status?
Yes. There is nothing in the regulations to preclude
an existing facility with interim status from selling
off part of the facility and transferring interim
status for that part of the facility. The new owner
operator will have to come into compliance with Part
265, and among other things develop its own closure
plan, meet all of the financial responsibility
requirements and submit a new Part A for his part of
the facility. Any changes the new owner/operator
wishes to make at the interim status facility will have
to satisfy Section 270.72, which restricts both the
types of changes that can be made and the dollar
amounts of such changes (i.e., the 50% reconstruction
limit)
Source: Fred Chanania (202) 382-7706
Research: Randy Eicher
This has been retyped from the original document.
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U D STATES ENVIRONMENTAL PROTEC. I AGENCY 9528.1988(02)
MAY It
MEMO RANPUM
SUBJECT: Redesignatjon of Surface Impoundments as t.andfjl ls
During Interim Status
FROM: Bruce Weddle, Director
Permits arid State Programs Divisiori (WH—563)
TO: Robert Greaveg, Chief
Waste Management Branch (3HW30)
Region III
This memorandum is in response to your request of April 4,
1988 for Headquarters policy on a proposal by Union Carbide to
redesignate as a landfill a unit that is operating as an interim
status surface impoundment.
As we understand, the unit at the Sistersville facility in
West Virginia has been operating as a surface impoundment since
1978, and has a bottom liner system that does not comply with
minimum technology requirements. As such, under 3005(j) (1) of
RCRA, the unit must either retrofit or stop receiving hazardous
wastes by Jovember 8, 1988. Facilities that cease to receive
hazardous wastes in order to comply with 3005(j) must comply
with the applicable closure requirements of 40 CFR Part 264 or
265. Union Carbide, however, proposes to stabilize the liquids
in the impoundment, allow the stabilized wastes to remain,
redesignate the unit as an interim status landfill, and continue
to receive hazardous wastes.
40 CFR 270 . 72 (c) allows for changes during interim status in
the processes for the treatment, storage, or disposal of
hazardous waste only under the following two circumstances:
(1) It is necessary to prevent a threat to human health or
the environment because of an emergency situation, or;
(2) It is necessary to comply with Federal regulations or
State or lQcal laws.
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—2—
We agree with the previous evaluation of the Union Carbide
proposal (Humphries letter of February 5, 1988 to Robert Jelacic
of the West Virginia DWR), that neither change in interim status
criterion is satisfied. As you point out, however, West
Virginia’s authorized regulations [ West Virginia Administrative
regulations, section ll. 3 .3.cJ allow a change in a process
during interim status if either of the two Federal criteria are
met or if tiproposed changes are demonstrated to result in safer
or environmentally more acceptable processes.” Because West
Virginia is an authorized state, Union Carbide could
theoretically change the process in the affected unit if such a
demonstration is made to the satisfaction of the authorized
State agency.
In order to comply with the requirement of section ll. 3 .3 .c,
Union Carbide Would have to demonstrate that a hazardous waste
landfill operating with a liner system that does not meet
minimum technology requirements is safer or more environmentally
acceptable than a closed or retrofitted surface impoundment. We
do not believe that such a demonstration is possible, and that
the facility could not therefore meet the State requirements.
If you should have any further questions, please call Dave
Eberly of my staff on (FTS) 382—4691.
cc: Suzanne Rudzinskj, PSPD
Matt Hale, PSPD
Frank McAlister, PSPD
Alex Wolfe, PSPD
Les Otte, WMD
Fred Chananja, OGC
Dave Eberly, PSPD
Mike Freihejter, Region III
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9528.1988(03)
RCRA/SUPERFUND HOTLINE MONTHLY SUIINARY
MAY 88
5. Retrofitting Interim Status Surface Impoundments
Section 3005(j) requires surface impoundments that were in existence on
November 8, 1984 and eligible for the authorization to operate under interim
status to meet the minimum technological requirements of Section 3004(o)(1)(A)
by November 8, 1988. The minimum technological requirements consist of the
installation of double liners and leachate collection systems. These requirements
must be met unless an exemption was requested and approved under Section
3005(j) or Section 3004(o)(2).
The owners or operators of interim status surface impoundments without
approved exemptions who do not retrofit per Section 3005(j) by
November 8, 1988 must cease the receipt of hazardous wastes into those
impoundments by November 8, 1988. The dosure of these impoundments must
then proceed in accordance with 40 CFR Part 264/265 Subpart C.
An owner of three interim status surface impoundments does not wish to
retrofit the units. He therefore plans to cease receiving wastes on
November 8, 1988 and proceed with the closure. As part of dosure activity, the
owner proposes to remove the liquid waste from two of the impoundments,
stabilize the waste, and dispose of it in the third impoundment. This third
impoundment would then be closed as a landfill and provided with post-closure
care while the other two impoundments will be “clean-closed” per Section
265.228.
Can the owner change the facility process and convert the impoundment to a
landfill?
.4 the process can be changed, would the landfill be considered an existing unit,
replacement unit, or a new unit?
The owner of the facility may change the facility process and convert the third
impoundment to a landfill under limited circumstances. However in order to
do so, the requirements in Section 270.72(c) must be met. Under Section
270.72(c), an owner of an interim status facility may change the treatment,
storage or disposal processes of the facility if he submits a revised Part A
application, along with the justification explaining the need for the change.
The change may be approved under only two limited circumstances: (1) It is
necessary to prevent a threat to human health or the environment because of
an emergency situation; or (2) It is necessary to comply with Federal
regulations or State or local laws.
Furthermore, if this “conversion” amounts to reconstruction, Section
270.72(e) would prohibit the change. Reconstruction is defined in Section
270.72(e) as occurring when the capital investment in the changes exceeds fifty
percent (50%) of the capital cost of a comparable entirely new hazardous waste
management facility.
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5. Retrofitting Interim Status Surface Impoundments (Cont’d
For circumstances that allow a process change under this very restrictive
requirement, Reauthorization Statutory Interpretation #5D states that the
impoundment/landfill would be considered an existing unit.
However, if the owner of the unit removes the waste that is already in the
impoundment stabilizes the waste, and places it back into the
impoundment/landfill along with the waste from the other two
impoundments. the unit would be considered a replacement unit. As such,
the landfill would need to be in compliance with the minimum technology
standards of Section 3004(o) (RCRA/Superfund Hotiine Monthly Report,
December 1985). Also if the addition of waste into the unit exceeds the level
designated in the facility 1 s Part A application, that portion of the
impoundment/landfill would be considered an expansion of an existing unit
and would be subject to the requirements of Section 3004(o) (Section
265.301(a)).
Source: Pamela Savage (202) 382-7700
Dave Eberly (202) 382-4691
Alex Wolfe (202) 382-2227
Research: Chris Bryant
Waste
Seor ary Un
and Searndary
L chate Ccl1ectlon and
DTainage
Pipes
Leachate Collection
Syst n Sump
6
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9528.19 88(05)
RCR.A/SUPERFUND HOTLINE MONTHLY SUMMARY
OCTOBER 88
1. Changes During Interim Status (Revised Question/Answer froiri Septeriber 1988
Report)
An interim status facility owner or operator wants to retrofit his hazardous waste
tank system in order to comply with the secondary containment requirements in
40 CFR Section 265.193. Is this retrofitting activity considered a change during
interim status and thus prohibited if the cost exceeds 50 percent of what a new
facility would cost (under the 50% reconstruction limit in Section 270.72)?
According to 40 CFR Section 270.72(e) (as amended in the july 14, 1986 Federal
Register . 51 EE 25486) changes made solely for the purpose of complying with
the requirements of Section 265.193 for tanks and ancillary equipment are not
subject to the reconstruction limit in Section 270.72(e). However, Section
270.72(e) was also amended in the July 8, 1987 final rule (see 52 ER 25792, July
8, 1987 Federal RegisAei ) to include changes solely for purposes of complying
with the land disposal restrictions in 40 CFR Part 268 or RCRA Section 3004.
When Section 270.72(e) was amended, the original language regarding
changes made in order to comply with Section 265.193, was inadvertently left
out. The Agency will correct this inadvertent omission in the near future.
Source: Chester Oszman (202) 382-4499
Research: Joe Nixon
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, iIO S ? 44
UNITED STATES ENVIRONMENTAL PROTECTION AGENC 9528.1989(06)
_____ WASHINGTON. D.C. 20460
4 PRO
OF ICE OF
4PR 9 SOLID WASTE ANO EMERGENCY RESPONSE
MEMO RAN DUM
SUBJECT: Call-in of Storage and Treatment Applications
FROM: Sylvia K. Lowrance, Director\
Off ice of Solid Waste .
TO: Waste Management Division Directors
Regions I-X
Section 3005(c) (2) (C) of RCRA provides a statutory deadline by
which interim status treatment and storage facilities must submit their
Part B permit applications or their interim status will terminate on
November 8, 1992 if EPA has not issued a permit. The deadline for
storage and treatment facilities to submit their permit applications is
November 8, 1988.
You should be aware, however, that these deadlines apply only to
facilities and units that were in interim status on November 8, 1984. A
unit handling temporarily excluded waste on November 8, 1984 or a unit
added to an interim status facility after this date through a change in
interim status would not be subject to the 1988 application deadline or
the 1992 permitting deadline.
In order to give facilities subject to the 1988 deadline a full
six-month period to prepare and submit their applications (at least for
affected units), I urge you to send letters notifying these facilities
of the deadlines, and reminding them that they should submit a Part B
application if the facility (or unit) intends to continue operating
after November 8, 1992. If the facility (or unit) plans to close prior
to November 8, 1992, you should consider requesting a written confirma-
tion of intent to close in lieu of a Part B application. For closing
facilities, it would be useful to remind them that they must submit
their closure plan for approval at least 45 days prior to the date that
closure will begin. (Section 265.112(d) (1) requires owner/operators to
submit closure plans 45 days before they begin final closure of a
facility with only tanks, container storage, or incinerator units.)
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—2—
These letters should be received by the regulated community on
or before Nay 8, 1988. In authorized States, the letters could
consolidate the State and Federal permit application requests
so that the permitting jurisdiction of the two agencies is clear.
(Note that this requirement to send letters to storage and treatment
facilities is referred to on page 2.1 of the FY 1988 RIP.)
You should also expect facilities submitting Part B applications
by the 1988 deadline to make a good faith effort to provide complete
applications. I believe that there are good reasons to require
preparation of a complete application by the 1988 deadline. For
example, preparation of a complete Part B may initiate actions which
are environmentally beneficial. These actions include:
o Precipitation of decisions to close facilities that will
have difficulty complying with Part 264 regulations or
that do not intend to upgrade to meet permit standards;
and
o Stimulation of applicant decisions to begin improvements.
I a im sensitive to the problems created when applications become
stale during the time they are awaiting processing. Some of these
problems might be alleviated if an additional letter is sent to
facilities several months prior to the scheduled date of permit
processing. This will give them an opportunity to amend and update
their Part B before processing begins. You may wish to consider
trying this approach.
Thank you for your cooperation in meeting this important deadline.
If you have any questions, please call Frank McAlister at FTS 382—2223.
cc: RCRA Branch Chiefs, Regions I—X
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9528.1989(11)
RCRA/SUPERFUND MOTLINE MONTHLY SUMMARY
JULY 89
4. Changes to Interim Status Facilities
An interim status disposal facility with an existing incinerator wants to build a
new incinerator. Can this be done and if so what changes would have to be
made to the Part A permit application?
Amendments to the RCRA regulations governing changes during interim
status were promulgated in the March 7,1989 Federal gjj g (54 9596).
An increase in design capacity of processes, which indudes the addition of
new units of the same type that are already present at the facility, is possible if
the owner or operator of the facility complies with the requirements of
Section 270.72(a)(2) and the change is not otherwise prohibited by the
reconstruction limit of Section 270.72(b). The owner or operator must submit
a revised Part A permit application along with a justification explaining the
need for the change and receive the Director’s approval. The Director can
approve the change if there is a lack of available trea nent, storage or disposal
capacity at other hazardous waste management facilities or the change is
necessary to comply with a Federal, State or local requirement. (Section
270.72(a)(2))
The changes described above may not be made if prohibited by the 50%
reconstruction limit. (40 CFR Section 270.fl(b)) EPA anticipates that the
construction of most incinerators will be prohibited by the reconstruction
limit and facilities will have to obtain permits in order to make these
changes. Additlonafly, the Agency has significant concerns about new
incinerators being added as changes in interim status without the benefits of a
trial burn and public participation. Therefore, EPA prefers that such units be
subject to public hearings and comply with the incinerator standards of Part
264 Subpart 0.
Source: Barbara Foster (202) 382-4Th1
Research: Reneé LaValle (202) 382-3112
3
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9528.1989(13)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON D.C. 20460
OFFICE OF
SOLIO WASTE ANO EMERGENCY RESPONSE
OCT 15, 1989
Subject : Clarification of Interim Status Qualification Requirements for NRC
Licensees Managing Radioactive Mixed Waste
Dear NRC Licensee:
I am writing this letter to you because as a NRC licensee it is possible
chat your facility generates or otherwise handles radioactive mixed wastes
(i.e., wastes that are both radioactive and chemically hazardous). Facilities
that handle mixed wastes are subject to regulation by both the NRC (or the
Department of Energy) and the U.S. Environmental Protection Agency (EPA).
Consequently, your facility may need to comply with EPA standards and
requirements, including obtaining a permit granted by EPA.
The permit process can be quite lengthy. As a result, EPA has created
provisions and requirements for facilities awaiting final decision on their
permit application. The main provision is one of qualifying for interim
status , Under interim status, you may continue your hazardous waste (i.e.,
mixed waste) activity until a final decision is made on the permit. Applying
for a permit and gaining interim status is an important step in complying with
EPA regulations regarding mixed waste.
Below, I describe the requirements for obtaining interim status in
unauthorized States. Please read this material to determine if and how your
facility may need to comply with interim status requirements.
Backg.round
On July 3, 1986, EPA issued a notice in the j jJ 1 Reaiscer (51
24504) clarifying the applicability of the Resource Conservation and Recovery
Act (RCRA) to the management of radioactive mixed waste. (Mixed waste is
defined as waste that satisfies the definition of radioactive waste subject to
the Atomic Energy Act (AEA) and contains hazardous waste that either (I) is
listed as a hazardous waste in Subpart D of 40 CFR Part 261. or (2) exhibits
any of the hazardous waste characteristics identified in Subpart C of 40 CFR
Part 261. The hazardous component of mixed waste is regulated under RCRA.)
Since that time, EPA has become aware that many handlers of radioactive
mixed waste have been substantially confused about the regulatory status of
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-2-
their facilities, because EPA’s Federal ReLister notice addressed only RCRA’s
applicability to treatment, storage, or disposal facilities (TSDF’s) handling
radioactive mixed waste, and not the issue of interim status. Consequently,
many owners and operators of these facilities are uncertain about how to
qualify for interim status if they are handling radioactive mixed waste.
Therefore, EPA issued another notice in the Federal Register on September
23, 1988, (53 37045) that clarified the requirements for facilities that
treat, store, or dispose of radioactive mixed waste to obtain interim status
pursuant to Subtitle C of RCRA. I have enclosed a copy of that notice with
this letter and summarized below its key points.
EPA Identification Number
All treatment, storage, and disposal facilities and persons generating or
transporting radioactive mixed wastes must obtain an EPA Identification
Number. This number is obtained by completing an EPA Notification Form 8700-
12 and forwarding it to the Regional EPA Office serving the area in which the
relevant hazardous waste activity is located (see enclosed map and list).
TSDF’s, in addition, must obtain interim status to continue handling mixed
waste until a final permit is received.
Interim Status
Section 3005(a) of RCRA prohibits treatment, storage, or disposal of
hazardous waste without a RCRA permit after November 19, 1980. This same
section of RCRA, however, allows a facility to continue treatment, storage, or
disposal under interim status pending a final decision on its permit
appLication.
State Authorization
The RCRA program is designed to be implemented by the States, and EPA has
established an authorization process by which individual State agencies may
take responsibility for the RCRA program in their State. Currently, 44 States
and Territories are authorized for EPA’s base RCRA Program. 1 Authorized State
regulations must be at least equivalent to the Federal RCR.A regulations, and
may be more stringent. For States that are not authorized to implement the
The authorized States and Territories are: AL, AZ, AR, CO, DC, DE,
FL, GA, Guam, IL, IN, KS, KY, LA, MA, MD, ME, MI, MO, MN, MS, MT. NC, ND, NE,
NH, NJ, NM, NV, NY, OK, OR, PA, RI, SC, SD, TN, TX, UT, VA, VT, WA, WI, and
WV. Also, four of these States, CO. SC, TN, and WA, have authorization for
their mixed waste programs.
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-3-
RCRA program, EPA implements the Federal RCRA program directly. 2
Consequently, requirements may be different for facilities in authorized and
non-authorized States.
NRC licensees in RCRA authorized States need to check with their State
authorities to determine the exact requirements they must comply with in order
to initiate a permit application and obcain interim status. The interim
status requirements facing NRC licensees in non-authorized States are
summarized below.
Interim Status Requirements for Facilities in Non-Authorized States and Trust
Territories
• Facilities must be in existence as of July 3, 1986. (EPA considers
any facility in operation or under construction to be in existence.)
• Owners and operators of treatment, storage, and disposal facilities
must submit Part A of their permit applications (as described in the
Code of Federal Regulations, Title 40, Part 270, Sections 270.10 to
270.73) or a modification to an existing Part A permit application
no later than March 24, 1989, in order to obtain interim status.
• Owners and operators of land disposal facilities handling
radioactive mixed waste must submit Part B of their permit
applications as well as a certificate of compliance with applicable
RCRA ground-water monitoring and financial assurance requirements by
September 24, 1989.
• Facilities other than land disposal facilities must comply with
their Regional EPA Office’s deadline to submit Part B of their
permit applications.
2 Currently, 12 States and Territories do not have authorization by EPA
for their hazardous waste program: AK, American Samoa, CA, CT, HI. IA, ID,
Marianna IsLands, OH, PR, VI, and WY
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-4-
I hope thu letter eliminates much of the confusion regarding interim
status requirements for TSDFs handling radioactive mixed waste. I encourage
each of you to read the enclosed Federal Rezister notice carefully, as it
explains each of the above requirements in detail. Please do not hesitate to
contact EPA with any questions regarding this matter. Questions should be
addressed to your EPA Regional Office or Ms. Betty Shackleford, Office of
Solid Waste (OS-342), U.S. Environmental Protection Agency, 401 M Street,
S.W., Washington, D.C. 20460, (202) 382-2210.
Sincerely yours,
Joseph Carra, Director
Permits and State Programs Division
Enclosures
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osr4 9528.1990(01)
I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
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—2—
Thank you for bringing this matter to our attention. If you
have additional questions or observations on this subject, please
have your staff contact Wayne Roepe (FTS-475—7245) or Frank
McAlister (FTS—382—2 223).
cc: Denise Keehner
Frank McAlisterV
Wayne Roepe
Betty Willis, Region 4
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9528.1990(02)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
L
JUL 111990
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
Richard E. Hill, Director
Operations, Planning and Development
USPcI
515 West Greens Road
Suite 500
Houston, Texas 77067
Dear Mr. Hill:
In your May 11, 1990, letter concerning the Toxicity
Characteristic (TC) you requested clarification on certain issues
raised in the March 29, 1990, Federal Reaister notice. The
following is a response to those issues and I hope it will assist
you in resolving some of USPCI’s concerns.
Your first question asks whether facilities (exclusive of
incinerator and land disposal facilities) managing newly
identified TC hazardous wastes would lose interim status unless
they have been granted a permit by November 8, 1992. EPA
believes that these facilities are not subject to the
November 8, 1992, loss of interim status deadline. As you point
out, this deadline applies only to facilities that had interim
status on November 8, 1984. Thus, such facilities managing newly
identified hazardous waste as a result of the TC will not
automatically lose interim status on November 8, 1992.
The only facilities that are potentially subject to loss of
interim status are newly regulated interim status land disposal
facilities or interim status land disposal facilities with units
that become newly regulated because of the Toxicity
characteristic. These land disposal facilities must comply with
the certification and Part B submission deadlines in 40 CFR
270.73(d) and 270.73(e) or interim status will terminate twelve
months after the TC effective date. This documentation must be
received by the appropriate EPA Regional Office no later than
September 29, 1991. In addition, under 40 CFR 270.42(g)(l)(v),
newly regulated land disposal units at permitted facilities will
lose authority to operate if the facility fails to comply with
the appropriate certification requirements.
Pr .d R.cyckd Paper
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Second, you inquire about whether Federal or State interim
status standards apply to newly regulated facilities. A facility
which has gained interim status for the new TC waste is subject
to the Federal requirements under 40 CFR Part 265 until such time
as the State is authorized for the TC. (See table V-2 at 55
11848, March 29, 1990.) If the facility wants to modify its
operations during interim status, then it must follow the
procedures in 40 CFR 270.72, and submit all Part A revisions to
EPA. If prior approval is required for a particular change, then
EPA would be the approving agency.
In authorized States, EPA directly implements only those
aspects of the Federal RCRA program that, by statute or
regulation, take effect in all States. Such Federally-
implemented provisions are generally limited to HSWA requirements
and prohibitions such as land disposal restrictions, minimum
technology requirements, and HSWA waste identifications. For
example, an interim status facility regulated by EPA because of
the TC rule could apply to EPA for: 1) additional TC waste codes
not on the original Part A; 2) other HSWA waste codes that the
State is not authorized for; 3) capacity increases or process
changes for TC or other HSWA wastes; or 4) other HSWA-related
facility change (e.g., new process needed to provide BDAT
treatment).
Of course the addition of a new, non—HSWA waste code would
be subject to regulation by the authorized State and not by EPA.
Note that if the State has not yet adopted the TC rule and a
facility with Federal interim status due only to TC wastes wants
to make changes to add non—HSWA wastes regulated under the
authorized State program, this may be viewed as a ‘ 1 new” hazardous
waste operation since the facility would not have interim status
under State law. In this case, the State might require a RCRA
permit prior to receipt of the waste.
Finally, if a facility commences treatment, storage, or
disposal activity after June 27, 1990, but before September 25,
1990, that facility is not prohibited from qualifying for interim
status because it did not or could not notify prior to
June 27, 1990. In such a case, a Section 3010 notification is
not required for obtaining interim status, see 40 CFR
270.70(a) (1) and the preamble discussion provided at 45 76631,
November 19, 1980. However, the facility would be required to
submit a Part A permit application in accordance with the
deadline specified in 40 CFR 270.10(e).
2
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If you have any questions or would like to discuss these
issues further, please contact Steve Cochran at (202) 475-8551,
or Frank McAlister at (202) 382—2223 of my staff.
Sincerely,
Sylvia K. Lowrance
Director
Office of Solid Waste
3
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9528.1990(03)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
JUL I I 1990
O ICE OF
SOLID WASTE AND EMERGENCY RESPONSE
Richard E. Hill, Director
Operations, Planning and Development
USPCI
515 West Greens Road
Suite 500
Houston, Texas 77067
Dear Mr. Hill:
In your May 11, 1990, letter concerning the Toxicity
Characteristic (TC) you requested clarification on certain issues’
raised in the March 29, 1990, Federal Reaister notice. The
following is a response to those issues and I hope it will assist
you in resolving some of USPCI’s concerns.
Your first question asks whether facilities (exclusive of
incinerator and land disposal facilities) managing newly
identified TC hazardous wastes would lose interim status unless
they have been granted a permit by November 8, 1992. EPA
believes that these facilities are not subject to the
November 8, 1992, loss of interim status deadline. As you point
out, this deadline applies only to facilities that had interim
status on November 8, 1984. Thus, such facilities managing newly
identified hazardous waste as a result of the TC will not
automatically lose interim status on November 8, 1992.
The cnly facilities that are potentially subject to loss of
interim status are newly regulated interim status land disposal
facilities or interim status land disposal facilities with units
that become newly regulated because of the Toxicity -
Characteristic. These land disposal facilities must comply with
the certification and Part B submission deadlines in 40 CFR
270.73(d) and 270.73(e) or interim status will terminate twelve
months after the TC effective date. This documentation must be
received by the appropriate EPA Regional Office no later than
September 29, 1991. In addition, under 40 CFR 270.42(g) (1) (V) 1
newly regulated land disposal units at permitted facilities will
lose authority to operate if the facility fails to comply with
the appropriate certification requirements.
Pri g.d Rw&d Paper
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Second, you inquire about whether Federal or State interim
status standaz ds apply to newly regulated facilities. A facility
which has gained interim status for the new TC waste is subject
to the Federal requirements under 40 CFR Part 265 until such time
as the State is authorized for the TC. (See table V-2 at 55
11848, March 29, 1990.) If the facility wants to modify its
operations during interim status, then it must follow the
procedures in 40 CFR 270.72, and submit all Part A revisions to
EPA. If prior approval is required for a particular change, then
EPA would be the approving agency.
In authorized St3tes, EPA directly implements only thcse
aspects of the Federal RCRA program that, by statute or
regulation, take effect in all States. Such Federally—
implemented provisions are generally limited to HSWA requirements
and prohibitions such as land disposal restrictions, minimum
technology requirements, and HSWA waste identifications. For
example, an interim status facility regulated by EPA because of
the TC rule could apply to EPA for: 1) additional TC waste codes
not on the original Part A; 2) other HSWA waste codes that the
State is not authorized for; 3) capacity increases or process
changes for TC or other HSWA wastes; or 4) other HSWA-re]ated
facility change (e.g., new process needed to provide BDAT
treatment).
Of course the addition of a new, non—HSWA waste code would
be subject to regulation by the authorized State and not by EPA.
Note that if the State has not yet adopted the TC rule and a
facility with Federal interim status due only to TC wastes wants
to make changes to add non-HSWA wastes regulated under the
authorized State program, this may be viewed as a “new” hazardous
waste operation since the facility would not have interim status
under State law. In this case, the State might require a RCRA
permit prior to receipt of the waste.
Finally, if a facility commences treatment, storage, or
disposal activity after June 27, 1990, but before September 25,
1990, that facility is not prohibited from qualifying for interim
status because it did not or could not notify prior to
June 27, 1990. In such a case, a Section 3010 notification is
not required for obtaining interim status, see 40 CFR
270.70(a) (1) and the preamble discussion provided at 45 76631,
November 19, 1980. However, the facility would be required to
submit a Part A permit application in accordance with the
deadline specified in 40 CFR 270.10(e).
2
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If you have any questions or would like to discuss these
issues further, please contact Steve Cochran at (202) 475-8551,
or Prank )IcAlister at (202) 382—2223 of my staff.
Sincerely,
Sylvia K. Lowrance
Director
Office of Solid Waste
3
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9528.1991(01)
iIO S?4p
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON. D.C. 20460
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
Samuel I. Gutter
Sidley & Austin
1722 Eye Street, N.W.
Washington, D.C. 20006
Dear Mr. Gutter,
This letter is in response to your letter of June 27, 1991
to Sylvia Lowrance, in which you seek clarification of the
application of the Boiler and Industrial Furnace (BIF) rule to
newly regulated units at interim status facilities. In your
letter, you ask questions regarding the criteria a unit must meet
to gain interim status as a newly regulated unit. First, you ask
what constitutes a “newly regulated” unit under §270.72(a) (6).
Then you ask what requirements a unit must meet to qualify for
interim status as a newly regulated unit. Finally, you ask if
construction may commence after the effective date of the rule.
The criteria for a unit to gain interim status are the same
for an interim status facility and a newly regulated facility. A
“newly regulated” unit under §270.72(a) (6) is one which is
subject to the RCRA permitting requirements for the first time as
a result of a rulemaking. An example of a newly regulated unit
is a boiler or industrial furnace that will become subject to the
RCRA permitting requirements on the effective date of the BIF
rule.
To obtain interim status under §270.72(a) (6), a newly
regulated unit such as a BIF must meet the definition of an
“existing hazardous waste management facility” as defined under
§260.10. This definition does not necessarily require that
physical construction of a unit be underway before the effective
date of the B!? rule. However, if construction of a BIF unit has
not begun by August 21, 1991, the facility must meet the criteria
in the definition of “existing facility,” including (1) have
obtained the Federal, State and local approvals or permits
necessary to commence construction and (2) have entered into
contractual obligations — - which cannot be canceled or modified
without substantial loss -- for physical construction of the
facility (or unit) within a reasonable time.
For the BIF rule, EPA Regional offices will be making the
determinations regarding interim status. These decisions are
necessarily made on a case—by-case basis, considering the
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specific facts of a particular site. Therefore, I recommend that
you contact the appropriate EPA Regional office to discuss
specific facilities that may be subject to the BIT rule.
I hope that this response answers your questions. If you
require further clarification, please call Wayne Roepe (202) 475-
7245 of my staff.
Sincerely,
7 c z4 / * s
Frank McAlister, Chief
Permits Branch
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itD $P4
9528.1991(02)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
L
F6 2 T toOl OFFICE OF
‘ ‘ I SOLID WASTE AND EMERGENCY RESPONSI
Mr.. George Sullivan
Chairman, Recycling Sciences
International, Inc.
30 South Wacker Drive
Suite 1420
chicago, Illinois 60606
Dear Mr. Sullivan:
This letter responds to the inquiry made by you and your
company’s legal counsel whether several hazardous waste treatment
facilities that employ a single mobile treatment unit may qualify
for interim status. Your firm, Recycling Sciences International,
Inc. (RSI) owns several waste storage and treatment facilities at
different locations, but employs only one mobile treatment unit
among these various facilities, transporting the treatment ur it
from one facility to another. You also indicated that RSI’s
mobile treatment unit accepts only organic—contaminated soils
that are newly regulated as hazardous waste under the revised
toxicity characteristic (TC) rule (55 11798, March 29, 1990),
and that RSI has applied for interim status to EPA for facilities
in Arizona, Pennsylvania, Michigan, and Mississippi.
As you are aware,.the TC rule was promulgated by EPA under
the authority of the Hazardous and Solid Waste Amendments (HSWA)
and therefore is implemented by EPA in all states (until the
states become authorized for the TC rule). I have addressed your
— specific questions below:
1. How does a facility qualify for interim status under the TC
rule?
There are three basic prerequisites for obtaining interim
status pursuant to S 3005 of RCRA:
(a) The facility must be in existence on the effective date
of statutory or regulatory amendments that render the
facility subject to the requirement to have a RCRA
permit (5 270.70(a));
(b) The facility must have complied with the notification
requirements of 5 3010(a) of RCRA (S 270.70(a) (1)); and
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(c) The facility must comply with the requirements in 40
CFR 270.10 for the submission of the Part A permit
application ( 270.70(a)(2)).
A facility must meet all of the above criteria to qualify
for interim status. Note that for a facility to be “in
existence”, it may either be in operation or under construction.
See § 270.2 for the definition of “existing hazardous waste
facility”.
2. Can a mobile treatment unit qualify for interim status at
each facility where it is operated?
Yes, a single MTU may qualify for interim status at more
than one location. At each site the MTU must meet the three
interim status criteria described in question one above. The
fact that the treatment unit is a mobile unit instead of a
stationary unit does not diminish the opportunity to gain interim
status. After the effective date of the TC rule (September 25,
1990), the unit must meet all applicable interim status
standards.
3. Does routine movement of the MTU from site to site
constitute a change in interim status that has to be
approved by EPA?
No, such movement is not a change in interim status under
Federal regulations as long as the unit is always operated within
the constraints identified on the Part A permit application
(e.g., the types and quantities of hazardous waste, and the unit
process types and design capacity). Simply moving the unit to or
from the site does not in itself constitute a change in interim
status. However, any change to the unit or to the operation that
results in an “increase in design capacity”, a “change in
process”, or an “addition of process” would require a revised
Part A and prior approval by EPA before the change could be
‘ implemented (see § 270.72(a)).
4. If a facility in an authorized state obtains interim status
for TC wastes from EPA, can the company amend interim status
without prior approval to treat and store hazardous waste
not previously identified in the Part A?
An interim status facility located in an authorized state
but regulated by EPA because of the TC rule can apply to EPA for
additional TC waste codes not on the original Part A and other
HSWA waste codes that the State is not authorized for. The
addition of a new, non-HSWA waste code would be subject to
regulation by the authorized State and net by EPA. Note that if
the State has not yet adopted the TC rule and a facility with
Federal interim status due only to TC wastes wants to make
changes to add non-HSWA wastes regulated under the authorized
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State program, this may be viewed by the state as a “new”
hazardous waste operation since the facility would not have
interim status under State law. In this case, the State might
require a RCRA permit prior to receipt of the wastes.
If you have any questions, please contact me (202-382-2223)
or Wayne Roepe of my staff (202—475—7245).
Frank McAlister
Acting Chief, Permits Branch
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9528.1991(03)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
AUG 19 1991
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
TO: James 3. Scherer
Regional Administrator
FROM: Don R. Clay, Assistant Administrator
Office of Solid Waste and Emergency Respons
SUBJECT: Interim Status under the Boiler and
Industrial Furnace Rule
Thank you for your memoranda of April 16 and May 2, 1991,
in which you described your strategy for addressing boilers and
industrial furnaces (BIPs) seeking interim status as “existing
facilities” under EPA’s BIF rule.
I appreciate your concern about BIPs seeking interim
status without any history of hazardous waste management, or
any documented commitment to such activities. Further,
I commend your efforts to ensure that interim status is
reserved for those facilities that, under the regulations,
are legitimately entitled to such status. At the same time,
our decision on whether a specific facility has met the standard
should be consistent with our past decisions and with our
established regulatory interpretations.
In an attachment to this memorandum, I address the specific
points you raised in some detail. In any decision on a
particular facility, however, you need to keep in mind what we
believe is the general intent of both the statute and our
implementing regulations: that facilities with a history of
handling hazardous waste at the time the waste becomes subject to
regulation, or that have made a substantial commitment to handle
the waste in the near future, be allowed to continue their
activities under interim status. Where a facility has actually
handled hazardous waste before the effective date of the
regulation (that is, August 21, 1991, for the BIF rule), the
facility is clearly eligible for interim status. Where the waste
has not yet been handled by the effective date, we agree that the
case becomes more complex, and its resolution depends on the
P irsted on Recycled Paper
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ability of a facility to demonstrate a substantial commitment
to hazardous waste management within the near future. Criteria
for making this decision are discussed in more detail in the
attachment to this memorandum. Clearly, these criteria must be
applied on a case—by—case basis considering the particular
circumstances at each facility.
In your April 16 memorandum, you made an important point:
that BIFs seeking interim status may be underestimating the
potential costs for corrective action. We agree that the costs
could be high and that BIF5 may not have adequately taken them
into account. I suspect that if the potential liabilities are
clearly pointed out to BIF owner/operators, those who have not
already made a substantial commitment to managing hazardous
waste may have second thoughts about entering the business.
Additionally, BIF facilities should clearly understand that
gaining interim status, by itself, does not convey the right to
burn hazardous waste. It is likely that other federal, state,
and local requirements must also be met, and the conferring of
interim status does not extinguish any other legal obligations.
I trust that the attached response will assist you in
implementing the BIF rule in your region. If you have any
questions regarding these criteria, please feel free to contact
Devereux Barnes at (202) 475—7276.
Attachment
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ATTAC NT
Clarification of Interim Status Criteria for BIF Facilities
Background
The basic requirements for obtaining interim status were
established by section 3005(e) of RCRA, as amended by HSWA, which
specifically grants interim status to “any person who is in
existence on the effective date of statutory or regulatory
changes under this Act that render the facility subject to the
requirement to have a permit.” In the legislative history
accompanying this provision, Congress indicated that “existing
facilities” would include types of facilities that were
previously exempted from certain R RA requirements but
subsequently became subject to those requirements. (See 50
28723, July 15, 1985.) We have consistently taken this position
in the case of new waste identifications (e.g., see the Toxicity
Characteristic rule, 55 11798). EPA has also acknowledged on
several occasions that non—hazardous waste management facilities
that are converting to hazardous waste management but have not
yet begun hazardous waste management by the effective date of a
regulation could qualify for interim status (see 46 2346).
One of the three basic prerequisites for obtaining interim
status pursuant to §3005 of RCRA is for a facility to be “in
existence” on the effective date of any statutory or regulatory
amendments that render the facility subject to the requirement to
have a RCRA permit (U70.70(a)). Two kinds of facilities are
deemed to be “in existence”: (1) a facility that is “in
operation” on the effective date of a regulatory or statutory
change that renders a facility subject to the permit requirement
(i.e., treating, storing, or disposing of hazardous waste), or
(2) a facility that is “under construction” on the effective date
of such a change. For a facility to be considered “under
construction,” §260.10 (under the definition of “existing
facility”) requires that the facility must have all permits and
approvals necessary for physical construction and either: (1) an
on-site construction program has begun, or (2) the facility has
accepted substantial contractual obligations for such
construction, to be completed within a reasonable time.
We understand that several BIF5 in Region VIII have already
been constructed and may wish to begin hazardous waste operations
after the August 21 date. EPA has interpreted the term
facilities “under construction” also to include facilities that
have completed construction on the relevant date if they can
demonstrate the intent to commence hazardous waste operations
within a reasonable period of time (i.e., through a trial burn or
agreements with suppliers to receive hazardous waste derived
fuels), and if the facility meets the other relevant standards
for “in existence.” The Agency’s interpretation of what
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2
constitutes being “under construction” is discussed in detail in
the January 9, 1981, Federal Register (46 2344).
1. What State and local approvals or permits are necessary to
meet the definition of “existing facility”?
One requirement for a facility to be considered “under
construction” is that it possess “the Federal, State, and local
approvals or permits necessary to begin physical construction.”
As defined in §260.10 (under the definition of “Federal, State,
and local approvals or permits necessary to begin physical
construction”), these permits or approvals are those required
under hazardous waste control statutes, regulations, or
ordinances. Air pollution control permits that must be obtained
prior to facility construction or modification under Federal or
state laws would not be needed for interim status if the purpose
of the legislative provision is to regulate air emissions in
general, and not specifically to regulate the treatment, storage,
or disposal of hazardous waste, or the siting of a hazardous
waste management facility. Similarly, state or local building or
zoning permits would be included only if they specifically
address hazardous waste management. Of course, the facility
remains responsible under state or local law for obtaining
relevant building and zoning permits and approvals, even though
the failure to obtain them will not prevent a facility from
obtaining interim status.
It is important to recognize that the requirement relating
to approvals and permits refers to approvals or permits necessary
to begin Dhvsical construction . Since the Region VIII BIF5 have
already been constructed, the requirement should be read to apply
to approvals for any physical modification needed to receive
hazardous waste. Of course, if the physical modification has
already been completed, the need for preconstruction permits
would not arise as an issue (unless it could be argued that the
-construction took place illegally in the absence of a necessary
permit).
2. What constitutes a “substantial loss due to a contractual
obligation”?
To be considered “in existence,” a facility not already
handling hazardous waste and not yet under construction must have
“entered into contractual obligations —— which cannot be canceled
or modified without substantial loss —— for physical construction
of the facility to be completed within a reasonable period of
time.” As one way of demonstrating substantial loss, EPA has
in the past used cancellation contract clauses. Thus, EPA has
interpreted “substantial loss” as being at least 10 percent of
the total project cost for physical construction. Physical
construction means fabrication, erection, installation, or
modification of a facility. The term does not refer to all costs
a
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3
that may be associated with a construction project; for example,
options to purchase, contracts for feasibility, or engineering or
design studies would not constitute an eligible contractual
obligation. (See 46 2346, January 9, 1981.) In the case of
BIFs that have not burned hazardous wastes before, the total
project cost for physical construction refers to the
modifications necessary for the BIF to manage hazardous waste.
Although the 1981 preamble does not specifically address when
meeting the 10 percent threshold would not be sufficient, we
believe that if the loss to the facility of canceling the
construction were minimal, the loss could not be considered
substantial, even though it exceeded 10 percent. For example, if
the total cost of kiln modification were $5,000, a 10 percent
loss ($500) would not be viewed as substantial. In contrast, for
a project that would exceed $250,000, we believe that 10 percent
would represent a substantial amount.
Of course, contract cancellation clauses with higher
percentages, or other approaches to a demonstration of
substantial loss, could be considered by the Regions as well.
In that regard, we note the unique circumstances presented by the
BIF rule for cement kilns that will be modified to burn hazardous
waste. Even though the contractual cost of installing such
modifications can be relatively low, the Regions can take into
account other economic factors and actions showing substantial
loss insofar as they provide evidence of a bona fide substantial
commitment to managing hazardous waste in the near future.
You should also note that the “substantial loss” criterion
must be met only at facilities where construction (i.e., facility
modifications to receive hazardous waste) has not begun. Where
physical construction is underway or completed, a facility is
not required to show “substantial loss,” but rather objective
indications of a bona fide intent to manage hazardous waste.
3. What constitutes a “reasonable time to complete
- construction”?
The regulations do not define the term “reasonable time to
complete construction,” nor do they define a “reasonable time” to
begin management of hazardous waste, in the case of an already
constructed facility. To determine what is a reasonable time,
Regions must make a case—by—case decision. Generally, if a
facility is undergoing a continuous process to initiate or
complete construction activities, and arrangements are in place
to ensure that such construction can be carried out on a schedule
that is typical of similar construction activities, then
completion of construction should be considered to be within a
“reasonable time.” The same rule of thumb applies to the
definition of a “reasonable time” to begin management of
hazardous waste.
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4. Effect of a state moratorium.
In your memorandum of April 16, 1991, you discuss the
possible effect of the Utah moratorium on the ability of cement
kilns in the state to qualify for interim status. Since the Utah
moratorium only prohibits the burning of hazardous wastes in
cement kilns, it is still possible for a facility to meet the
fundamental criteria for gaining interim status. Of course,
gaining interim status does not affect the legal status or
applicability of Utah’s moratorium. In contrast, there could be
other situations where a moratorium could prevent a facility from
meeting one of the “in existence” criteria. For example, if the
facility were unable to obtain a required approval for
construction due to a moratorium on hazardous waste
preconstruction permitting, interim status would be precluded.
5. Section 3010 notification requirements for BIFs.
It is likely that very few BIFs were required to submit a
section 3010 notification on May 22, 1991. One reason is that
this notification requirement only applied to facilities actually
handling hazardous waste fuel on February 21, 1991. (See 45
76631, November 19, 1980.) This section 3010(a) notification is
intended to be a “snapshot” of hazardous waste management
practices at the time a rule is promulgated. Therefore, if a
facility is “under construction” a Section 3010 notice is not
required. (See H.R. Rep. No. 198, 98th cong., 1st Session, 40
(1983).) Another possibility is that the facility might have
already submitted a notification previously either for the
burning of hazardous waste fuel under §266.35, or for some other
hazardous waste activity, in which case the BIT is not required
to renotify.
6. Pre—Compliance certification.
The BIT rule does not require facilities to submit a pre—
compliance certification by August 21, 1991, to attain interim
status. Once a facility meets the statutory and regulatory
requirements, interim status follows automatically. However, if
a facility fails to submit such a certification (or if the
facility fails to comply with subsequent interim status
compliance schedule requirements), it loses its ability to manage
hazardous waste in the BIT unit, unless and until it receives a
Part B permit.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9528.1992(01)
OCT I 5 1992
Lewis D. Walker
Deputy Assistant Secretary of the Army
(Environment, Safety and Occupational Health)
OASA (I,L and E)
Department of Army
Office of the Assistant Secretary
Washington, D.C. 20310—0110
Dear Mr. Walker:
The purpose of this letter is to follow up our June 30th
meeting by providing you, as you requested, with a written
regulatory interpretation of the loss of interim status
provisions in the Resource Conservation and Recovery Act (RCRA)
that affect your open burning/open detonation facilities.
It is the Agency’s interpretation that Section 3005(c) (2) (C)
of RCRA provides a deadline of November 8, 1988, for treatment
and storage facilities (other than incinerators) and/or units
that were in interim status on November 8, 1984 to submit their
Part B permit applications. We also believe that this section of
RCRA provides that if any of these interim status facilities, or
units, did not submit their Part B applications by the 1988 date,
they would lose interim status on November 8, 1992 unless a
permit determination is made prior to that date.
As discussed during the meeting, our interpretation of RCRA
divides your facilities that were in operation before November 8,
1984 into two groups: those that submitted applications on time
and those that did not. For those units submitting applications
on time, interim status will continue after November 8, 1992. In
relation to this interpretation on continued operation, we stated
that we do not believe there will be any legal challenge to
deprive the Agency of its discretionary authority to process
permits after November 8, 1992.
Facilities that did not submit applications by November 8,
l S8 will lose interim status on November 8, 1992 (unless final
permit determinations are made by that date). This relates to
all units that were in existence prior to November 1984,
including units that properly notified the Agency of their
activities and units that should have notified but did not.
However, note that a unit handling temporarily excluded
-- (delisted) waste on Novexnberc8.çcu1 itu or a unit added to an
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interim status facility after that date through a change in
interim status, is not subject to the 1988 application deadline.
We will continue to discuss with your staff our efforts to
minimize the impact from the loss of interim status. If you have
any further questions, please contact Chester Oszman at (202)
260—4499. -
Sincerely,
Sylvia K. Lowrance, Director
Office of Solid Waste
cc: Tina Kaneen, OGC
Jim Michael, OSW
Christine Dibble, OSW
Ken Gigliello, OWPE
Lee Tyner, OGC
Chester Oszinan, OSW
Subpart X Permit Writers’ Workgroup
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9528.1992(02)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
nI 1. “) I i• OFFICE OF
1 1W . I GENERALCOIDJSEL
Robert H. Hunter
Associate General Counsel
U.S. General Accounting Office
Washington, DC 20548
Dear Mr. Hunter:
This letter responds to your inquiry of July 24, 1992, to
William K. Reilly regarding issues raised under the Resource
Conservation and Recovery Act (RCRA) as a result of certain site
preparation work performed by the U.S. Army for its proposed
chemica l stockpile incineration facility at the Anniston Army
Depot (ANAD), Alabama.
Our understanding, from your letter and independent inquiry,
is that, on July 23, 1990, ANAD applied for a permit under
Section 3005 of RCRA, 42 U.S.C. 6925, to construct a hazardous
waste incinerator to destroy on—site chemical weapons as part of
the Army’s chemical agent demilitarization program. This program
implements Public Law 99-145, which was enacted by Congress in
1985 and mandates the destruction of most of the U.S. stockpile
of chemical weapons. ANAD submitted its permit application to
the Alabama Department of Environmental Management (ADEM), which
is authorized pursuant to Section 3006 of RCRA, 42 U.S.C. 6926,
to carry out the requirements of RCRA within the State. ANAD
presently has “interim status” under RCRA, which is available to
facilities that have on—going hazardous waste management
operations, or that have commenced construction related to such
operations, on the date they first become subject to the
requirements of RCRA. 42 U.S.C. 6925(e), 40 CFR 270.70. ANAD
obtained interim status for two categories of units —— open
burning and open detonation grounds, and storage igloos for M-55
rockets, which have been classified as hazardous wastes because
they are obsolete.
In early 1990, because of shallow groundwater, the Army
decided to perform cut and fill to elevate the site for the
proposed incinerator by 25 feet. The Army has indicated that
this fill required six to eight months for settling before the
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2
site could be r the load of concrete an heavy facility equipment
neceásary.forco s r iction.o± the inciierator. Toavoid delay in
the construction schèdu]e, the Army sought approval from ADEM for
its cut and fill work prior to receiving its RCRA permit. ADEM
informed the Army that, under ADEM’s RCRA authorized regulations,
the site preparation could procied prior to the issuance of the
RCRA permit.
You asked three questions relating to the ANAD project. We
respond to each in turn.
1. Whether EPA or ADEI4, under Alabama’s EPA-approved RCRA
program, is the appropriate luthority (1) to issue the
permit to the army for constructing the disposal facility,
and (2) to allow site preparation work before a permit is
issued.
(1) The State of Alabama is authorized to implement the
“base” RCRA program, including the issuance of permits to
implement base program requirements. This authorization includes
the authority to issue permits to hazardous waste incinerators
such as the unit the Army seeks to construct at ANAD. The
state’s authorization does not include the authority to implement
certain requirements of the 1984 Hazardous and Solid Waste
Amendments (HSWA) to RCRA, including the requirement of Section
3004(u) of RCRA that all RCRA permits must provide for corrective
action for releases of hazardous waste or constituents from solid
waste management units at the facility. 42 U.S.C. 6924(u). EPA
administers the requirements of HSWA in states authorized to
implement RCRA’s base program until the states are specifically
authorized to implement the HSWA requirements, including issuing
the portions of permits required to implement the requirements.
42 U.S.C. 6926(c)(4). In states such as Alabama that have not
been authorized to implement all of the requirements of HSWA, a
RCRA permit is comprised of both the state base portion and the
federal HSWA portion. Thus, in the case of ANAD, assuming that
ANAD needs a RCRA permit to commence construction of the
incinerator and related construction, the permit would be issued
jointly by EPA and ADEM. The issue of whether the Army needs a
permit to commence construction is discussed in response to
question 3, below.
(2) ADEM is the appropriate authority to determine whether
site preparation work is allowed. EPA administers only the
lim ted set of requirements created by HSWA for which the state
has not yet become authorized. The decision as to whether any
given activity at a site is permissible under interim status is
part of the base program, which is governed by Alabama’s EPA—
approved regulations, as further explained below in response to
question 3.
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3
2. Whether EPA or ADEM gave the Army permission to do the
site preparation work.
EPA did not give permission to the Army to do the site
preparation work.
EPA’s knowledge of communications between ADEM and the Ai my
on this issue is based on (i) a June 26, 1992 letter from General
Walter L. Busbee to Congressman Glen Browder stating that the
Army obtained appoval from ADEM for the site preparation work;
(ii) an August 29, 1990 letter from Ronald H. Grant of the Army
to ADD( seeking written confirmation of a conversation relating
to site preparation work; (iii) a September 10, 1990 response
from Nathan Hartman at ADEM confirming Mr. Grant’s summary of the
conversation; and (iv) a letter from Leigh Pegues of ADEM to
Congressman Michael L. Synar discussing the issue. These
documents were attached to your July 24, 1992 letter to Mr.
Reilly. EPA has no independent knowledge of communications
relating to the site preparation work and believes that these
documents speak for themselves.
3. Whether the Army’s undertaking the cut and fill site
preparation work without a permit was consistent with R RA
and implementing federal regulations.
First, it should be noted that, within the scope of the base
program, it is Alabama’s regulations, not EPA’s, that govern the
hazardous waste management program within the state. Once
approved, the state’s program operates “in lieu of the Federal
program. . . .“ 42 U.S.C. 6926(b). Thus, with the exceptioz of
HSWA requirements, Alabama’s regulations determine the
requirements of RCRA within the state. However, in order for it
to maintain its authorization, Alabama’s regulations must be
equivalent to and no less stringent than EPA’S regulations. Id .
We have not examined the Alabama regulations. The following
analysis is based on EPA’s RCRA regulations.
The Army’s undertaking the cut and fill work was not
consistent with EPA’S RCRA regulations. Changes to interim
status facilities that involve the addition of processes or
capacity must conform with the provisions of 40 CFR 270.72 (or
the state equivalent in an authorized state). The addition of
the incinerator to the ANAD facility would be the “addition of a
process” and, under section 270.72(a) (3), would require agency
approval based on a showing that the addition was necessary to
prevent a threat to human health and the environment because of
an emergency situation, or that the addition was necessary to
comply with a federal, state, or local requirement.
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Under EPA’s regulations, a “hazardous waste management unit”
is defined to include the “contiguous area of land on or in which
hazardous waste is placed,” 40 CFR 260.10, and “physical
construction” includes “movement of earth,” 40 CFR 270.2.
Therefore, the elevation of the land which will serve as the
foundation for the incinerator would be considered part of the
construction of the incinerator. To our knowledge, the Army did
not make either of the showings required under section
270.72(a) (3) or receive approval for a change during interim
status. Absent such approval, the Army should not have performed
the cut and fill work prior to the issuance of the RCRA permit.
In addition, a facility normally cannot make a change under
interim status that would result in “reconstruction” of the
facility, which is defined as a change for which the capital
investment exceeds 50% of the capital cost of a comparable
entirely new hazardous waste management facility. Section
270.72(b). Given the high projected cost of the ANAD
incinerator, it is possible that the construction of the
incinerator would amount to reconstruction. While reconstruction
can be approved in certain limited situations, section
270.72(b)(1)-(7), to our knowledge ANAD has not made any of the
showings that would be required for such approval.
The Army’s undertaking the cut and fill activity is
understandable, since ADEM apparently advised that such activity
was permissible under its regulations. ADEM (and the Army as
well) appears to have viewed the issue as a “pre—construCtion”
issue, rather than as an interim status issue. RcRA’s “pre—
construction ban” requires “each person owning or operating pn
existing facility or planning to construct a new facility for the
treatment, storage, or disposal of hazardous waste. . . to have a
permit. . . .“ 42 U.S.C. 6925(a) (emphasis added). EPA’s
implementing regulations provide that “no person shall begin
physical construction of a new (hazardous waste management]
facility without. . . having received a finally effective R RA
permit.” 40 U.S.C. 270.10(f)(1) (emphasis added). These
provisions apply to “new facilities.” A facility in interim
status is not “new,” and the construction of new units at such a
facility is governed by the interim status regulations, not by
the “pre—construction” provisions. Because ANAD has interim
status, the scope of permissible changes ANAD may effect at the
facility is regulated by the interim status regulations, as
described above.
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5
If you have any questions about this matter please call me
(260—7697) or Brian Grant on my staff (260—6512).
Sincerely,
Q -Lisa K. Friedman
Associate General Counsel
Solid Waste and ergency
Response Division (LE—332S)
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DISCLAIMER
The coxnpilation 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 orL particular subjects.
In addition, these documents are not: intended and cähnpt
be relied upon to create any rights, substantiv&’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 reserve the right to act at
variance with these views or to change them at any time
without public notice.
TLS. v1ro1 eflta1 1”-
Beglon 5, LIbrary ‘
230 S. Dearborn st - 1 .)
&blcago, IL 60604’ doom 1670
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