United States Solid Waste and EPA/530-R-98-012L
Environmental Protection Emergency Response July 1998
Agency (OS-343)
RCRA Permit Policy
EPA
Compendium
Volume 12
9530.1980 - 9551.1991
Air Emissions Standards
State Authorization (Part 271)
Land Disposal Restrictions (Part 268)
TechLaw 1/5949/Coversl 13
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Air Emission Standards For Owners
And Operators Of Hazardous Waste
TSDFs
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9531.1993(01)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
FEB 23 - 1993 SOLID WASTE AND EMERGE\C* a;s
Mr. Gary S. King, P.E.
Environmental Audit Manager
Safety-Kleen
777 Big Timber Road
Elgin, Illinois 60123
Dear Mr. King:
This is in response to your letter of January 5, 1993 "in
which you requested an interpretation of whether several
particular connections would be considered flanges and thus
subject to reporting and recordkeeping requirements of the
Subparx. =.* regulations at 40 CFR 264/265.
"Connector" is defined at 40 CFR 264.1031 as "flanged,
screwed, welded, or other joined fittings used to connect two
pipelines or a pipeline and a piece of equipment." For the
purposes of reporting and recordkeeping, "connector" is furthc:
defined as "flanged fittings that are not covered by insulatic-
or other materials that prevent location of the fittings." Er•
interprets these regulations to r.ean that although the genen.
definition of "connector" includes flanged fittings as a subs- •
for reporting and recordkeeping purposes the definition of
"connector" includes only flanged fittings (e.g., those sere-.--
welded, or otherwise joined are not flanges). The following
items are those you identified and requested an interpretatic-
to whether they are "flanges:"
1. Screwed unions
2. Quick disconnect hose fittings
3. Quick disconnect hose fittings at the end of a pipe
preceded by a closed valve, that has been plugged
capped (i.e., to meet the requirements of 265.1056
4. Strainer housing that has a flange-type top
While all of the above listed items meet the general
definition of "connector," EPA does not believe they meet the
more specific definition of "flanged fittings" for reporting
recordkeeping purposes under Subpart BB of 40 CFR 264.1064 ar :
.1065 and 265.1064. Please be advised, however, that these
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2
“other—than—flange type connectors” remain subject to the Subpart
BE requirements for inspection and leak monitoring and repair.
If you have any further questions concerning these matters,
you may contact Jim Michael, Acting Chief, Assistance Branch, at
703—308—8610.
Sincerely,
/
/
I
/ F
,.., - - L-.- 1 •‘
Sylvia K. Lowrance, Director
Office of Solid Waste
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3
bcc: Per nit Section Chiefs, Regions I-X
Jim Michael, PSPD, OSW
Robert Lucas, OAQPS
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9534 EQUIPMENT
LEAKS AND PROCESS
VENTS
Subpart C
A.T. Keamey 113590/7 Cr
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9534.1991(01)
DEC 99I
MEMORANDUM
SUBJECT: RCRA Regulations Applicable to Control Devices Required
by the Organic Air Emission Standards (40 CFR Parts 264
and 265 Subparts AA and BB)
FROM: James Michael, Acting Chief
Assistance Branch (OS-343)
Office of Solid Waste
TO: Catherine MassilniflO
Senior RCRA/SuperfUfld
Technical Specialist
Region 10
In your memorandum of June 19, 1991, you ask for clarification
as to the standards that apply to control devices required by the
Organic Air Emission Standards for Process Vents and Equipment
Leaks, promulgated pursuant to RCRA Section 3004(n) on June 21,
1990 (55 25454). This rule is codified at 40 CFR Parts 264 and
265 Subparts AA and 33. You identify potential ambiguity as to
what standards are applicable when the control device meets the
definition of a regulated unit under another portion of the
regulations. You provide the example of a control device at a
permitted facility that fits the definition of an incinerator and
ask what standards apply -— the requirements of the organic air
emission rule (e.g., to reduce total organic air emissions from all
affected process vents at a facility by 95 percent weight or
greater), or the Part 264 Subpart o incinerator requirements (e.g.,
the requirement to achieve a destruction or removal efficiency
(DRE) of at least 99.99%). My office, in conjunction with the
Office of General Counsel, has concluded that, as a general matter,
the Subpart AA and 83 standards govern such control devices.
1 0f course, the air emission rule does not limit EPA’s
“omnibus” authority under RCRA Section 3005(c), 40 CFR Section
270.32(b), to impose, on a case-by-case basis, any permit
conditions regarding air emissions that are determined to be
necessary to protect human health and the environment. In
addition, the Subpart AA and BB standards address only the
performance that must be achieved by a control device with respect
to organic air emissions from process vents and equipment leaks
covered by the air emission rule. If the device is a separate unit
that is also treptina separate hazardous wastestreams, the unit
irnig1 of onrs cpmply wit C R $ OPriate Part 264 or 265 unit
standards br it tce tmertt of tho4e wastes reamS .
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—2—
The June 21, 1990 organic air emission rule required the use
of control devices to reduce emissions from certain types of
process vents and equipment leaks and required that the devices
meet standards specified in the rule, such as the requirement in 40
CFR Section 264.1033(C) that enclosed combustion devices reduce the
organic emissions vented to them by 95 percent or greater by
weight. EPA recognized in promulgating the rule that incinerators
might be among the devices that would be used to achieve the
standards imposed, see, e.g., 55 25455. Nonetheless, the
discussion and analyses accompanying the rule -- including, for
example, the health impact and cost impact analyses —- are based on
the premise that the devices installed pursuant to the rule will
achieve the standards established by the rule, not the general Part
264 and 265 standards. See 55 25486—25489, 25462, and 25477
(June 21, 1990).
The conclusion that the organic air emission rule standards
govern the performance of the required control devices is
consistent with the purpose and context of the rule. A facility
that, pursuant to the organic air emission rule, installs a control
device that appears to fit the definition of an incinerator is not
getting a “break” by being subject to the air emission rule
standards rather than the Subpart 0 standards. On the contrary,
the air emission rule for the first time requires the reduction of
gaseous emissions from certain equipment leaks and process vents
that were previously unregulated (except to the extent they were
regulated on a case—by—case basis pursuant to the omnibus
authority). The standards imposed by the organic air emission rule
are those which EPA determined to be protective. See 55 25486-
25488 (June 21, 1990).
There is one caveat to this conclusion. You had expressed
concern that there may be instances in which a facility attempts to
use the organic air emission rule as a means of subjecting itself
to less stringent standards than it would otherwise be subject to -
- where, for example, a facility constructs a treatment train in
which an incinerator is preceded by a unit with regulated process
vents or equipment leaks in an attempt to characterize the
incinerator as a Subpart AA or BB control device. In such
circumstances, permit writers may conclude that the device is not
a bona fide Subpart AA or BB control device and impose the general
incinerator standards. These decisions will have to be made on a
case-by-case basis. Headquarters will assist permit writers in
these decisions upon request.
If you have any questions or concerns, please call me at FTS
260—1206, or Brian Grant of 0CC at FTS 260-6512.
cc: Permit Section Chiefs, Regions I-X
Frank McAlister, PB, PSPD, OSW
Brian Grant, 0CC
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION VIII
999 19th STREET. SUITE 500
DENVER, COLORADO 80202.2496
8P2-HW 9534.1997(01)
Mr. Marty Barth MAR 2 7 1997
Aptus
P.O. Box 27448
Salt Lake City, Utah 84127
Dear Mr. Barth:
This letter is in response to your memorandum dated January 20, 1997, in which
you raised specific questions regarding the applicability of the Subpart CC RCRA air
emission regulations to the Aptus facility in Aragonite, Utah. My staff have discussed your
questions with the appropriate EPA headquarters offices (Office of Solid Waste and Office
of Air Quality Planning and Standards) and have made the following determinations.
BULK SOLIDS TANKS .
a) The bulk olids tanks are large rectangular open tanks located inside of a tall
building vented to the incinerator. The three large “roll up doors” on this tall
building are not considered natural draft openings (NDO5) AS LONG as they are
normally closed during operation. They must be kept closed at all times that
hazardous waste is stored in the bulk solids tanks, other than when rolloffs are
actively being unloaded. In addition, any openings/cracks which are under, around
or above the closed door must be considered as NDOs when evaluating compliance
with Procedure T (40 CFR 52.741).
b) As correctly indicated in your memorandum, Tank Level 2 controls allow for a tank
to be located inside an enclosure that is vented through a closed-vent system to an
enclosed combustion device (264.1 084(d)(5)). The requirements for operation of
the control device (in this case the enclosed combustion device) do not apply
during periods of planned routine maintenance. Periods of planned routine
maintenance of the control device, during which the control device does not meet
the regulatory specifications, shall not exceed 240 hours per year. (264.1087(c)(2)).
On March 10, 1997, you provided us with documentation of the historical periods
of planned maintenance of the Aptus incinerator (enclosed.) We recognize that the
time periods needed for maintenance of a hazardous waste incinerator (such as for
rebricking of the kiln) are likely to exceed the 240 hours per year (10 days per year)
envisioned for typical air pollution control devices. The shortest time period for
planned maintenance at Aptus since 1993 appears to be for a total of 21 days in
1996 (15 days for rebricking and 6 days for bulk feed system work.)
PdnMd en Recycled Paper
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In your memorandum of January 10, 1997, you proposed the use of an activated
carbon system as a backup control device, for those times when the incinerator is
not operating. Your proposal questioned the need for a backup “enclosed
combustion device” such as a fume.incinerator, citing the high capital cost (probably
exceeding $500,000) for a backup device that would be used for short time periods.
In subsequent discussions regarding alternative solutions to this issue, you also
indicated that it would be difficult to ensure that these bulk solids tanks were empty
during all periods that the incinerator is shut down (thus not needing emissions
controls from the tanks during those times) because Aptus (like other commercial
facilities) would continue to receive wastes from offsite, and would need to store
such wastes.
The Subpart CC regulations specifically require that the enclosure be vented to an
enclosed combustion device; they do not allow for alternate systems such as
activated carbon. Also, they do not address the use of backup controls for
emissions from tanks in total enclosures; presumably during the allowed 240 hours
per year of planned maintenance, emissions from the tanks in the total enclosure
could be totally uncontrolled. Therefore, we believe that it would be as, if not more,
protective of the environment for Aptus to install and operate a backup activated
carbon system, to be used DURING ALL PERIODS that the incinerator is not
operating and hazardous wastes remain in the tank. The additional control of air
emissions during the 240 hours of allowed maintenance (as compared to no
control) would help offset any loss in emission control efficiency (enclosed
combustion device versus activated carbon) occurring during the ten or so
additional days during which the incinerator is not operating due to planned
maintenance. The closed vent system and backup carbon system must be
designed and operated in accordance with the requirements of 40 CFR 264.1087.
SLUDGE RECEiVING TANK
This outside tank has a fixed roof, and is connected to the incinerator and afterburner.
Aptus believes that this tank most closely complies with Tank Level 2 control requirements
allowing a tank vented through a dosed-vent system to a control device (264.1 084(d)(3)).
The tank has two large doors, that are opened for adding waste material to the tank
(sludge is added by being pumped from a tanker or by emptying from drums.) The Subpart
CC regulations indicate that whenever hazardous waste is in the tank, the closure devices
must be secured in a closed position, other than during inspections, maintenance
sampling, sludge cleanout, etc. (264.1 084(g)(2)). You questioned whether opening these
doors to add waste matenals was acceptable, since the addition of waste is not specifically
cited as an exception to the “secure” closure device requirement.
The preamble to the Subpart CC regulation (page 59946 of the November 25, 1996
Federal Register notice) specifically discusses the transfer of solids and sludges between
containers and tanks. It indicates that such “transfer of hazardous waste between a tank
PWnt.d c i , RacycMd Pape,
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and a container is not required to be done in a closed systemD; therefore, Aptus would not
need to construct a closed system for adding sludges via hard piping. However, Aptus
must limit the amount of exposure that waste in the tank has to the atmosphere, by
keeping the doors open only during periods of active waste addition. The doors should
not be left open between truck loads of waste being brought in, for example.
We hope that this response addresses your concerns. Because of the regulatory
interpretations developed for this response, we believe that the conditions and caveats
outlined in this letter should be included in the Aptus HSWA permit. Please call Mindy
Mohr at (303) 312-6525 or Carl Daly at (303) 312-6416 to discuss this response.
Si cerely,
Wanda C. Taunton, Director
Hazardous Waste Program
Enclosure
cc: James Michael, OSW
Michele Aston, OAQPS
Boyd Swenson, DSHW, UDEQ
PdAt.d on R.cyd.d Pap.,
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To: EPA Region VIII, Attn. Mindy Mohr
From: Aptus, Inc., Marty Barth
Date: March 10, 1997
MEMO
Subject: History of Scheduled Maintenance Requiring Plant Shutdown
The dates, time requirements, and purpose of downtim s are listed below for scheduled
mmntenance since 1993. This information is provided for documentation of the required time for
performing scheduled n it T,? nance that requires the incinerator to be shut down.
Additionally, it is not in Aptus’ best interest to keep the facility shutdown any longer than is
necessary due to the impact on profitability, primarily resulting from limited customer waste
inventory space. Thus there is a suong firi iicial incentive to minimi the number of days the
plant is not burning waste.
Date
April 1993
August 1993
October 1993
April 1994
September 1994
Jann2ry 1995
April 1995
February 1996
Dec noer 1996
Purpose for Shutdown
kiln rebxir king, baghouse work
Baghouse, hot duct work
kiln rebricking
desLagger d m e repair
bag house, wet scrubber work
baghouse work
kiln rebnclcing
1dm rebricking
bulk feed system work
Duration of Shutdown
20 days
lOdays ) I
21 days /
15days 32
l7days I
9days )
24 days
15 days z i
6days -
ød P9Ø9 t G
I Wfl Sfli4 k•
: t .66t-eT- W
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State Authorization (Part 271 )
‘ - ‘I
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9541 — FINAL
AUTHORIZATION
Part 271 Subpart A
ATK1/1 104162 kp
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OSW ERECTtV $954L.0O-6
ø t I•l_ p
9541. 00—6
L NiTED STATES ENVIRONMENTAL PROTECTIoN AGL
I VAS IINGTON. 0 C 20460
. 1 0 it
E
.LL 3 0 1987
MEMORANDUM
SUBJECT: State Program Advisory *2 —
RCRA AuthorizatLon to Regulate S ed , Wastes
FROM: Bruce Weddle, Director u.A ’
PeritLts and State Progr$s Division
Office of Solid Waste
ro: RCRA Brancn Chiefs
Reg orts I - X
The purpose of State Program Advisory (SPA) •2 is fourfold.
One, it deiLneates timeframes by which States must obtain mixed
waste authorization. Two, it provides a synopsis of the informa—
ti.on needed to demonstrate equivalence with t e Federal progra n
in order to obtain tixed waste authorization. Three, it presents
Lnformatiort about the availability of interLn itatus for handlers
of mixed waste. And four, the SPA presents t e Agency’s posit on
on inconsistencies as defined by SactLon 1006 f RCRA.
BACKGROUND
On July 3, 1986, EPA published a notice in the Federal
Register (see ttachment 1) announcing that in order to obtain
and maintain authorization to administer and enforce a SCRA
Subtitle C hazardous waste program, States must apply for
authorization to regulate the hazardous components of mixed
waste as hazardou. waste. Mixed waste is defined as waste that
satisfies ths definition of radioactive waste subject to the
Atomic Energy Act (AEA) and contains hazardous waste that
either (1) is listed as a hazardous waste in Subpart D of
4U CFR Part 261 or (2) causes the waste to exhibit any of the
hazardous waste characteristics identified in Subpart C of 40
CFR Part 261. The hazardous component of mixed waste is
regulated by RCRA. Conversely, the radioactive component f
mixed waste is regulated by either the Nuclear Regulatory
Commission (NRC) or the Departnent of Energy (DOE).
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—2—
In addition, 0E .ssued an interpretative rule on _____
to clarify the definition of byprOduCt material” as it a .e:
DOE-owned wastes. The final notice stipulated “that or.Ly e
actual. radionuCl.ideS i DOE waste streams wiL . oe cor.si ere
yproduct material.” Thus, a hazardous waste wiLL always e
sjb ect to RCRA regulation even if it is conrai ed i a t:xt:e
that ir cl deS radi uc1ides sub eCt to the PIIEA. Clarification
of the impl::a ions of the byproduct rule was previ usly tr r.s u-
ted to the Regions (see Attachment 2).
MIXED WASTE AUT OR1ZATI0 DEADLINES
States which received final. authorizatiqrt prior to publi-
cation of the July 3, 1986 notice must . revise eneir programs
by July 1. 1988 (or July 1. 1989 if a State statutory amendment
is required) to regulate the hazardous components of mixed waste.
This schedule is established in the “Cluster Ru].e” (51 FR 33712).
Extensions to enese dates ay be approved by the aegiori T
Administrator (see 40 FR 271.21(e)(3)).
States initially applying for final authorizatiOn after
July 3, 1987 must include mixed waste authority in their applica—
ion for final authorization (see 40 CPR 271.3(f)). In addition,
rio State can receive HSWA authorization for corrective action
( 3OO4(u)) unless the State can demonstrate that its definition
of solid waste does not exclude the hazardo .s components of
mixed waste. This is because the State atus e i ].e to apply
its corrective action authorities at mixed ..sste units.
? ROGR.A.& REVISION REQUIREMENTS
Applying for mixed waste authorization is a simple. straight-
forward process. The application package should include an
Attorney General’s Statement, the applicable statutes and rules,
and a Program Description.
1. Attorney General’s Statement
The Attorney General will need to certify in the state-
ment that the State has the necessary authority tO
r.gulate the hazardous components of mixed waste as
hagardous waste. Copies of the cited statute(s) and
rules should e included in the State’s application.
See Item I.G., “ Identification and Listing ” in the
Model AG Statec *nt in Chapter 3.3 of the State
Consolidated RCRA Authorization Manual. (SL AM) for
additional cjuidance.
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QSWER Th ECTZV ç 54 )O—€
—3—
2. ? :o :3m eac:i3tyDn
- The Program esc..i .n ion 3 oLii 3’ : sS w :-
portion of t’ .e ‘ ixe ‘aste
and enforced. a CeSCrL e J .lao1e r s:ur:es
costs (see 40 ... §271.6). Trie 5ta e er—
sc ata that ataff has neceSS3 y .ea1t hvci:s
o e: :adi oiogical t:ain ng aid nas ap;:oprlate sec y
:Learances, if needed , or that tr e State aaency has
access to such people.
It an agency other than the authorized State agency is
L Dle enting the SCRA portion of the rnixed waste p og:ar ,
then the applicatLon should include Memorandum of
Cnderstanding (MOU) between that agency and the autho-
rized hazardous waste agency describing the roles and
responsibilities of each (see 40 CFR 27l.6(b)).
Lastly, the Pr gram escri. ticn should include a brief
descriotion of the types and an estimate of the number
f - ixed waste ctivttieS to oc reaulated by the State
(see 40 CFR 52 7 1.6(g) an ’l (1)). Chapter 3.2, Program
Descri tion, in the SCRAM nrovides additional guidance.
INTERIM STATUS
In authorized States, ‘nix d waste handle:s are not subject
to RCRA regulation until the State’s program :; revised and
aporoved by EPA to include this authority. I ’ the interim,
however, any applicable State law apolies. T atnent , storage
and disposal facilities “in existerce on the date of the State’s
authorization to regulate mixed waste may quaU.fj for interim
status under Section 3005(e)(1)(A)(ii) (?roviding interim status
for newly regulated facilities), if they submit a Part A permit
application within 6 months of that late. In addition, any
such facilities which are land disposal facilities will be
subject to Loss of interim status, ‘.ander Section 3 O5(e)(3),
unless these facilities submit their Part B permit application
and two required certifications (i.e. groundwater itortitoring
and financial assurance) within twelve months of the effective
date of the State’s authorization (i.e.. within twelve months
of the dat. facilities are first sub)ect to regulation under
RCRA). Notsa Federal facilities that handle mixed waste are
not required to demonstrate financial assurance.
With respect to facilities treating, storing or 4isposing
of mixed waste in unauthorized States, 4eadquarterS is currently
developing a Federal. Re ister notice that will clarify interim
status qualification requirements under Section 3005(e) as they
apply to affected facilities that have not notified in accordance
with Section 3010(a) or submitted Part A and/or B er it applic-
ations. We anticipate issuing the FR notice early this Fall.
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Section 1006 of RCR.A precludes any Solid or hazardo 1 5 waste
regulation by EPA or a State that is inconsistent”
requirements of the AEA. tf an LflCOflSiStency is iden
inconsistent RCRA req..1ire e *ould be Lna? lic le For exa- e
an inconsistency :a: ht Occur where compliance wi a specific R ;
requirement would violate national security interests. In such
instances, the A A would take precedence and the RCP re uirerne
would be waived.
The EPA and the Nuclear Regulatory Commission COnducted a
comparison of existing regulations for hazardous waste :nanagement
and low—level, radioactive waste management under 40 CFR Parts
260—266, 268 and 270 and 10 .FR Part 61, respectively, to ascertain
the extent of potential inconsistencies. Nohe were ident fied as a
result of that effort. The comparison did indicate that there were
differences in regulatory stringency however. Thus, in issuing
permits or otherwise itplementing its mixed waste program, States
must make every effort to avoid inconsistencies.
If you have any questions please contact Jim t’lichael, Chief,
Implementation Section, State Programs Branch (WH—563B) at FTS/(202)
382-2231 or Betty Shackleford. Mixed Waste Pro ece Manager, State
Programs Branch at FTS/(202) 475—9656.
Attachments
CC: Elaine Stanley, OWPE
Federal Facility Coordinators
Regions I - X
Chris Crundler, Federal Facilities Task Force
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1RECTLVE *9541.00—6
.o
j ____ UNITED sr zs vIRONMENT OTECtION AG CY
$t li
. . .
J.M 2 9 “ 9
::: :
“ EMORA 4DL’M
SeBJECt:fl\JeDart !%e t 0/ Energy’s (DOE) Final 3y roduct Rule
on xet/Wa7 t, Requlat ion at COE Facilities
FROM: \$ 4L :n orter
ir. .st at r
ast a ae—e t iiisi r. . ct rs
Re i rts I —
This ne”iorandun is irtterv ect tO abate arty uncertainty
surrounding the implications of the Depart e’tt of Energy’s
(DOE) final by roduct rule on mixe waste :i’-ulation at DOE
facilities.
On May 1, 1987 OE published i s fL. al ‘yproduct rule
(51 FR 15937, coov attachet ). tr that rule JOE stipulates
“that only the actual radionucLi es 0C waste streams dill
be considered :yproduct naterial.” Ete etfect of this inter—
precative ruLe taking is that all XE asta str a s whic either
contain a Listed waste or exhtBit a hazardous characteristic
will be sub3ect to RC A regulation. j should note chat this
inter retaci n is consistent with the ? /NucLear Re ulstorj
c tissiot flRC joint afinttion f er: al —LevsL i ed
waste .ss.&’et earlier titis year. See ; ER irect ’ie 432.3O—2.
tn additiort, t would Like t . date you on ‘-e ft di- ’;s arid
statue of the Mixed Er er;y Waste 3t y ( EWS) in ,iew • f t te final
oyproduct rule. As y’ u know, JOE presented a or nosal t- E?A for
excludtr high-Level. an transurarti: ,ixed wastes f:o’ t RC )uris—
dictLon. The proposed exclusion was pre icate on DOE’s contention
that ir iaste arta;e ent ; ac :es were e ialent or suoerLor
to those ate. y RCRA and re; rei a LegaL ternir3ti n at
re uLat ry . olicatiort ias inconsistent. c ir 1y t e
task force was C isio ed in o e”i er . 1986 c ‘ acher technical
inforitation on the ‘ierits of DOE’s assertion. ?ou shou1 . note.
however, that pest ,ractices were nct i cLud d in the DOE proposal
nor were they reviewed by the taCk f rce luring subsequent site
visits to select DOE facilities.
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OSWER DIRECTIVE •9541.OO—6
—2—
in March of this fear, t e MEWS task force .ssue’i
r oort which indicated t ae o a lar;e extent, OE 3n e—e-.t
,ic i—leveL and tiansura’ic xed wastes ere e;.. 1 ivaLer. —-
to RC A requirements. : rtair areas of t .eir ast a a e er.t
oper3t r s . wever. s• :h as .;rourtd—water lorlitorinq 3rd -e’ i
analysis ;f wastes were cle3rLi deficLent. To date, o
of DOE mixed waste has been exei pted from RCRA requlation as a
result of the findings of the MEWS task force.
Thus, al.l DOE mt’uied’ wastes are subject to RCRA regulations
independent of trie nature of the radioactive component. Therefore,
Rec ions which are administering RCRA program. in unauthorized
States should, in accordance with priorities established in the
RCRA Implementation Plan, be implementing the program at DOE
facilities. Secortdlv. those Regions where States have been
delegated mixed waste authority should ‘nake it clear that their
authorization includes all DOE mixed wastes. These mixed wastes
may contain hi;h—Level 13w—level, or transuranic radioactive
constituents. Thirl, “,u should continue to encoL’raae States to
apoly for ‘tixed waste authorization especially in those States
with major DOE facilities.
Headcuarters is cornritted to providina technical, Legal and
policy assistance to the States and Reçiions in support of efforts
to effect mixed waste reoulation at DOE facilities. Accordingly,
I will keep you apprised of any initiatives taken by either DOE
and/or EPA Headquarters affecting mixed waste recutation as soon
as they develop. pectftc cuestions concerLng mixed wastes
should be directed to Bet:j Shackleford, OS . an (FTS) 475—9656.
Attachment
cc: Ken Shuster, OSU
Chris Grundler. OSWE %
Ray Berube. DOE
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9541.1982(01)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
PIG—82—3
OFFICE OF
MAY 1 7 WA T AND EMERGENCY RESPO .SE
MEMORANDUM
SUBJECT:
FROM:
TO:
Assignment of a Memorandum to the Program
Implementation Guidance System
John Skinner,
State Programs and Reso rce Recoverl Division (WH—563)
Program Implementation Guidance System Addressees
On March 15, 1982, Enforcement Counsel i.3sued the attached
memorandum to Regional Admini strators and Regional Counsels. The
Memorandum provided valuable information, guidance, etc. on EPA
enforcement of RCRA—authorized State hazardous waste laws and
regulations. I think that the guidance contained in this memo-
randum is of such value as to warrant wider distribution and incor-
poration into our system of Program_Implementation Guidance. For
future reference and ease in filing, I have designated this memo-
randum as Program Implementation Guidance number 82—3
Attachment
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—— — — —. ‘ . ..‘—, r .. . t t .Jr1 4Z
WASMINCrON. .O. Dh6C
d .MO1%
S. a • •S
MU
— .i
ME ORAN M
S JECT: EPA Enforcement of RC .A—Authcrized state !a:a:do s Waste
t.aws and Regulations
FROM: William A. Sullivan, Jr. /1/ ’Q.
Enforcement Counsel EN—329) / ‘j Z
Regional. Administrators, Recior.s 1
Regional Cour sels, Regions I -
In the administration of the iaza:dcuz waste r gra t, a state
with an. authorized RC .A program may, for var:ous reasons, be una Le
or unw 4 14 to cake enforcement actcn t ’ac ma” de ’c c c&
Several legal. and. administrative uesticns icn ay e ;santed
.n SUG cases include the fol.Lowtng:
I. Can EPA take enforcement action in states n :n nave
e.ert ranted authorization to administer and enforce the RCP —
am7 What about states with wt ich EPA zias Cooperaci’ e Arra qe—
“
2. A.ssuiiri EPA can take enforcement accior., does i:
enforce the state laws and :egulatior.s 1 or the iedera . ? .CP iaw ar.
gu lacior.s?
3. tf an enforcement action is necessary, in what urt
sncui4 EPA file the action?
4. If the enforcement acticn i!woLves admiriis::a:i’ze
croceedings, does EPA follow federal or state procedures?
. Since the taking of an e:emer c action by PA
in an authorized state might, in some cases, endanger or
federal—state relationships, what procedures should be deveioped
to insure, to the greatest possible extent, that any federal
enforcement actions taken in a RC A—authorized state are done at
such times and in such a manner as to eliminate or minimize
any possible impact upon that federal scate relatioris ip?
6. What is the effect, if an”, of state authorication
uon EPA ’s ability to take action under Sections 7003 and/c:
- RCP.A
This memorandum wifl. attempt to suggest some answers to
these guestions and procedures which mi;ht be employed to
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. .- .:n oe:ueerl £2A arid the state agency or agencies should it
becorne ecessar’ for EPA to cake eriforce ner.t act on. The cuestjo s
‘ i2.1 be addressed in t e order set forth above. The Office of
!nrcernent Counsel has consulted with the Office of General Counsel
in the repara:ion of this ne orandu .
Afl EPA TAZE ENFORCEMENT ACTION IN A RCRA-A TEORIE STATE?
c AT A2O T STATES TE IC EPA !AS COOPE TI T E iENTS?
A. Authori:ed states :
When a state is authorized to adniniscer the RCRA :rocran in
lieu of EPA, EPA has made a detainaticn that tne state’s ogra
is eç vaien: ( n the case of final authori aticn), or substantjal ;
eçui’zalent (in the case of incerin authorization), to the fed era.L
roqraxi, and tnat the state ha:ardous waste progrart can thereafter
be adninistered by the stats under state law , .n lieu of the !eder .
rogr . (See RCP A, Secton 300 o) ano Cc)). A_tsr autcr zat o ,
can EPA take enforcement accior. in such a state, arid if so, would
it enforce state or federal law and :equlations?
The rovisi:r.s of ?.CR? Sec:.or. 3008Ca )(.) and 2 are tcst
he2. ful in ar.swe:.rtg these q esior.s. These provisions state:
“Sect:cr.3008(a) Com .iar ce Or ers.- () Zxce :
as rcvjded in paragraph (2), whenever on the
oasis of ar.y i or a:ion ne Adiinist:ator
determines that arty per3or.._ s in violation of
arty requirement of this subtitle, the
Adrninistrator ay issue art order recui:irtg
conpliartce itmedia:ely or within a specif ed
tL ne oe iod or the Administrator ma’ ccmmenc
a civil action in the united States district
court in the district in which the violation
occu ed for appropriate relief, including a
temporary or permanent Lnjunction.
“(2) In the case of e 7L0.atioTt of arty
o s suc v c’a r
occurs in a State w .ich is autnor zed :0 carry out
a azardous waste oroer under 5ect ort 3006 , tne
?4 n s:ra:or shall g ve notice to the State in
which such violation has occurred prior to issuing
an order or comrnencing a civil action under this
section. (emphasis supplied)
Subsection (2) clearly indicates that even thoucha state
has an authorized hazardous waste program, EPA retains the right
of federal enforcement, subject to the giving of notice to the
te in which the violation occurred prior to :ak ng enforcement
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. e ie isla:ire history of Sec:ior 30C3 suor
jeretatior.. That story, c:n:a . .ied .n cuse C r. .:tee o
:n:ers:a:e and Foreign C ner:e Report To. 94L4 j e :e oer 9,
976) , at pace 2, states:
This leqislation perntits the states to
the lead in the enforoenenc of the hazardous
waste laws. aowever, there is enough flexi—
n the ac* to pe r 4 the
i- s’ uat 4 oris whe’ a s:at is riot ‘nert: c
a ha:a dous was: oroc am, to actuaLly
and enforce the ha:a:nouz waste procr t
against vioLators in a state that does r io:
nee: the federal m ninum :eçui:erneri:s. Althouq
:ne Adninistrator is :eçuired to g.’7e notice
of ‘i ioiaticrts of th .s title to the states
with authorized hazardous waste roc a s, the
strator s riot proci i:ed from
in : ose cases Where the states fail to act,
f wtthd w a troval of the state
a:ardous waste ;Lart and p1e en:i g the
federal hazardous waste orocram oursuarit
:: i: e of this act.” -
The preair 2.e to 40 C R 5122.129 (f) and C;) a: 4! Fed. Rev. 33394
( 1ay 19, 1990), also briefly sets forth this csi:ion regardinc
EPA ’s e. cement of haza:dc s waste laws and re ula:ions in ar.
thori:ed state.
We :art also look to the Clean Water Act ( A), wh.ch is highly
analocous to ?.C in this re a:d, arid from whj Section 3009 was
drawr /. Cases invol7ing simiLar provisions of the W? (e.g.,
Sections 309 and 402) support the proposition that wnile Congress
intended that the states have prLnary authority :0 administer the
the procrain su ject to national guidelines provided :y the Ac:
arid by the EPA regulations, EPA retained the authority to achieve
the purposes arid goals of the Ac :, including the right to take
: 1 The cuse 3i11 (!.R. 14496) was arner.ded subseçuent to the
su missicr. of this :epc::, wr.icn chanced the references of i :1e
til to Subtitle C of the final Act.
‘See Re ort of Senate Com i::ee on Public Works, No. 94—988,
p. 17, dated June 25, l976 which states with reference to what is
now Section 3008:
•: any regulato program i vo17ing Federal
arid State par:ici a:icri, the allocation or
i7isiorl of enforcement responsibilities is
difficult. The Committee drew on the s:nila:
provisior.s of trie Clean Air Ac: of 1970 and the
Federal Water Pollution Control Ac: of 972.”
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or:e en: actjor i appropriate cases, ever af:er a state o :c a-
as been a;proved. See Cleveland lectric llumi ati c Cc. ‘ .
O3 F. 2d . - (5th Ci:., L.979j; u.S. v. C : i o: Colorado £o ncs ,
; . Su o. .354, (D.C., Cole., . .S;3,7 esa;ea e 3ev :ounca:.on,
Inc. v. V : i .ia State t ater Control Board , 45 F. Supp. 122 ( .C.
Va., 1978); CJ. . V. Car 1l , Inc. , C .v. cket 80—135, (D.C. Del..
:eo. L2, 1981); anc SneJJ. Q i v. T:a.ri , 41 F. 70, (D.C. Cal.
1976), where the Cou , a:ter çuoting from legislative histo ;
of the CWA, stated:
The language suggests that Congress did r.o:
intend the n’ 4 or.mentai. effor to e subjec
to a r aszive federal bureaucracy; rather, the
states were vested with ;ri ary responsibility
for water guaii:y, triggering the federal
eorce ent mechanism only where the state
defaulted.... The overaLl structure is designed
to g.ve e states the first opportunity to
i zure its proper i pLernertea:iort. tn the
event that a state fails to act, federal
inte ention is a certainty .
3. States With Which Pi !as Cooperative A ance ents :
ega:ding states which have entered into Cooperative
Arrangements, the federal—state relationship is different from
that of interim or final authorization. A Cooperative rangement
a device to assist states whose hazardous waste progra s are
t yet sufficiently developed to qualify for authorization, and
provide financial assistance to t se states. (See guidance
emerandum on Cooperative ? rangements dated August 5, 1980).
There is no authorization by IPA of the state to administer :ne
a:a:fous waste rog:am in lieu of t e federal program. tn fact,
the model Cooperative Arrangement specificaLly provides that:
!PA retains full ertd.u2.timate responsibility
for the administration and er orcement of the
Federal hazardous waste management program in
the state. -- --
The ri:ht and obligation of ! A to take enforcement ac:icn
in a state with which the Agency has a Coeperatiue Arrangement is,
therefore, the same as in a state which has neither interim or
final authorization.
Although notice to such states of impending enforcement
action is not reguired by RC , for purposes of maintaining harmo-
nious !PA—state :e1ationshi s, appropriate consultations should
recede PA action, and written notice should be given by £PA to
the appropriate agency and the governor of the affected state.
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2.
DOES EPA E QP CZ STA’Z XL REC A IO 1S OR
TZ.’..Ar LA AZ R IO S :N A A ! RiE S A Z7
saving concluded that EPA can enforce ha:ardous waste laws
regulatior.s in a state with an EPA—approved program, the ues—
tjort then becomes: does EPA enforce RCRA and federal requlaticns,
r the state’s statute and regulations? tf the latter, can EPA
enforce a portion of the state program that goes beyond the scope
of coverage of the basic federal program. or state laws and re ule—
tior.s which were adopted after EPA approval of the state program?
n the other hand, ay EPA enforce a portion of the federal pro—
cram tnat is not included in the state ogram?
These issues may initiaLly seem ore academic than real since,
in order to gain interim author zaticn to administer the ?.CP_
p gram 1 a state rnust have a program which is substantia11y
eçui7alent to the Federal program (see RC A, Section 3006(c)),
and a program which is q i7a ent$ to the federal program in
-order to gain final authorization (Section 3006(b)). As a result,
many authorized states will have rcvisions which are similar, .f
not identical, to the federal regulatior.s. Zowever, there w l
undo tedly be differences in the federal and state laws and
regula:ionsi particularly during interim autnorizatior., and n?’
states will have programs whjth are, in part 1 more stringent or
broader in scope of coverage than the federal program. Therefore,
i is very likely that these issues Uj 1 be encountered eçuer.t.Ly.
.s discussed, in Part 1 of this orandum, Section 3008 (a)(2)
?.CPJ authorizes EPA o take enforcement action in an autorized
state, after notice to the state, in the case of a violation
cf any re uirernen: of this When EPA authorizes a
ha:a:dous waste management program under Section 3006, the state
program becomes the RCB.A program in that state. and is a part
of the requirements of Subtitle C referred to in Section
3008(a)(2), which EPA is mandated to enforce. tlpon development
cf the statets program and acceptance of that progran by EPA,
such state is authorized to carry out such program in lieu f
the federal program under thIs subtitle in such stat . CP .?
3ect on 3006(b) and (o)). In other words, the only ha:a:dous
waste program in effect in that state is the state programs and
the state laws and regulations are those which must be orced
b PA snould federal enforcement act or. be necessary. This, o:
course, does not limit EPA ’s right to take action under Sections
7003 or 3013 of RCP.A (see Section 6 of this memorandum).
This result is undoubtedly in keeping with the in;erit of
Congress. If the federal hazardous waste regulations were to
apply to handlers of ha:ardous waste in authorized states, those
e:sor.s wcui.d be continously subjected to a dual set of laws and
- “lations, a situation which presently exists in those states
have not yet received interim authcri:ation. Such dual
:. 4 lation is presumably what Congress intended to phase out in
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an or e:. .y mar.ner when i: adop:ed the visior s of Sect.on 2OO.
‘ ) td (C’.
Acain, an anajocv can be drawn to the ; vis or s of the
Cean Water Ac: and the cases decided under i: to rnforce tn:s
:jnion. ee nj:ed States v. Car iU, Inc. , ( .C., DeL.) Cj jj
No. 8O—l 5, Slio Oc. Feoruarv £2, 1981; She.U. Oil v. Train ,
supra; united States v. t.T.T. Ravonier, in:. , 27 F.2d 99 (9tn
Cjr,, 1980). The proclein becomes more cottiLex , however, when
the fol owing questior.s are considered:
(A) if an authorized state p gram nc1udes requatior.
or sta:u :ory p visions which are greater in scope of coverage
: an t e federal program, can EPA also enforce :nose addi:.ona:
state reirernents?
(3) f the federal regulations ccr.:ain provisions nicn
are not included in the state ?rogram (e.g., by reason of ;r: ul—
;a:ioni by EPA suosequent to authorization cf the state progran :y
EPA), car. EPA er.ce the federal regulations which are r.c: a
_;ar t of the state program? and,
(C) If the state makes rnodifica:.or.s in its prcqra
after authorization, does EPA enforce the state program as or ;a .
approved, or the state program as modified &fter approval by EPA?
These questions will be of ;a ticula: significance dur:nç
:eri authorization, when the states are reguired only to have
roqrams which are usuhstentially egui aler t to :ne fede:a.. ogra ,
nd unile EPA and the states continue to their pr:grans.
A. If an authorized state program includes :ea:ior.s
or s:atu:or ’ provisions whicn are greater in scope of
coverage cr more stringent than the federal proçram,
can EPA also enforce those additional state requ :emen:s?
individual states will, in addressing industrial, ac uLtu :al,
geographic, hydrological and other factors which exist w:thin their
corders, undoubtedly develop portions of their hazardous waste
procrams hicn are greater in scope of coverage than the federa
program. Examples of such addi:iona coverage could include :ne
listing of wastes which are not included in the federal uni e:se
of hazardous waste; the peni:ting of generators or transporters;
recordkeeping or reporting requirements not included in e fede:a2.
regulations; and requirements for physical examination of employees
and their families. State requirements which are greater in scope
of coverage than the federal regulations are generally those for
which no counte art c n be found in the federal recuirements.
State program requirements that are greeter in scope of
verage than the federal program are not a pa:: of the federally—
roved procram (40 CFR 55123.1(k) and 12L121(gH. Since the:
rtiori of t e state program does not have_a counterpart in the
federal program, it does not become a i men: of Subtitle C,
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:ne ‘n.c. of which EPA is en:itled to enforce p :s ar.t to
Secti 30C!(a)(i) and (2). The:ef re, EPA may not enforce that
of a state raw which is broader n scope of coverage
than the federa2. gram.
I: srtould oe made c lear, however, that there is a distincticr.
between por icr.z of a state p gram which are broader in scope of
cove ’age, and those which ar mor st ngent than the ederal
orogram. Sect.on 3009 of RCP.A arto 40 CFR 5S123.1( <) and 123.121(ç)
rcv:de that rtoth .ng shall pron.bi.c a state front .mpos:rtg arty
re ujre!nents which are more stringent than those imposed by the
federal reculaziorts.
While szate provisions wnich are broader in scope cf coverage
generally do not have a cre a: in tne federal ;rqrazu , the
subject ma er of the more stringent state provisior.s is uz al1y
covered in similar provisions of the federal program. xamples of
more strincent state provisions would include: a irement that
not only a fence be erected and maintained around a facilit i, but
that it be a fence of specific heignt and of specific material
(e.g., a ten—foot, chain—link fence); a requirement that containers
for storage of waste be of a specific material and/or color—coded;
a lesser amount of waste exempted from reçulatiort under the small
quantity generator exer ption (40 C R 52 l.5); and a reçu rement’
that final cover of a land disposal facility be of a particular
materiai or ic. ness.
• Provisions in state programs which are more stringent than
heir federal coun:e arts are, nevertheless, a part of the a;prove
tate programs and are enforceahle b EPA. Congress apparently
ntended that result when, in Section 3009, it authorized states to
evelo; more stringent programs, and, at the same tine, authorized
EPA to enforce those programs under Section 3008(a)(2). : addi:io...
more stringent state provisions in an approved procram are, unlike
those which have no counterpart in the federal program, a part of
the :e uirements of Subtitle C, which EPA is required to enforce.
3. If. the. state modifies its program after authori:ation,
can EPA enforce the state program as cdified, or the
state program as a;pro ed before the modification?
This issue assumes that, after either interim or final
authori:a:ion of a state program, the state makes modifications
in that program. Such modifications could make the program
more stringent, less stringent or enlarge or restrict the scope
of the procram. In such event, must EPA enforce the program as
modified, or the program in existence at the time of authorization?
With regard to modifications made by the states in their progra ns
after final authorization, 40 C R l23.13 sets forth speci:ic pro-
cedures for such revisions by the states and approval thereof by EPA.
tate program rev:sior after final authorization must be submitted
EPA for approval, public notice given, and a public hearing held
: there is sufficient public interest. The revision to the state
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- - = :y :ne ?s .:
o dR § j3. .3(:)(4)). Z: i.s, nerefore, c. .ear na uncej
sen: ? re lat.ons, cdifica:ions nade to a state oroca
after f na au:hcr::at .or? çui.re EPA a oroval fo such fic - .
.on.s :0 beeffe:t ie, ar.d that t e state ocra ihj EPA nat;
enforoe is tha: w icn existed as of the :est EPA ao roval.2/
!owever, the federal. regulations relating to Phase I authori-
zation contained in 40 C R 5123.121 through 123.137 do no: contain
s ecific visions comparable to 5123.13 with respect to how modi-
f.catior.s ay be iade by a state in its progr after interim
authc:i:aticr. , or how approval. of any such modifi a ns could be
.‘ade oy EPA, short of Phase E l or final authorization. This is a
s..gr .car.e om_s .on , s .rice .t ..s apparent that many, -- no all.,
states wj.Li oe ak ng ncdifica:ions in their programs :e:ween tne
atoval. for er m author za: ori and the filing of thei: appli—
cac ons for- final authorizaeiom. 4 /
In tne absence of çui:emen:s in aCP or EPA ’S :egulatio s
for suornission of program modifications y a state with n:er n
aucri:ation to EPA for approval., it is presently our opinion
that EPA may enforce such modifications made by a state with
interim arization, notwithstanding that EPA may not have
approved those modifica:ions. /
• 3 /Discussions with representative; of the ff ice o General.
Couns l. and e Office of Solid Waste indicate that 40 C ’R 5123.13
s under review, and may e amended to elin:nate the :eçuireten:
. at ; amo ov -mod cet ons made final t oza- on o
state programs before the modifications may be effective. The
consequences cr e or:emen: of such an amendment to 5123.13 are
addressed n the following discussion.
4 /There are, however, stages during interim authorization in
whichstate progr onanges may be approved by EPA. or example,
wner. the states, having received Phase I authorization, apply to
EPA for Phase interim authorization, they must demonstrate that
the r programs have been cdified, if necessarr, since Phase 1
authcr zati:n so as to contain the eiemer.:s necessary to meet the
requirements of one or more of the components of Phase 11. ewise,
changes in the state program during interim authorization are suo—
mi:ted to EPA for a proval as part of the process for final. authori-
zation. There is also a provision in the model Memorandum of Agree—
merLt between EPA and the state whj recuires the state to inf:
EPA of any program changes which would affect the state’s ability
to implement the authorized program. Nevertheless, there is no
:eq iremen:, as in 40 CFR 5L23.13 which delays the ef ective date
of modifications in a state program during interim authorization
until after EPA approval of such modifications.
‘In : e even: EPA should eliminate : e reçuirement of 40 C R
3.T3 (see footnote 3), then by much the same reasoning contained
herein, EPA could also enforce modifications made in the state pro-
gram a_tsr final . auhor..zat..on, notv thstand .rig . ‘r.ener EPA nad
approved the modifications.
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e nave come to th S concl s.ort :or t:ie f .low.nc reasons:
1. r cress provided in Section 3006 for two tv es
of aut cr aticr.: :neerirn au: . crizatjon, t: 3e granted upcn a
of “su Sta ia ecuivalence” with the
fede:a.. prog:a ; and fina.i authorization, rpcn a showthg ov tne
state of “equivalence’ with the federal program. Obviously, in
the ;cur ey from substantial equivalence to equivalance, some
changes must be made, and were undoubtedly contemplated by
Concress. Yet, Congress also authorized EP to enforce e e
azardouswaste program ing this interim period, thcludinc
the programs in effect in those states to which interim authori—
zation had been granted. it t refore appears that Cngress
n:ended that EPA enforce such laws and regulations as were n
effect at the time of violation in a • state with interim authori—
:aticri, hotwtthstandin whether EPA had f aUu approved each
and every one of those laws or regulations.
2. To conclude that EPA could not enforte state Laws
and re u1.atjcns adooted after qranting of interim auorization,
but was, instead, restricted to enorcement of only those which
were in existence at time of approval of the state program by
EPA, would cten:iallv sub ect the regulated munity to the
dile a of being :equi:ed to comply with two sets of laws or
reaula:icr.s on the same subject: those “ c ere... a .;a:t_
•the--E?Au”a?p ved state program at the time of granting of
i. :rim authorization; and those which the state promulgated
,fter the granting of interim authorization. Such dual regula—
.ion defeats the whole pupcse of state authorization. ! 1
We therefore conclude that changes made by a state in its
hazardous waste ?rcq:ams after granting of interim authoriza:icn,
and before granting of final authorization, ma’; be enforced by
EPA regardless of whetner the chances have been fo naliy approved
by EPA. n so doing, we recognize that there are several fQrcef l
arguments which can be made on. the other side of the jssue.L/
Notwithstanding these, we believe the ueicht of the arguments
tilts in favor of the conclusion which we reached herein.
. /This reasoning would not apply with equal force to
modifications made in a state program during final authorization
because the States presumably will be making many fewer modifications
of their programs after final authorization.
Z/zor exam le, if a state, after recei t of interim authoriza-
tion, makes changes in its program which are less stringent, is EPA
‘quired to enforce the portions of the state program which are
as strincent? he answer must be “es, and if the s:a:e ma ces
..any such chances in its program, EPA ’s 3n17 resort may ze to
: vo e : e State’s authorization.
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C. :f the federal regula:ions contain :vjsjc s cn
are not included in an approved state cram, can
EPA en crce those federal. requ a:i:ns in tha: s a:e?
The situation presented by this question will. most likely
when EPA modifies its regulations or adopts new regul.a : cns,
such as the addition of a waste to the uni’rerse of federally—
regulated waste, after the approval. of a state rocram. This jss
is si nificane because, with ap roxthate1” ene—ha2.f of the states
having received interim authorization, it is important to know
whether chances made in the federal program subsequent to a state
having been granted authorization can be enforced in that state.
Cnder the procedure established by Section 3006 and 40 C P.
Part 123, a state, in order to gain interim or final authcri:atio .
must submit to EPA its program consistinc of, among other thincs,
the state Laws and regul.a:icr.s which c stitute its ogr nt.
These are compared to the analogous provisions of the federai.
program to determine whether the state program meets the necessary
standards for interin or final. authorization. Approval is granted
for the specific state procram as submitted, which then becomes
the haza: ous waste program in effect in that state in lieu of the
federal ;rogram. ’ The federal. program, in effect, ceases to
exist in that state, except for the potential. of federal. eforcemer :
of the state program or the possibility of action under Sect or.s
003 or 3013.
Since the state ha:a:dous waste laws and regulat ions are
ffective in lieu of the federal program after authori:atior., any
changes in the federal program made after tne granting of interim
authorization to a state do not become a part of the state procram
unless and until the state adopts such cnanges.!/ ir.a uch as e
state ‘aws and regu’etions are those whicn EPA is recuired to
1/As noted earlier, where the state procram has a greater
scope of coverage than required under the federal program, that
par: of the state program is not a part of the federa ;—a;pro7ed
proqra=. o c. . 5SL23.lfl )(2) and l22.l2l(c(2 . Also as noted eac:
during interim authcri:aeion, EPA enforces ncdifications in a state
rogr t, nctwithst.andthg that EPA may not have approved those
mod if icaticns.
1/For a discussion of the adoption of modifications by a state
in its program, and when those modifications become a part of the
EPA—authorized program, see Subsection 3 of this Sect on, s ra .
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:e, is, converseZ.y, not entitled to enforce federa .
auiremen:s which are not a part of the state prc :am. /
with reçard to states which have been granted final author:-
:atior., there are provisions in the federal regulations which
aevern the state adoption of modifications in the federal program.
5ectiCXt 123.13 of 40 CYR requires the s.tates, after final authori-
zation, to adopt amendm ts which are made. to the Federal progran
within one year of the :cmulgaticn of the federal regulation,
unless the state must adopt or amend a statute, in which case the
revision of the state program must take place within two years.
Ecwever, until the state adopts the Federal amendments, the state
roçrain does not include them, and EPA cAnnot enforce them in that
J —— — eq
We recognize that th.Ls could create,a situation in which
regu ations promulgated y ?A subseçuent to authorization of a
suhstan: al number of states w t j4 not be effective.in those
states until such time as the states adopted them, ’ while beinc
in effect as part of the federal program in those states which
do not yet have interim authorization, and in those states which
:ecei7e authorization a :er promulçation of the regulaeicns and
have included a o n:erpar: of the :e ulations as part of their
state program.
3.
F AN ENTORCEMENT AC’10N tS NEC SSAR ,
IN W A’ C RT SEO L EP FI IE L’!! ACTION?
3 c:ion OO8(a)(U of RC A provides that whenever the
- istra:cr determines that any person is in violation of any
requ::ement of Subtitle C, n... the Administrator may commence a
1 i ld be noted he e that there are components of the
federal orocram which are not included in Phase I interim authcri:a—
or in some phases of Phase II authori:ation to the states.
For example, the grantinc of Phase I nterirn authorization to the
states toes not include :ne authority to issue RCP.A permits to
hazardous waste naqement facilities. ikewise, the granting of
Phase II . Component A authorization (ccverinq peitting of
storage facilities) does not include authority to issue RC A permits
to hazardous waste land disposal facilities, which will be covered
by Component C of Phase II. The portion or portions of the federal
program not covered by an authorization to the state continues
as a pare of the federal program in effect in that state until it
is covered by a subsecuent authorization. In the teantime, EP.
js entitled to enforce those portions of the federal program whic
the state has not yet been authorized to administer.
a discussion of the adoption of modifications by a state
‘ n its program, see Subsection 3 of this Se jon, supra .
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7j. ac:i tne Cnitec Sta:es Distr:c: C3u:: in the dis:rjc:
n ‘dr..c. ne a:i.oc :ed.,.,”
Th.s s:a: :e ‘;ests :isdic: .on of suits involvjr c crioLat .ons
tne ezardo s uas e program under Subt.tle C ifl the rJ.S. Distr:ct
Courts, and the venue of such actior.s in the C.S. judicial district
whjc the violation occurred. Theref re, in a suit brouc t
by EPA to enforce a portion of the hazardous waste progra of a
state which has received thterirn or final authorization, the
suit should be brought in the appropriate u.S. District Court,
ue the substantive Law to be applied to the facts of the case
should be he stats haza ous waste sta:”t s end gulat ons
c’ ao l cable to those facts.
The sta te may, c: course, f2.2,e Lts enforcement act cns Ln the
state courts. In this recard, EPA should be aware of toe o:entja..
i:n ay exist for a final decision in a state court action to
act as collateral estoppel to a suosecuent action whicn EPA av
:rinc aqair.st t e same offender over the same violation. See ! .S.
. :‘r’r ?..avicr.er, Inc. , 627 F.Zd 996 (9th ci:, 1980), for a discus
s:on o state court judgments acting as collateral estoppel against
EPA.
4.
ZF EPA ENFORCIMz: T OF S A ! ? GtLA :oNs OP.
PER TS INVOL7ES A I:;IS A :vE ?POCZE fl1CS, 5EO L
A OZ.LOW F DERA OR S ? CCED RZE’
Since the bulk of : e RC .A enforcement activity of EPA will
involve adninist a j ,e proceedings, particular Ly with the authority
t issue administrative orders under Sections 3008, 3013 and 7003,
he ques _on o_ whether federal or state ac st:at ve rocedu_es
will be followed in e forcenent actions is an importar.t one.
Th r c a —he little question that Congress provided EPA with
.:nenecessary authority to use federal procedur?s- for enforce en:
of all a jjcable ha:a: cus waste laws, and that it intended the:
those procedures be used in the event of federal enforcement of a
state’s azardcus waste Laws or recu2.a:jcr s. / For exan;le,
Section 3003(a)(L) of C A authorizes the dminis ::a : , in the
event of a violation of any requirement of Su :i:1e C, to issue
an order requiring compliance immediately or within a specified
ti.ae. Section 3008(a)(2) makes it clear that such orders may be
issued in states which are authorized to carry out the hazardous
waste procram under Section 3006 after notice to the af ec:ed
s:a:e; and 5ec : on 3008(a)(3) provides for a penalty or non-
compliance, as weLl as the authority of the Administrator to revoke
:nte re: C3 as Li. i:ing the se of the admini strati
:de:s mentioned herein to EPA, and :h i ev are no: availabLe,
as such, to the states. The states statutes may, of course,
contain authority for state administrative orders.
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an pern t issued to the rio1ator, whether b ’ EPA c: the State .
p vi i r.s for public hearings or. ar.y c’r er .ssued un e: : s
Si: . a - au: crity for tne Ad nisr tor to issue su coenas
are also included in Section 3008(b). Se :iori 3008 (c) specifies
the scope and content of the compliance orders which may be
issued under this Section.
Congress provided a specific mechanism for federal administrative
enforce er.t proceedings, to be used in cases of federal. er.force!nent
of state progra s in lieu of any administrative procedures contained
in the Laws and regulationsof the state in which the violation
occurred. rthe ore, it would seem inconceivable as a actical
a::ar that EPA would consider usinc state administrative roced res
even should it legally be possible to doso,. since that wc d, in
most cases, necessitate submitting the violatIon to the state
agency whose inability or failure to take e orcemer .: action would
have been :espcr.si le for bringing about EPA ’s involvement in the
matter.
N EV! CF EPA ENFCRCiMEN N AN A OR. Z E’ A !,
WEA SEPS 5EOtJL 3E TAXIN TO N IZE AD 1E SE
I:.IPAc PO YE E L-STAE azz T:oNsE:PS
There are several circumstances under which EPA may be
quired to take enforcement action in a state with an authori:ed
;3A progra.m, most primarily because of the state’s Lac. of
scurces to take adeçuate or timely ec ±on. iateve:.. .the reason,
EPA should carefully avoid the appearan ce of being over earing”
or disregarding the states’ role as the prima ’ agency for admin—
istration and enforcement of the hazar cus waste program.
In some cases, the state will reçuest EPA to take enforcement
action. In such cases, few problems are encountered in EPA—state
relations. !cwever, a letter confi inq the State’s request, and
the notice provided for in Section 3008(a)(2) should be issued
to the state before the action is commenced. On the other hand,
when the state is passive or unwilling to initiate a tirney,
a:prop:iate enforcement action, EPA should take care to handle
:te matter with diplomacy.
Since it is clear, as outlined above, that Congress intended
the states to have the primary enforcement authority of the RCP
program, if it ao ears that federal enforcement jnte ention may be
required, a letter should be written from EPA to the appropriate
state agency administering the program containing the 5ollowing:
1. A description of the violation, including the name
address of the violator; the date of violation and Locatior.
the fac lity or site at which it occurred; references to the
. visions of : e state program which are being violated; and
any other pertinent details which will aid in the identification
and the na:u e of the violation. Additional. jnformat±on, such as
-------
ra eS Of witnesses, La oratory reoor S, inspec:i r. or:s, and
other evidence n EPA ’s possession should be offered upon re ues:
of the state should the state decide to take enorce en: actic .
2. A state nent that under RC .A and the ernorandum of
Agreement between EPA and the state, it is the primary obLigeti n
cf the state to take necessary and timely actions toenforce the
provisions of the state hazardous waste laws and-regulations, and
that EPA belIeves it is appropriate that the state take such
action. In some cases, it would be appropriate to suggest the
type of action to be taken, such as issuance of a compliance
order, other administrative orders, revocation of a e it, or
filing of an injunctive action.
3-. A statement that shculd the state agency fail to
take appropriate and timely action by a date certa n stated in
the Letter, EPA may thereafter exercise its right to initiate
enforcement action under Section 3008(a)(2).
The question of what is a tiaelya action by the state agency
will depend upon a variety of circumstances. f an uncorrected v.o
lation could constitute a threat to human health c: the environ—
ent, a relatively short period of time may be :egui:ed for either
the state or EPA to act. IL through telephone conversations or
other c unicaticns between EPA and state agency officials, there
is already an indication before the letter is mailed to the state
that it will probably not take action regardless of the request,
then a. relatively short period of time (e.g., 10 days) for state
response may be llcwed before EPA thitiates the action. r1 such
case, the letter should also refer to the previoUs communication
with the state ich indicated the liklihood cf inactior. on its pa::.
On the other hand, if there is an indication that the state will or
may act, but has failed to do so because of scarce resources or for
other clear and understandable reasons, a longer period of time
may be allowed to give the state ample opportunity to fulfill its
role as the primary enforcement authority.
At the end of the time period stated in the letter, if the
state agency has not initiated an o ce’ ent act 4 or o nd 4 ca d
ts wUli.ngness and Lneent to co so, EPA may proceec o commence
action as- the enforcing author::y without further nc: ficati:n.
6.
EFE ECT OF STAT! ACT!ORIZATION ON SECTION 7003 A2T 3013 ACTIONS
Section 7003 of RC A states, in pertinent part:
ar. ” other orovisior. of this Act ,
upon rece pt o: ev cence :na: the nancl ng... C:
any sol d waste or hazardous waste may present
an ±mminent and substantial endar.ge er.t to
health or the environment, the Administrator
may bring suit ... to immediateiy restra n any
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;erson contr:butinq to such handling..., or :o
take sucn other act on as may be necessary.
The Ad thist:a:or shall orovide noti ce to t e
affected State o any such suite. The Admiriis:ra:or
ay also, after r.otice to the affected State,
tad
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:f y ve a y ç esti r s p:: Le s :e at g t
: r.a.i e i this pLease c : . >iavs :. ‘-
a: S 382-3108.
C : :j5 he: J. C .p er
Ac i g ?ssista : s::at r
Dffi e c SoLid Was e ai erçeric7 .es; se
M.
CQUnSeL
of General C nseL
•L: . . R y=or.d ia’r
eneral Cc inse2.
aticr a . ocia . r of At:or eys Genera..
444 . Ca.pito]. St:ee — Roc 1777
;shi ç : i. .C. 20001
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I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON, O.C 20460 9541.1934(04)
0 it
MAY 21 1984
o ’CE o
SOLD V AS1E At o EYE RQE ..Cv E5PONSE
PIG-84— 1
MEMORANDUM
SUBJECT: DeterTnirllr%g Whether State Hazardous Waste
Management Requirements are Broader in Scope
o More Stringent than the Federal RCRA Program
FROM: e
Assistant Administrator for
Solid Waste and Emergency Response (WH—562-A)
TO: PIGS Addresses
Issue
How does EPA determine whether a requirement of an authorized
State hazardous waste program is broader in scope or more stringent
than the Federal RCRA program?
Discuss ion
The March 15, 10R2 Program Implementation (uidance memorandum
from William Sullivan entitled EPA Enforce-vent of RCRA—Authorjzed
State Hazardous Waste Laws and Regulations” (PIG—82—3) outlined EPA
policy on enforcement of Federal and State hazardous waste manage-
ment requirements in States with cooperative arrangements or
authorized RCRA programs.
The Guidance concluded that State—imposed requirements which
are beyond the scope of coverage of the Federal program are not
part of the Federally approved program (4fl CFR 271.1(i) and
27 1.121(1)) , Consequently, such requirements are not enforceable
by EPA. PIG R2—3 also concluded that Nprovisions in State programs
which are more stringent than their federal counterparts are,
nevertheless, a part of the approved State program and are
enforceable by EPA. rEmphasis added.1
Attempts to distinguish between those State requirements that
are broader in scope and those that are more stringent than the
Federal RCRA program have led to some confusion. The confusion is
partly a result of conflicting information in past PIG’s on this
issue. PIG 81—4, discussing delisting of wastes, indicates that
State regulation of more wastes than are regulated by the Federal
program would be viewed as a more stringent aspect of the
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—2—
authorized State program. Similarly, page 7 Of PIG 82—3 indicates
that “a lesser amount of waste exempted [ by the Statel from regula-
tion under the small quantity generator exemption” is art example
of a more stringent State program requirement. In contrast,
page 6 of PIG 82—3 states that the listing by a State of wastes
which are not included in the Federal universe is an example of a
provision that is broader in scope.
Dec i s ion
To determine whether a particular requirement or provision
of a State program is “broader in scope” (and therefore not a part
of the authorized program) or more stringent (and theref a part
of the authorized program) the questions discussed below should be
answered sequentially.
(1) Does imposition of the State requirement
increase the size of the regulated community
beyond that of the Federal program ?
A State requirement that does increase the size of the
regulated community is more “extensive”, not more stringent, and
is an aspect of the State program which goes beyond the scope of
the Federally—approved program. Examples of requirements that are
broader in scope include:
o a lesser amount of waste exevvtpted from regulation
under the small quantity generation exemption;
o listing of wastes which are not in the Federil
universe of wastes,
Thus, the examples discussed in PIG 81—4 and on page 7 of PIG 82-3
should have been interpreted as requirements that were broader in
scope and not more stringent. (While this guidance corrects these
two examples, it does not change the policies and other examples
of PIGS 81—4 and 82—3).
If the requirement does not increase the size of the
regulated community, the following question ehould be asked.
(2) Does the requirement in question have a
direct counterpart in the Federal regulatory
program ?
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—3—
If the State requirement does not have a direct Federal
counterpart , the requtrernent is also beyond the scope of the
Federal regulatory program. Examples of such State requirements
are:
controls on traffic outside of a hazardous waste
facility or specification of transport routes to
the facility;
0 requirements for the preparation of an environmental
impact statement or the approval of siting board
as part of the permit issuance process;
0 licensing of transporters.
However, if the requirement of the authorized State program
does have a direct Federal counterpart, the State requirement
is either equivalent to or more stringent than the corresponding
Federal regulation. Examples of more stringent state requirements
are:
o Limited financial assurance options for facility
closure;
0 submittal. of an annual rather than a biennial report
for generators;
0 expiration of permits after five years instead of ten.
This guidance supports those enforcement policies outlined
in PIG 82—3, and should resolve many of the questions concerning
the scope of the Federal and RCRA authorized State regulatory
programs. We also anticipate that this guidance will be useful
in focusing the scope of EPA oversight of State programs. As
P!G 82—3 states, EPA enforces the more stringent provisions of
RCRA authorized programs; therefore, EPA has a corresponding
responsibility to overview implementation of those aspects of
State programs which are more stringent.
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9541.1984 (05)
rlI
13JUN19 84 h
pirMOp 4 I’ rns,1
SUBJECT: Transfer of Federal RC A Permits to Authorized Statez
and Compliance with 40 CPR l24.1o(.)
1
FROP Truett V. fle( eare, Chi f
State Prograrrs Rranch
TO: Hazardous Waste Branch Chiefs, Pegiort I—x
Recently, there has been some confusion over whether
Federal RCRA permits continue in States which receive
Phase II or final authorization. This policy was explained
in PIG—82—5, dated august 5, 1982, with regard to interj
authorization (copy attached). The sap e policy applieB to
final authorization.
The receipt of final authorization is not contingent
upon the State assuming permit responsi ility for those RCRP
permits issued by EPA; nor is the granting of authorization
cause for termination of an EPA—issued permit, FPA—issuecl
permits continue in force until terminated under 40 crp
c27 043 for cause ( e.g. , noncompliance by the permittee) or
transferred by agreement between the persittee and EPA as
provicied in 527l.P(b)( ). (See also 124.5(d) ,) The State
must eventually issue a State PCPA permit or assure responsi-
bility to adrinister the Federal, permit if it has the authority
to do so, however, it doea not have to dc so immediately as
a condition of rec.iving authorization.
Another permit issue which has arisen recently is
failure to comply with 40 CFP 5 124.lfl(e). That section
reguirea a copy of the fact sheet or statement of basis, the
permit application and the draft permit to be mailel t ’ all
persons identified in Cl24.lfl(c)(1)(i)_(jv). n EP’—issue 4
permit has been challenged for failure to comg .ly with Fl24.lC’(e
(PCRA ap ea1 Pio.83—5 In the Matter of I.a te TecP1rolc c ies
Industries) , In that case, the State of rest Virginia clai .eri
that it woe unlawfully prevented fro’ filing tirely corrertc
or a perrit apilicotjon becauco the Pecjion failed to give it
certain supportine docurents. It w entitled to receive
those documents (draft p.rr it and srr’it ar 1icat1on) as ar
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—2”
‘affect.d Btate’ under c124.lO(c)(l)(jjj), The Ad inistrator
r. ar ed the watt.r to the Pegional Admini tra o for the
li it.d purpoae of reopening the public couiiii .nt period.
Please oP scrve this rec ujrement and remind Statss with
Phase II or final authorization to eomply with it as well.
u you have any queiitions on these issues, pleas call Deborah
wol e at 382—2227.
Ftt.ch”ient
cc i Rruce Weddle
Ftate Progra’ c Rranch
Gail Coc per. C’CC
Fusan cbme es
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? UNITED STATES ENVIRONME?’ITAL PROTECTION AGENCY 9541.1984(08)
____ WASHINGTON D.C. 23460
‘
:o C”CE
SO .3 WASTE A iE GE. CV E3 ONSE
MEMORANDUM :
SUBJECT: adioactiVe Waste Exemption in North and South
C roli .
\_ _,__;. \-% -- __ -
FROM: cc M. Thomas
Assistant Administrator
TO: Charles R. Jeter
Regional Admirtstrator
Region IV
Thank you fo your memorandum of July 11. regarding the
exemption of radioactive materials in North and South Carolina’s
hazardous waste statutes. You asked whether their programs
could be authorized with these exemptions. The answer is yes
for the reasons described below.
On February 21 1 wrote to Regional Administrator Ernesta
Barnes on the subject of State regulation of radioactive wastes.
In that memorandum I explained that there are three categories
of radLoactive waste. The first category — source, special
nuclear and by—product materials defined by the Atomic Energy
Act — is excluded from the definition of solid waste in RCR.A;
therefore, RCRA does not provide authority for us to regulate
these wastes as hazardous waste and we do not require authorized
States to do so. The second category is mlxed TM waste; i.e.,
those wastes which consist of source, special nuclear or by-
product material and RCRA hazardous waste. At the time of my
writing, we had not determined the extent of EPA’S authority
over such wastes, and therefore did not require States to have
jurisdiction over or regulate mixed” wastes. The final category
consists of radioactive wastes outside of the source, special
nuclear or by—product universe such as naturally—occurring radio—
nuclides and accelerator—produced radioisotopeS. Such wastes are
also hazardous If they are listed in 40 CFR Part 261, Subpart D.
or when they exhibit any characteristic Identified in Part 261,
Subpart C.
North and South Carolina’s laws do not extend the full range
of RCR.3 controls over this last category of radioactive hazardous
wastes. A question has arisen about whether any of these wastes
in fact exist. Since no wastes currently listed in Part 261,
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—2—
Subpart D, are radioactive, we focused on whether there are any
naturally_occurring or accelerator-produced wastes that exhibit a
Subpart C characteristic. After checking with the Office of
Radi.ation Programs, which has consulted with the regulated co unu—
ni.ty and research organizations we have determined that no such
•dasteS are known to exist (copy of me!nor afldum attached) • From
this determination we now conclude that it is inappropriate to
require States to demonstrate control over this hypothetical
category of wastes to obtain final authorization. Accordingly,
North and South Carolina need not amend their statutes to obtain
final authorization.
I also wish to apprise you of recent developments in the area
of those mixed wastes which consist of source, special nuclear, or
by—product material and RCRA hazardous waste. Since issuance of
the February 21 memorandum, we have determined that RCR.A authority • ‘
does extend to these mixed wastes. We are now working with the )
Department of Energy to determine how best, under RCP.A and the
Atomic Energy Act, to i.mplement this authority. States need not ) :,‘-
yet revise their programs to regulate mixed wastes since EPA must
still resolve some definitional issues. However, you may wish to
advise them of this development, should they wish to initiate
changes in their programs to obtain legal authority to regulate
mixed wastes. At that time we would also advise States tO obtain
jurisdiction over the third category of non—excluded radioactive
and hazardous waste in the future event that a non—excluded radio-
active waste is listed or we discover that suc’ a waste exhibits a
hazardous characteristic. Once we have defined our implementation
program we will work with the Regional Administrators tO guide
States in revising their programs as required by 40 CFR S271.21.
In the meantime, EPA is responsible for implementing the RCR.A
program with respect to mixed wastes.
i appreciate you bringing this situation to my attention.
Please let me know if you have further questions.
At t a c hme nt
cc: Regional Administrator, Regions i—Ill arid V—X
RegionalMaZaCdOUS Waste Division Director, Regions I-X
Regional Counsel, Regions I-X
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
MUG 1 1984
Existence of Hazardous Non—excLuded Radioactive astes
S — -
, , ‘lasts ‘(anagement Standards Branch
Criteria 6 Standards Division (MR—460)
o John H. Skinner, Director )
Office of Solid Waste ( i—5ó2B) /
TRRU Richard J. Guimond, Director .F’ ”
Criteria and Stand ,s Dvjsiot (ANR—460)
Glen L. , oblom, Director
OfficIof Radiation Programs (ANa—458)
On February 21, 1984, Assistant Adiniscrator T.ee Thomas sent a memo
to Regional Administrator Ernesta Barnes, detailing the Agency’s position
on which radioactive.vastes are outside the source, special nuclear, or
by—product universe exempted under RCRA. This memo stated thit the wastes
which could fa 1 under aCRA’ . authority include naturally—occurring
radiociuclides and accelerator—produced radioisotope.. The memo went on to
say that authorized States must regulate taesa wastes when they are Listed
under 40 CF1I Part 261, Subpart D, or when they exhibit any characteristics
identified in Subpart C.
You have recently asked us to clarify whether any nonexempced . astes
exist which are also hazardous because they exhibL: a characteristic under
40 CFR Part 261, Subpart C (no nonexempted wastes are currently listed
under Subpart D). Georgia, North Carolina, and South Carolina have
indicated to you that no such wastes exist in their jurisdictions.
Discrete sources of low—level radioactive wastes, such as radium
(naturaliroccurring) or accelerator—produced wastes are the only wastes
which presently fall, into the nonexempted category. This does not include
miming and benefictation wastes which vs presently do not regulate under
RCRA. To our knowledge, moms of these wastes are hazardous under Part 261.
I hope the above information is of use. Should you have any further
questions, please feel free to contact me.
SPa P.. )3204 1g... 346)
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9541.1984(09)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
1 1 101 WASHINGTON. D.C. 20460
ar.,cc or
SCN 1 1*L COUNSEl.
APR 4 B4
M 1ORANDUM
SUBJECT: Status of Federal Permits in
States Which Have Received RCR.A
Final Authorization
FROM: Gail B. Cooper? ) i •
Attorney ( •1
TO: Bruce Wedd].e
Director
Permits and State Programs
Division (WR-563)
In August 1982, OSW issued a Program Implementation
Guidance memorandi (PIG-82-5) on the status of federal
permits after a state receives interim authorization. You
have asked us whether the same guidance may legally apply
to final authorization. In addition, you requested that we
commit to writing the legal advice we gave you orally when
PIG-82-5 was being developed.
Background and Conclusion
Under RCRA S3006 and 40 C.F.R. Part 271, a state which
has received interim or final authorization operates the RCRA
program in lieu of EPA. Among other things, upon approval
of a state program, EPA suspends the issuance of Federal
permits for those activities included in the authorized state
program. 40 C.F.R 55271.1(f) and 271.121(f). The status of
existing federal permits after authorization is less clear,
however. In 1982, the following question arose: if state
RCRA permits comparable to existing federal permits are not
issued at the same time the state receives interim authorization,
do existing federal RCRA permits remain in effect? We concluded
then that the more persuasive interpretation of RCRA was
that federal permits remain in effect until terminated in
compliance with 40 C.F.R. Parts 270 and 124. Because the
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-2-
pertinent statutory and regulatory provisions are the same
for interim and final authorization, the same conclusion
would hold for final authorization.
Discussion
Sections 27]..8(b)(6) and 271.l26(c)(1) of the RCRA state
authorization regulations provide that the Memorandum of
Agreement (MOA) between the state and EPA must contain provisions
specifying a procedure for transferring the administration
of existing federal permits to the state. They further provide
that if “a state lacks authority to directly administer permits
issued by the Federal government, a procedure may be established
to transfer responsibility for these permits.” An example of
such a procedure is provided in a note to 5271.8(b)(6): the
state, EPA and the perinittee could agree that “the State would
issue a permit(s) identical to the outstanding federal permit
which would simultaneously be terminated.” 1/
This provision clearly provides that EPA-state procedures
on the transfer of permits must be established but is silent
on whether such transfers must be effective on the date of
authorization. This issue was addressed for interim authorization
on August 9, 1982 by a Program Implementation Guidance memorandum
(PIG-82-5). The memorandum concluded that federal permits remain
in effect after Phase II authorization until the state issues a
RCRA permit or assumes responsibility for administering the
federal permit if it has the authority to do so. According to
the memorandum, federal permits do not terminate automatically
but must be terminated according to the procedures in S270.43 or
by agreement of the perinittee and EPA. To avoid the need for
EPA administration and enforcement of federal permits in authorized
states, the memorandum strongly encouraged the states to issue
state RCRA permits or administer federal RCRA permits as soon as
possible.
As we indicated to you, it is conceivable that someone
• could challenge the policy reflected in the memorandum in a
permit or enforcement proceeding by arguing that since section
3006 provides that the State carries out the RCRA program
“in lieu of the federal program” upon authorization, federal
permits terminate automatically upon a state’s authorization.
Following that interpretation, the state would have to be
1/ Section 124.5(d) provides that EPA does not have to
— issue a notice of intent to terminate a permit in
this situation.
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—3—
able to assume or administer the Federal permit (or issue
its own RCEA permit) at the time it was authorized in order
for the facility to continue to have a RCR.A permit.
We do not find that argument persuasive. Many states do
not have the statutory or regulatory authority to administer
federal permits or to issue their own RCRA permits as of the
date of authorization. If federal permits automatically expired
upon a state’. authorization, a facility could be left without
any permit (if there were no state permit for that facility)
or could continue to operate under a state permit with less
stringent requirements than were contained in the federal RCRA
permit. Given Congress’ general goal of providing for the
effective regulation of hazardous waste and the “no less stringent
requirement” in Section 3009 in particular 2/, it is difficult
to conceive that Congress would have intended that the transfer
of authority from EPA to a state result in a decrease in
environmental protection. In our view, PIG-82-5 is a reasonable
interpretation of our legal authority, designed to assure that
authorization of a state program does not cause a facility to
lose its permit or allow a facility to benefit from relaxed
permit requirements. 2/
The analysis is supported by a case dealing with the NPDES
program under the Clean Water Act (CWA). In Central Hudson
Gas and Electric Corporation v. U S.E.P.A. , 587 F.2d 549, 560
(2nd Cir. 1978), EPA had issued a NPDES permit which was partially
contested. Before the Part 124 adjudicatory hearings began on
the contested provisions, the State NPDES program was approved
by EPA. The State and EPA arranged for EPA to continue to
handle the adjudicatory hearings and any subsequent litigation.
The permittee challenged EPA’. authority to do so, pointing to
the CWA provision which states that when a state program is
1/ Section 3007 provides that ... “no state or political
subdivision may impose any requirements less stringent
than those authorized under (subtitle C] respecting the same
matter as governed by such regulations ...“
2/ EPA does not have the same leeway if the federal permit has
— not yet been issued. 40 C.F.R. 271.1(f) specifically
provides that “Upon approval of a State permitting program,
the Administrator shall suspend the issuance of Federal permits
for those activities subject to the approved State program.”
Thus, even if EPA has already issued a draft permit and held
public hearings, it may not proceed to issue a final RCRA permit.
This obviously makes it essential for EPA and the state to allocate
permitting resources efficiently in the period before a state
receives authorization.
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-4-
approved by EPA the EPA must “suspend the issuance of permits.”
33 U.s.c. 5l342(c)(l). EPA argued that the permit had been
issued, 80 that this provision did not govern.
The court deferred to EPA’s position that the permit had
been “issued” and did not get into the broader issue of what
happens to EPA permits after NPDES approval. To that extent,
the decision does not address the same legal issues we might
confront. However, the court’s reasoning is relevant; it
concluded that the statutory policy of having states implement
the NPDES permit program was outweighed by the Act’s primary
objective to restore and maintain water quality. The court
was persuaded by EPA’s argument that the permittee’s
interpretation would produce duplication, waste, and delay,
and disrupt the state program because the state would not be
prepared to bear the sudden transfer of the permit. The Court
did not wish to discard the transition mechanism EPA and the
state had worked out. While there are differences between
the CWA and RCRA, the similar statutory goals and problems
of transitions from EPA to state regulation make this case
a helpful precedent for PIG-82-5.
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9541.1985(01)
000
AAR6 1 8 5.
•
• a
,
SUBJECT. RA P.rmit .authorizatton Issues in s.gion III
VRO s John B. Skinn.r, Director
Off ice of Solid Wacte (wS—S 52)
TO. Steven 5. Wassersug, Director
lazardous Waste anag.a.nt Division. Region III
This ..morandua is is r.spons. to the series of quest ions
raised in your memorandum of P.bruary 1, 1985, regarding issuance -J
of RC A p.rmits in authorii.d Stat.. to light of the new reauthor-
ization amendments. Several of the issues you raised have be.r .
addressed in th. draft guidanc. on corrective action for contir.uing
r.l.as.s (dated January 30, 1985) and the draft guidance on joint
permitting, which was distributed in early December. We are pr.—
parirg additional guidance on EPA/State permitting, which should
be distributed in draft very shortly.
It should be understood that most of the following responses
to th. specific qu.stions raised in your memorandum reflect our
current thinking, and ar. based on preliminary policy int.rpr.ta—
tions which have not coupleted the AQ.ncy’e formal revisv and
concurrence process. Our responses are as £oll.ovss
A. Ab.rdeei Proving Grounds . As stated in the 1/30/fl
draft guidance on corrective action for continuing
releases, the facility is the entir. contiguous property
under the control of the owner/Operator, at which the
hazardous waste management units are located. Thus,
the entire army base must be taken into account when
consid.rir.g cor.tinuing rel.ases for the purposes of
this permit action.
A permit issued after November 8, 1984, is not a
fully effective RCRA permit ur.les. it addresses all
applicable provisions of the reauthorizatior amer.dmente,
as well as the regulations currer.tly in place in tP
authorized State. Bowever, the State may issue its
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—2—
Btate permit to the facility, without the new require-
ment. of the amendments having been address.d by IPA.
Until the Stat. rec.iv.s authorization for the n.v.
amer.dmer.ts, its permits are State permit., and not RCRA
permits. Region III should issue th. Federal portion
of the permit addressing the provisions of the new
amendments as soon as practicable, consistent with the
overall program priorities in the Region. •When this-
Federal portion of the permit is issued, it will combine
with the State permit to become th. RCRA permit. In
this situation, provisions of the State permit would be
reopened only if provisions of the State permit are
affected by the P.d.ral portion of the permit.
I.Rp.ctron. Until the Stats is authorized for the
continuing release provision, imple entatjon of the
provision must be dons by EPA. We would urg. that,
if possible, a joint and simultaneous RCRA permit be
issued to this facility by EPA and the State. (5..
the 1/30/U draft corrective ctLon auidancs).
If th. Pedsral portion of the permit cannot be -
prepared within the State’s timetable for the permit,
the Stat• may choose to issue the Stat. permit to th•
facility without the Pederal portion. Until the Federal
portion is issu•d, Region III has the option of using
an interim status corrective action order [ 53008(h)J to
require the owner/operator to begin any necessary remedial
investigations at the facility.
D. laval Shipyard . “?he fact that the facility notified
under 5103(c ) of CERCLA does not affect EPA’s ability
to issue a RCRA permit to the facility. Any releases
that may be at the facility can and sheu],d be addressed,
either through a RCRA p.r.it, a RCRA interim status
corrective action order, or through State enforcement
action, as appropriate,
S. Defense General Suoply . M you eay know, guidance i.
currently being developed on the Agency’s policy toward
RCRA facilities that are also listed on the National
Priority List (NPL), in light of the new RCRA corrective
action authorities. This policy guidance is expected to
be issued in the next few months. Until the guidance
is issued, we would tentatively advise that if CERCLA
remedial measures are already being conducted at a RCRA
facility, those activities should continue under CCRCLA.
It, on the other hand, the CERCLA remedial process is
-------
not yet underway at the facility (1..., a 12/PS has not
yt b..n don.), it would be appropriat, to ui th. RC 1A
permit or a RCRA 53008(h) order to-provid, for corr.ctj,e
measures,
S. Allied Sermuda—ifundred , The determination as to
whether or not a release that poses a threat to human
health and the •nvironmer.t has occurred, or is likely
to have occurred, can only be aade by EPA (or by the
State when it ii authorized for the continuing release
requiremerts). This determination is based on infor-
mation submitted to EPA by the ovner/op.rator regarding
the solid waste aanagemer.t units at the facility, and
any available information on r.1.ases from those units
(see Reauthorization Statutory Interpretation 03,
February 5, 1985).
F. Dupont Edgemoor . Section 270.lO(f)(],) requires -
that physical construction of a facility cannot begin
until the facility has secured a ‘finally effective
RCRA perinit. Therefore, before construction of the ::
hazardous waste storage tank can begin, a permit which
addresses both the applicable State requirements and
the new RCRA 53 0 04(u) requirement must be issued to the
facility. As explained in the January 30 guidanc. on
continuing releases, investigations of releases from
the solid vast, disposal unit at th. facility, and
develoDment of a program of correctiv, measures, can
take place under a schedule of compliance after the
permit is issued. However, the owner/operator cannot
begin construction or operation until the Region issues
its portion of the permit.
C. In regard to the hypothetical situation posed on
page three of your memorandum, the Stat. may issue th•
State permit to the facility and continue to require
cleanup activities under a State compliance order.
This will not of itself, however, constitute compliance
with the 53004(u) requirements. Only CPA can implement
this provision (until such tie. as the State become.
authorized for it). When EPA issues its portion of
the permit, any remaining remedial investigations and
corrective measures will be carried out under the
permit. If this scenario is followed, we would urge
that Re ior. III and the State coordinate to er.sure
that the investigatior.s and corrective measures imposed
under the State enforcement order would be cor.sister.t
with those which EPA would require ur.der the permit
when it is issued.
-------
The answers to your ger.eral question on how CPA and a State
interact during joint psr*ittirig procedure. are dress d.L -*_ -—t-
art. jnth. guidance aenoranda already aention.d, •Ws also
discussed the., issues in some d.tail at the February 27—28
Division Director.’ eting. We •xp.ct to be issuing addiejo 1
guidance on these various joint peraitting iSsues within the -
next several weeks, Please .1st e know if there ar. any further
questions or cc .ents. -
cc: B. Weddle
- .T. D.Geare
P. Cusrrego
. . Gre.n ood
1. Pitaback
Regional Razardou. Jiast. Branch Chiefs,* .gi I—z, - --- . -
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9541.1985(05)
May 6, 1985
MEMORANDUM
SUBJECT: Applicable Management Standards for Wastes Newly
Regulated Pursuant to HSWA
FROM: Bruce R. Weddle, Director
Permits and State Programs Division (WH-563)
TO: Kenneth Feigner, Chief
Waste Management Branch (N/S 533)
Region X
This is in response to your memorandum of April 4,
addressing the question of which standards (EPA’S or an
authorized State’s) apply to the management of wastes which
become regulated in authorized States as a result of EPA
rulemaking pursuant to HSWA.
We agree with your conclusion that when EPA promulgates
additions to Part 261 pursuant to HSWA, it is EPA’s standards
which are applicable to handlers affected by the new regulations.
This situation continues until the State revises its program
pursuant to 40 CFR 271.21 to add the wastes to its regulated
universe and receives EPA’s approval.
You are also correct in that, while States may participate
in implementing the Federal requirements through agreements with
EPA, EPA retains ultimate responsibility for the Federal program.
Only EPA can issue RCRA permits with respect to the new wastes.
While EPA may defer to authorized States that are taking timely
and appropriate enforcement actions against violations with
respect to the new wastes, EPA also retains ultimate enforcement
responsibility.
We appreciate your raising this issue, and it will be
discussed in the RCRA Reauthorization Statutory Interpretation
memorandum (RSI) on joint permitting.
cc: Hazardous Waste Branch Chiefs, Regions I - IX
State Programs Branch
Gail Cooper, OGC
This has been retyped from the original document.
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9541.1985(07)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
MAY 85
Manifest Use and State Authorizatian
3. A Bpent solvent, bith is haz rdc*is ‘ characteristic anly (e.g. ignitable-
DOOl. ) • is transported frce the generator in P tarla. to a reclaiiatian facility
in Te s. th itana and Tew are states with final a t rizatian for
the A pr aa . The transporter will also thrcu * Wy ning baiich is a
nan-authorized state (i.e., it ii rder the Federal A progrest).
Pirstant to 40 ‘R ç261.6(a), characteristic Mzarda s wastes ich are reclainsd
are not subject to regulations. Ac rding to 26l.2(c) as aii nded ‘ the
January 4, 1985, Federal Reqister (50 FR 614), h ver, all spent aolWnts.
aracteristic or listed, will, be def as ‘ e 1 t terials and will be
regulated as solid wastes prior to rec1ai tion. ‘1 s, per 26l.6(b). in the
January 4. 1985, rule, generators and transporters of recyclable ) *rd i .
saterials (e.g., spent solvents) are subject to Parts 262 and 263 (generator
and transporter standards, respectively). The ccr Licatthg factor is that this
new definitian of solid waste and respective recycling regulatians nay into
effect at different tines thro 4 t the c intry dspending an wt ether a state
is aut rized or not.
The 3anuaxy 4. 1985. rule will be effective in zu —ut)crize6 states an July 5.
1985. states with final aut rization, such as P tana and Te .s • nay have up
to January 4. 1987. to a pt this rule. Therefore, a characteristic ignitable
spent solvent will be a regulated hazardQ s waste prior to reclanatian in non-
aut ,rized states an July 5, 1985. in the transport situatian described above,
is the transporter reguired to .rry the %biform Ha rdo.is Waste Manifest in
Wy iing, since the spent solvent is a “hazar .as waste in Wyce .ng an July 5,
19B5?
If the spent solvent is transported L ui t. ntana to Te a (EPA—authorized
states) after July 5, 1985, the transporter need not cerry the tbiform
Hazar as Waste Manifest, e t) 4 the spent solvent is transported
t .4i Wyatd.ng, t id’ regulates the solvent as a A waste. States throi4
which the waste ahipnant travels nay n dictate nanifest reguirenents per
49 FR 1049 (March 20, 1984). either the era r state (M tana) or
the3esignated state (Te s) ten 2ies that the waste is hazkT aas , that
waste will be .ub:jeot to the tbifons Manifest reguirenait$.
S rces Denise &dze (202) 3 2231
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9541.19 85(09)
, itD S74.p,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
____ WASHINGTON DC 20460
—s
J I 985
S L’O WAS’E AP..O E AERGE”.C RESPOP..SE
MEMORANDUM
SUBJECT: RCRA Reauthorization arid Joint Permitting in
Authorized States:
RCRA R.çau h o ization Statutory Interpretation *5
I ‘IV
: r . ’._
FROM: J,ack W. McGtaw
;cting Assistant Administrator
TO: Addressees
Section 3006(g) of the Hazardous and SDlid Waste Amendments
of l9 4 (HSW or the Amendments) provides that hazardous waste
requirements and prohibitions promulgated pursuant to the
Amendments are applicable in authorized St-ates at the same time
they are applicable in unauthorized States. HSWA also mandates
incorporation of many of these requirements in all Resource
Conservation and Recovery Act (RCRA) permits as of ‘ ovember B,
1984, in both authorized and unauthorized States. In addition,
§3005(c)(3) of the Amendments provides EPA with the authority
to incorporate into permits any requirement necessary to protect
human health and the environment, even if EPA must go beyond
the specific requirements or prohibitions found in the statute
or regulations.
A permit ca.nnot be considered a RCRA permit unless it
contains all the applicable new requirements of the Amend tents.
A State must be specifically authorized for provisions of HSWA
to issue a RCRA permit. Section 3006(c) of HSWA provides EPA
with the authority to issue permits for the new requirements
and prohibitions until a State is authorized to do so. That
section provides that in an authorized State the Administrator
“shall have the authority in such State to issue or deny permits
or those portions of permits affected by the requirements and
prohibitions established by the Hazardous and Solid Waste Amend-
ments of 1984. The Administrator shall coordinate with States
the procedures for issuing such permits.” This guidance discusses
the implementation of the joint permitting process through which
this coordination will occur. 1 Our intent in addressing this issue
is to continue the permitting process, in cooperation with tne
States in as efficient and expeditious a manner as possible.
I Note that there are also requirements of the HSWA which are
self—implementing. They take effect regardless of whether
a permit is being issued; for example, the ban on disposal
of hazardous wastes in salt domes (Section 3004(b)).
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—2—
JOINT PROCESSING: FORMAT AND TIMING OF THE RCRA PERMIT
The joint perTnLt may be issued in two ways. There can
be one complete permit with signatures of both the State
Director and the Regional Administrator (RA) on the same
document. The other alternative is to issue two incomplete
periuts, one signed by EPA and one signed by the State. In
either situation signatures by EPA and the State are necessary
to provide the facility with the authority to operate under
a RCRA permit.
If a single complete permit is issued, it is especially
important to have a clear identification of which provisions
stem from Federal authorities and which stem from State
authorities. This identification will clarify enforcement
responsibilities and will enable an interested party to
determine the appropriate authority to ap?roach when appealing
a given permit condition.
Where incomplete permits are issued simult neousl j,
only those conditions stemming from one authority would be
attached to the respective signature. EPA would issue the
portion addressing only those HSWA provisions for which the
State has not yet received interim or final HSWA authorization.
The authorized State would address all other RCRA and State
conditions and requirements. The two parts together (whether
one document with two portions or two portions put together)
would address all the conditions required in a RCRA permit.
(See Draft permit section on page 7 for a discussion of how
these conditions should be addressed.) This is generally the
preferable option as it clearly separates the State and Federal
requirements yet it provides the facility with a complete RCRA
jermit. However, the decision whether to issue one complete
or two incomplete permits is ultimately left to the Regions and
States; legally, there is no reason to prefer one over the other.
It is CPA policy that State and Federal portions of the
RCRA permit be issued simultaneously. However, prior to the
date of enactment of the HSWA, States with Phase II or final
authorization were processing permit applications toward
final determinations. Many of these permits have already
been issued as draft permits. States with Phase II or final
authorization that Issued draft permits prior to April 8,
1985, (the date the RCRA Implementation Policy was signed
announcing that joint permits must be issued simultaneously)
should proceed as planned to take final action during fiscal
year 1985 on these draft permits. The State permits will
fulfill State law but they will, not be RCRA permits.
EPA will then assign a high priority to these facilities,
so that the Federal portion of the permit can be issued as
soon as possible, or a rapid determination can be made that
a Federal portion is unnecessary. For all other permits,
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—3—
i.e., those permits which have not reached the draft sta;e
by April 8, 1985, or pre—? prLl 8, 1935, draft er- tts ‘uci
are not issued as final permits in fiscal year 1985, States
and EPA must plan on simultaneous issuance of the State and
Federal portions of the RCRA permit.
new f3cllity is not allowed to begin construction unle5s
both the State and Federal portions of the permit have been
issued, providing the facility with a RCRA permit. If a new
facility received only the State’s portion of the permit, it may
not begin construction since that portion does not, in itself,
constitute a RCRA permit. For facilities that want to expand, if
the expansion is such that the facility would require a RCRA
permit (i.e., it is not an expansion allowable under interim
status), then the facility also must receive both the State and
Federal portions of the permit prior to expanding.
PROCEDURAL ASPECTS OF ISSUING STATE ND FEDERAL PERMIT PORTIONS
Most RCRA permits will he issued simultaneously by EPA
and the States. Procedures to be followed for simu1t neous
issuance are discussed in the “Implementation Analysis”
section. This section discusses those instances, described
above, where the State and Federal portions of the permit
are not issued simultaneously.
The procedures for issuing a joint RCRA permit in these
cases will vary depending upon whether the State has issued a
draft or final permit. Where the final State permit has been
issued prior to the issuance of the EPA permit, the expira-
tion date will coincide with that established for the original
State permit. There are two possible permitting situations:
1. State issued draft permit prior to April i , 1985, and
EPA issues draft permit prior to final State permit;
State issues final permit before EPA issues final permit .
Where a State has already issued its draft permit, EPA
will make this permit a high priority for action. EPA will
determine whether and how the facility is affected by the
KSWA requirements since the State is not authorized to make
a determination about the applicability of the Amendments.
When EPA makes this determination, it will either:
— issue a draft permit containing appropriate
conditions adaressirtg HSWA, or
— where EPA finds that the facility is not affected
by HSWA, issue a notice explaining our tentative
decision. This means that no corrective action
will be necessary, no other HSWA requirements
apply, and no additional requirements to protect
human health and the environment are necessary.
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—4—
EPA will follow the procedures in 40 CFP Part 124 in LSSU1nq
tne draft permit or notice of our tentative decision that tr e
facility is not affected by HSWA.
EPA’S Fact Sheet or Statement of Basis should explain the
relationship between the EPA action (draft permit or tentative
determin3tion that a HSWA permit is unnecessary) and the
previously—issued draft State permit. It should explain that
EPA’S final determination will be made simultaneously with
issuance of the final State permit or that EPA’s final action
will occur after tne State issues its final permit. In the
latter event, the notice should explain that the facility will
have a RCRA permit only when final permit actions have been
taken by both EPA and the State 1 The State may wish to send
a letter to the facility to inform the owner/operator that
she/he does not have a RCRA permit until EPA covers the new
I(SWA requirements in an EPA permit or determines that an EPA
permit to address HSWA is unnecessary.
If EPA determines that a permit is necessary to impose
HSWA requirements, and that the draft HSWA permit would
affect the draft State permit, the State is strongly
encouraged to redraft and, if appropriate, renotice its
permit at the same time EPA drafts and notices its permit.
In some cases there could be a direct conflict between the
two permits. If States have the authority to remove permit
conditions that conflict with MSWA requirements, removal
of such conditions before the permit is issued would avoid
the later issuance of two conflicting permits and the need
to explain that the HSWA permit supersedes any conflicting
State requirements.
In other cases decisions made by EPA concerning HSWA
requirements may affect the State portion of the permit
even though they do not conflict with the State approach.
For example, as a result of EPA technical requirements,
it may be necessary to revise the closure plan. It would
be preferable for the State to revise the closure plan in
its permit, making it unnecessary for both the State and
EPA permits to cover the same areas. However, if the State
is unwilling or unable to modify its draft permit, both the
State’s final permit and EPA’S draft and final permits must
indicate that HSWA requirements in the EPA portion of the
permit supersede any inconsistent or less stringent State
permit requirement. A Fact Sheet for the final EPA permit
must specifically identify the conflicting State provisions
which are superseded in order to avoid ambiguity about
whether the State or Federal permit condition in a particular
area is the operative requirement.
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—5—
2 State has issued both the draft and final permit before
EPA issues its draft permit .
In issuing its portion of the perrut in this situation,
EPA should proceed as described above, by making a deterr ina—
tion about the applicability of the Amendments and issuing
either a draft permit or a notice of our tentative decision
that the facility is not affected by HSWA.
Where the State does not open its permit, the State is
encouraged to issue a notice in conjunction with EPA’S final
permit which announces that when the State permit was issued
it was not a RCRA permit, the State permit does not address
the KSWA provisions, and that the State did not reopen its
permit. In addition, the State may wish to send a letter to
the facility as described above.
The EPA Fact Sheet should explain the relationship between
the EPA action and the final State permit. EPA should explain
that once EPA makes its final decision, the combination of the
State and Federal permits (or decision that a Federal permit is
not necessary) will meet the requirements for a RCRA permit.
In the situation described previously —— where the State
permit conflict; or overlaps with the I1SWA requirements EPA
is imposing —— the State is strongly encouraged to modify its
permit. If, however, the StateS is unwilling or unable to
reopen its permit. (e.g., there is no cause f r modification”
under the State regulations to cover the tjpe of change that
would be necessary), EPA should proceed to issue its permit,
making sure that the EPA permit states that the KSWA require-
ments supersede any inconsistent or less stringent State
perrut•requirements. AS explained before, the Fact Sheet for
the RCRA permit must specifically identify whether the State
or Federal permit condition in a particular area is the
operative requirement. In any of these permitting situations,
if a State believes it must follow additional, procedures in
order to meet the requirements of State law it should do so.
JOINT PERMIT IMPLEMENTATION
The joint permitting relationship must be defined by the
Regions and authorized States. The Regions and States will.
need to:
o establish procedures for coordinating the joint
permitting process;
• establish procedures and schedules to obtain additional
information from permit applicants;
• notify those facilities who have already submitted
applications about the new requirements and their
need to address them.
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—6—
Authorization Memoranda of Agreement (MOA’s) need to e
amended or other agreements executed to define EPA and State
roles in the permit process.
As st3ted earlier, the kmendments specifically provide
that the States may participate in implementing the new
provisions. An authorized State would participate in
applying trie HSWA requirements to the same extent that an
unauthorized or Phase I State may currently participate in
the Federal permit process. The States can take the lead
on the technical review of the application, preparation
of the draft and final permit, preparation of the public
notice, review of public comments and preparation of the
response to comments; but the joint role must be clearly
understood. The State is assisting in processing the
Federal HSWA portion of the permit, but EPA has the ulti-
mate decision—making authority for those aspects of RCRA
permittir for which the State has yet to be authorized.
IMPLEMENTATION ANALYSTS
This section discusses the major steps in the permit
process and how each would be affected under joint permitting.
The Regions may wish to consider additional changes to MOA’s
to address the following discussion in greater detail.
1. Permit Application Request — Where possible, there
sriould be one application request issued jointly by EPA and
the State. The request should make clear which requirements
are State and which are Federal. Duplicates of the same
application should be sent to both EPA and the State. Requiring
only one application makes it easier for the applicant since
she/he need not separate the State and Federal requirements in
the application. EPA must receive a copy of the State portion
in order to consider whether any additional requirements are
necessary to protect public health and the environment, pursuant
to 53005(c). The State maintains the overall lead in the
process, with EPA responsible for the provisions which stem
from Federal requirements for which the State is not authorized.
Where an authorized State has requested a permit
application before HSWA, that request will retain its validity
for the State’s program. However, where information is needed
to address the new requirements, EPA must request the additional
information if the State does not have the authority to demand
such information.
The applicant should be given time to comply with the
request for the new HSWA information if necessary; the amount
of time granted is subject to the Region’s discretion as
negotiated with the State. Where the new request creates a
burden for the permit applicant, additional time should clearly
be granted. The additional time should be granted only to
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—7—
accommodate the new burden; the State’s original time frame tor
receipt of informatton from the applic3nt will apply to the
original application request.
2. Completeness Determination — Ideally, the completeness
determinat.Lon should be a joint decision. Since there is only
one application, one determination will facilitate the process
for the applicant. If one Agency finds the application to be
incomplete prior to the other Agency’s determination, it can
issue a Notice of Deficiency (NOD) or commence an enforcement
action, where appropriate. However, the draft permit cannot
be issued until both the State and Federal draft permits have
been prepared. If one portion of the application is not
complete, another completeness determination will be made for
that portion only after the date on which the newly requested
information becomes due. If both portions of the application
are incomplete, a joint completeness determination will be made
once the newly requested information is received. In either
situation, it is only at that later date that an owner/operator
would be subject to enforcement action for an incomplete
application based on an NOD for the newly—requested information.
3. Application Deficiencies — Where possible, a joint
NOD should be issued with the appropriate enforcing authority
issuing the appropriate portion of the NOD. Where deficiencies
occur in both the State and Federal portions of the application,
the applicant should receive notice si nultaneously from both
parties to facilitate the applicant’s response. Either two
NOD’•s should be issued at the same time, or one document can
be issued signed by both parties, so long as it explicitly
states which requirements stem from which enforcing authority.
If, however, the deficiency relates only to a State provision,
the State will issue the NOD with a statement explaining that
only the State portion is deficient. Where necessary, separate
NOD’S for State and Federal deficiencies can be issued at
different times.
4. Draft Permit — The draft permit (or intent to deny)
will be issued simultaneously by EPA and the State (unless
the State draft permit was issued prior to April 8, 1985).
The joint draft permit would be physically similar to any
other draft permit except that it would contain two parts,
specifically identifying which provisions stem from State
authorities and which from Federal authorities. As discussed
earlier, the two parts may be issued as either one or two draft
permits as determined by the Region and the State.
The Fact Sheet or Statement of Basis should be jointly
written (as should the public notice) and should include
separate discussions of Federal and State issues. An
authorized State can enforce its approved analogue to the
generally applicable requirements of 40 CFR 2 0.30. As a
result, the State’s parallel provisions to 40 CFR 270.30 will
-------
be applicable to both the State and Federal portions of the
permit. The Fact Sheet or Statement of Basis should contain
an explanation of these requirements.
Where possible, permit writers should avoid putting
conflicting requirements into joint permits. This could occur,
for exar ple, if a State authorized for the pre—HSWA sinçle liner
requirement includes such requirements in its portion of the
permit, while EPA includes the HSWA double liner requirement in
its portion. Where possible, the State should agree not to
include those requirements which are inconsistent or less
stringent. There may be situations, however, where a State
only has legal authority for single liners and has no discretion
to do otherwise. Therefore, where less stringent requirements
cannot be eliminated, the Fact Sheet (or Statement of Basis)
should state that the more stringent requirements always take
precedence and should include a sunu’iar-j of the operative permit
conditions. In this way, the facility and the public will know
what requirements must e fulfilled and confusion from permits
.ihich contain coriflicti.nj requirements will be minimized.
5. Permit Procedures and Public Participation — Public
participation activities should be conducted jointly. The
EPA Region should follow the State’s hearing procedures and
requirements (adhering to the State’s processing deadlines)
even where those requiremente are more .strin ent than EP ’s.
EPA would serve as the hearing officer for purposes of the
Federal provisions of the permit.
To the extent that the State desires and EPA resources
allow, the Regions should participate in other aspects of
the State’s public involvement process. However, EPA is not
bound to participate in procedures which are not part of the
State’s authorized program. State imposed requirements which
are beyond the scope of coverage of the Federally 3pproved
program are not enforceable by EPP, nor is EP bound by them. 2
Requirements for environmental impact statements ( IS’s) and
stting boards are specific examples of State requirements
which are ‘broader in scope’ than the Federal program and,
therefore, although they may be needed as a matter of
State law, EPA need not participate with respect to EPA’s
portion of the permit.
6. Final Decision — As with the draft permit, the EPA
and State final permits will be issued simultaneously (except
where the State draft permit was issued prior to April 8, 1985,
and the final permit was issued before the end of fiscal year
1985). The format of the final permit will be the same as the
draft permit. (See discussion on pages 7—8.)
2 PIG 84—1, from Lee M. Thomas, May 21, 1984.
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—9—
7. Appeals — The States will handle appeals rel3tLng
to State prov s ons and EPA will handle appeals of the
Federal provisions. Each party should notify the Other when
any appeal action is inittated.
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ED SI’ - . S ENVIRONMENTAL PROTEC •0P4 AC 1 y
9541.1986(04
M R — 3
Felix A. Dunaway
C—E Power Systems
Combustion Enaineering, Inc.
4224 Shackleford Road
r orcroes, Georgia 30093
Dear Mr. Dunawayi
As the result of our office’s investigation into the current
re u1atory status of the spent pickle liquor sludge generated at
your Norcross facility, we have found that the State of Georgia
issued a final exclusion for this waste on May 11, 1984. As a
result, Combustion Engineering, Inc. may no longer want to pursue
a final exclusion for this waste from EPA. We would like to make
you aware, hnwevor, of the limited jurisdiction of the State decision,
as described below. The Georgia delisting designates your process
waste as a non—hazardous waste within the State. of Georgia under
the authority granted to Georgia for interim authorization by EPA on
February 3, 1981.
If the waste continues to be handled entirely within the borders
of Georgia, and does not enter interstate commerce, the waste may
be disposed as non—hazardous. In the event, however, that this
waste enters interstate commerce, e.g. , transported by an interstate
ci rri.r, even within Georgia, it must be treated as hazardous.
Our office will encourage the Georgia Department of Natural Resources
to consider additional factors if they reconsider this deiisting,
but Georgia is not required to readdr.ss this delisting.
If Combustion Engineering, Inc. wishes to pursue a finals
delisting from EPA, then the previously requested information
should be forwarded immediately. If Combustion Engineering, Inc.
does not wish to pursue an EPA delisting, then the petition on
file with the Agency should be withdrawn. A letter indicating your
intent (i.e., whether to proceed with the delisting or withdraw the
petition), should be sent to our office within two weeks of the date
of receipt of today’s correspondence.
. .I . IQIS-4S7-133
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2
If you have any further questions, please cont et either Mr.
Wendel Miser, of my staff, at (202) 382—7817, or ‘Ir. St ven Hirsch
of the Office of General Counsel at (202) 332—7703.
Sincerely,
Eileen Claussen
Director
Characterization and
Assessment Divi jon (WH—562B)
cc: Georgia Department of Natural Resources
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95 41. 1986 (05)
31 OCT 86
M!MOMANDUM
UBJLCT: RCRA octton 3001(f)(2)(b) and States’ xc1usion
or Wastes from Regulation as Nazardous
FROMs Marcia C. WilliaMs, Director
Ottice of âotid Waste
TOt Iia3ardous Waste Division Directors
Regions I—X
Since November 8. 1984. EPA has administered all RCRA deitstt
programs and will continu, to do so until States become authorized
for delisttng under th. new provisions of the Hazardous and Solid
Waste Amendments of i9 4 (HSWA). A State is not requirel to have
a d.liating m echanism. and may b• authorized under RSWA without
one. To receive authorization, a Stat. must conform its delisting
program, if any, to the Federal progra, and apply to the Aaency
soc authorization.
Effective ov..b.r 8, 1986, temporary exclusions automatically
expire. Any .xclusion granted by a State before
November 8, 1984, should be r.’evaluat•d •ither by EPA or a Stat.
that has been authorized to conduct delisting pursuant to RSWA.
If a final decision to grant or d.ny a p.tition ha. not b..n made
by Nov.mb.r 8. Jill, th. temporary exclusion will cease to be in
effect for purposes of RCRA section 3001(f)(2)(R).
pg açy Exelus ions
Temporary exclusions ar. delisting d.cislons which exclude
a vast. tram regulation as hazardous, but are not b• tinal
delisting s.tiam under the regulations at th. issuing authority.
rot example, IPA issued a number of temporary exclusions pursuant
to 40 CFR 260.22(m). That provision explicitly stated that these
decisions azi mad. becore ma inq a final d.cision. Similarly,
several States hav, mechanisms for r.sovtng a waste from regulation
brtor• promulgating a final d.cislen, such as detistings patterned
on th. Federal exclusion.
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—2—
DPtese tasporary xciusions should be distinguished trom
grants of •nforcem.nt discretion, where a State did not re ov. a
wastq rozi regulation 1 ‘jut stated only that it would not initiate
3n entorce 5ent action aoainst a person treating this waste as non-
hazarlous. r.ntorcement diacr.?tlon, sometimes callqd informal
.xcjusi ns, ar r ot t!mporary exclusions (nor are they final
xclusions).
! inal _ .!xclusion*
A final exclusion is an agency determination don. in accordance
with tn. issuing autherity s regulations e.g.. with notice and
comment after which no further review of the petition Li contemplated.
.PA issues final exclusions pursuant tø 44) CPR 260.20 and 260.22,
which requires publication of a tentative decision in the Ped.ral
Register, receipt and evaluation of public comments, and publication
of a final decision in the ?ed.ral Register. States issue tinal
exclusions in accordance with th.ir Stat. legal authorities.
Any Lna1 exclusions that were granted by authorized States
b.tore November 8, 1964, are not att•ct.d by RSWA (1..., no
additional action is required by the State or by IPA). EPA
encourages the States tO re—evaluat, those decisions if all
factors (including additional constituents) which could cause
the wast. to be hazardous were not considered by the Stat..
Actions Required
On November 8, l986 aLL temporary exclusions wILL ceas, to
be tn effect for purposes of RCRA if a final exclusion has not
been granted. States and Regions should plan to verify that the
handlers of these previously excluded wastes are complying with
applicable requirements after November 8, 1986. To this end, the
Regions and Stat•s should begin to evaluate .11 Stats d.listinqs
to’
(1) determine thi type of Stat. exclusion (temporary or final)
that was grant.d before Lloveabsr 8, l9$4
(2) d.t.rsi vbeth.r a final •xcluston has b.•n granted or
denied iy IPA; and
(3) take appropriate action to ensur, full c pl$ance with
8CM (e.g., prior to 11/8/81, you should s.nd handl.rs
written notification of their regulatory reepensibiliti ss.
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—3—
From a practical standpoint. th. eszpiration ot a temporary
exclusion viii have greatest immediate impact on those who
manage their waste in land Jisposaj. units. These units may
oe iim v iat.ly sub) ct to ground—water monitoring requirements
arid, 3fl November i, i 87, may be subject to the Nioss or intert,
Status require!uents of Section 30U5 (e)(3), depending On whether
‘Dt!iur hazaroous waste manaaaent activity is occurrirtj at the
tecility.
Currently, there ara no State. authorized for the NSWA
•ielisting authority. t.ven it a Stat. were to receive the
required authorization b.fore Nov.mber 8, 1986. it is highly
unlikely that adequate time exists to collect and evaluate the
additional information from petitioners so a. to avoid termination
of the t4mporary exclusion.
A R•terence Guide to Delisting Petitions Is compiled at
éPA Headquarters and distributed weekly to the Regional deiietinq
contacts. In turn, the Guide is distributed to the States. This
rererence can be used to determine if EPA is reviewing a oarticular
petition and the status of CPA’s review.
Please ted tree to contact the deltsting staff of the Waste
Identification Branch or the R.qionat Liaisons of the State
Programs Branch her, in the Off Ic. ot Solid Waste it you have
any qu.stion.s regarding State delisttnqs.
CC; Mate Straus, ObW
Tru.et DsGare, 08W
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UN TEO STATES EP4VIRONMEN1AL PROTECTION AGENCY 9541.1986(10)
MAY 1, 1986
F ‘OPA DU ’4
) esnonse to Neriiofl III trrnlementation arid
Oversight Isau I
Marcia . Wilitaifte, Director
Office of Solici aate (hll—S63)
( ene Lucero, Di qCtOr
Office of Waste Programs Enforcement ( ‘414—527)
TO: teohen . Wassersug, I jrector
hazardous Waste Management Division (3HWOO)
Thank you for your m.morandwn of March s; 1986, in #hich
you asked for clarification Ofl several issues r.Latinq to
irnplen entation and oversight of the RCRA hazardous waste roqra’n
in P nnsylvani&. This memo addresses your concerns in. tP’e sa’ e
orøez in which you statsd thee in your ,,‘emorandum.
1. Is there still a need to maintain a major handlers list?
Although the r ajor handlers list played a role in the sat
to establish jn. .ction friscuencieS and targets and o.ri it over-
sight priorities, it does not translate to the existing needs of
tt’e Agency. You should amend your States’ MOM to us’ designa-
tions which c iunicsto th. priorities set in each y.*r’s RIP.
For ex pli. facilities presentina immediate threats, government
facilities, and land disposal facilities, would be aporopriata
designations for inspections and over iaht in PT 86 & PT 7.
‘ ecause of th• r•cent policy/cuidsnce set forth in the 9 1P (e.a.,
tns ecttSS targets in FT 86 RIP), PIGS 83—1 and 82 2 have been
superseded and are resently inoperative with regard to inspect tons
ind oversight. P S you point out, a major facility destqatiofl
does need- to be maintained to guide the permitting actions of
ç124.7 and 124.8.
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—2—
what happens to EPA ’ S overei ht r sponsibxlity (especially
direct enforc.aflt authority) when PA makes rc qulatory changes
whICh narrow the •sccpa’ of the original Lrogram?
The example you related wtt t this question refers t PA
relflovLnq a waste trom the lists in Part 261, where an authorized
Stat . program continues to include the waste. Zn this situation,
the state re .3uirement would increase the size of the r. qulate’i
community and would be an aspect of the State program whtc ‘ oes
bt yOnd the scop. of the Federal program. Therecore, tM would
no longer enforce the hazardous waste activity associated with
the Federally deregulated waste. This aspect of the State program
would not De subject to EPA oversight.
Ifowever. kPA s oversight and entorcement responsibilities
are difterent where EPA reduces the stringency of a requirement
(tor example. requiring a biennial report instead of an annual
reoort). In that case, the State requirement (i.e., annual report)
becomes more stringent than th. corresponding Federal requir ment.
EPA would enforce and otherwise oversee the more stringent State
provision, since more stringent provisions are still considered
part of the State’s authorized program.
3. You asked I eadquarters to uke a specific determination
regarding the ‘more stringent’ or ‘broader in scope’ nature of
State stanoards ror managing a material which SPA has determined
to not o a hazardous waste.
In the situation you described, the lack of the waste
exemption/excLusion in the State’s program increases th. size of
the regulated community beyond that of the Federal program. As
you indicated, this part of the Pennsylvania program could be
viewed as ‘broader in scope’. We agre. with this assessment.
Therefore, EPA does not hav, an oversight responsibility and
would not enforce Ii. Stats’s provision.
I hope that the above discussion answers your question. and
concerns regardinQ major facilities and oversight of approved
State programe.
cc: Susa $ct edas, OGC
Virgiala t.in.r, OWfl
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UNITD STATES ENVIRONMENTAL PROTECTION AGENCY
9541.1986(13)
;JJ 2
ric: ar C. Fortuna
r aZar 3u3 Waste Treat.i nt Council
lil t ennsylvania Avenue, U. .
uLte .3tJU
Wasningcon, D.C. 2JO 6
.)ear :ir. Fortuna
Thank you for your letter of May 21, 1986, expressjn your
concerns over the un2torm apolication and enforcement of l ’ind
disposal restriction reaulat ons. I will answer your specific
questions in the order in which they were presented.
i.garuing uriifori application of the Federal require—
m nts in States which have established or are estab—
lishing their own pre—treatmene levelsi -.
AS you know, Congress intended that the RCRA proaravn be ultimately
irnple entad at the State level. Ie have established a very detaiIe i
and comprehensive process for delegation of our Federal authority
to gualitied states. Through that process, States are requirel to
prove their eligibility to receive deleQation. Part of that proof
involves a showinq by the State that its enabling legislation, the
rules whicn are promulgated under that authority, and the oroqra,s
which are established to implement and enforce those rules are all
e. uivalent to the ?ederal program. Only after our determination
of overall program equivalency will we award the State the authority
to operate its program in lieu of the EPA program. State programs
.aay differ from the Federal program in only two respects. They
may contain elements which are re rigorous or limiting than the
federal analog (mor. stringent programs), or they may contain
elements of control and regulation which have no Federal counterpart
program. As you know, vs will be promulgating the land disposal
restriction regulations under the authority of the Hazardous and-
Solid Waste .sndments of 1984 (HSIA). One unique aspect of that
statute is that the agency will be responsible for implementing
and enforcing its rules on their effective dates in all States,
unless and until authority for impl.mentatjon has been delegated
to the States. Onc, a State program is authorized, EPA will
guarantee continued consistent application of Federal requirerne’its
through annually negotiated program grants and memoranda of under—
-------
stanuing with authorized States and also throuch oversight activities
and ov rfiling when necessary. For your review, I have attached a
co .,y of our Draft State Consolidated RC A Authorization Manual which
discusses the State authorization process in greater detail. Finally,
the agency plans to develop guidance manuals for permit writers in
the h.k A itegional ottices and the States and will also be offering
training opportunities to those individuals to guarantee universal
understanding and consistent interpretation of Federal reQu latjonS.
Regarding a State’s ability to establish treatment
levels separate and apart from the land disnosa],
restrictions:
Nothing in the Federal program or the Celeqatjon process
described above prevents a State from establishing its own standards.
indeed, State rulemaking is governed and directed by authorities
bestowed on each tate agency by its legislature. However, for the
State to become federally authorized, those standards must be at
least as restrictive as their Federal analogs. W) ere they are not,
authorization will not be granted and, as noted above, the Federal
standards will take effect immediately in the State, regardless of
any less stringent or absent State requirements and will be i” ple—
meiited by L.t A (see 5UPR 2d729, July 15, 1985).
. Regarding specific steps to be taken to quariintee
that Kansas maintains adequate control over
hazardous wastes:
Neither £ A Headquarters nor Region Vu was aware of Mr.
Murphy’s letter prior to its being sent. Since then, our Regional
Ofrjce has had conversations with Kansas officials regarlinn the
letter, and we will have n re in—depth discussions in the near
future. iJe will continue to support the State of Kansas in the
implementation of their hazardous waste program since no Federaj
requirements have as yet been promulgated. However, when Feders,1
regulations are effective, either those rules or equivalent rulO
promulgated by the State will govern hazardous waste activitiøs
in Kansas.
• Regarding the criteria which will guide the
proces, of evaluating the volume of waste
generated by a small generators
First, let me note that determination. of what is to be
considered to be the volume (or weight) of hazardous waste are
the same for any generator and small quantity generator reauirements
are considered only after the waste generation rate is establisherl.
Secondly, let me point out that the final determination of what
exactly constitutes the waste is made by that agency operating the
Federal progra’n, either the appropriate EPA Regional office or the
authorized State wherein the generator is located. Regarding
tne specific question of cartridge weights, EPA has consistently
specified that tne wei ht of the cartridge as well as the wei jht
of the filtor be included in the wei;ht of the waste.
-------
• t e’iardi., the effect of Federal land disposal
restrictions n ;c nerators in States with itore
stringent or 1 ,roader in scone progransz
In those instances where a more restrictive or broader in score
tate program has received Federal authorization those State require—
r ents will prevail. (Please note that in those situations where EP!
finds it necessary to take enforcei nt actions against generators
located in these States, EPA will enforce the more restrictive State
re ..&ire ient. ) bffiere State programs have not been authorized, CPP
is required D HS .JA to imple nent and enforce the Federal standards.
Ho evcr, in these instances, nothing precludes the State fro’ imposjn
its more restrictive requirements as well. Generators should consult
tneir £tate officials directly to determine if such State standards
are additionally in effect. Finally, in those instances where State
and i’eaeral require”ients are in conflict or mutually exclusive, HS JA
dicat s that the Vederal re]uirements will prevail.
S Kogarding the applicability of the Federal land disposal
restrictions to residues from Totally Enclosed Treatment
Facilities (T TFs) :
tour interpretation is correct. There is no relationship
between the source of a waste and that waste’s acceptability for
land disposal. Acceptable disposition of such residues is
determined solely on the basis of that waste’s characteristics
and chemical composition. Finally, regarding applications for
TCTr determinations which the agency may have received, I am
sorry but we at EPA deadquarters cannot satisfy your request.
Such applications are submitted to the appropriate EPA Regional
Office or authorized State. I reconmend you contact the RCRA
branch Chiera in our *egional Offices to secure that information.
For your convenience, I have included the names, addresses, and
telephone nuiwers of those individuals.
I trust tnis adeauately addresses your concerns. Peel
free to contact iir. ruce Je Idle, Director, Permits and State
i’rogra s Division at (2J2)3d2—4746 if you have additional
questions on the State authorization nrocess or the procedures
iii place whtcn guarantee consistent application of the Federal
program.
Sincerely,
Marcia E. Williams
Director
Office of Solid Waste
Enclosures
cc: iruce Weddle
: icnael ,andarson
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‘ S . ” 0 I?4 ,
9541.1986(14)
____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. 0 C 20460
July 3, 1986
Ms. Carol C. Arnick
IHE AOMINISTRArOR
Senate Cha rman
Special Legislative Commission on
Low—Level Radioactive Waste
The Commonwealth of Massachusetts
Boston, Massachusetts 02133 ‘1
ULIã’ L
Dear Ms. Amick:
This is in response to your June 3, 1986, letter requesting
the Environmental Protection Agency’s (EPA’s) position on the
management of mixed wastes, i.e., wastes that contain hazardous
as well as source, special nuclear or byproduct material as
those terms are used in the Atomic Energy Act (AEA). In your
letter, you raise concerns about the jurisdictional issues of
mixed waste management.
I first want to note how pleased I am that your Special
Commission is proceeding with identifying the particular low—level
mixed waste streams in Massachusetts. This will, of course,
facilitate resolution of any technical issues that might arise
in the future.
In particular, you asked my views on three areas of concern
to the Special Commission: (1) State jurisdiction over mixed
wastes; (2) regulation of incineration of mixed waste; and (3)
the effect on State compacts if EPA receives sole (federal)
jurisdiction over mixed wastes.
EPA considers the hazardous waste component of all mixed
waste streams to be subject to the Resource Conservation and
Recovery Act (RCRA). However, no States have yet been authorized
under RCRA for these mixed wastes. A notice is to be published
shortly in the Federal R.aister advising States, such as Massachu-
setts, with RCRA final authorization that they have one year
from th. dat. of the notice (or two years if a statutory amendment
is required) to demonstrate authority to regulate the hazardous
components of mixed wastes. In the interim, States which already
have existing laws which regulate mixed wastes may enforce those
laws under their own authorities.
Incineration of mixed waste must meet applicable requirements
under RCRA for the hazardous constituents as well as applicable
requirements under the Clean Air Act and the AEA for the radioac-
tive constituents. Current requirements under the AEA consist
primarily of NRC licensing requirements; however, EPA’s forthcoming
low—level waste regulations will likely address incineration as
a method of handling wastes containing AEA—regulated radionuclides.
-------
In response to your last question, EPA does not foresee
receivingsole jurisdiction over mixed wastes. RCRA facilities
are not designed to address radioactive hazards. Thus, any
potential for a prohibition on disposal of mixed wastes at NRC
facilities or a lack of sufficient disposal capacity at NRC
facilities (because of closing of existing sites and failure to
identify new sites under State compacts) could affect the safe
disposal of mixed wastes.
It is, therefore, EPA’s position that it will authorize
States pursuant to RCRA to regulate the hazardous components of
the mixed waste, while NRC will continue to regulate the low—
level radioactive components. In that case, there should be no
effect on the already existing State compacts’ language.
With regard to the AEA’s 1993 deadline requiring States to
develop commercial low—level radioactive waste sites, EPA will
provide guidance to clarify hydrogeologic characteristics for
locating sites. To assist the States in site selection, EPA’s
location guidance will be available this summer, and final
regulations on location standards will be promulgated in 1988.
In summary, EPA is proceeding to authorize States under RCRA
to regulate the hazardous components of mixed wastes. If we find
the application of the RCRA requlations would increase radiation
hazards or otherwise would be inconsistent with AEA requirements,
we will modify or waive the RCRA requirements under Section 1006
of RCRA.
If you have further questions, please contact Bruce Weddle,
Director, Permits and State Program Division, at (202) 382—4746.
Sincerely,
Lee P1. Thomas
cc: Honorable Edward Markey
Michael Deland, EPA, Region 1
Commissioner Silva, Mass. DEQE
Commissioner Walker, Mass. DPH
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9541.1986(19)
October 14, 1986
Mr. C. Alan Boright
Legislative Counsel
Vermont Legislative Council
State House
Moritpelier, Vermont 05602
Dear Mr. Boright:
Thank you for your letter of September 17, 1986 in which you
requested advice on the impact and meaning of certain provisions
of the “Low—Level Radioactive Waste Policy Amendments Act of
1985” (LLRWPAA). As you know from earlier discussions with my
staff, the final version of the LLRWPAA did not address
regulation of components of radioactive mixed waste which would
be classified as hazardous under the Resource Conservation and
Recovery Act (RCRA), as amended.
On July 3, 1986, however, EPA published a notice in the
Federal Register (51 FR 24504) (copy enclosed) which stated that
in order for States to obtain and maintain authorization to
administer and enforce the hazardous waste program pursuant to
Subtitle C of RCRA, States must have authority to regulate the
hazardous components of radioactive mixed wastes. As defined by
that notice, radioactive mixed wastes are wastes containing
hazardous waste subject to RCRA and radioactive wastes subject to
the Atomic Energy Act (AEA).
The July 3 notice was prepared with input from both the U.S.
Department of Energy (DOE) and the U.S. Nuclear Regulatory
Commission (NRC). This cooperative effort is continuing as we
move forward in developing guidance for managing radioactive
mixed waste. Joint efforts between EPA, DOE and NRC have been
extremely productive, and it does not appear that additional
legislative intervention will be necessary to effect dual
regulation and management of the hazardous components of low—
level radioactive mixed wastes.
In regard to your concern about disposal of mixed wastes
with differing characteristics, RCRA does not preclude disposal
of mixed wastes at facilities that handle other radioactive
wastes. At the present time, there are three operating low—level
radioactive waste land disposal facilities in the United States.
Discussions with States that have low-level waste disposal
facilities and States with plan to develop such sites have
indicated to us that they do not foresee any problems in meeting
This has been retyped from the original document.
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—2—
both EPA and NRC regulations in managing radioactive mixed
wastes.
Additionally, under the LLRWPAA States may form “compacts”,
that is, enter into a cooperative agreement with one or more
States to provide for the disposal of low-level radioactive waste
generated within the State. Compacts and the rules and
regulations governing them are under NRC jurisdiction.
Therefore, questions regarding compacts as well as questions on
liability and/or ownership under the LLRWPAA should be addressed
to Mr. Robert Browning, Director, Division of Waste Management,
NRC on (301) 427—4069.
Questions regarding State authorization for the hazardous
components of radioactive mixed wastes may be addressed to
Betty Shackleford of my staff at (202) 475-9656 while questions
on health and environmental standards for radioactive materials
should be addressed to Mr. Floyd Galpin, Acting Director,
Criteria and Standards Division, Office of Radiation Program,
U.S. EPA.
Sincerely,
Marcia Williams
Director
Office of Solid Waste (WH 582)
Enclosures
cc: Mr. Robert Browning, NRC
Mr. Floyd Galpin, EPA
Ms. Susan Sawtello, EPA
This has been retyped from the original document.
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9541.1986(20)
OCT Z 0
MP. :CFAYCwn
SCEJECTI Etat. Authorization to Regulate Hazardous
CoIon.e t .g 4(adjoactjve Mized Waste.
fJ
FP0M 4j. Winston Porter
I hssiataa . Administrator
TO* Waste Management Division irectors
Regions I-X
On July 3, 1986, EPA published a nctice in the Pederal
Register (51 FR 24504 copy attached) announcing that i older to
obtain and maintain authorization, to administer and enforce a RCI A
Subtitle C hazardous waste program, States must apply for authori-
zation to regulat. the hazardous component . of radioactive mixed
.a.te.. i.e.. wastes that contain both RCRA waste and radioactive
waste subject to the Atomic Energy Act (AEA). You will soon
receive a State Programs Advisory (SPA) with more information on
format and procedures for State applications. However in the
meantime I urge you to •ncouraye your States to apply for final
authorization for radioactive mixed wastes as soon as possible.
This is especially isq ortant for States with major Department of
Energy facilities or major Z uclear Regulatory Commission licensees
that manage radioactiv. mixed wastes.
States which rec.ived final authorization prior to the
publication date of th. notice must revise their programs by
July 1,1908 (or July 1 1989 if a State statutory amendment
is required) to demonstrate authority to regulate th. hazardous
components of radioactive mixed wastes (see the Cluster Rulew,
51 fl 33712. Spt.aber 22. 1986). States initially applying
for final authorization after July 3, 1987, must incorporate
this provision in their application for final authorization.
In addition, States applying for RSWA corrective action must
concurrontly seek authority for radioactive mixed wastes.
-------
—2
Untir a State with final authorization is authorized
for radioactive mixed wastes, handlers of such wastes are not
subject to kCRA regulation. However radioactive mixed waste.
are considered solid waste for purposes of HSWA corrective
action at solid waste management unit.. Under 3OO4(u), EPA
can jointly issue a permit with the Stats aDd impose ccrr.ct.ive
action requiresnents on hazardous waste management units end
solid waste management units at facilities that contain units
subject to RCPA.
Attachment -
cc Clarcia Williams
Bruce Weddle
State Programs anch
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95 41. 1986 (24)
RCRA/SUPERF D HOTLINE MONTHLY SUMMARY
OCTOBER 86
2. 1istjr by States
A facility generates a waste that is not hazardous by Federal EPA
standards but is listed as a hazardous waste by the state. The state in
which the generator is located is authorized to imple ent the RCRA ogram,
excluding delisting ovisions and the Hazardous and Solid Waste Anendner
of 1984. According to 40 CFR 271.9(b) (See the September 22, 1986 Federal
I qister , 51 FR 33721), authorized states are not required to have a delistir
mechanism, it the generator wishes to have his state—listed hazardous waste
delisted, does he sut nit the delisting tition to EPA heack uarte if the
state has no delisting ogram?
Although EPA has the authority to grant delistings, its authority does
not extend to wastes that are listed as hazardous by the state, but not
by Federal EPA. According to 40 CFR 271.1(j)(2) and 271.121(i)(2), any
state requirenent that is greater in scog than the Federal RCRA require-
ments is not rt of the Federally app-oved zogram. Program Imp1 enta-
tion Guidance (PIG) 84—1 explains further that EPA mey not enforce state
çrovis ions that are broader in sco than the Federal ogram. State
listing of a waste that is not Federally listed is an example of a
Ixovisjon that is broader in sco because it increases the size of the
regulated ca!n.u ity. Therefore, EPA would have no authority to grant an
exclusion for a waste that is listed only by the state. The state uld
be res nsjble for granting any exclusions for a waste not regulated
Federally.
Source: Marty Madison (202) 382—2229
Research: Jennifer Brock
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P’ROTECTION AGENCY
9541.1987(01)
JAN 141987
I L C PA DUM
STJ JECT: The Role of AuthorIzed States in Dispute Resolution
FROI : Bruce R. Weddle, Director
Permits and State Progra i Division
TO: Marcia E. Williams, Director
Office of Solid Waite
You asked about the role of authorized States in the dispute
resolution procedures described in the attached DOJ memo. The
DOJ memo suggests procedures for resolving RCRA disputes between
EPA and Federal agencies. EPA’s procedures for Federal facility
dispute resolution and the role of an authorized State in dispute
resolution are explained in tha RCP.A Enforcement Respon . Policy
(L 2) and in EPA’s Federal Facility Compliance Strategy. The draft
DOJ procedures do not appear to affect the role of authorized States
in dispute resolution since they are not bound by EPAs dispute
resolution procedures.
Under either EPA’. current dispute resoluton procedures or
DOJ’s dralt procedures. EPA would encourage the Stat. (whether
authorized or not) to participate in the dispute resolution pro-
cess. It is EPA’s policy that an authorized State tak. the
enforcement lead for violations of RCRA. This policy applies to
violations at private facilities as well as Federal. facilities.
Where the State fails to take timely and appropriate action, or
where the State requests EPA to take the lead, EPA will pursue
an enforcement action in an State. Where EPA takes the baa and
pursues a negotiated settlement, it is our policy to encàurag.
the States to participate in the negotiations and sign the con—
pliance agreement. iigntng the agreement, however, does not
prevent a State fro. pursuing an independent enforcement action
against the Federal facility. Furthermore, the State usually
reserves the right to tak. an enforcement action if the Federal
facility does not comply with the agreement. For example, in
the Rocky Flats agreement and in the Wright—Patterson AFB agree-
ment, the States reserved the right to take an enforcement action
against the Federal facilities. The States role in dispute
resolution is the same under either the draft procedures written
by DOJ or under EPA’s disput. resolution procedures.
—. — • d• S %S VD
-------
—2—
Where EPIt take. the enforcem.nt lead, States are often
hesitant o join EPA’s dispute resolution negotiations because
the States would prefer to pursue an •nforceable order in court.
Under the draft DOJ procedure. the etate. may be even more hesitant
to join EPA. disputs resolution negotiations because the draft
procedures do not include timefram.. for issuing OV ’e or for
referring dispute, to Headquarter. a. do EPA’. current procedur...
Attachment
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9541.1987(04
JJ9 29 96T
Mr. Steven A. Black
Radiological Services Department
Teledyne Isotopes
50 Van Buren Avenue
Westwood, New Jersey 07675
Dear Mr. Black:
Thank you •or your letter of May 29 in which you raised a
number of issues regarding the applicability of Resource Conser-
vation and Recovery Act (RCRA) regulations to your radioactive
mixed waste brokerage in New Jersey.
Let me begin by providing an overview of how the Federal
hazardous waste program would be applicable to your waste manage-
ment operations. RCRA provides that States may obtain authorization
to administer and enforce a hazardous waste program in lieu of
EPA. New Jersey and New York have obtained such authorization.
However, due to earlier uncertainty about the status of radioactive
mixed waste, most States, including New York and New Jersey, have
not yet obtained authorization to regulate radioactive mixed waste
as part of the authorized State program. This means that radioactive
mixed waste is not a Thazardous waste within the meaning of New
Jersey or New York’s RCRA authorized State program. However, this
does not preclude New Jersey and New York from regulating radioactive
mixed waste as a matter of Stat. law, provldsd that such regulation
is not inconsistent with the Federal program.
One of your questions concerned the availability of interim
status tar handlers of radioactive mixed waste. Since neither
New York nor New Jersey’s RCRA authorized program includes radio-
active mixed waste, there is no need yet to obtain interim status
with respect to such wastes in those States. However, once States
become authorized, facilities handling mixed wastes will need to
obtain permits or interim status. The Agency is currently reviewing
options for providing interim status to owner/operators of mixed
waste treatment, storage and disposal facilities. Once the options
have been considered, the Agency’s decision will be announced.
IPA Psi. ja, ..
-------
Your second question relates to New York’s authority to
regulate radioactive mixed waste under State law. As I indicated
previously, New York can regulate radioactive mixed waste under
applicable State law although the State cannot administer the
Federal program until it has been authorized to do so by EPA.
Determining which State requirements apply to your radioactive
mixed waste handling operation is a matter of State law. Questions
regarding those requirements should be addressed to appropriate
State authorities. For further intormation contact:
Paul. Counterman
Bureau of Hazardous Waste Technology,
New York State Department of Environmental
Conservation (OEC)
50 Wolf Road
ALbany, New York 12233
Third, we . re not aware of any inconsistencies between the
Nuclear Regulatory Commission (NRC) and EPA storage requirements.
EPA regulations do not prohibit storage beyond 90 days. However,
EPA does require that a permit be obtained for generators that
store hazardous wastes more than 90 days. Of course, a State may
require permits even for a lesser holding period.
Lastly, you asked it EPA could issue regulations exempting
certain segments of the radioactive mixed waste management operations
from RCRA regulations. Any such action on the part of EPA would
be inconsistent with the crad le to graveu management mandate of
the hazardous waste program. Consequently, it is unlikely that
the Agency will exempt segments of the radioactive mixed waste
operations from RCRA unless the subject requirement is inconsistent
with the Atomic Energy Act as specified in section 1006(a) of
RCRA.
In conclusion, radioactive mixed waste is not yet subject
to Federal hazardous waste requirements in New Jersey or New York.
Questions about compliance with Stat. requir.m.nts should be
addressed to those States; questions about the Federal RCRA
program may be addressed to Betty Shackleford, Mixed Waste Project
Manager at (202) 475—9656.
Sincerely yours,
J. Winston Porter
Assistant Administrator
cc: Marcia Williams, 05W
Bruce Weddle, OSW
Barry Tornick, Region II
Andy Bellina, Region II
Lisa K. Friedman, OGC
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9541.1987(10)
RCRA/SUPERFUND HOTLINE MONTHLY SU)fl(ARy
DECEMBER 87
2. Land DisDosal Restrictions
tn a particular state authorized to implement pre-HShA
regulat o 5 , the F005 hazardous waste listing at o
includes spent solvent mixt. s and blends containing
less than 10 s solvent befo:: use. Due to the state’s
hazardous waste listing, does this mean the waste
(which is not listed under the Federal hazardous waste
regulations) is floW restricted from land disposal:’
No, authorized state regulations whi.ch lLst
hazardous waste (not within the Federal haz .irduu
waste universe) are broader in Scope than the
Federal regulations. According to the Iav .21,
1984 Program Implementation Guidance Memorandur,
from Lee Thomas entitled, “Determining Whether
State Hazardous Waste Management Requirements are
Broader in Scope or More Stringent than the
Federal RCRA Program” (PIG-84-1), EPA cannot
enforce state regulations which are broader in
scope. Therefore, a waste designated by the state
as F005 (which does not meet the Federal criteria
for listing) would not be subject to Federal land
disposal restrictions. However, states are free
to impose their own disposal pro . .citions if such
actions are more stringent or broader in scope
than Federal programs (RCRA S3009 and 40 CF’R
S271.1i 3
Source: Mitch Kidwell (202) 382—4805
Research: Joe Nixon
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RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
9541.1988(01)
JANUARY 88
4. Federal Authority Over Authorized States
Does the Regional Administrator always retain oversight
authority for State permit issuance or may a State become
cor pletely autonomous if it has final approval for all
phases of its RCRA program?
Section 3006(c)(4) of HSWA provides that in the case of
an authorized State program, until such program is
amended to reflect the amendments made by the Hazardous
and Solid Waste Amendments of 1984 and such program
amendments receive interim or final authorization, the
Administrator shall have the authority in such States
to issue or deny permits or those portions of permits
affected by the requirements and prohibitions
established by the Hazardous and Solid Waste Amendments
of 1984. The Administrator shall coordinate with
States the procedures for issuing such permits.
Even if a State has final authorization of all phases
for its RCRA program, however, the Administrator always
retains a statutory oversight authority for such
programs. Section 3006(e) of RCRA authorizes the
Administrator to withdraw approval of any State program
where, after public hearing, it is determined that the
State is not administering and enforcing its program in
accordance with the requirements of Section 3006.
After notifying the State, the Administrator may
withdraw authorization for the State program if
corrective action measures are not taken within a
reasonable time, not to exceed 90 days. Further, 40
CFR Section 271.8(a) provides that any State seeking to
administer a program shall submit a Memorandum of
Agreement (MOM executed by the State Director and the
Regional Administrator. Such Memorandum of Agreement
shall not contain provlsion8 which restrict EPA’s
statutory oversight responsibility. The Administrator
may also comment on permits and draft permits pursuant
to 40 CFR Section 271.19 and Section 271.8 and Section
3008(a)(3) permits the Administrator to revoke permits.
Finally, Section 7003 permits the Administrator to take
action in cases of imminent and substantial
endangerment notwithstanding other provisions of the
Act, including State authorization.
Source: Marty Madison (202) 382—2229
Research: Bob Adamson
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9541.1991(01)
-.9
MEMORANDUM
SUBJECT: Pilot Delegation of RCRA Subtitle C State Program
Revision Authorizations to the Regions
FROM: Don R. Clay
Assistant Administrator
E. Donald Elliott
General Counsel
TO: Regional Administrators, Regions I-X
In response to a request made by the Regional Waste
Management Division Directors as well as the recommendation of
the RCRA Implementation Study, we are fully delegating the
responsibility for RCRA Subtitle C State program revision
application review and authorization decisions to the Regions on
a two year pilot basis. We look upon this delegation as an
opportunity to make EPA more responsive in authorizing RCRA State
programs while, at the same time, developing an expanded
cooperative role between the Regions and Headquarters. This
pilot delegation will allow the Regions to review and make
decisions on program revision applications without HQ
consultation or concurrence. However, Headquarters review and
concurrence will still be required for those few States, and in
—the future, Indian Tribes, applying for base RCRA program
authorization. This delegation is effective March 1, 1991.
In setting up the Subtitle C program, Congress envisioned
the Agency would expeditiously authorize qualified States. A
quality authorization program requires a significant commitment
to enhance State capability and actively delegate programs to the
States. In order to support this commitment, we are asking that
each Region submit an annual “State Enhancement and Authorization
Plan” outlining what the Region is doing to build State
capability and encourage authorization. Guidance for developing
this plan will be in the Fl 92 RCRA Implementation Plan to be
issued by April 1, 1991, and will indicate when these plans will
be due.
-------
Each Region will be fully responsible for maintaining the
integrity of the authorization decision process, including
explaining those decisions to the public and Agency oversight
bodies such as Congress. In addition, delegation of this
authorization responsibility to the Regions is contingent on
Regional commitment to raise issues of national significance to
Headquarters on a timely basis and to adhere to basic guidance
and policy as well as to the underlying statutory and regulatory
requirements for authorization. To that end, each Regional Waste
Management Division Director must certify prior to the Regional
Administrator approving an application that national issues have
been brought to Headquarters’ attention.
As it is critical that the Office of the Regional Counsel be
fully involved, the Regional Counsel must also provide assurances
that all legal issues have been reviewed and satisfactorily
addressed. The Offices of Regional Counsel and the Office of the
General Counsel will share responsibility for any defensive
litigation arising from delegated approvals. The Offices of
Regional Counsel must notify 0CC promptly when litigation is
filed. OGC will determine whether the case raises any issues of
national significance and retain responsibility for litigating
such issues. The Offices of Regional Counsel will be responsible
for all other issues.
Headquarters will issue broad national guidance outlining
potential issues of national significance. However, since many
of the issues that arise in a revision application are of first
impression, increased Regional alertness to potential national
issues is critical and Regions should err on the side of prudence
in raising issues to Headquarters.
At the end of the two year delegation pilot, we will decide,
based on our review of each Region’s authorization performance,
whether to continue the delegation. In the near future,
Headquarters will establish oversight criteria by which we will
measure Regional success in achieving the national authorization
- goals of enhancing State capability and delegating programs to
the States is attached. There will be regular evaluation of
Regional performance, possibly through annual audits and
Headquarters attendance at end-of-year and mid-year State
evaluations. Regions will also be expected to maintain accurate
and timely authorization data.
Each Region undertaking this delegated review and
authorization role must fully recognize the significantly
increased responsibility of Regional authorization program staff
and the need for active ORC involvement. In addition, each
Region is responsible for providing adequate staffing and
training for authorization. Headquarters will provide two
2
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authorization training workshops beginning in the Spring of 1991
and be available for technical (policy and legal) assistance to
the Regions upon request.
The success of this delegation is dependent upon all of us
taking our responsibilities seriously, in full realization of the
critical implications of authorization decisions. We know we can
count on you and your staff to give RCRA authorization careful
attention so that we can all be proud of our accomplishments and
maintain a track record that withstands careful public and
Congressional scrutiny.
cc: Hazardous Waste Management Division Directors, Region I-X
Regional Counsels, Regions I—X
Sylvia Lowrance, OSW
Bruce Diamond, OWPE
Lisa Friedman, OGC
3
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9542 — INTERIM
AUTHORIZATION
Part 271 Subpart B
ATK1fl1O4I63 kp
-------
954 2. 1980 (0 U
I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WAShINGTON. CC. 20460
1c a.gd
OCT PIG—80—3
MEMORANDDM
BJECT: Requir ent That State—Permitted E azardous
Waste Facilities flay. NInterim Statu.
FROM: Steffen W. Ple1m . J.) f .L._
Deputy Assistant Mm J .strator
for Solid Waste (WE .$e2)
R • Sarah Contpton 1ii t 4& t
Deputy Assistant nistr’ato ’
for Water Enforcement ( —335)
TO; PIES Addressees
I SSUE
If a State agency in a State with Phase I authorization
issues a facility permit after November L9. 1980 but the
State program ts net bean authoriz.d for Phase II
interim authorization:
a) Do.. th facility have interim status?
b) If the facility do.. not have interim status.
can it b.gin operation?
DISCTJSSION/DECISIOH
a) For a fa ility to obtain interim status it must
meat thr.. requirements .3003.(e) of
RCRA. Th.ss axe:
• Tb. facili must have been “th. tst.nc. on
tha data of nact .n f R JOctqb.r .23.. 1976),
or on the data ci ,fia4 b .n m.nts
passed by md
• Tb. facility t 4,th the no ifica-
tion r.quir.m a . ici*i.4 ct4on 3ql0(a):
and
• Tb. facility for a :P! :a 5 r quired
under S.ctiqnjoo5(a).
-------
If a facility meats all three of these requirements, it
has interim status for the purposes of RCRA until a RCRA
permit has been issued or denied by EPA or a State authorized
for Phase II .
b) Ass*ing that a facility does not qualify for interim
status a.nd has not been issued a RCBA permit. facility
construction and operation are precluded until a RCRA permit
is issued. Because EPA is not authorizing State permit
programs duri Phase I interim authorization, a facility
permit issued by a State with Phase I authorization is not a
RC A permit. For the same reason, Phase I authorization of
a Stat. program does not suspend the RCP.A Section 3005 require-
ment that in order to operate lawfully a facility must have
a RCRA permit or interim status. Because neither EPA nor
any states will be issuing RCBA permits during Phase I, only
facilities with interim status may operate during .that period.
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9542.1980(02)
j , UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON. 0 C. 20460
“ I L
OCT 3 j
PIG—80— 2
MEMORANDUM
SUBJECT: Interim Authorization of Programs Based en
ftergency Stats Rigulatiens
PROM: Steffen U. P].ehn jjj i... ‘J
Deputy Assistant i.flstratOr
for Solid Waste (WE4 62)
R. Sarah Compton
Deputy Assistant A nistra r
for Water Enforcement ( T—33S)
TO: PIGS Addressees
ISSUE
Can States use amergancy regulations to obtain interim
authorization?
DI SCU SSIOLI
In order to’ quaLify for interim authorization a Stats
must have a hazardous waste statute and regulations that
meet minimum Federal. requiram.nts. In some cases when a
Stats promulgates final regulations they are subject tO
Stats administrative review. Such a review procsss may be
time—consuming and delay the Stats’ s receipt of Phase I
interim authorization. . any States have authority to ex act
emergency regulations which postpons this state administrative
review.
A major drawback of authorizing Stats programs based
upon emergency regulations is the possibility that the regu-
lations may expire before fim I regulations ar. enacted • A
state hazardous waste program without regulations obviously
would not comply with minimum Federal rsquirsaenti. and
interim authorization would be subject tO withdrawal under
section 123.136. Eawever, EPA could not miniiter a Federal
program in the State until the State voluntarily returned
the program to EPA or the extensive withdrawal procedures
under section 123.15(b) were completed. TheoretiCally, this
could result in a void during which no State or Federal.
regulations would be in force in the State.
-------
-2—
1n addition to the possibility that the e ergency regulations
would expir. prior to the effective date of the final regulations,
EPA is also concerned that the State’ s final regulations might be
inadequate. ‘rh. withdrawal procedures of 40 ‘R 123.15(b) would
apply in either case. However, the Agency wants to eliminate any
possible gap in regulatory control and address in advance questions
regarding reversion of the program in both of these situations.
Therefore, it is necessary that the Memorandum of Agreement
( r CA) describ, the proces. whereby the State would 4 m 1.diately
and voluntarily return the program to EPA. The Federal regulations
provide for such a reversion process at 40 CPR 123.15(a):
‘... or in such other manner as may be agreed upon with the
Administrator.’ The State must also agree to au t its final
regulations for’ review of adequacy at the time it applies for
phase II authorization.
DECISION
Recognizing both the advantages and disadvantages of allowing
a State to use emergency regulations to qualify for interim
authorization, EPA has decided to allow a State tø ass emergency
regulations. provided the State meets certain conditions.
EPA will grant Phase I interi,m authorization to a State
whose program under emergency regulations is substantially
equivalent to the Federal program if, in addition, the following
conditions ar; met:
1) The State must show that under its normal ‘1’ninistrative
procedure. it will be able to enact final regulations
which 4ii tak, effect before the emergency regulations
expire;
2) The MOA must provide that the State will st1 {t its
final regulations to EPA for review at the time the
state applies for Phase II interim authorization; and
3) The M01 must describe the process by which the Stats will.
fmi-’diatsly and voluntarily return the program to EPA in
th. event that th. emergency regulations expir. prior to
the effective dat. of th. final regulations.
srgsncy regulations will, not be an eligible basis for
issuance of final, authorization.
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9542.1980 (03)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
• v
FFICE OF WATER
WASTE MANAGEMENT
PI’—Rl— 1
MEMORANDUM
SUBJECT:
FROM
The Use of State Permitting Systems During
Phase I Interim Authorization Which are not
Based on Explicit Regulatory Standards.
Steffen W. Plehn
Deputy Assistant Admi4 stratOr
Deputy Assistant A inistrator
for Water Enforc nent (EN—335)
TO:
Issue
PIGS Addressees
Can a state program be considered substantially equivalent
to the Federal Phase I hazardous waste program if the State con-
trols hazardous waste management facilities through a permitting
system which is not based on explicit regulatory standards?
0 is cuss ion
This issue is not concerned with the authorization of
states to issue/revoke RCRA permits. as is provided in 3005.
Such authorization will not be available to States until the
Phase II regulation. are effective. During Phase I of interim
authorization. Federal interim status standards or their
State an&lo ues apply to existing facilities. Sou States
with Phase I interim authorization may elect to apply their
version of Federal interim status standards by issuing per-
mits containing conditions analogous to the Federal interim
status standards. This approach is perfectly acceptable
However, a permit containing those standards is not a RCRA
permit and does not relieve the facility owner/operator
holding it of the obligation to apply for and receive a RCRA
permit after the effective date of Phase II.
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—2—
In those States which deal with hazardous waste only through
a permitting system, the Agency is concerned with the substance
of the permit conditions. These permit conditions (along with
compliance monitoring) will be the key elements which determine
the success of a State program. The ideal situation exists when
permit conditions are based on explicit regulatory standards which
are substantially equivalent to the Federal interim status standards.
This situation has the advantage of minimizing the potential for
litigation by permittees who disagree with the permit conditions
and provides a sound enforcement position. Some States, however,
base their hazardous waste permit conditions on policy or guidance
rather than on explicit standards established via regulation. Such
a State program nmy require additional scrutiny by EPA prior to
making a decision on whether to grant interim authorization.
Decision :
A State program mey be issued interim authorization for Phase
I even if it controls hazardous waste facilities through a permit-
ting system which is not based on explicit regulatory standards. In
determining whether the State’s facility controls are substantially
equivalent to the Federal program, the considerations discussed
be.tow must be examined.
The State’s program description must delineate the conditions
that will be used in all permits and must demonstrate that these
conditions are substantially equivalent to the Federal interim
status standards.
The State must have the legal authority to apply these permit
conditions and to enforce compliance with the conditions. The
State Attorney General must indicate in his or her statement
(as part of the application) that such legal authority does exist.
Furthermore, the Memorandum of Agreement (M0A) must provide
that all permit conditions delineated in the program description
will be incorporated into all permits prior to the date of interim
authorization. The MOA must state that permits will not be re-
issued or modified unless as re-issued or modified they are sub-
stantially equivalent with the Federal interim status standards. The
MOA must .ce ify that the permits will be modified, if necessary,
because of modifications in the Federal regulations, within one year
of the dats of pr nulgation of the n Federal regulation. In cases
where a Stat. statutory amendment or enactment is required to reflect
change. in the Federal regulations, the P A must provide that the
permits will be modified within two years, as provided by 40 C.F.R.
ç123.13(e) (45 FR 33463). The 140k must also specify that all haz-
ardous waste maigement activities without a permit are prohibited.
Authority for such prohibition must be indicated in the Attorney
General’s Statement.
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9542.1980(04)
j UNItED STATES ENVIRONMENTAL. PROTECTION AGENCY
_____ WASHINGTON. O.C. 20460
- — —
PIG—81,—4
MEMO R.PILWU N
SU3JECT: Dei.isting. of Wastes by Authorized States
FROM: St• ff en W. P1.hn f7 I /J P QLO a.
Deputy Assistant ‘X ini(*tratcr
for Solid Waste (WE-1g62)
R. Sarah C pton
Deputy Assistant Mminiatrator
for Water Enforcement (E T—335)
TO: PIGS Mdresue5
ISSTJZs
Can a Stat. with an authorized hazardous waste management
program be allowed to exempt (d.list) hazardous waste fr
individual site.?
DIS JSSI0 :
EPA has provided certain standards and procedures for
“d.listing wast. fr a particular generating facility or storage,
trea ent, or disposal facility at which a hazardous waste is
generated C i .. 40 ‘R 260.20 and 260.22, 45 FR 33076, and preamble
discussion at 45 FR 33116). Persons seeking such a delisting
action may petition the Administrator of EPA for an am.ndment to
the Federal. r.gu.bations which would provide th. exemption. In the
petition, th. person must show that th. waste is fundamentally
different than that Listed by d.onstrating, as appropriate, that the
waste doss not:
(1) exhibit the characteristic of ignitability,
corrosivity reactivity, or toxicity,
(2) meet the criteria for Listing the wast. as acutely
hazardous (i.e., the oral or dermal. LDSO or
inhalation LCSO specified in 40 C!R 261.11(a) (2),
45 FR 33121) and also does not meet the toxicity
critrion,
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-2—
(3) contain the hazardous constituent of Appendix V111
of 40 R 261 (45 FR 33312) for which it was listed,
or, if the waste does contain those constituents,
show that consideration of other factors argue against
th. waste being considered a hazardous waste (see
40 R 261.11(a) (3), 45 FR 33121). Thu decision
is based on consideratio of any of approximately ten
factors and is a discretionary one.
When a State program has been found to be substantially
equivalent to the Federal program, it receives interim
authorization to operate in Lieu of the Federal program; i.e.,
Federal requirements generally no longer apply, and the “requirement(s)
of this subtitle” which ar. enforced under section 3008 of the
Act are those of the State proqram approved under section 3006.
Therefore, action by EPA to - ist a waste fran a particular
generating facility (or storage, treaent, or disposal facility
which generates hazardous waste) in a State with interim authorization
would not affect the State requirements unless the State took a
similar action.
S ie concern exists rsgarding th. potential. incaupatibility
inherent in allowing one State to delict, whereas another State
may desire not to delist. This problem is not unique to the
issue of delisting, since the latter State program may be viewed
as a “more stringent” one (because it regulates nor. wastes) and
is acceptable under section 3009 of RCPA. (S.. the preambl. to
40 CPR Part 123, Subparts B and F, 45 33385.)
The question her. is whether a Stats program with interim
authorization can provid, a delisting mechanism. so, what shape
and form must that mechanism tak. if EPA is to authoriz. the State
program as • substantially equivalent” to the Federal program?
In the regulations under 40 ‘R Part. 123, EPA is silent on
the issu, of Stats delisting mechanisms. A Stat. without such
a mechanism is not pFecluded fr receiving interim authorization.
The universe of wastes controlled by such a Stat. would be subject
to change only through regulatory or statutory change.
For interim authorization, EPA requires the States to
control a miv.rse of hazardous waste generated, treated,
stored, and disposed of in the Stat. which is neb.rly identical
to that which would be controlled by the Federal program under
40 cPR Part 261 (see 40 CPR 123.128(a), 45 FR 33481). A State can
demonstrate that its program contains a delThing provision which,
ne,erth.l.ss, leaves the State universe nearly identical to EPA’s.
On the other hand, if the State’s delisting m.chanism lacked explicit
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standards and procedures analogous to those included in EPA’ $
delisting mechanism, it would be difficult for EPA to assure
that rh. State was providing the proper control, of wastes.
It is possth].. that a State, as a result of its dalisting,
may decrease its universe of wastes such that its coverage is no
longer nearly identical to the Federal universe • For example, a
question has arisen as to what would happen if an interim authorized
Stats abused its discretion in delisting wastes fr individual
sites, but EPA, operating the Federal. program in on. or more
States into which those wastes re imported, refused to delist
the wastes from those sites. This would clearly be a situation
where the State would be subject to withdrawal of EPA’ s authorization
for failure to exercise control. over activities required. to be
regulated (40 R 3,23.136 and 40 CPR 123.14(a)(2)(i)).
DECISION : State programs with delisting mechanisms may receive
interim authorization provided those delisting mechanisms are
substantially equivalent to EPA’s. In order to be considered
substantially equivalent, the State must demonstrate that the
del.isting methodology is consistent with its methodel.ogy for
listing. The Hemorand of Agr. ent must contain a provision
that the State will, keep EPA fully informd of any State delisting
activities and should make cl•ar the possibility of withdrawal.
of authorization in th. event that, due to deliatiage, the State’s
universe of wastes is no longer nearly identical to EPA’s.
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9542.1980(05)
j UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ wAS .4INGTON. D C. 20460
PIG—Si— 6
1 4 lilO
. MEtIORAZWtYM
SUBJECT: State Regulation of Federal Agencies for
Purposes of Inter Authorization
FROM: Steffen W. P].ehn
Deputy Assistant Mmi+4strator
for Solid Waste (Wff—562)
•1
R. Sarah Compton .
Deputy Assistant Administrator
for Water Enforcement (EN—335)
TO: PIGS Addressees
ISSUE
Must States have independent statutory and regulatory con-
trol over Federal. facilities and Federal agencies in order to
qualify for interim authorization?
DI S 3SSIO T
I. Introduction
S e Stat.. appear to exclude Federal. agencies from their
r.gulat.d cc unity, thereby not requiring Federal agencies to
comply with State requirem.nts placed on generators and transporters
of hazardous vast. and on owners and operators of hazardous
waste management facilities. Generally, the apparent exclusion is
not explicit. Rather, Federal agencies are, as a group, not
specifically identified in the State’s definition of the regulated
cunity.
Approximately 700 Federal. installations have notified A that
they are engaged in hazardous waste activities • Ground—water
contamination from t Federal facilities was cited by the
U.S. House of Representatives (House of R.spr.sentatives Report
#94—1491, 1976) as part of the hazardous vast. management problem
which required Federal action through the Resource Conservation
and Recovery Act of 1976.
—- ‘I’
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—2-
e purpos. of this Program Implementation Guidance memorandum
is to indicate whether a State must have statutory and regulatory
authority for hazardous waste management over Federal agencies in
order to qualify for Interim Authorization, pursuant to 40 CFR
123 Subpart P.
II. Definition of a Federal. agency
Federal agency is defined in RCRA tO04 (4) and in 40 CFR
260.].0(a)(22). Federal. agency means any depar ent, agency, or
other instrumentality of the Federal Government, any independent
agency or establishment of the Federal Government including any
Govermn.nt Corporation, and the Government Printing Office.
A. used in this memorandum, Fed.ral facilitie.N ar. any facilities
owned or operated by any Federal agency.
III. What Federal. requirements exist over Federal agencies?
Subtitle F of RCRA establishes Federal responsibilities for
solid and hazardous waste management. RCRA 6001 states that each
Federal agency shall. be subject to, and comply with, the same sub—
stantive and procedural. r.quirem.nts for hazardous waste management
that are imposed on other persons by Federal, State, and local.
gov.rT .ntI, when that Federal agency is engaged in activities
which result, or which y result, in th. disposal or management
of solid or hazardous waste.
Executive Order 12088 directs Executive agencies to comply
with the Solid Waste Disposal Act, as amended by RCRA (42 U.S.C.
6901 .t seq). Section 1-302 directs the A Administrator or his
agent to conduct inspections, as necessary, to monitor compliance
by Executive agencies. Section 1-601 establishes that the ini-
strator or an appropriat. Stat. agency can notify an Executive
agency of its violation of an applicabl. pollution control standard,
and approve a complianc, plan and schedule. This procedure is in
addition to the other applicable statutory enforcement procedures
and sanction..
I v. What controls must States have over Federal agencies to qualify
for nteria Authorization?
A. Univsrss of Wastes
Th. Federal r.gulation at 40 CPR 123 • 128(a) require. that a
Stat. program control a universe of hazardous waste generated,
treated, stored, and disposed of in the State which is nearly
identical to that which uld be controlled by the Federal program
under 40 CPR Part 261 • Th• nearly id.ntical test is discussed
in the RCRA Stat. Interim Authorization Guidance Manual (EPA.
1980, pp. 3.1—1.2).. The t.st for substantial. .quivalence is based
on the generic nature of the wait.. not on the natur. of ownership
(e.g • Federal) of the generating facility or ths waste.
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—3—
3. GeneratOrs. Transporters and Facilities
Th. Federal. regulation at 40 CFR 123.128(b)(2) requires that
a Stat. program regulate all generators located in the State. The
regulations at 40 CYR 123.128(b) (3) through (8) require that the
State regulate generators in a manner substantially equivalent to
the procedural. and substantive requirements of 40 CFR 262 • Parallel
requirements for Stat. programs concerning transporters of hazardous
waste are established in 40 CYR 123.128(c). The Federal regulation
at 40 R 123.128(e) requires that Stat. programs enforce facility
standards which are substantially equivalent to 40 CFR 265, and
that State law prohibit the operation of facilities not in compliance
with such standard.. 40 CPR Part 123, Subpart P indicates that
States are to exercise regulatory control over all generators,
transporters, and owners/operators of facilities managing hazardous
wastes.
C. State Controls
There is no provision in 40 CTR Part 123, Subpart P that
States may exempt from their regulated co nunity those wastes or
waste management activities involving Federal agencies. Consequently,
in order to be substantially equivalent to the Federal program, a
State program must exercise aut) rity over Federal agencies involved
in hazardou. waste management.
DECISION
For pi poses of interim aut) rization, a State must
demonstrate, through its Atto ey General’ s Statement and
Program Description, that it controls Federal agencies in
the er required by 40 R l.23.128.
When State law and regulations •xplicity include Federal
agencies in the State’s regulated cunity, tb. issue is
not in controversy, and the Attorney General’ s demonstration
would , straightforward. This would be the case where a Stat.’ s
definition of person Ci..., thos. who are subject to the
regulatory requirements for hazardous waste management established
in the State Program) explicitly includes Federal agencies.
When Federal agencies are not e plicitly included in (or
excl’ dd from) th Stats’s r.au] t.d c imi .y £ .e., state
statutes and re 1attens are silent on wI öther Federal agencies
are regulated), , fittorn.v General’ s Statement must explain
the basiej r ha 4 -p’ ‘ sse %io ji Iu;isdictign over them.
hi.xp1natiO p. . based on the Stat. .pv.rall etathtô
The Stat. Attorney General can c te
Order 12088 to demonstrat. Congressional
and Executive intsnt that Federal agencies comply with Stat.
Program requirements. Eowvsr, these citations do not independently
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—4—
provid, the Stat. with jurisdiction over Federal agencies.
In addition , when Federal agencies are not explicity included
in j r.gui .atSd c ity, e State must also indicat, in
its program Description that it wiU. regul t5 red .s
int e manner d escribed by 40 CPR 123.1.28 .
r If a State Attorney General’s Statement indicates that the
I State cannot control Federal agencies, interim authorization
L cannot be granted.
In defining their regulated c m*. ity, States should be
encouraged to explicitly include Federal agencies, in order
to qualify for final authorization.
Attachment — Executive Order 12088
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9542.1981( 1)
UNITID STAT 5 vt : AL ‘ :— :T:cN c”
— a..
-
OFPICZ OF WATER
AND WASt ?4ANAGCM NT
I ; .
P 1 0 —8 1— 1 .1
MEMORANDUM
SUBJECT: Involvenent of States without Phase II
Interim Authorization in RCRA Permitting
FROM: Steffen W. Plehn i A j g. ._
Deputy Assistant Ad1ui .strator
for Solid Waste (WE 5’62)
ft. Sarah Compton
Deputy Assistant . sta r
for Water for ernen (EN-335)
TO: PIG. Mdx., sees
ISSUE
Bow should States without :- erim authorizaZion for
Phase II be involved in RCRA pe-itting?
DISCUSSION
As you know, th. recent pr:—. algation . of Pha.. II
facility standards under Part 264 and permitting requirements
under Part 122 .uabl. Stat.s to rec.iv. Phase II interim
authorization for issuing RCRA permits to th. following
categorie, of facilities $
us. and management of containers;
• storage and treatment of hazardous waste, in tanks.
surface impoundment., and waste piles; and
• treatment of waste in in:ineratore.
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-2—
In addition, EPA has published interim final regulations
(Part 267) which, for a period of 13 months, will allow E?
to issue permits to new land disposal facilities pending
promulgation of the final Land disposal regulations. States
may not receive interim authorization for permitting land
disposal facilities at this time, since the Part 267 regulations
only provide temporary standards which will not suffice for
determinations of substantial equivalence.
Although States may now apply for Phase II interim
authorization for permitting certain facilities, some
States may not choo . to do so in 1981. Some States may
postpone their Phase II application until the final Federal
land disposal regulations are promulgated later this year or
in 1982. Also. State preparation of Phase II applications
may take longer than Phase I applications, due to the complexity
of the technical facility standards and the financial .responsi—
bility requirements. Some States may need to adopt or amend
legislation and regulations to obtain substantially equivalent
authority in these areas and may need to add additional
personnel to administer the permitting program.
Given this situation, the Federal permit process
must be implemented in a way which maximizes the use of State
resources and technical capabilities and avoids inefficient
and confusing duplication with State programs. Therefore,
EPA must work closely with State permitting programs, especially
those programs which appear to be moving in a timely manner
toward Phase II interim authorization.
DECISIOb?
EPA Recional Offices must seek the active involvement
of State roarams in the conduct of RCRA oerntittina dtirinc
the eriod befe re a State rseeivpg.phpsp II interim authori-.
zation . This policy vi i. ]. provid, for th. most efficient use
of EPK and Stat. permitting r•sources and technical expertise,
reduce confusion and paperwork burdens for th. regulated
covimunity and the public, and ease the transition toward
State a ’ 1j’ 4 stration of th. RCM permit program in lieu of
EPA. Whil. EPA reta 1 -’ authority and responsibility for
RCRA permitting until a State receives Phase II authorization,
EPA must coouerate with the States as c1o e1y as possible in
the imDlemerttstion of this responsibility .
Stat. involv.m.nt prior -to Phas. II interim authorization
should take several forms:-
‘ States should assist Regional Offices in the development
of permitting priorities and in initial contacts with potential
permittees, based on their own priorities and their knowledge of
local conditions.
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-3—
• States should review jt a Ii jc s, s. :e
information from their files, ssis EPA in obtainj c
additional information Cinc : si e visits) a elp
prepare technical analyses a s pp rt docunents.
• States should assist in developing permit conditions
and should Comment en draft and final permits.
• Where unauthorized States must issue permits under
state law, they should participate with EPA in joint permit
issuance procedures (e.g., joint public notice, public
hearings, response to comments).
These and other Federal—state working relationships should
be formalized in writing throu;h an amendment to a Cooperative
Arrangement, a Phase I Memorandum of Agreement, or a Subtitle C
grant work program. Through these mechanisms, the State can
agree to perform specified tasks for which it has legal authority
and can be funded by EPA to perform those tasks.
EPA can also support State involvement in the permit
proces. through funding of Sta:e travel by the P.sr Matching
program. State access to EPA contractors, and particioatjon
of State personnel in RC A training. W. encourage Regional
Offices to be aggressive in securing State involvement as we
move toward the issuance of the first RCBA permits.
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9542.1981(02)
_ IO
UNITED STATES ENvtRCN;vI!NTAL ? c7z:T:cN AGENCY
_____ NAS 1INGTCN, .C. 46O
MEMORAND! PIG—Si—b
SUBJECT: Transfer of Notification and Permit Application
Information ta States
I, - ’
FROM: “St.ffen W. PL.hn
Deputy Assistant Administrator
for Solid Waite (W —562)
R. Sarah Comp to
Deputy Assistant ministratoI
for Water £nforcmnent and Permits (E —335)
TO: PIGS Addressees
ISSUE :
When should EPA transfer information from both the notification
forms and the Part A’s of the RCRA permit applications to the
States? In what format should EPA transfer this information?
Eow can the States assist EPA to review and process this
information?
DECISION :
(I .) Until EPA authorizss a State for Phase II Interim Authori—
zatiö to carry out a permit program in lieu of the Federal
permit program (or. authorizes a component of Phase II) , ERA
is re ponsible for r.viewin s pknowledgin RC A o.r
inthat State, including determining who appears
to meet the statutory requir. nts for interim status and
acknowledging th. processes they may use and the wastes they
may handle during interim status. EPA is also responsible
for these act.tmiti•s for those facilities not cov.r.d in a
State s authorization for a Phase II component. Rowever,
EPA encourages States to assist th• Agency in r.viewing
permit applications until such tim, as the Stat. r.c.iv.s
its Pbas• II authorization and will be receiving its own
permit applications.
Nots that this acknowledgment of the processes a facility may
us. and the wastes they may handle is based only on the owner/
operator’s Part A application. EPA n.rsly copies on to the
acknowledgment the wastes and processes the owner/operator
included on the applicationT the acknowledgment is not a
determination by EPA that a facility is an environmentallY
acceptable facility for particular wastes.
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(2) EPA eadquarters is orovidina State solid and hazardous
waste management igencies with copies of the Agency’s rioti i-
c ion re rt which presents a compidat.Lon of information at
was recei.v and processed bet en May 1.9, 1980 and loveniber 19,
1980. The report includes the names and addresses of notifiers
in each State and a listing of the hazardous waste(s) they handle.
EPA will provide supplements of this report to State agencies
as new notification information is received and processed.
(3) Subject to confidentiality constraints, EPA will also share
all Part A oermit a lie- -tl en infpr atjonwi€ the S tes .
B cause there is a large volume of information, EPA Regional
Offices and States should rk together to sort out exactly
which information items each State needs and when the State
needs it. The Regional Offices and States should set mutually
agreeable time frames for transferring the information. The
following items should be considered when transferring infor-
mation: (a) Transfer of information to States should not impede
or delay issuance of the first round interim status acknowledg-
ments (except in cases of special information needs, issuing
these acknowledgments ii the higher priority). (b) If infor-
mation is transferred prior to completion of the verification
of all items on the Part A application, the Regional Office
should carefully identify the unverified information.
(4) EPA R.gional Offices should initially use computer printouts
for transferring data to the States befor. copying notification
and Part A permit application forms. This may satisfy a State’s
initial information needs and will save EPA a considerable amount
of tin, in copying forms.
DISCUSSION:
Status of EPA r.vi.w and processing of notification and
Part A permit application information
EPA has r.ceiv.d approximately 60,000 notifications and
14.000 Part A permit applications. Except for r.cent submittals,
the Agency has rewisw•d and processed all of th. information from
the notification forms and has th. information availabls on th.
Agency’ s ADP computer files. EPA Regional Offices ars presently
reviewing and processing the Part A permit applications.
The Part A applications will b. processed inItially in two
rounds. Round on. of the review proc... consists only of deter-
mining that: (1) the applicant filed the correct permit applica-
tion forms on tins; (2) the application indicates the facility
was in existsncs on November 1.9, 1980; and (3) a notification
was filed for the facility on or before August 18, 1980. EPA
-2—
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will aend an initial acknowledgment to applicants when they
meet all of these three conditions. The purpose of this
acknowledgment is to inform the applicant that a preliminary
review of the information he provided indicates that he
appears to satisfy the statutory requirements for interim
status. EPA will not load any data into the computer data
base during this initial review except to “flag” the data
base to indicate those facilities for which EPA has sent an
ackn owl edgment.
During round two of the review process EPA will conduct
a more detailed review of the permit application. The purposes
of this round are (1) to att npt to verify that the facility
needs a RCRA permit: (2) to acknowledg. the processes which
the facility is allowed to use and the wastes which the
facility is allowed to handle during interim status; and (3)
to check that the remainder of the information items required
in Part A of the application, such as the map, photographs.
and sketch have been provided. In the round two review, EPA
(using State assistance wherever possible) will resolve
errors and inconsistencies in information items by communicating
with the applicant. When EPA has verified that certain key
itens are correct, th. data on th. application will be loaded
into the computer data base, and a second acknowledgment
will be sent to the applicant. This acknowledgment will
include a list of the wastes which may be handled during
interim status and the processes to which th. interim status
applies (based on the owner/operator’s Part A application).
EPA and State responsibilities
There has been some confusion as to what role the States
can play in reviewing and acknowledging permit applications.
receives Phase II Interim rn ’i, tion to carry
out a permit program in lisu oUth. Federal permit roaram
Tor part a program, i...., a component of Phase II) ...2 P ,
is responsible for revi.wirig and acknowledging all permit
pplications, including determining who ap .ars to qual.xry
E r interLm status, and acknowledging ths processes tney may
an tf . wast.s th.y may handle during
tat.s W],tfl only Phase I Int.rim Authorization are
bt authorizsd to carry out a RCRA permit program and cannot
assume r.sponsibility for the., functions (although they
can assist EPA in this area). EPA is also responsibi. for
these activities for those facilities not co”er.d in a State’s
authorization for a component of Phase II .
not confuse Phas• I and Phase II of Interim Authorization
with the two rounds of Part A permit application processing.
**When a State receives interim authorization for one or more
components of Phase II, the issue of whether a facility (covered
by a component handled by the State) qualifies for interim status
is moot because State, rather than Federal requirements, then apply.
-3—
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Therefore, EPA is responsible for completing the review of
Part A of t ermit a
le ents. EPA must therefore retain the or .gina1s of all
ri oti.. ..i .ca i .cn forms and Part A’s of the permit applications
which the Agency has received.
EPA encourages and welcomes States to assist the Agency in
reviewing and acknowledging applications, particularly for the
round two revi s. This State involvement has a number of
advantages: (1) it will, give the States an opportunity to
become familiar with the information which applicants have
submitted; (2) the extra resources will help EPA expedite the
review and acknowledgment of applications; and (3) the States can
provide useful, and sometimes crucial information about certajn
facilities of which EPA may not be aware.
State information needs and specific provisions for EPA to
provide States with information
The information EPA received in the notification forms
and in the Part A’s of the applications can be useful to the
states in various ways. Some examples are:
(1) to evaluate the scope of State regulatory coverage
and to determine if State control of hazardous waste is
“substantially equivalent” to Federal control,
(2) to calculate resource needs for conducting a State
hazardous waste permit program, for conducting surveillance
and enforcement activities, and for providing technical
assistance,
(3) as a potential source of data for revisions to grant
regulations,
(4) to assist States with interim authorization in preparing
reports to EPA,
(5) as in ut for developing a strategy for siting hazardous
waste facilities,
(6) to assist States with hazardous waste permit programs
to identify facilities which may need a State permit but have
net applied for one. (Likewise, State permit files will also
be useful to EPA).
1ote that this continues to be important even after a State
receives interim authorization for on. or more components of
Phase II, because if a State program reverts to EPA during
Phase tI or at the end of the interim authorization period,
facilities without RCRA permits will again need interim status
in order to be able to operate lawfully.
—4—
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(7) to assist States with notification requirements to
identify non—notifiers.
(8) to assist State inspectors in conducting facility
inspections.
Both the NRCPA State Interim Authorization Guidance Manual,
issued June 25, 1980, and the NAdditjona]. Guidance for Cooperative
Arrangements under Subtitle C of RCRA”S issued August 5. 1980.
provide that States may obtain notification and permit application
information. Specifically, the guidance for interim authorization
indicates that EPA will furnish to States with interim authoriza-
tion copies of notification forms and permit applications within
30 days after the Mes randum of Agreement is signed. The guidance
for cooperative arrangements bee not specify that EPA will
furnish notification and permit application information to the
States. Mowever, under cooperative arrangements, the States
are encouraged to assist EPA in identifying and contacting non-
notifiers and to make recommendations to EPA concerning the
review of applications. In order to make this process rk,
the Agency will have to provide the States With some notification
and Part A information, consistent, of course, with the confident-
iality provisions in 40 CFR Part 2.
Assessing individual State information needs and formats
for transferring information
EPA Headquarters will send each State solid and hazardous
waste management office copies of EPA ’s st w.ry report contain-
ing notification information received during the period of
May 19, 1980, to L ovemb.r 19, 1980. The report contain. the
following items of information on hazardous waste facilities:
the name and location of the facility; the type of activity(ies)
(i.e., generate, transport, treat, store, or dispos. of hazardous
waste); a listing of the hazardous waste(s) which the facility
handiest the name of the owner of the facility; whether or not
the facility is Federally or privately owned; and whether or
not th.r• isan tmderground injection well located at the
facility. Th• report has ten volumes; on. volume for eaCh of
EPA’s ten regions. Each volum, contains a State—by—State list-
ing of notifiers. The Agency will routinely send Stat. Agencies
supplements to this report as new notification information is
received and processed.
While EPA intends to share fully with the States all, permit
application information, transferring this information requires
a significant resource commitment, and if not lone carefully
can result in the States being inundated with information which
has not been verified and therefore nay be of little use to the
State. We recommend that Regional. Offices and States erk
together and carefully assess what specific pieces of Part A
-5-.
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application data the indIvidual States need to run their program
and to assist EPA, and when that data is needed. For example,
a State with Phase I interim authorization may need to know
early on who has applied for a Federal permit and who has received
a round one acknowledgement. The State may have no immediate use
for information about the processes or wastes described in the
application, except on a case by case basis. In this example,
it would make little sense for EPA to spend time copying Part A
forms in order to provide the Stat. with th. information.
Instead, as EPA completes th. round one review, for facilities
ii the State, it would be better for the Agency to provide the
State with computer printouts containing the names and addresses
of all facilities EPA considers to have interim status. This
approach would provide the State with much of the information
it needs, save EPA a considerable amount of time in copying forms,
and eliminate the possi.bility of the State clogging its files
with superfluous information which may be inaccurate since it
has not been reviewed by the Agency.
A number of notifiers and applicants have submitted el.aims
of confidentiality for their information. EPA will, transfer
to th. States information covered by these claims only in
accordance with th. provisions of 40 CFR Part 2.
—6—
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9542.1982(01)
UNITED S1’ATES ENVIRONMENTAL PROTECTION AGENCY
WASI4INGTON. D.C. Z0460
May 25, 1982
o plc1 o
$OUDWASTt AND SMI DeNCY NI3PONS*
PIGi 82 4
N0RAND
SDEJ!CT: State and EPA Inte!actiOU Regarding Exclusion
of Wastes Generated at Individual Facilities
(“Delirting”)
PROM: Rita M. Lavelle )2/
Assistant Administrator (W!—562—A)
TO: Pro a. Implementation Guidance Addressees
I SS E :
What are the roles of EPA and the State with respect
to exclusions granted to individual facilities (“delirting”)
in States with Interim Authorization?
DI SCVSSION :
Prevtouely issued Program Implementation Guidance (number
81—4) indicated that State programs which providi for the
delisting of v& t• irom individual facilities could receive
Interim Authorization (IA) where the States’ procedures were
substantially equivalent to the Federal program. That Guidance
also indicated that the Menorand a of Agreement (MOA) between
the Regional Office and the authorized State must provide
that the State vi ii keep EPA tnlly inZormed of any State
deliating activities. The MOA is also to clearly indicate
that it deliating action causes the State program to no
longer be •ub.t&flti&ll y equivalent to EPA’s, the Agency may
begin proceedings to withdraw the State’s authortzaticfl
(40 CPR 123.136).
The purpos. of this memorandum is to provide guidance
regarding State/Federal delisting activities in States with
Interim Author zatiOfl. More specifically, this Guidance vtll
describe delisting assistance which EPA viii provtde, define
the roles and responsibilities of the various State and EPA
offices in delisting, and discuss coordination among these
offices.
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—2—
A. Authorized State’s Role in Conducting Delisting
Activities
Except as provided below, IA States which have the
(State) legal authority to delist are solely responsible for
the delisting of wastes in their States for purposes of State
regulation. As resources allow, EPA will provide assistance
to the States on request.
Federal delisting in an IA State would have no effect
on the Stats’s own regulatory control program and, therefore.
could be a duplication of effort without any benefit. Thus,
if the Office of Solid Waste (OSW) receives a delisting
petition pertaining to a facility in a State with Interim
Authorization, 05W will contact the petitioner and inform
him that the State, rather than EPA. manages the hazardous
waste program in the State and that Federal delisting may be
unnecessary. It should be noted that, while the effect of
Federal delisting is to exclude the facility’s waste from
Federal regulatory control, the State’s regulatory control
is not affected by the F.d.ral delista.ng. (Thus, a waste
d.listsd by EPA could still be a hazardous waits for State
purposes when managed within the State.).
However, EPA d.listing in IA States will, be conducted
if: (1) the facility’s waste may be managed in a way which
would bring the waste under Federal jurisdiction (e.g.. the
waste is transported across Stat. boundaries) or (2) if the
facility owner/operator specifically requests EPA to process
his petition (e.g. the facility may want the oRtien of
shipping th. wastes out-of—state in th. future). Before -
08W initiates processing of the p.tition the appropriate
Regional Office will be informed of the upcoming action:
the Regional Office will be expected to then inform the
Stats. Th. appropriate Regional Office will also be informed
of OSW’s decision on whether to grant or deny the petition
before OSW informs the petitioner; the Regional Office should
then inform the State.
B. EPA Role in IA States’ Delisting Programs
Generally, EPAs rd. is on. of oversight to provide that
the State’s program continues to b• si. stantially equivalent
to tb. Federal program. In sane States an expanded EPA role
may exist by virtue of special provisions in the !CA.
As discussed in previous Guidance (nusber 81-4), the
MOA is to provide that the State will keep EPA fully informed
of any State delisting activities. This will provide EPA
with th. opportunity to review State delistings. EPA’s
review function is especially relevant where categorization
of a waste is net clearly defined. In order to facilitate
this review function, this Guidance clearly defines
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—3—
responsibilities of the various offices. Where appropriate,
the Region . should consider amending existing ?CA’s to define
specific responsibilities.
C. State and EPA Responsibilities
State Responsibilities
1. Authorized States should promptly notify the Regional
Office of all delistingN petitions received.
2. Authorized States must submit copies of all petitions,
supplements to these petitions and decisions made (e.g.,
memoranda and letters imparting the State’s position to the
petitioner) to the Regional Offic. on a semi—annual (or more
frequent, if desired) basis.
Regional Office Responsibilities
3. When the Regional Offic. receives notice from OSW of
receipt of a F.d.ral delistirig petition (s.e item 6 below)
it is expected to im .diat.ly inform the Stat, and clearly
offer and make arrangements for the Stat. to ct in nt on the
petition before the Office of Solid Waste make. a determination
to grant (temporarily or finally) or deny the petition. In
particular, the State should be offered the opportunity to
comment .arly on any deficiency of information in the petition
to assist the Offic. of Solid Waste in requesting additional
information from the p.tition.’r which is necessary in many cases.
Because EPA’S delisting process is a rulemaking procedure
(resulting in an amendment to 40 CPR Part 261, if delisting
petition ii granted), we cannot offer a State a participatory
rol, in delisting determinations. However, becaus, a State
has a genuine int.rest in assuring that EPA’s delisting
determinations are made on accurate and complete information
and becaus. a State may have or 1 ew about information relevant
to a petition, 05W, t) ough the Regional Office, should assure
that the States (bo th IA and other Stat..) hay, a timely
opporti. ity to c ’—’ nt on petitions received a d being
processed by 0 5W. State coament. forwarded to OSW by the
Regional Office will be maintained in the docket (along with
all other comments) and be available for public inspection
and copying during normal busin.ss hour..
4. The Regional Office will advise the State of the Agency’.
caimients on the State delisting actions. As resources allow,
OSW will be available to support the Regional Offices (at their
request) in the rsviw of and cc”.nt on State delisting actions.
5. Pursuant to 40 CPR 123.136, the Regional A i’ istrator
may begin proceedings to wit) rsw authorization of the State’s
hazardous waste program if the Regional Administrator determines
that the State’s d.listings have rendered its program less than
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—4 —
s bgtanti&lly equivalent to the Federal program.
Office of Solid Waste Responsibilities
6. On receipt of a delisting package from a petitioner, OSW
will notify the appropriate Regional Office, which in turn, will
be expected to notify and solicit State input and relay it to
0 5W (see item 3, above).
7. On receipt of a State delisting package (e.g., petitions,
supplements to petitions and a State’s decisions on petitions)
from the Region (a.. item 4, above), OSW will review the
package and notify the Regional Office by memorandum of its
agreement or d.tsagr.ement (including pertinent reasons) with
the State’s decisions.
In their MOA’s, some IA States have provided for prior
EPA concurrence with the State delisting decision. In these
instances, OSW will continue to evaluat, petitions submitted
to EPA but will work closely with the Region and State in order
to reach a joint decision on whether or not to grant the del.ist-
ing. Thus, if 05W receives a petition from a facility in a
State which requires Federal concurrenc. with the State’s
delisting decision, 05W will contact th. petitioner and inform
him that the State manages the hazardou waste program in
that State and that Federal d.listing is unnecessary, except
a. noted above. 05W will, then proceed to evaluat. the pEtition,
since the State will ultimately be seeking EPA concurrence
on the Stat. delisting decision. However, this evaluation will
net culminate in the usual Federal rulemaking.
DECISION :
Where the State has IA’and operates a delisting program.
the Stat. is the agency responsible for conducting the deliating
of waste within the Stat. for purposes of the State program.
Where p.tition s may manage wastes so as to bring the wastes
under Federal juris4ictioni or if petitioners specifically
request EPA to act on their petitions. OSW will continue to
evaluate and reach decisions en the petitions. In such
case. 05W will keep the Region informed, the Region, in
turn. will, keep the State informed and offer the State the
opportunity to coement on the petition to EPA. In addition,
in t1 se States which require prior EPA concurrence with the
State’s delisting decision before a particular facility’s
waste is delisted, 05W will work with the Region and State
in order to reach a decision on whether or not to grant the
delisting.
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9542.1982(02)
Federal De2 .isting and RCRA Per itt1ng
in Interim Authorized Stat3s
Dan Derkics, Coordinator
Northern States PATs
Richard C. Eoynton, Chief
Permits Development Section — Region 1.
This is in reeponBe to your April 28 memo (postmarked
? ay 26 and received on June 3) in which memo you requested
Headquarters’ clarification of the folloving:
“In a Phase I authorized state, must EPA issue
a permit to a facility handling a waste which was
included in both the state’s and EPA’B universe of
regulated wastes at the time of authorization, but
was subsequently excluded by EPA?”
Tour question has been revieved by several Headquarters
officials, including representatives on the Stablex PAT. The
reviewers are in general agreement that EPA does not have to
issue a permit to a facility managing a federally—excluded
or delieted waste. Reviewers from the Office of General
Counsel were careful to emphasize that the federal regulations
also do not alloy writing a federal permit for such a waste
which is no longer a hazardous waste under the Federal system.
The regulatory prohibition of 40.CFR 123.121(i)(2) applies
for purposes of RCRA permitting, even in an authorized state
which decides not to exclude or delist the waste:
“Where an approved program has a greater scope
of coverage than required by federal law the
additional coverage is not part of th. federally
approved program’.
Program Implementation Guidances (PIGs) 82—1 and 3
provide further explanatory guidance which can be read to
address an important underlying issue raised bv your question:
what effect (if any) does a federal delieting or exclusion]
have in an authorized sd:ate? Both PIGs rsaffirm the principle
of the state’s Phasr I- approved hazardous waste universe apply-
ing (in lieu of the Pederal system) for purposes of federal
permi 4 . ting. PIG— 2—1 defines “the universe of hazardous waste
considered part of a state’s Phase I authorized program are
those wastes identified or listed by both EPA and the state’.
PIG 82—3 further describes that a stat. program, for purposes
of federal enforcement, is broader in scope if it includes
wastes that are in addition to those listed in the federal
universe. Following the above—stated logic of this guidance,
the federal delisting (or exclusion) can be seen to do two
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—2—
things: ei) it reduces the federal hazardous waste universe
against which the state univer: is matched to deternine
what part of the state’s progran is authorized, and (2) it
leaves the state program with a univeree that is broader in
scope than the Federal eystes (unless the state also deliets
or excludes wastes).
Accordin 1y, the federal delieting [ or exclusion) uet
auto atically place the waste outside the covera€e of the
RCRA progras: both the federal progras and the previously—
authorized portion of the state program . The complete answer
to the question in your ze o is therefore as follows:
If a state proeram is approved and !PA (but not the
state) eubaequently deliete [ or excludes) a waste in
th. state, that waste is autosatically no lonEer a
part of the federally—authorized state program and a
RCRA hazardous waste perzit cannot be issued to a
? Tiity eana in that waste.
cc: John Skinner
Truett DeGeare
Susan Abeher
Denise Eavkine
Dots Darrah
Stabler PAT
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.,.; T 9 ,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASPHNGTON, D.C. 20450
9542.1982(03)
AUG -91982 PIG-82-5
OIP’CE OP
SOLiD WAST! AND EMI OENCY mESPONU
MEMORANDUM
SUBJECT: Status 0 f State Permits Issued Before a State
Receives RCRA Phase II Authorization
,_ ,.,,‘-
FROM: Rita M. Lavelle .‘Z. ’- .C.(X_
Assistant Administrator for
Solid Waste and Emergency Response (WH—562-A)
TO: Program Implementation Guidance Addressees
ISSUE
Once a state is authorized for a component of Phase II,
what is the status of hazardous waste facility permits which
the state issued prior to being authorized for the component?
‘an they be considered RCRA permits? What is the status of
n EPA—issued federal permit In a state authorized for a
component of Phase 11?
DISCUSSION
Prior to being authorized for a component of Phase II a
state may require facilities that treat, store, or dispose of
hazardous waste to obtain a state permit. There are no pro-
visions within RCRA or the federal hazardous waste regulations
fqr- designating these pre-authorization a:e peri l:s as RCRA
permits. RCRA permits can be issued only by EPA or an autho-
rized state. Authorization requi rements ensure that an autPio—
rizeo state will be using procedures substantially equivalent
to the federal permi tting procedures (state procedures must,
of course 1 meet the requirements of Section 7004(b) of RCRA)
and will be requiring compliance with standards providing
substantially the same degree of protection as the federal
technical standards (See 40 CFR 123.129).
Before a state 1s granted Phase II authorization, five
situations are possible for a hazardous waste management facility
operating in a particular state. ifl all of these situations
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CRA section 3005(a) applies. That is, owners and operators of
facilities tha treat, store, or dispose of hazardous waste can
legal.ly do so only when they have a RCRA permit. Also, RCRA
Sect1or 3005(e) appl ies, allowing qualified facilities to continue
to operate under federal “Interim status”. When the state receives
interim authorization different results occur in each of the five
situations as described below.
1) A Cilit ,h neither a sta .te permit noi a feder l
A. • . t,. i W d • • • . S S 55 • S S ••S —
This situation is very straightforward. The state must
eventually Issue the facility a state SCRA permit. Of
course, before the s:a:e could have obtained Phase I
Interim authorization, it must have had some mechanism
in place to apply standards substantially equivalent
to federal Interim status standards to all of the hazard-
ous waste management facilities within Its borders.
2) A facility has a state—issued permit but no federal
RCRA permit (but does have federal interim status)
This situation is also fairly straightforward; the state
must eventually issue a RCRA permit to the facility.
The facility can continue to operate lawfully until that
time, provided the facility will be subject to state
standards substantially equivalent to the federal
interim status standards. The timetable for reissua nce
can be negotiated between the Regional Administrator and
the State Director and Is to be delineated in the Memorandum
of Agreement and discussed in the Program Description.
Legally, the sta e permit cannot- be considered a RCRA
permit even if the state permit was Issued using standards
and procedures that were eventuafly authorized. However,
under these circumstances there would be very little reason
:o reissue :he permit in the near future, and the state
could plan to reissue the permit at the end of the current
permit term or at some other convenient time.
3) A facility has a federal RCRA permit but does
not have a state permit
: this situation the state can assume responsibility
for the administration of the RCRA permit if it has
explicit authority allowing it to directly administer
and enforce permits Issued by the federal government.
As an alternative, the state can issue a RCRA permit to
the facility. Where the state issues a RCRA permit, EPA
should suggest to the federal permittee that the permittee
should agree to the termi nation of the federal permit.
The EPA-issued RCRA permit cannot be terminated with-
out tne agreement of the permittee unless one of the
causes for terminati n in 40 CFR 122.16 is present.
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— —
4) A facility has both a fe eral RCRA
permit and a state permit
This situation is a combination of cases (2) and (3),
above. The state must eventually issue a state RCRA
permit to the facility or can assume responsibility to
administer the federal permit if it has the authority
to do so. The schedule for reissuance of the state
r .rm1t i r, ha cø 4f4. 4 4,, o Mø , us. ’( S
Since the facility has a federal RCRA permit, th urgency
or state reissuance of a stat RCRA 2er’! it im1rr shes.
This would be ‘especially true If the previous state
permit was Issued using standards and procedures that
were eventally authorized.
5) A facility has identical federal RCRA and
state permits that were Issued jointly
In those situations where both permits are identical and
were issued jointly, EPA can propose its intent to con-
sider as RCRA permits the jointly—Issued or identical
state permits when the Agency announces receipt of the
state’s complete Phase II application. In this last
situation, the RCRA permit can be terminated with the
agreement of the permittee (or for one of the causes
for termination tn 40 CFR 122.16). If the RCRA permit
is not terminated, then the facility wilt operate under
two identical permits.
The assumption underlying all of the above scenarios is.that
any EPA—issued permit continues In full force and effect after
Phase II authorization. EPA—issued permits continue in
force until terminated either ur.Jer 40 CFR 122.11 Esee 40
CFR 123.6 (b)(l), 123.126 (c)(l) and 124.5(d)] or by the
agreement of EPA and the permittee. Permittees with EPA—issued
permits thus would be subject to the requirements of 40 CFR
‘&r:s 122 and 124 until their EPA—issued permits are ter’!iinated.
l’he permit terms and conditions, as well as the applicable
requirements of Part 122, would be the “requirement of
this subtitle” (Subtitle C) which EPA could enforce under
Sec:ion 3008 of RCRA.
EPA would prefer not to be administering and enforcing federal
permits in authorized states. Thus, It Is extremely desirable that
EPA and a non—authorized state coordinate their permitting activities
so that whenever possible they hold joint hearings and issue identi-
cal or nearly identical permits. Then, upon authorization, those
state permits can be considered RCRA permits. Alternatively, i
would be extremely desirable for those states that are currently
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making legislative or regulatory changes to incorporate in their
legislation (or in their regulations, if their legislative author-
ity is already broad enough to allow it) a provision allowing them
to summarily transform federal RCRA permits Into state RCRA permits.
That is, the state would wanv’to be able, through some very simple
procedure. to issue state RCRA permits incorporating all the terms
and conditions of the federal permits.
— a • — • as.
.‘
Afl facilities that treat, siore, or dispose of rdo’_’s
waste can do so legally only under a state or federal RCRA permit,
federal Interim status, or a state analogue to Interim status.
The only instance where a state permit that was Issued prior to
Phase II authorization can constitute a RCRA permit Is where the
state permit was Issued jointly with and Is Identical to a federal
RCRA permit. In such a case, when EPA receives the state’s appli-
cation for Phase II, EPA should announce (as part of the Federal
Register notice of receipt of a complete Phase II application) its
intent to consider the identical, jointly-Issued state permits to
.be RCRA permits and .take comment on that Intention. At the time of
joint permit processing, EPA should also announce such an Intent
If the state is one that may seek Phase U interim authorization.
Except for the above situation where joint identical state and
federal permits occurred, all state permits will need to be modified
or reissued by the state as RCRA permits once the state Is author-
ized. The schedule for reissuance can be negotiated between the
state and the Region and must be delineated in the Memorandum of
Agreement and described in the Program Description. In those cases
where there are previously—Issued federal RCRA permits, the state
may possess the authority to assume the administration of those
permits, thereby negating the need for issuance of a state RCRA
permit. EPA—issued RCRA permits cannot actually be terminated
without the agreement of the permittee unless one of the causes
for termination in 40 CFR 122.16 is present.
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9542.1983(01)
August 2, 1983
MEMORANDUM
SUBJECT: Changes During Interim Status in Phase II
Authorized States
FROM: John H. Skinner
Director, Office of Solid Waste (WH—562)
TO: Merrill Hohman
Director, Air and Hazardous Materials Division
Region I
In your June 13 memo to me, several issues were raised
concerning interim status changes in authorized States and the
Region’s role in quality control of changes to the RCRA facility
data base. Our response to these issues is outlined below.
• Do Phase II interim authorized States make
determinations on interim status changes and
termination of interim status in lieu of EPA ?
Yes, once a State has Phase II or final authorization, the
State may make determinations relating to changes and termination
of interim status. EPA may not make such determinations for
facilities covered by components for which the State is
authorized. Additional guidance on this issue can be found in
the attached copies of PIG 81-10 and John Skinner’s July 20, 1981
memorandum to Region IX.
• Do Phase II interim authorized States have to agree to
utilize procedures substantially equivalent to EPA’s
Procedures with respect to changes during interim
status or termination of interim status? Must these
procedures be in regulation in order for the State to
qualify for Final Authorization ?
State programs are not required to have an analogue to
Federal interim status in order to qualify for interim or final
authorization. A State may instead require existing facilities
to comply with such standards through permit terms and
conditions. If a State does allow continued facility operation
through an interim status analogue, the State’s requirements and
This document has been retyped from the original.
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—2—
procedures must be substantially equivalent to the Federal
regulations for Phase II interim authorization. For final
authorization they must be at least as stringent as the Federal
requirements. These procedures need not be in regulation for
interim authorization, but for final authorization they must be
of a regulatory nature.
The RCRA regulations allow States to provide for continued
facility operation without a RCRA permit only if the facility
would qualify for Federal interim status. (See SS271.13(a) and
271.129(b)(2).) In order to qualify for Federal interim status,
facilities must meet the requirements of §270.70 which requires
compliance with §270.10 regarding general permit application
requirements, including grounds f or termination of interim status
(S270.l0(e)(5)). Section 270.10(g) (1) (iii) incorporates §270.72
or the authorized State’s analogue to §270.72, obligating
facilities to conform to specific provisions regarding changes
during interim status.
For a State with an interim status analogue, the Model
Attorney General’s Statement on page 2.3-8 of the Final
Authorization Guidance Manual requires the following
certification: “State Law and regulations assure that any
facility qualifying for State interim status continues to qualify
for Federal interim status.” As provided in §S271.13(a) and
271.129(b) (2), this certification ensures that facility changes
allowed by the State will conform with § 270.71 and 270.72;
otherwise, the facility would not continue to qualify for Federal
interim status. Likewise, States should terminate interim status
when a facility meets conditions under §270.73. Checklist V of
the Final Authorization Guidance Manual provides for citations to
State interim status analogues (page A-70).
The Headquarters’ comment on Maine’s Phase II application is
consistent with the Final Authorization Guidance Manual and the
above discussion. Since Maine has an interim status analogue,
f or final authorization the State provisions for changes to
existing facilities must be no less stringent than §270.72.
Does EPA Washington expect the regions to quality
control the additions, deletions, or chanaes made to
the RCRA facility Data Base (Ver. IV ) by authorized
States ?
Yes, in order for HWDMS users to have full confidence in the
data, systems must be in place to ensure that the information is
correct. The Regional Offices should monitor the quality of
additions, deletions, or changes to the data base made by
This document has been retyped from the original.
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—3—
authorized States. Regional quality control can be accomplished
through the following activities. The Regions should assure that
State deletions of Part A data are supported by on-site
inspections of the facility. The reports of these inspections
should be verified by the Regions during the quarterly file
audits or mid—year reviews. If the inspection data is of
questionable value, joint inspections should be conducted.
Routine additions or changes to Part A information by the State
should also be verified through random file audits during the
Region’s scheduled reviews of the State.
Thank you for relaying your concerns on these important
issues. If you have any further questions, please contact Bruce
Weddle at 382-4746.
Attachment
cc: Division Directors, Regions II-X
Pam Hill
This document has been retyped from the original.
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..t ‘•••,.
— 9542.1985(01)
S JNI TAT /I°’ NMENTAL ‘DTECTION AGENZY
January 11, 1985
MEMORANDUM
SUBJECT: RCRA Reauthorization Statutory Interpretation *2
!EXtension S of Interim Authorization of State
4aza dQus.W ste Programs
\ • i)J/
FROM: , c • McGraw
ting Assistant Administrator
TO: Regional Administrators
Regions I-X
The Hazardous and Solid Waste Amendments of 1984 extend
the interim authorization period to January 31, 1986. Each
Regional Administrator has extended the previous deadline
(January 26, 1985) for some States for good cause (see 40 CFR
271.122(c)). In the absence of a further extension, interim
authorization for these States’ hazardous waste programs will
expire on the previously published deadlines. At that point,
reversion of the States’ programs to Federal control would
be automatic.
Extensions for good cause were typically granted to
States which encountered unforeseen difficulty in developing
RCRA equivalent programs or encountered difficulty in sub-
mitting their applications for authorization. Any further
extensions should be granted on that basis also.
Should you decide to extend the authorization deadline
for certain States, we have attached for your reference a
sample Federal !. .E notice for announcing their extensions.
Where you wish to grant extensions, the notices must be
published by January 26, 1985, in order to avoid terminiation
of interim authorization on that date.
Attachn nt
cc Hazardous Waste Division Directors, Regions I—X
Hazardous Waste Branch Chiefs, Regions I-X
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(SAMPLE NOTICE)
U. S. ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
Hazardous Waste Management Program; Extensions Of
Application Deadline For Final Autflorlzation
AGENCY: Environmental Protection Agency (EPA)
ACTION: Notice of Extension of Phase I and II Interim Authorization
for California, Guam, and Nevada.
SUMMARY: EPA previously granted an extension of interim
authorization to January 26, 1985, for the States of California
and Nevada, and the Territory of Guam. These States and Guam
recently requested a further extension of interim authorization
beyond the January 26, 1985 deadline. This extension would
allow for continuation of their interim authorization under the
Resource Conservation and Recovery Act (RCRA), as amended. EPA
is granting the requested extension to avoid the reversion, on
January 26, 1985, of their interim authorization. This notice
extends California’s Phase I and I!B, Nevada’s Phase I, hA
and B, and Guam’s Phase I interim authorization until January 31,
1986, or until the date these States and Guam receive final
authorization, whichever is earlier.
EFFECTIVE DATE: [ Date of pub]icationj
FOR FURTHER INFORMATION: Chuck Flippo, RCRA Programs Branch,
Environmental Protection Agency Region IX,
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2
(SAMPLE NOTICE)
215 F’remont Street, San Francisco, CA 94105, telephone
(415) 974—8128.
SUPPLEMENTARY INFORMATION:
Bac kg round
Section 3006 of the Resource Conservation and Recovery
Act (RCRA) allows EPA to authorize State hazardous waste
programs to operate in the State inlieu of the Federal hazardous
waste program. Two types of authorization may be granted.
The first type, known as “interim authorization is a temporary
authorization which is granted if EPA determines that the
State program is “substantially equivalent” to the Federal
program (Section 3006(c), 42 U.S.C. 6226(c)). EPA’s implementing
regulations at 40 CFR 271.121—271.137 established a phased
approach to interim authorization: Phase I, covering the EPA
regulations in 40 CFR Parts 260, 263, and 265 (universe of
hazardous wastes, generator standards, transporter standards
and standards for interim status facilities) and Phase II,
covering the EPA regulations in 40 CFR Parts 124, 264 and 270
(procedures and standards for permitting hazardous waste
management facilities).
Phase II, in turn, has three components. Phase II A
covers general permitting procedures and technical standards
for containers and tanks, and, in certain instances (see
California section below for discussion), for surface impound-
ments and waste piles as well. Phase II B covers incinerator
facilities, and Phase II C addresses landfills and land treatment
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3
(SAMPLE NOTZCE)
facilities.
The second type of authorization is a M finalN (permanent)
authorization that is granted by EPA if the Agency finds that
the State program (1) is uequivalentw to the Federal program,
(2) is consistent with the Federal program and other State
programs, and (3) provides for adequate enforcement (section
3006(b), 42 U.S.C. 6226(b)). States need not have obtained
interim authorization in order to qualify for final authori-
zation. EPA regulations for final authorization appear at 40
CFR 271.1—271.23.
40 CFR 271.122(c)(4) requires States which have received
any, but not all, phases/àomponents of interim authorization
to have amended their original submissions by July 26, 1983, to
include all components of Phase I!. (See 47 FR 32377, July 26,
1982.) Further, 40 CFR 271.137(a) provides that interim authori-
zation automatically terminated (reverted) on July’ 26, 1983,
unless the State had submitted an applic ation for all phases!
components of interim authorization by that date. (See 47 FR
32178, July 26, 1982.) Where the authorization (approval) of the
State program reverts, EPA is to administer and enforce the
Federal program in the State.
However, 40 CFR 271.137(a) also allowed the Regional
Administrator to extend the July 26, 1983, deadline for good
cause so that the State program would not revert to EPA. A
Regional Administrator could not, however, extend the deadline
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4
(SAMPLE NOTICE)
past January 26, 1985, as 40 CFR 271.122(b) provides that
interim authorization of a State’s hazardous waste program
ends 24 months from the effective date of the last component
of Phase II. The last component of the Phase II regulations
was published on July 26, 1982. It became effective on
January 26, 1983; thus, interim authorization was to end on
January 26, 1985. (See 47 FR 32365, July 26, 1982.)
The Hazardous and Solid Waste Amendments of 1984
(PL—98—616, Nov. 8, 1984), amended Section 3006(c) to allow
interim authorization to extend to January 31, 1986. Therefore,
the Regional Administrator has authority to extend a State’s
interim authorization to January 31, 1986, in appropriate
cases.
California
California received Phase I interim authorization on
June 4, 1981, and Phase II A interim authorization on January 11,
1983. The State’s Phase II authorization includes only
responsibility for permittinç storage and treatment in tanks and
containers. It does not include responsibility for permitting:
1) treatment in surface impoundments, waste piles, land treat-
ment facilities, or incinerators; 2) storage in surface impound—
ments or waste piles; or, 3) disposal facilities.
The State chose to apply for final authorization in
lieu of additional increments of interim authorization.
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5
(SAMPLE NOTICE)
EPA granted California’s request for an extension of interim
authorization until January 26, 1985, because the State had
made a good faith effort to pursue regulatory and statutory
amendments necessary to secure final authorization. This effort
constituted “good cause” for extending the State’s deadline
for submission of their application for final authorization.
(See 49 FR 33018, August 20, 1984.) The State then expected
to submit its application in September 1984; however, the
State subsequently encountered significant delays in adopting
the necessary three sets of regulations under two different
statutes due to a lengthy public hearing process and extensive
public interest in the regulations. California now intends
to submit its official application by July 1985 after sub-
mitting a draft application in March 1985. California expects
to receive receive final authorization by January 31, 1986.
Guam
The Territory of Guam received Phase I interim
authorization on May 16, 1983. Guam chose to apply for final
authorization rather than apply for Phase II interim authoriza-
tion. Before submitting a final authorization application, the
Territory needed to adopt both statutory and regulatory
amendments. Guam requested and was granted an extension to
submit their complete application and gain final authorization
by January 26, 1985. Because the Territory had encountered
significant delays in developing and adopting the necessary
regulatory and statutory amendments, but had made a good faith
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6
(SAMPLE NOTICE)
effort to pursue those amendments, good cause was shown to
allow extension of the deadline for obtaining final authori-
zation to January 26, 1985. (See 49 FR 33018, August 20,
1984.) The Territory expects to receive final authorization
by July 1985.
Nevada
Nevada received interim authorization for Phases I,
and 1.1 8 on July 19, 1983. The State chose to apply for final
authorization rather than apply for Phase II C interim
authorization. Revisions to the State’s regulations, needed to
meet the requirements for final authorization, were completed in
June 1984. The State then planned to submit an official final
authorization application in July 1984. The State requested
and was granted an extension to this deadline because the
State encountered significant delays in completing the statutory
amendment necessary to secure final authorization. The
State’s biennial legislature and limited (60 day) legislative
term added to the State’s difficulty in gaining approval of
the necessary statutory amendments. The State’s good faith
ef fort to pursue the necessary statutory amendment constituted
good cause for extension of the State’s deadline for gaining
final authorization to January 26, 1985. (See 49 FR 33018,
August 20, 1984.) The State now intends to submit its official
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7
(SAMPLE NOTICE)
application for fLnal authorization by December 1984 and
receive final authorization by July 1985.
DECISION :
In consideration of the above schedules and the Statess continued
good faith efforts to adopt hazardous waste programs necessary
to obtain final authorization, the immediate reversion of these
State programs because of their failure to meet the January 26,
1985, deadline is not in the best interest of California, Guam, or
Nevada, this Agency, the regulated community, or the citizens of
California, Guam, or Nevada. I have found good cause to extend
the deadline for the final determination on the final authoriza-
tion applications for California, Guam, and Nevada, until
(insert appropriate date for each State and Guam); after
that, responsibility for implementing RCRA reverts to Federal
control if they have not received final authorization.
EXECUTIVE ORDER 12291: The Office of Management and Budget
COMB) has exempted this rule from the requirements of Section
3, Executive Order 12291.
CERTIFICATION UNDER THE REGULATORY FLEXIBILITY ACT: Pursuant
to the provisions of 5 U.s.c. 605(b), I hereby certify that
this extension will not have a significant economic impact
on a substantial number of small entities. The extension
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8
(SAMPLE NOTICE)
effectively suspends the applicability of certain Federal
regulations in favor of these States’ programs, thereby
eliminating duplicative requirements for handlers of
hazardous waste in California, Guam, and Nevada, It does
not impose any new burdens on small entities, This rule,
therefore, does not require a regulatory flexibility
analysis.
LIST OF SUBJECTS IN 40 CFR PART 271: Hazardous materials,
Indian—lands, Reportiny and recordkeeping requirements, Waste
treatment and disposal, Water pollution control, Water supply,
Intergovernmental relations, Penalties, Confidential business
information.
AUTHORITY: This notice is issued under the authority of Sections
2002(a), 3006, and 7004(b) of the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act of 1976,
as amended, 42 U.S.C. 6912(a), 6926, and6974.
DATED: _____________________
Judith E. Ayres
Regional Administrator
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9543 - ASSESSMENT
OF STATE
CAPAB ILITIES
Part 271
ATK1/1104/64 kp
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9543.00—1
October 3, 1985
MEMORANDUM
SUBJECT: Applicability of PIG-82—5 and RSI #5 on Joint
Permitting in Phase I Authorized States
FROM: Bruce R. Weddle, Director
Permits and State Programs Division (WH—563—B)
TO: Robert L. Allen, Chief
Waste Management Branch (3HW30)
Thank you for your memorandum of July 15, 1985, in which you
asked for clarification on several issues relating to permits
jointly-issued by EPA and a State with Phase I interim
authorization. This memo addresses your concerns in the same
order in which you stated them on page 2 of your memorandum.
1. You asked: What is Headquarters’ definition of “nearly
identical” permits as used in PIG—82-5 ?
A nearly identical State permit issued by a State with Phase
I authorization would contain, at a minimum, no less stringent
State analogues to all of the provisions that the jointly—issued
Federal permit would incorporate. A State permit could contain
provisions which are more stringent than corresponding Federal
provisions and still be considered “nearly identical”. State
permit provisions that are broader—in—scope than the Federal
program are not relevant in determining whether State permits are
“identical” or “nearly identical”. (See PIG 84—1 for a
discussion of how to determine whether State provisions are
broader—in—scope or more stringent.)
2. You asked: Under what circumstances can jointly—issued.
nearly identical permits be issued by a Phase I authorized State
vet be considered RCRA permits after Final Authorization ?
Contrary to the approach described in #5 of PIG-82-5, we
concluded that the EPA RCRA permit should not be terminated.
While recognizing the State and Federal permits may have been
issued jointly, receipt of Phase II or final authorization does
not automatically convert the State permit into a RCRA permit.
This document has been retyped from the original.
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—2—
Rather, the State must have RCRA permitting authority at the time
of permit issuance. Thus, were the EPA permit to be terminated
prematurely, the facility would lose RCRA authority to operate.
Nevertheless, EPA can use its discretion to avoid duplicate
State and Federal efforts to enforce identical permit provisions.
That is, if the State were adequately enforcing its identical
permit, EPA would not plan to devote enforcement resources to
that facility.
Subsequent to being granted final authorization, the State
could reissue its permit as a RCRA permit or wait until the EPA
RCRA permit expires. When the State decides to issue a RCRA
permit and the State is not authorized for HSWA provisions, the
Region must determine whether and how the facility is affected by
the HSWA requirements and either issue a permit for the HSWA
provisions or a notice of its restitutional final decision that
the facility is not affected by HSWA. At the time of permit
reissuance, the HSWA provisions must be considered even though
they were not applicable when EPA issued the first permit.
3. You asked: What effect will HSWA have on the provisions of
PIG—82—5 ?
HSWA mandates incorporation of certain requirements and
prohibitions in jJ. RCRA permits as of November 8, 1984. Simply,
a permit cannot be considered a RCRA permit unless it complies
with all the applicable new requirements of HSWA. A State must
be specifically authorized for provisions of HSWA to issue a RCRA
permit. Thus the policy on joint permitting stated in RSI #5
supersedes the policy of PIG 82-5. (See RCRA Reauthorization
Statutory Interpretation #5, July 1, 1985.) In relation to PIG
82-5, you will likely be issuing permits as described by
situation #4, rather than situation #5. That is, a facility will
be jointly issued a State permit and a Federal RCRA permit.
Since the facility has a Federal RCRA permit, the urgency for
State reissuance of a State RCRA permit diminishes. Unless there
are extenuating circumstances, there is no compelling reason for
a State to reissue a State permit to a facility which also has a
Federal RCRA permit prior to the expiration of that Federal
permit. This would be especially true if the previous State
permit was issued using standards and procedures equivalent to
EPA’ s.
This document has been retyped from the original.
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—3—
I trust that the above discussion answers your questions and
concerns relating to jointly-issued permits prior to a Phase I
State receiving final authorization.
cc: Permits Branch
State Programs Branch
RCRA Branch Chief, Region I, II, IV - X
This document has been retyped from the original.
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9543.1984(01)
December 27, 1984
MEMORANDUM
SUBJECT: Additional Guidance on RCRA State Capability
Assessments
FROM: Lee M. Thomas
Assistant Administrator (WH-562—A)
TO: Regional Administrators
Regions I - X
Your assessment of the State’s capability to implement a
quality RCRA program is an important part of the process of
making a Tentative Determination to grant RCRA final
authorization. (Guidance on conducting the capability
assessments was issued on June 26.) To help ensure timely
Headquarters’ concurrence on both tentative and final
determination decision packages, this memorandum provides
additional guidance on capability assessments.
Our review of the assessments indicates the need for a more
formalized process to collect the information needed to assess
the State capability. This process will ensure that program
quality/capability can be readily discerned from the decision
packages and that the packages can be processed well within the
10—day concurrence period.
Please make sure that your tentative and final determination
decision packages include the following:
1. A chart outlining specific grant commitments and State
accomplishments in the areas of permitting, compliance
monitoring and enforcement for FY 84 (suggested format
attached). A similar chart should also be updated upon
submittal of the Final Decision (and for Notices of
Tentative Decisions submitted later this year) with
respect to State commitments and accomplishments to
date in FY 85.
This document has been retyped from the original.
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—2—
2. As you know, the assessments must include an agreement
in the form of a Letter of Intent or Memorandum of
Agreement that outlines specific State and EPA actions
necessary to strengthen State program capability and
sustain a quality RCRA program over time. The Letter
of Intent or Memorandum of Agreement must include
specific schedules and/or dates for implementing both
EPA and State activities identified as necessary for
enhancing the State’s RCRA program. Letters or
Memoranda which are vague or generalized are more
likely to lead to unachieved expectations and
misunderstandings. It is imperative that both we and
the State clearly understand and agree to these
specific milestones so that each program knows what is
expected. For example, if the State has not met its
inspection commitments for ground-water monitoring
facilities, the agreement should reference a schedule
identifying specific facilities to be inspected and a
timetable for completion of those inspections in the
coming year. The agreement would also specify a
timetable for the State to hire additional inspectors,
and an EPA inspection schedule that would temporarily
augment the State program and enable the State to meet
its inspection commitments.
3. Where weaknesses are found in State program areas not
identified in the grant accomplishment chart, include
specific documentation to support the findings. For
example, a State capability assessment may conclude
that the State attorney general has been slow in
processing cases referred by the program office. The
assessment would identify the specific number of cases
referred in FY 84, and the current status of those
cases at the time of the assessment (pending, filed
etc.). Corrective measures for this situation would be
addressed in the Letter of Intent or in the Memorandum
of Agreement.
I encourage you to submit drafts of your capability
assessments to Headquarters (OSW’s State Programs Branch) prior
to transmitting your tentative or final determinations. By
reviewing drafts in advance, the Office of Solid Waste and the
Office of Waste Program Enforcement are able to identify and
This document has been retyped from the original.
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—3—
assist in resolving potential problem areas in the document
without being constrained by the 10-day concurrence period.
Attachment
cc: Waste Management Division Directors,
Regions I - X
This document has been retyped from the original.
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f UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
- WASIfINGTON D.C. 20410
FEB 2 I 984
OP ICE OF
sauo WAfYT * O SM( GINCV ISPOPI51
MEMORANDUM
SUBJECT: Review of State apabi1ity in RCRA Final
rAut i za ion
-A -
FROM: \Lee M. Tflomas
Assistant Administrator (WR—562—A)
TO: Regional Administrators
Region I —
e the heart of the Federal. and- State implementation of- the
hazardous waste management program under RCRA must be a commitment
to quality in the permits we issue, the enforcement actions we
initiate, the corrective steps we undertake, and the information
we provide to the public on program accomplishments. The States
are pivotal to the success of this effort. Our joint commitment
to quality under final authorization is critical to meeting our
mandate under the statute. Capable managers at all, levels working
together toward con objectives is a prerequisite to an effective.
high qual.ity program..
It is appropriate, therefore, to re-’affirm the importance of
jointly completing with the States a detailed review of program
capability as a key component of the final authorization process.
The enactment of State statutory authority and promulgation of
regulations, although critical steps, must be coupled with a firm
commitment to enhanc. program capability to effectively implement
the authorized State program.
tt- is imperative that you reach agreement with each State,
before- the final, authorization decision is made, on the steps
necessary to strengthen program capability and sustain a quality
State RCRA program over time. I am optimistic that the States will.
have achieved adequate program capability to implement the RCRA
program. However, ii your joint review with the State leads
you to conclude that the State doss not have this capability,
you should be prepared to recommend that the state’s application
for finaL authorization be denied.
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2
The Review of State Caoability
The Region arid. State should jointly conduct a detailed
review of State capability to identify areas that require
strengthening. This review should use informatiorL gathered
ia previous reviews or analyses, particularly the mid—year
and. end—of—year evaluations and other activities related to
the- annual program grant., The review shou.Ld. address those
portions of. the Federal. program a State has been conducting
for EPh (it under a coop•raeive arrangement) or in Lieu of,
EPA (if they have interim authorization) • In the latter
instance, more stringent State requirements may be included
if they’ are- part of the program authorized by EPA.. A.reas of
a State’ s program broader in scope than the Federal program
are not part of the authorized program and need not be included
in the review.
The review, must be- broad. enough to isolate the issues and
needs. of botft EPN and: the State to- manage the program under
fine.t Stat. authorization 1 .. It must provide for:
0 An Assessment of the’ Quality of The State’s Past
Performance Under Interim Authorization or Cooperative
Arrangements . Areas to consider include:
— The compliance monitoring and enforcement program
under interim authorization or cooperative arrange-
ments, including an analysis of the number and
thoroughness of inspections, the number, type and
timeliness, of enforcement actions, and the- improve-
ment shown by the- State’ in bringing ‘iolators
into compliance.
— The permitting program under interim authorization
or cooperative arrangements, including the number
and types of permit actions handled, conformance
to technical. and. procedural requirements, and
future p.itting strategy.
— State- program management, including resources, skill
mix, State organization, institutional constraints
(organization, salary rate, etc.), training needs,
legal support, and timeliness for filling vacancies.
Even when such areas cannot be directly influenced
by EPA. or the State program (e.g., salaries) they
should b. noted.
The Identification of State and EPA Actions Which Will
Be Taken To Ensure State Capabilities . The actLon.a
should:
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3
— Define resource levels, skill six, training needs
and: other- factors necessary to address Tnanagement
issuee raised Lrr the assessment of past performance.
— Addrese the leveL of Regional involvement in direct
• acti Lti.s after fin autharizatf on, and the form
a contafzt of oversight and: assistance over time.
— Re ogniz. the value at f1e ible State management
approaches and, where appropriate, account for State
inatitutfä’nai. constraints or other unique features
that determine the fo of the authorized, program.
Use ofThe Revje’i. En Final Authorization Process .
The- joint review of State capability should take place as
early in the final authorization process. as.. possible, most
appropriateL before the draft application- is submitted. to EPA..
The f1emorandum of Agreement (MO ) or arr equivalent document
(e.g., joint Letter at intent) should... reflect, agreement on the
responsibilities at both EPA and: the State in sustaining program
quality over time. Through the- MOA, the Regions and States
should agree to use the program grant process to annually (or
more frequently) identify and commit to specific actions required
to strengthen the State program. The specific commitments and
associated resource impact should be incorporated into the State’s
grant work, program..
ira. facilitate the final. autharjgatjon- decision, your Action.
Memorandum. transmitting the Federal Register Notice of Tentative
Decision (or Final. Decision- tTiEii. is later in the authorization
process) must: (a.) describe- the major aspects of past State perform-
ance relevant to State capability under final authorization, (b)
outline the steps. agreed to by the Region and State to enhance
program capability, ant Cc) include a’ statement that affirms that
these actions will, result im. the implementation of a. quality RCRA
progr . As statt before .. if yots conclude fr your revie that
a Stat. does not have the capability t implement the RCRA program,
then you. should that the. State’s application be denied.
Timely completion of the review is critical to demonstrate
that proper consideration has been given to identifying and
resolving State capability questions prior to the decision on
final, authorization. Because we have already received several
draft ant official applications., the foLloi in; schedule should
be foLloweth
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4
For States which have not yet submitted an off ici .al
application ., the capability assessment should be
addressed: im the Action Memo randu for tentative
decision...
! ar States wb.icb have s ibmittet aa officiaL applica-
tion the aasss r t should also be addressed (where
si1 lsjr L the Action Memorandum for tentative
decision:.. ffowev. , if it La too lat. in th. review
process to permit this, the assessment should be
addressed: i the Action Memorandum for final,
deter,,vt r atio
En no case- is the review of State capability to be completed Later
than the final Action Memorandum and. Federal Register Notice of
Final. Decision..
oi kn , . r have. eatahlished: e- .oint R jon/State task. force-
to- consider’ the questievr of RCR F progres quslity.. The outputs. fran
this task force. will, provide more. specifie guidance and policy on
criteris t be used: in eva.tuating: program performance under final
State authorization-... We ’ do- not expect to issue the final policy on
RCRA program- quality untiL April., 1984. Bowever, to the extent
feasible you may wish to use the- criteria developed by the task
force- to assist you in performing the State capability reviews
outlined above. The criteria you use should be based on the
circumstance s. appropriate to. your - situation and your experience
with. eac State..
Support and: assistance in c pleting the reviews during the
final. authorizatjorr process will, be provided by th. Permits and
State- Programs Division, Office of Solid Waste. The State Programs
Branch will, be developing recommended MOA Language, a model Action
Memorandum and a. sample. review- of State capability to implement
the new requirements.. This wiLl. b completed in spring, 1984.
cc R.a_ionaL Eazardorg Waste- Management Division- Directors
OSW! Office. Directors
Kir c ’ S niff,. Office of nfarcemertt and. Compliance Monitoring
Lisa Friedman-, Office of General Counsel
Bruce Weddi., Acting Director, Permits and State
Programs Division
Donald Lazarchik, Pvssident, Msociatien of State &
Territorial Solid Waste Management Officials
State Eazardous Waste Manaaement Directors
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JUN 2 6 !984
ME fO RA l l DCM
SUBJECT: State Capability Assessment Guidance
Isignedl Lee M. Thomas
FROM: Lee M. Thomas
Assistant *dministrator
TO: Regional Administrators, Regions I —
On February 21, I wrote to you explaining the importance
of assessing Stat. program capability as a key component of
the final authorization process. I asked that before you
recommend authorization of a State program you work with the
State to evaluate its capabilities and come to an agreement
on whether action is required to strengthen those capabilities.
Several Region. requested guidance on conducting these aesessrrents.
The attached guidance was developed after reviewing several
capability assessments and receiving toirn”ents from the Regions
on a draft guidance document.
In conducting these assessments, you should work closely
with the states to identify areas of program inadequacy and
weakness and to devise remedial measures. The basic criteria
to be used in this evaluation are the Criteria for a Ouality
PCRA Progr ’i, developed jointly by EPA and the States. These
are the same criteria which will be used as a component of
the Headquarters review of Regional activities where EPA
operates the PCRA program.
It should be clearly understood that this review allows
the Region and the Stat. to take a prospective view of the
RCPA program and mutually establish capability objectives and
supporting strategies for their accomplishment. Its purpose
is not to be en impediment to final authorization unless the
Regional Adrinistrator feels the weaknesse, in the State
pro rar are so severe that additional tim is needed to ae e
a state’s ability to implement reredial measures. Throu.jr
this exercise we hopø to avoid grsntin final authorization
to a State only to be faced soon after with ccncern about
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—2-
inadequate performance and unc.rtainty about the criteria used
to measure it. Your Action Mer orandur should affirm that the
remedial actiori delineated in the capability assessment are
mutually agreed upon strategies which will result in a quality
RCRA program.
Support and assistance in completing the reviews viii be
provided by the state Programs Branch, Permits and State Programs
Division, Office of Solid Waste. I recommend that a draft of
your capability assessments be submitted to that Branch before
you seek State concurrence on corrective measures, Comments
will be provided as quickly as possible.
Attachment
cc, Regional Hazardous Waste P ansgestent
Division Dir.ctors
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. 0 C 20460
13 NO”! 1984
SOL’ WAStE A’. O ESIE GE ICV RESPONSE
MEMORANDUM
SUBJECT: Placement of Capability Assessments in Authorization
File
FROM: Bruce R. Weddle
Director, Permits and State
Programs Division (WH—563)
TO: Hazardous Waste Division Directors
Regions I—X
The Capability Assessments which you develop when making
tentative and final decisions on authorizing a State’s hazard-
ous waste management program are an integral part of our
decision—making process. This being the case, the Office of
General Counsel has informed us that the Capability Assessment
and Letter of Intent must be included in the public record.
Therefore, when notice of the Region’s deci on is published
in the Federal Register , copies of these docments should
be placed in your State Authorization File : r access by the
public.
Several decisions have already been published. If the
Capability Assessment was t ot part of the Authorization File
at the time of publication, consult with you- Office of
Regional Counsel before adding them to the F.Le now.
cc: John Skinner
Truett DeGeare
Gail Cooper
ORC Team Leaders
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9545 — STATE
AUTHORIZATION
RESERVED
Part 271
ATKI/1 104/10 kp
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Land Disposal Restrictions (Part 268 )
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9551 - GENERAL
PART 268 Subpart A
AT. Kearney 1/3590/8 cr
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OSWER Directive #9551.01-01
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
May 23, 1994 9551.00—01
MEMORANDUM
SUBJECT: RCRA Policy Statement: Clarification of the Land Disposal Restrictions’
Dilution Prohibition and Combustion of Inorganic Metal-Bearing Hazardous
Wastes
FROM: Elliott P. Laws
Assistant Administrator
TO: Waste Management Division Directors, Regions I - X
I. Introduction
A. Purpose
This memorandum sets out a Statement of Policy under the Resource Conservation
and Recovery Act (RCRA) clarifying the application of the Land Disposal Restrictions (LDR)
prohibition on dilution (see 40 CFR § 268.3) to combustion’ of certain inorganic metal-
bearing hazardous wastes. Because combustion normally does not represent effective
treatment of these wastes, such burning can be considered impermissible dilution. In such
cases, these hazardous metal-bearing wastes cannot be combusted legally. This Policy
Statement clarifies the general situation regarding combustion of these metal-bearing
hazardous wastes, but application of this policy will vary depending on particular
circumstances.
B. Regulatory Background
Under RCRA, the LDR prohibition on dilution states generally that no person “shall
in any way dilute a restricted waste ... as a substitute for adequate treatment to achieve
compliance with [ a treatment standard for that waste]”. 40 CFR 268.3(a). This prohibition
implements the requirement of section 3004(m) of RCRA, which requires that hazardous
Combustion for purposes of this memo does not include metal recovery units engaged
in metal reclamation or vitrification units engaged in metal stabilization.
This document has been retyped from the onginal
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OSWER Directive #9551.01-01
constituents in hazardous wastes be destroyed, removed or immobilized before these wastes
can be land disposed. Hazardous constituents are not destroyed, removed or immobilized if
they are diluted. Chemical Waste Management v. EPA , 976 F.2d 2, 16, 17, 19-20 (D.C.
Cir. 1992), cert. denied 113 S.Ct. 1961 (1993); see also S. Rep. No. 298, 98th Cong. 1st
Sess. 17 (1983) (“the dilution of wastes by the addition of other hazardous waste or any other
materials during waste handling, transportation, treatment or storage is not an acceptable
method of treatment to reduce the concentration of hazardous constituents”).
Consistent with these authorities, the Agency has stated that the dilution prohibition
serves one chief purpose -- “to ensure that prohibited wastes 2 are treated by methods that are
appropriate for that type of waste.” 55 FR at 22532 (June 1, 1990). Impermissible dilution
can occur under a number of circumstances. The most obvious is when solid wastes are
added to a prohibited waste to reduce concentrations but not volumes of hazardous
constituents, or to mask their presence. Impermissible dilution also may occur when wastes
not amenable to treatment by a certain method (i.e., treated very ineffectively by that
treatment method) are nevertheless ‘treated’ by that method. 55 FR 22666 (June 1, 1990)
(biological treatment does not effectively remove toxic metals from wastes; therefore,
prohibited wastes with treatment standards for metals ordinarily would be impermissibly
diluted if managed in biological treatment systems providing no separate treatment for the
metals). See also 52 FR at 25778-79 (July 8, 1987) (impoundments which primarily
evaporate hazardous constituents do not qualify as section 3005(j)(1 1) impoundments which
may receive otherwise-prohibited hazardous wastes that have not met the treatment standard).
EPA is providing guidance today clarifying how the LDR dilution prohibition could
apply to certain inorganic metal-bearing hazardous wastes that may be placed in combustion
units, other than metal recovery furnaces.
II. General Distinction Between “Adequate Treatment” and Potential Violations of
the Dilution Prohibition
This memorandum deals with the question of whether combustion of prohibited
inorganic hazardous wastes can be a type of impermissible dilution. An “inorganic
hazardous waste” is one for which EPA has established treatment standards for metal
hazardous constituents, and which does not otherwise contain significant organic or cyanide
content (see further discussion, last paragraph page 3, clarifying what constitutes an
insignificant organic or cyanide content).
2 A “prohibited” hazardous waste is one which is actually subject to a prohibition on
land disposal without first being treated, or disposed in a no-migration unit. See 54
FR 36968 (Sept. 6, 1989).
2
This document has been retyped from the original
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OSWER Directive #9551.01-01
The Agency has evaluated the listed wastes and has determined that 44 of the RCRA
listed wastes (as set forth in 40 CFR § 261) typically appear to be such inorganic hazardous
wastes; i.e., they typically do not contain organics, or contain only insignificant amounts of
organics, and are not regulated for organics 3 (see Appendix A to this memorandum for a list
of these wastes). The Best Demonstrated Available Technology (BDAT) for these inorganic,
metal-bearing listed wastes is metal recovery or stabilization. Thus, impennissible dilution
may result when these wastes are combusted.
There are eight characteristic metal waste codes; however, only wastes that exhibit
both the toxicity characteristic (TC) and the extraction procedure (EP) for D004 - DO! 1 are
prohibited now (see 55 FR 22660-02, June 1, 1990). Characteristic wastes, of course,
cannot be generically characterized as easily as listed wastes because they can be generated
from many different types of processes. For example, although some characteristic metal
wastes do not contain organics or cyanide or contain only insignificant amounts, others may
have organics or cyanide present which justify combustion, such as a used oil exhibiting the
TC characteristic for a metal. Thus, it is difficult to say which D004-DO1 1 wastes would be
impermissibly diluted when combusted, beyond stating that as a general matter,
impermissible dilution would occur if the D004-DO1 1 waste does not have significant organic
or cyanide content but is nevertheless combusted.
EPA ordinarily would consider the following hazardous wastes to be strictly
inorganic (or to contain “significant organic or cyanide content”) for which combustion
would otherwise be impermissible dilution. Combustion of the following wastes is therefore
j prohibited under the LDR dilution prohibition: (1) any of the 44 listed wastes and 8
characteristic wastes in Appendix A that, at point of generation, or after any bona fide
treatment such as cyanide destruction prior to combustion, contain hazardous organic
constituents or cyanide at levels exceeding the constituent-specific treatment standard for
F039, which represents a compilation of numerical limits for hazardous constituents; (2)
organic, debris-like materials (e.g., wood, paper, plastic, or cloth) contaminated with an
inorganic metal-bearing hazardous waste; and (3) any of the 44 listed wastes and 8
characteristic wastes that, at point of generation, have reasonable heating value such as
greater than or equal to 5000 Btu (see 48 FR 11157 (March 16, 1983)). The foregoing three
categories of waste typically would contain sufficient organic content to indicate that
combustion can be a reasonable means of treating the wastes prior to land disposal.
However, as noted above, mixing practices such as fuel blending to add organics to inorganic
metal-bearing hazardous wastes ordinarily would be considered to be impermissible dilution.
This is because the dilution prohibition applies at the point a hazardous waste is generated.
Chemical Waste Management v. EPA , 976 F.2d at 22-3; also 48 FR 11158, 11159 and nn. 2
To the extent that these wastes or residues of these wastes (i.e., biological treatment
sludges) contain significant organic content, combustion may be an appropriate
treatment technology. See later discussion regarding this point.
3
This document has been retyped from the original
-------
OSWER Directive #9551.01-01
and 4 (March 16, 1983); 53 FR at 522 (Jan. 8, 1988) (determinations of legitimacy of
recycling are made on a waste-by-waste basis before any blending occurs).
This Policy Statement is also reflective of the Agency’s concerns about the hazard
presented by toxic metals in the environment. When an inorganic metal-bearing hazardous
waste with insignificant organics is placed in a combustion unit, legitimate treatment for
purposes of LDR ordinarily is not occurring. No treatment of the inorganic component
occurs during combustion, and therefore, metals are not destroyed, removed, or
immobilized. Since there are no significant concentrations of organic compounds in
inorganic metal-bearing hazardous wastes, it cannot be maintained that the waste is being
properly or effectively treated via combustion (i.e., thermally treated or destroyed, removed,
or immobilized).
In terms of the dilution prohibition, if combustion is allowed as a method to achieve a
treatment standard for these wastes, metals in these wastes will be dispersed to the ambient
air and will be diluted by being mixed in with combustion ash from other waste streams.
Adequate treatment (stabilization or metal recovery to meet LDR treatment standards) has not
been performed and dilution has occurred. It is also inappropriate to regard eventual
stabilizing of such combustion ash as providing adequate treatment for purposes of the LDRs.
Simply meeting the numerical BDAT standards for the ash fails to account for metals in the
original waste stream that were emitted to the air and for reductions achieved by dilution
with other materials in the ash. (In most cases, of course, the metal-bearing wastes will have
been mixed with other wastes before combustion, which mixing itself could be viewed as
impermissible dilution).
These inorganic, metal-bearing hazardous wastes should be and are usually treated by
metal recovery or stabilization technologies. These technologies remove hazardous
constituents through recovery in products, or immobilize them, and are therefore permissible
BDAT treatment methods. However, EPA believes that this statement of policy clarifying
application of LDR dilution prohibition is needed because we have observed that some of
these wastes may be going to conventional combustion devices such as incinerators or cement
kilns. For example, some owners/operators may be willing to accept inorganic lead wastes
with insignificant organics at their combustion facilities (which can still apparently meet their
air emissions limits at the stack). As explained above, land disposal of combustion residuals
from these facilities would typically violate the land disposal restrictions prohibition on
dilution. Combustion is not usually an appropriate treatment for these wastes because
hazardous constituents are not removed, destroyed, or immobilized.
Consequently, the general principles set out in this memorandum, subject to
appropriate consideration of individual circumstances, are: (1) that a prohibited inorganic
metal-containing hazardous waste (listed in Appendix A to this memorandum) without
significant organic content can be considered to be diluted impermissibly when combusted
(even if the treatment standards for metals are achieved in part by subsequent treatment of
4
This document has been ref yped from the original
-------
OSWER Directive #9551.01-01
combustion ash); and (2) that the determination of whether a waste is an inorganic metal-
bearing hazardous waste is made at the point of generation. 4 This means that, ordinarily,
such a waste would be considered to be diluted impermissibly even if it is blended with
organic wastes for which combustion would otherwise be an appropriate treatment method.
This is the point at which the waste becomes hazardous. (See 45 FR 33095-33096,
May 19, 1980).
5
This document has been retyped from the onginal
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OSWER Directive #9551.01-01
Appendix A. Description of Wastes Affected by this Policy
Waste Code
Listed Wastes
F006 5 *
Wastewater treatment sludges from electroplating operations except
from the following processes: (1) sulfuric acid anodizing of
aluminum; (2) tin plating carbon steel; (3) zinc plating (segregated
basis) on carbon steel; (4) aluminum or zinc-plating on carbon
steel; (5) cleaning/stripping associated with tin, zinc and aluminum
plating on carbon steel; and (6) chemical etching and milling of
aluminum.
F007*
Spent cyanide plating bath solutions from electroplating operations.
F008*
Plating bath residues from the bottom of plating baths from
electroplating operations where cyanides are used in the process.
F009*
Spent stripping and cleaning bath solutions from electroplating
operations where cyanides are used in the process.
F010*
Quenching bath residues from oil baths from metal treating
operations where cyanides are used in the process.
FOl 1 *
Spent cyanide solutions from salt bath pot cleaning from metal heat
treating operations.
F012*
Quenching waste water treatment sludges from metal heat treating
operations where cyanides are used in the process.
F019*
Wastewater treatment sludges from the chemical conversion coating
of aluminum except from zirconium phosphating in aluminum car
washing when such phosphating is an exclusive conversion coating
process.
K002
Wastewater treatment sludge from the production of chrome yellow
and orange pigments.
K003
Wastewater treatment sludge from the production of molybdate
orange pigments.
K004
Wastewater treatment sludge from the production of zinc yellow
pigments.
5 * = Assuming wastes do not Contain treatable concentrations of cyanide.
6
This document has been retyped from the original
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OSWER Directive #9551.01-01
Waste Code
Listed Wastes
K005
Wastewater treatment sludge from the production of chrome green
pigments.
K006
Wastewater treatment sludge from the production of chrome oxide
green pigments (anhydrous and hydrated).
K007
Wastewater treatment sludge from the production of iron blue
pigments.
K008
Oven residue from the production of chrome oxide green pigments.
K061
Emission control dust/sludge from the primary production of steel
in electric furnaces.
K069
Emission control dust/sludge from secondary lead smelting.
K071
Brine purification muds from the mercury cell processes in chlorine
production, where separately prepurified brine is not used.
K100
Waste leaching solution from acid leaching of emission control
dust/sludge from secondary lead smelting.
K106
Sludges from the mercury cell processes for making chlorine.
POlO
Arsenic acid H 3 AsO 4
POll
Arsenic oxide As 2 0 5
P012
Arsenic trioxide
P013*
Barium cyanide
P015
Beryllium
P029*
Copper cyanide Cu(CN)
P074*
Nickel cyanide Ni(CN) 2
P087
Osmium tetroxide
P099
Potassium silver cyanide
P104*
Silver cyanide
P113
Thallic oxide
P114
Thallium (1) selenite
7
This document has been retyped from the original
-------
OSWER Directive #9551.01-01
Waste Code Listed Wastes
P115
P119
P120
P121*
P122
U032
U 145
U15 1
U204
U205
U2 16
U2 17
Thallium (1) sulfate
Ammonium vanadate
Vanadium oxide V 2 0 5
Zinc cyanide
Zinc phosphide
Calcium chromate
Lead phosphate
Mercury
Selenious acid
Selenium disulfide
Thallium (I) chloride
Thallium (I) nitrate
Waste Code
Characteristic Wastes
D004
Arsenic
D005
Barium
D006
Cadmium
D007
Chromium
D008
Lead
D009
Mercury
DOlO
Selenium
DO! 1
Silver
8
This documenr has been reryped from the original
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9551. L986( 03 ’1
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
FEBRUARY 86
1. Land Disposal Ban of Solvents
Section 3004(e) of RA as anended by the Hazardous and Solid ste fli er&ier ts
of 1984 (H3 JA) prohibited the lard disposal of certain hazardous wastes by
s cific dates i.r less the PdMnistrator determines that the prohibition is
rct required in order to protect h nan health and the envirorrrent for as
1or as the waste r ains hazardcxis. The first gr of wastes to be affected
include tPose hazardous wastes ntrbered FOOl, F002, P003, P004, and P005
in regulations pr nulgated by the P&tinistrator under Section 3001 (40 CFR
261.31 (July 1, 1983)), as those regulations are in effect on July 1983
S
EPA proposed regulations on January 14. 1986 (51 FR 1602), (oi’ the in 1w en ’
tatiort of HS% Section 3004(e). Proposed 40 CFR 268.30 eddi-esses the prohi-
bition on land disposal of solvent wastes and lists as prohibited. with
certain exceptions, the wastes nLrbered FOOl, P002, P003, P004, and F005 aS
those I istirtgs ware ar ended aid expanded to include mix re or blends on
Dece nber 31, 1985, (50 FR 53315). How does EPA have the auU i.ity to use
the expanded solvent listings for the prohibition wr en the stL tute specifies
that the prohibition applies to the solvent listings as the solvent listings
as they ware in effect on July 1, 1983?
Section 3004( i) of M as rended by HS sç cifies that the earliest land
disposal 1ibition applies to the solvent listings as they ware in effect
Oil JUly 1. 1983. The universe of solvent wastes covered by those listirçs in
1983 is pr .d to be restricted land disposal under the autnority o
that section. Section 300 4(g)(4) of RA as wiended requires the irtistrator
to [ Mice a determination concerning the prohibition on lard diSpOSal of any
new waste identified or listed under Section 3001 after the date of enac nt
of HS I within six icnths after the date of such identification or listing.
Since the expanded solvent listings pr3nulgated art Decen er 31, 1985, (50 FR
53315) list new solvent blends or mixtures as hazardous wastes after the date
of enac nt of HSWA (pbv nber 8, 1984), EPA is required to make a determination
concerning the prohibition on land disposal of these newly listed wastes w1thi
six flCnths of listing. The universe of solvent wastes not covered by FOOl-S
listings on July 1. 1983. but included in the proposed S268.30 land disposal
restrictions is proposed under the authority of S3004(g)(4 of RCRA as wended
by HSW .
Source: Susan Br rt (202) 382-4770
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9551.1986(07)
UNITED STATES EN,I .. L. ‘c.TECTION AGENCY
WASHINe )N. C
c 0 ? OF F ICE OF
sOLID WASTE AND EMERGENCY RESPONSE
Mr. Klaus L.. Mai
Vice President
Health, Safety & Environment
Shell Oil Coi’ pany
One Shell Plaza
P.O. Box 2463
Houston, Texas 77252
Dear Mr. Mai:
Thank you for your June 19, 1986, letter supporting the
Environmental Protection Agency’s (EPA’S) proposed approach
to implementing the land disposal restrictions.
You expressed suoport for the use of risk—based methodo-
logies to implement the Congressional directives prohibiting
land disposal of hazardous waste. Specifically, you state
that EPA should incorporate risk assessment principles into
the development of technology—based regulations. Although
the Agency agrees that risk—based methodologies are an effective
tool in developing regulations to implement the hazardous
waste management program, Congressional leaders argued stronaly
that the risk—based approach, proposed by EPA, did not fulfill
the intent of the law. Rather, they argued that the statute
contains a statutory presumption against land disposal of
untreated wastes. Further, the statutory presumption places
a burden on facilities to demonstrate that continued land
disposal will not allow any untreated hazardous constituents
to migrate from the disposal site. The Agency has not yet
reached a final decision on how to interpret its statutory
authority on this issue.
The debate surrounding the land disposal ban program
has prompted a careful consideration within the Agency of
when we might best use risk—assessment for the Resource
Recovery and Conservation Act (RCRA). For example, we
concluded that risk—based methodolog leg are essential to
identify wastes as ahazardousu and, therefore, subject to
the RCRA Subtitle C program.
If you have questions or require additional information,
please contact Stephen Wei]. of my staff at (202) 382—4770.
Sincerely,
3. Winston Porter
Assistant Administrator
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9551.1986(°8)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
JULY 86
5. Land Dis sai Prohibition
Will the EPA prohibit the Land ciis 1 x)sal of all hazardous waste?
Section 3004(d), (e) and (g) of RCRA prohibit the Land disposai of
untreated hazardous waste beyond specified dates. For the purposes
of the Lard disposal restrictions program, Section 3004(k)
specifically defines Land disposal to include, but not be Limited
to any piacenent of hazardous waste in a landfill, surface ix ourdnent,
waste pile, injection wail, lard treatment facility, salt dane
salt bed formation, or undergrourrl mine or cave.
Paragraphs Cd), Ce) and (g) do not i.ti se an a1 sulte ban on the
Lard disposal of hazardous waste. A waste may be excluded fran
the ban under the foLlaeiirq circu tances:
(1) 41en wastes residues meet treatment standards established by
EPA under Section 3004(m). On Jar ary 14, 1986, EPA proposed
regulations to m Løient this provision at 40 CFR 268.40
(51 FR 17262).
(2) en EPA grants a site-specific varlanos that d n strates
that there will be no migration of hazardous constituents
fran the disposal unit for as Lor as the waste rei irts
hazardous. i.rider Section 3004(d)( ] .), (e)(l) or (g)(]J. On
January 14, 1986, the EPA proposed regulations to i lenent
this provision at 40 CFR 268.5 (51 FR 1762); and
(3) Untreated waste may be treated in a s x face inçcundrient
under Section 3005( j) (11) if the irtçoundinent cai 1ies with
min.i.r i teohnological requirenents and if the treatment
residues hxd are hazardous are reToved within a year of
entry. The EPA proposed regulations ui Lenenti .ng this
provision on January 14, 1986 at 40 CFR 268.1(e) (51 FR
1760).
Sections 3004(d) (3) and Ce) (3) eate an ez iption 1asta.r
until Nove!ter 8, 1988 for soil or debris reeultir frau
response actions taken tixier Sections 104 or 106 of RC.A or
corrective action taken under Subtitle C of R&. (see
prcposed 40 C} . 268.1(f)(2)).
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RCRA/SUPERFUND HOTLINE MONTHLY SUPO(Aj y
- JULY86
Land disposal prdubitions are effective irTTTed.iately upon
pranu.1. tion unless EPA sets another effective date (no nore
than t years beyond the statutory deadli.rie) based on the
earliest date on which alternative protective treatment, recoveL-y,
or disposal capacity uld be available under Sections 3004(h) (2)
and (h) (4); (see prqosed 40 CFR 268.4). EPA may grant up to
t , one-year, case—by-case extensions er Sections 3004(h) (3)
and (h) (4) when an applicant de onstrates that there is a
binding contractua.L ca ru.trient to construct or otherwise provide
alternative c apacity, but due to circtumetances beyond the
control of the applicant, such aLternative capacity cannot
reasonably be made available by the effective date. The procedures
for these extensions ware proposed on January 14, 1986 at 40
CFR 268.4 (51 FR 17611) (see a.Iso June 24, 1986, 51 FR 22948).
Theatment standards established under Section 3004(m) can
take the form of prescribed methods of treatment, or they
can be performance standards based on concentration Levels
of Appendix V III constituents in the waste itself or in extracts
fran the wastes. EPA pr osed to use technology-based Levels in
conjunction with risk-based standards (screening levels) (see
51 FR 1602. January 14, 1986). Screenirq levels uld be
based on a ca rehensive itodeling ap oath to assess potential
adverse effects to hunan health and the environment through
release of contaminants fra’ land disposal units to ground
water, surface water, and air. ver, after evaluating
can1 nts received on the proposed rule, EPA may consider not
using a risk-based rnet dology but rather to ln!,lsment Section
3004(m) by solely relying on technology-based standards.
Theatment standards may be established by identifying all available
and d istraeed technologies for a waste group and evaluating
the perfoz nce of these technologies in order to identify
the best de onstrats2 available technology (B T). Pccordi.ng to
the January pi osal, B T are technologies that achieve the L est
concentration of constituents in either the treatment effluent or
in the extracts fran treatment residual. B1 T will only consider
treatment technologies that are found through ca çarative risk
assessments to not pose a greater risk than Land disposal. The
EPA prefers achieving B T by setting perfor mence standards
based on a concentration level associated with a technology or a
series of technologies because the resu.Lting regulation does not
inhibit innovation or least cost lianoe efforts.
If EPA fails to pranuLgate treatment standards for solvents
and hazardous dioxin waste addressed in Section 3004(f) by
Novsther 3, 1986, the statute ‘cu.Ld ban the placsment of aLl
solvent and hazardous dioxin wastes addressed in Section
3004( f) in a land disposal un.tt.
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UNITED ST S ENVIRONMENTAL PROTECTION AGENCY 9551.1986(11)
G 111986
Mr. Ray D. McIntosh
1DM General Products Division
DeDartment, 04C
Tucson. Arizona 85744
Dear ir. ficlntoshi
We received your request on July 11, 1986 for an extension
of the effective date of the land disposal restrictions under the
Hazardous and Solid Uaste Artendment.s of 1904 (HS 4A), While I
have not had the chance to review your request yet, I will
reiterate what was said both over the phone and in our meeting of
June 10th.
The request for an extension should include, at a minimum,
the following information:
a de,tonstration that alternative capacity is not.
available — including a description of good faith
efforts to locate or surply treatment camacity.
a emonstratjon that the lack of capacity is beyond the
control of the applicant.
a demonstration of a binding contractual cowuittment to
provide sufficient permanent capacity by the end of
the extension period.
a schedule showing when capacity will be available.
a demonstration that waste management capacity during
the extension will, be adequate and that the land disposal
facility used during the extension meets the minimum
technological requirements of suppart F section 265 and
section 265.301 or subpart P of section 264 and section
264.301 as applicable.
• certification that. the information provided is accurate.
As discussed, th. following information will also be helpful:
• documentation of the site
• documentation of the proposed tank system
• documentation of the current lagoons and their leak
detection and monitoring systens.
a description of the processes and the wastes being
granted the exemption.
-------
At the meeting we discussed the possibility of using the
etetutory exemption of section 300 S(j)(ll) for treatment surface
impoundri ents in lieu of seeking an extension under 3OO4(h)(3).
You stated that this was possible but not desirable, as you did
not want to risk rupturing the liners by dredging. If you do
use section 3OO5( )(li),, even for a short time, you wi ]]. be
required to dredge by the end of one year after first utilizing
this exemption in order to be in compliance.
The minimum technoloqy re uLrements of 3O04(o) for surface
impoundments appear to have been met at your site based on your
verbal description of the site to Kenneth Shuster during the
July 10th meeting. We will be examining this as part of the
petition request, and vii] notify you immediately if this is not
the case.
Prom a procedural stand point, we will be notifying you of our
initial determination within a few weeks. At the same time, we
will be notifyinq the affected states (Arizona) and publishing a
Notice in the FEDERAL REGISTER noting this initial determination,
the availability of further information, and requesting public
comment on your request. After review of the conunents, the
Administrator will notify you in writing of the Agency’s final
determination on your request. You will need to retain a copy of
this notice during the period of the extension and for three
years after the extension expires.
Finally, we will attempt to get all of this done by
November 8, 1986.
Sincerely yours,
Stephen ft. Weil
Chief
Land Disposal Restrictions Branch
cc: Eileen Claussen, EPA
Kenneth Shuster, EPA
Gregory Bone, IBN
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9551. 1986(15)
September 15, 1986
MEMORANDUM
SUBJECT: Effect of Land Disposal Restrictions on Permits
FROM: Marcia E. Williams, Director
Office of Solid Waste
TO: Hazardous Waste Division Directors
Regions I-X
On or before November 8, 1986, the Agency will promulgate
regulations that will restrict the disposal of certain solvents
and dioxins that are hazardous wastes. (Note that in the absence
of such regulations a ban on the land disposal of these wastes
would automatically take effect on November 8 pursuant to the
self-implementing RCRA provision at §3004(e).) The land disposal
restrictions will apply to U. land disposal facilities
regardless of any existing permit conditions.
The HSWA land disposal restrictions supersede the §270.4
provision which currently provides that compliance with a RCRA
permit constitutes compliance with Subtitle C. Therefore, the
permit does not shield the facility from the new land disposal
requirements. The Agency is in the process of amending §270.4 to
make it consistent with the self-implementing requirements of
RCRA. ( See 51 FR 10715, March 28, 1986.) However, these
provisions automatically apply to permitted facilities even
without the regulatory change. In addition, there is no need to
reopen or modify the existing permits to incorporate those
provisions. The land disposal restrictions are fully enforceable
notwithstanding contrary or absent permit provisions concerning
land disposal.
Similarly, for those land disposal permits that are now
being processed it is not necessary to provide permit conditions
regarding the applicability of the land disposal restrictions
since they apply automatically. However, the Fact Sheet should
briefly describe the effect of the new requirements for the
benefit of the public and the facility owner/operator. The
following language is recommended for inclusion in the Fact
Sheet:
This document has been retyped from the original.
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—2—
“SELF-IMPLEMENTING HSWA PROVISIONS
In several instances HSWA imposes self-implementing
requirements that apply to all facilities regardless of
their current permit conditions. RCRA provisions that
supersede permit conditions include: 1) requirements that
go into effect by statute and 2) regulations promulgated
under 40 CFR Part 268 restricting the placement of hazardous
wastes in or on the land. Pursuant to this RCRA authority,
certain dioxins and solvents have been restricted from land
disposal unless treated according to specified standards.
Although the permit does not contain conditions regarding
the management of the restricted dioxin and solvent wastes,
the facility is required to comply with the standards in 40
CFR Part 268.”
Once the land disposal restriction program is established,
it will be preferable to incorporate the applicable standards and
practices into the permit. This will clarify specific activities
at the facility and will provide a stronger basis for enforcing
the land disposal requirements at permitted facilities.
Please feel free to contact Frank !4cAlister of the Permits
Branch (FTS 382—2223) if you have any questions regarding this
matter.
cc: Hazardous Waste Branch Chiefs, Regions I-X
Bruce Weddle, OSW
Lloyd Guerci, OWPE
Carrie Wehling, OGC
This document has been retyped from the original.
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9551.1986(19)
RCRA/SUPERFtJ?JD HOTLINE MONTHLY SU)U(ARY
OCTOBER 86
1. Land Dis sal Restriction Variances
A manufacturer generates a waste which will be subject to land dis sal
restrictions and for which no treatment technologies have been develored
that are ca .ble of achieving the treatment standards. The only manage—
rnent method available is landfilling. Can the generator obtain a variance
fran or an extension to the effective date of the land dispDsal restrictions
that will be finalized November 8, 1986?
The generator has three o Zions:
1) He may deim nstrate that there will be no migration of
hazardous constituents fran the dis sal unit for as long
as the waste remains hazardous, r §3004(e).
2) He may apply for a 1 year extension of the effective date
of the chibition, r §3004(h)(3), if he meets the criteria in
§ 268 .4(a). Essentially these criteria require that the generator
has entered into a Contractual agreement either with someone to
build treatment ca c1ty for him or with saneone who can eventually
Lxovide alternative cacacity for the waste, t that the ca city
will not be available until sane time after the effective date of
the ban. The Administrator’s decision to grant an extension will
be made on a case—by—case basis. An extension may be renewed once
for an additional year.
3) He may apply for a treatibiljty variance, wherein the
generator groves that no treatment method for the rtiCular
waste will achieve the § 3 004(m) standards s cjfied in the
rule. The generator essentially applies for a different
erfo nce Standard for the rticu].ar waste, although it
would still be based on the g rformance achievable by the
application of BDAT to the rticujar waste. This new
o jon is discussed in the Se tember 5, 1986 Federal gister
(51 FR 31787).
Source: Steve Weji (202) 382—4770
Research: Kim B. Gotwals
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9551.1986(22)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
DECEMBER 86
9. Variances to Ban
What are the effective dates Eor solvents and dioxins under the .and
disposal re rict .ons?
The land disposal restrictions bec ne effecti.v on Jov nber 9.
1986, for a.L1. FOOl-F005 solvent wastes, with the ex ept.i.on of
the foU inc wastes . tuch will receive a 2-year variance that
extends the effective date for the land d.isr,osa 1• testri :rng
to NOv nber 8, 1988:
(1) The generator of the solvent wa.ste is a sn 1.l quantity
generator of 100—1000 )c.ilogran of hazardous w ste per ncnth;
or
(2) The solvent waste is generated fran any res xz se action
taken under sections 104 or 106 of A or any Th A corrective
action, except ere the waste is contr .nat soti or debri.s
not subject to the provisions of this thapter uzrLil : ve,it,er 8,
1988; or
(3) The solvent waste is a solvent. . ter mixt e, a
sludge, or a solve t. on. te soil
or RA correction action) COntaj g Less than I
percent total F 0l-pQo 5 solvent constit Listed in ?ab
•WE of 268.4j. (51. FR 40579)
Further re, until bve er 8, 1988, con a.inated soij, or
debris resulting fran a res se action taken ur der section 104
or 106 of or a correc .j action requjre under RCRA ney
contj to be land dispoes j (c268. (c,( 3 ))
Pthaily, effective 7 ovex er 8, 1989, the
“estee s cjfj in 40 CPR 261.31 as E A zard Waste ‘Jog.
P020, F021, P022, P023, P026, P027, and P028, are
er Land disposaj. ( 268..31(a)).
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RCRA/SUPERFUND HOTLINE MONTHLY STJ?O(A y 9551.1986(23)
DECEMBER 86
L? ND DIS? SAI., RESTRtCrIOr%IS
4. i.and Disoosaj. Defin. .ticri
CW .s land defined regarthnc the Section 3004(d) RC A :a.nd
±.wosal res. rs’
.and th.soosal is defi.ied to include, but riot e Limited to, any
lac y nt of haza.rdous waste in a landfill, surface
aste pile, inJect.i.on wall, land treat, rit facil ty, salt sane
for ation, or undergrour rTu.ne or cave Section 3004(k) R A].
A also considers plac nerit o. hazardous wastes in concrete
vaults or bunkers intended for disposal purposes as methods of
waste :nanagement subject to the land disposal r .rictior s.
rever, PA does not consider open detonation, ‘. ‘*u.ch i1d
L’ clude open burru.ng, as methods constituting land disposal arid
has concluded that the land dist osal restrictjor program is
not applicable to open detonation and open burning
C51 FR 405803.
5. E.ab Packs
Are lab packs containing wastes restricted fran laM disF sal .ncluded in the
land disposal restrictions?
either the legislative h.istory nor the statute indicates that
Lab packs can be excluded fran the land disposal restrictions
if they cont.airi restricted wastes. If a lab pack contains
these restricted wastes, the entire lab pack is subject to the
land z_sposal restrictions C 5]. ER 40585).
6. Conditionally Exe çt SQG Waste
Are coridition ily exe t al1 quantity generator wastes subject to the
S flI•?
In the land disposal restrictions rule C 51 FR 40572], the
Agency has anended §261.5 to exclude conditi nauy ex pt ll
quantity generators f n the requir esrits o part 268, so long
as the generator has ca iled with all a 1.icable provisions of
§261.5 t51 FR 40637].
7. E pty Containers
Is an “ Tpty container” whith held . RA hazardous wastes F00l-F005
subject to the land disposal restrictions?
No according to 40 261.7(a) (1) as an nded CS]. FR 40637),
“Any hazardous waste rwathing in either (i) an T?L r container
(ii) an inner liner r’a oved f an ipty container, as defined
in paragraph (b) of this section, is not subject to regulation
der Parts 261 through 265, 258 (added in this rule), and
Parts 270 and 124 of this iapter or to the notification
requirei nts of Section 3010 of A. Thus, if the container
has been enpeied in accordance with the applicable provisions
of §261.7(b), it is not subject to Land disposal restrictions.”
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95 51. 1986 (24)
RCRA/SUPERFUND HOTLINE MONTHLY StT?O(A y
DECEMBER 86
8. Storage of Restricted Wastes
When is the storage of rsstricted ‘ stes riot prthlb.Lted?
In Section 3004(j) of RCRA, Congress e ressly ohibited the storage
of any iazardous waste restricted fran Land disoosal “un.Less such
storage is solely for the purpose of the accunp4atjon of such uant.t1.es
f ha rd us ste as are necessary to facilitate proper recovery,
eatnent or disposal.”
In the final rule (51 FR 40572, 268.5), EPA has thcor rated
this language directlyTnto provisions for generator acc ruja n
and storage by vners or operators of treatment, storage, or
disposal facilities. ‘The Agency believes that a storage limit
of t to one year should generally provide sufficient tune for
an ner/operator to acctntl.llate sufficient quariititieg to facijj. ate
proper recovery, treatment, or disposal of restricted hazardous
tes while rneetLng the intent of Congress to prohibit long-term
storage as a means of avoiding the land disposal restrictions.
The burden is on the Agency to d nstrate that storage of
restricted .este for periods less than or equal to one year is
riot in a Liance with the storage provisions. The Agency also
recognizes that there ITay be instances where one year does not
provide sufficient tune to accululate such quantities.
Therefore, the Agency will ali an rtner/operator to store
restricted stes beyond one year. Although, the ner/operator
is riot required to su nit any data or application to EPA, in
the event of an enfore nt action, thá rden of proving
liance with 268.5O(b) is on the c ner/cperator. The
Agency believes that this is reasonable because the record for
this rul neking indicates that less than one year should be
suffici.ent. This provision does not apply to situations where
badc- ,e at treatment or recovery facilities, operational
difficulties, and repairs and rne.intenance result in additional
delays” (51 FR 40583).
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9551.1987(01)
January 20, 1987
Michael Edwards, Training Officer
GSX Chemical Services, Inc.
Post Office Box 216799
121 Executive Center Drive
Congaree Building, Suite 100
Columbia, Sc 29221
Dear Mr. Edwards:
Thank you for your letter of November 25, 1986, requesting
confirmation of EPA’S interpretation on several issues pertaining
to the land disposal restrictions final rule (51 FR 40572,
November 7, 1986). With a few exceptions, your interpretations
of the regulation are correct. I have addressed each issue
raised in your letter and provided the responses below:
1. “Only the RCRA and CERCLA contaminated soils are exempted
for disposal at landfills.”
—— Congress provided a statutory exemption from the land
disposal restrictions for contaminated soil and debris
resulting from a response action taken under Section
104 or 106 of CERCLA or a corrective action under RCRA.
The exemption is in effect until November 8, 1988,
(48—months after the date of the Hazardous and Solid
Waste Amendments enactment). This exemption does not
apply solely to landfills; rather, it applies to all
units defined as land disposal in 40 CFR 268.2.
On November 7, 1986, the Agency promulgated a two-year
delay of the effective date (ending November 1988) of
the land disposal restrictions for solvent wastes from
generators of 100-1000 kilograms of hazardous waste per
month, CERCL and RCRA corrective action solvent wastes
(except solvent—contaminated soils), and solvent wastes
containing less than 1 percent total FO01—F005
solvents. In addition, the Agency granted a two-year
exemption (ending November 1988) for certain dioxin-
containing wastes, including dioxin-contaminated soils.
This document has been retyped from the original.
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—2—
2. “Federally ordered cleanups are the only ones that have the
extension for soils, State ordered cleanups are not exempt.”
—— This is correct. Only Federally ordered cleanups under
CERCLA or RCRA are covered under the statutory
exemption.
3• tUw t collected from small quantity generators can be
collected at a TSDF and be remanifested by the TSDF and
still go to the landfill for disposal under the small
quantity generator extension.”
—— The Agency granted a two—year exemption for spent
solvent wastes generated by small quantity generators
of 100—1000 kilograms of hazardous waste per month.
These wastes are exempt from the restrictions until
November 1988. Wastes from these generators may go to
land disposal even if collected and remanifested by a
TSDF. However, each generator of the waste must
forward a notice to the land disposal facility stating
that his waste is exempt from the restrictions (see 40
CFR 268.7 (a)(3)).
4. “The ash from the incineration of F003 waste does not
exhibit the characteristic of ignitability; so the ash is
nonhazardous. This waste can be landfilled without meeting
the CCWE standards.”
—— This is incorrect. According to the “derived—from”
rule in 40 CFR 261.3(c) (2) (i), any waste generated from
the treatment, storage, or disposal of hazardous waste
is a hazardous waste. Therefore, although incineration
of an F003 waste may render the waste nonignitable, the
waste remains a hazardous waste and as such the
residual is subject to the land disposal restrictions
and cannot be landfilled without meeting the treatment
standards in Table CCWE.
5. “F003 materials once changed from the ignitable state can be
landfil].ed. (i.e., mixing the waste with an absorbent is an
acceptable means of treatment.)”
-- According to the mixture rule in 40 CFR
261.3(a) (2) (iii) a mixture of a solid waste and a
hazardous waste that is listed in Subpart D solely
because it exhibits one or more of the characteristics
of hazardous waste is excluded from regulation provided
that the mixture no longer exhibits any of the
This document has been retyped from the original.
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—3—
characteristics of hazardous waste. Thus, mixing of an
F003 waste with a solid waste is an acceptable means of
treatment.
6&7. “FO01-F005 waste may be stored at a TSDF for a period of one
year for the sole purpose of accumulation of such quantities
of waste to facilitate proper disposal, recovery, or
treatment.”
“It will be acceptable to use the tank inventory as means of
showing disposal of F-listed material in the one year time
frame.”
—— These two statements reflect a misconception about the
storage provision. The statute prohibits storage of
restricted wastes unless such storage is solely for the
purpose of accumulating sufficient quantities to
facilitate proper recovery, treatment, or disposal.
Therefore, according to the provisions in 40 CFR
261.50, an owner/operator may store prohibited wastes
if such storage is for the purpose defined above.
Storage is not limited to 1-year. Rather, the 1-year
period serves as a benchmark to determine who bears the
responsibility of demonstrating whether or not the
waste is being stored to accumulate sufficient
quantities to facilitate proper recovery, treatment, or
disposal. 40 CFR 268.50 (b) places the burden on the
Agency to show that wastes being stored for up to 1—
year are not being stored for reasons allowed under the
statute. Under 40 CFR 268.50(c) the owner/operator
bears the burden of showing that storage beyond 1-year
is for the reasons allowed under the statute. It
should be noted that the owner/operator is not required
to notify the Agency that wastes are being stored for
longer than 1—year.
8. “Solvent waste which is a solvent-inorganic sludge mixture
or solvent—contaminated soil (non—CERCLA or RCRA corrective
action) containing less than one percent total F001—F005
solvent constituents may be landfilled.”
—— This statement is correct. These wastes are subject to
the two-year extension of the effective date due to the
lack of alternative treatment capacity. After November
8, 1988, these wastes are restricted from land
disposal.
This document has been retyped from the original.
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—4—
9. “F0O1-F005 contaminated soils may not be removed from the
ground and be stock piled.”
—- This is correct. FOO1—F005 contaminated soils (i.e.,
non-CERCLA and non-RCRA corrective action) containing
greater than 1% total F001-F005 solvents, are subject
to the November 8, 1986, effective date. Once removed
from the ground, these wastes only may be stored for
the purpose of accumulating sufficient quantities to
facilitate proper treatment, recovery, or disposal.
Such storage must be in tanks or containers. F001-F005
contaminated soils containing less than 1% total FOOl-
F005 solvents are subject to the two—year extension of
the effective date may be stored or disposed in or on
the land until November 8, 1988.
10. “When working with RCRA and CERCLA cleanups, it is
acceptable to assume the best scenario when determining
whether the waste is F-listed or not (i.e., do not assume a
solvent is spent) .“
—— The Agency recognizes that situations occur in cleanup
operations where the origin and type of waste is not
known. When such cleanups involve F00l—F005
constituents, it is the Agency’s policy, when
conducting Superfund cleanup operations, to consider
such wastes as listed hazardous wastes.
I trust that this letter clarifies the issues raised in your
letter. If you have additional questions, please contact me or
Jacqueline Sales of my staff at (202) 382—4770.
Sincerely,
Stephen R. Weil, Chief
Land Disposal Restrictions Branch
This document has been retyped from the original.
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KL1 A/ Uh .1(kUNL) HO1L Ific , i1ig1j , uruuI3J 1
95 51 . 1987 (04)
JANUARY 87
2. Land Disposal Restriction, Dioxjns, and 90—Day Acc iT ulation
The land disposal restriction rule, published in the ovenber 7,
1986 Federal (51 FR 40572) all s generators to store their
restricted wastes on—site beyond the 90—day limit set forth in 40
CFR 262.34 provided that the waste is being acct ulated to “facilitate
proper recovery, treatzi nt, or disposal” (40 CFR 268.50(a)(1)).
Generators of the restricted wastes are eligible for interim status
provided that they are in existence on the effective date of the new
regulations (40 CFR 270. 70(a)) and the new reguirerEnts will subject
then to storage periods Longer than 90 days. A generator who stores
the waste for n re than 90 days rri.ist sukr it a Part 1 application no
later than 30 days after the generator becanes subject to the new
regulations (40 CFR 270.10(e)). Are generators of the restricted
dioxin wastes, which received a t year extension for ca liance
with Land disposal restrictions, eligible for interim status and,
therefore, able to store their wastes on—site for ri re than 90 days
betwaen ! bvember 8, 1986 and ! bvember 8, 1988?
b, the provision in 40 R 268.50(a) and under section 3005(e),
that makes generators eligible to apply for interim status and
subeequently able to store their restricted waste on-s..t for
longer than 90 days applies only to those generators hose
waste is currently subject to land disposal restrictions and
who are acci. ulating to recover, treat, or dispose of the waste.
The dioxin generator would not yet be eligible for iriteri.m
status since he was not in existence on the date of regulatory
changes which affect his operation (RCRP ( 3005(e)(1)(iij)
since the effective date of the land disposal restrictions that
applies to the dioxin waste was deferred until bvet,ber 8, 1988
(40 CFR 268.31). The dioxin generator ould have been eligible
for interim status for the storage of his dioxin wastes on
July 15, 1985, the effective date of the listing of the dioxin-
contarL ing wastes. Interim Status culd have to have been
applied for within 30 days after the generator becaxre subject
to the new regulations (40 CFR 270.10(e)(l)).
If a dioxin generator did not apply for interim status pursuant
to the July 15, 1985 Dioxin Rule the generator of dioxin wastes
ould not currently be eligible for interim status • The dioxin
generator could howaver, apply through the state or region for
a full permit as a new facility. The generator rTay also be
able to obtain an informal ccr liance agreeient with the state
or region. This agreenent could only be obtained if the generator
has not previously applied for interim status. It could include
enforcenent orders and r y grant the generator sane ixTitunities.
The specifics uld have to be determined oy the Regional
ninistrator or the state. The dioxin generator should be
ysically in ocr 1iance with applicable regulations under
40 R 265. He should also notify the state or region of his
activities and subuit a Part A Permit Application. Although he
could not technically obtain interim status, the pr er steps
should be taken to sh a “ good faith effort” on his part. The
L’ J( J1iance agreerent with EPA, or other authority, could include
pranises not to enforce against the facility as long as all applicable
regulations ware uTp1ied with.
Source: Tony Baney (202) 382—4460
Jacqueline t’bya (202) 382—3122
Research: Deborah t Kie (202) 382—3112
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9551.1987(05)
RCRA/SUPERF ØOTLINE I4ONTI(L1 SUMMARY
FEBRUARY 87
4• a.nd Disposal Restrictions
The v i er 7, 1986 Federal Register (51 FR 40572), land d.i.sposal
restrictions final rule, states that the storage of hazardous ‘waste
which is restricted froi land disposal is prohibited unless onthti ris
are r t under §268.50.
A generator as interim status to store waste on—site. The generator
wants to store his waste for up to one year to acc uLate the waste
as necessary to facilitate prL per recovery, treatrient and disposaL
Lfl accordance with §268.50(b) (51 FR 40572). When does the one year
eg ir ?
Storage of restricted wastes by permitted or interim status
facilities is a1l ed solely for the purpose of acctzmilating
sufficient quantities to facilitate proper treatment, recovery
or disposal. The one-year period acts as a bez -mark to 1e ermizie
hith party (EPA or the storage facility) bears the burden of
prouf to d nstrate that storage is for the allowable reasons.
For storage of one year or Less, the burden is on EPA to d nstrate
non-corpliance. F r storage gore than one—year. the burden
is on the facility awrter or operator to d tonstrate that such
storage time is necessary. The owner/operator does not have to
notify the agency of storage for ‘rore than one year. The
burden of proof only applies in the event of an EPA inspection
or for enforc nt purposes.
For a generator with interim status or a permit to store
hazardous wastes, the one year begins on the date the waste is
first placed in the tank or container. If the generator
acci mulated the waste prior to the effective date of the land
disposal restrictions final. rule (51 FR 40572), the waste is
not subject to the rule. Therefore, e generator can store
his waste indefinitely since he has interim status to store a
hazardous waste.
The Nov rber 7, 1986 land disposal restrictions final rule
(5]. FR 40572) allows generators to gain interin status if
Lc .Ir )lance with the land disposal restrictions requires storage
for riore than 90 days.
Source: Mitch Kidwali. (202) 382-4805
Research: Carla Rellergert (202) 382—3U2
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 95511987(06)
L 1 auren . 3ro in, ?ti.D.
Prcs ioe t
J L. Scientific, £nc.
25 C it31i3 t4ä ’
an uis O is o, California 93401.
Dear Dr. ro in:
Thi3 letter re oon1s to your ln uiry of Dec iber 9, 19B6,
to 3oert Sc roerry re ’uesting tnat the Agency grant either an
exe.mtion fro—. the land dis’ osil restrictions or an exten5io i nf
tne effective date of the restrictions for solvent—containin
waste 1ener 1t2i at your facility and soli’ftfied with ver iiculite.
I apo1o jize for the delay in res onding to your in uiry. kfter
tn ne re ulation re uo1ished the Aoency received nuierou9
re es for guidance on imple ienting the restrictions.
U zardous and Solid Waste A en ment of l9 4 lo not
rovtde tne A3ency with the el.exihility to qrant an extension f
tne effective d3te of the lan’l disposal restrictions to en!r. tors
tnat nee ti. .e t find treatment caoacitv for restrictel wastes.
rioweler, if a ieiuate tre3t 1ent cao city does nflt V3 iSt a ienerator
. a.j a;oly for a case—by—case extension of the effective sate
ne t a entered into a bindin’ contractial co it, ent to construct
or otherdise crovids adequate capacity. Likewise, the statute
aoes n.t pr3vlde a mechanis for grantint , n exe ptim fro,i the
restrictions in cases where the generator finds the cost of
tr itment to be prohiDitive.
I swjgest that you evaluate available treatment alternatives,
and then cnooae the most suitable n etho1 for treatin’ your jaste.
For exaitple, otological trnatment is in efficient methol for
treating i iany solvent—containing wastes. ou should contact
eitner your State or EP Pe ional offt:e.for isgistince. James
Serlow, of the EPA Aaste Treatment Brancn, can proviie infornation
o i 1ternat1ve treatment methods. Ie can be reached at (202)
3ã2—79 17.
%9S3— l7-S 3
-------
If jou ‘iave adljtjonil c7uestior’.!, you nay c 11 me at (2 2)
3 2—477O.
Si nce rely,
3ac ue1ir e ç • S31e3, Chief
Regulation Develooment Section
2
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9551.1987(07)
1! tOO .
Ir. ..2r Jre 3
.ti ri 1 I s .i r . te of iie j1t i
.cLo al Institute o Environ. nta1
.ie j.t:j SecVjces
Post office 33x 12233
searcn i’riarr 1e Paric, ‘ rth CarolIna 27709
)ear r. Dreds:
This is i re500nse to vo’ir January 30, l9 7, 1ett r
‘ ere you reJJest clarification of SX’s leial authority t
re .iire : 1 .rifv that wastes 1’, ] to lt
ine oo facility do not contain restricted stes.
ACCOt 11 to tne lani 1isposal r strictiorti tin l rule,
r)ublisne, :1ove oer 7, 1986 (5]. FR 40572), generators are
re iireo to deternine if their w stes re restricted from l nr’
i. 33a1. s you correctly state in your letter, enerat rq
se a notice with aech sni x ent of rentricted wa t .
; e notice rnust iiclude the Pk hazardous waqte number, the
corrasnondin treatment standard, tne. manifest number ao Iate
itn t e s i ent of the ste, and tne waste analysis data,
vai1. .,1e. in n it is deter ined tiat the r stricte1
waste can oe land disposei without further treat nent, enerators
nust ce certific ion, (signei y an authorired rer rese,t3’Lue)
t tne land disposil facility accordirr to the orovisinns in
6 .7(a)(2)(jj), s you ooint out, tne land dis’ osal te3trictiori
not re uire generators to certify t either treatment or
icoos l facilities that their wastes do n.,t contain re trjct.!d
nazardous wastes. However, it must oe noted that disoosa1
faci1itie have the ultimate resoonsiblity to verify that
cmly restricted .lastes which meet the ap 1icable treatrnent
stan’3ar s are land disposed. There is nothtna in the 1arv
disposal restrictions which pronibits a treator or disposer
sucn as SX from imposing n re atrir.aent re3uire ents.
I nope this Letter adequately addresses your concerns.
you have uest1ons, you may contact me or Jacqueline !ales
of ;.iy staff (202) 382—4770.
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9 551.1987(09)
RCRA/S JPERFUND HOTLINE MONTHLY SUMMARY
MARCH 87
1. Land Disposal Restrict ions ..C jjf 0 ste
A gerierat r produces t o separate liqu. .d h ’ rdoug waste strea
e waste contains 8 ,0Q ppn ha1oge ted orgeru.c C ouflds,
and the other waste stream contains 25,000 pp i halogensted organ.ic
c rp,w . A.fter the effective date of the L rbl disposal restrictions,
(July 1, 1987), n y these Waste strean be land d .sIx)sed?
According to the Agency’ a pro ed rule, the waste stream
conta zung 8,000 ppn halogenated organic tp w will, be
prth.jbj ted fran land d.isposaj. effective JULy 8, 1987. The
waste stream conta.1.ru .ng 25,000 ppn halogenated organic
will, be prd Ubited fran land disposal effective July 8, 1989.
Section 3004(d) of the Hazardous and Solid ste Ar ts
(NS ) requires the EPA ninistrator to determine ether to
prthibit hazardous waste containing greater than 1000 np/kg
(1000 ppn) halogenated organic ca un s fran land dispo by
July 8, 1987.
SA section 3004(h) (2) a1l #s the EPA A ninistrator to grant a
variance han the prchibitjon for up to t o years if adequate
treatment capacity does not exist for the waste.
The proposed rule p.zblished in the certer 11. 1986 Federal,
Register states that the best de trated available technology
(B Trfor solids containing greater than 1000 rTq/kg (1000 ppn)
halogen organic pounds is incineratj ,c h ver, the
Lrlcinerator capacity is insufficient. Therefore, a t -yea,r
r ation..wjda variance fran the prch.ibjtj is granted FR 44725).
Liquid hazar us waste containing greater than 1% (10.000 n)
halogenated organic has a T of incineratjcci and is
aLso granted a t year nationwide variance due to a lack of
treatt t capacity (5l, FR 44725).
EPA has not determined a B T for F X liquids containing
bebmen 1000 nq/kg (1000 ppn) and 1% (10,000 ppn) halogenated
organic The Statute requires that a lack of capacity
be d Ta atrated in order to grant a variance. The Agency
indicated that lack of capacity cannot be delcnstrated if no
3 T is specified, As a result, the Agency proposed that the
effective date of the ban for liquid hazardous wastes containing
betwaen 1000 nq/kg (1000 n) and 1% (10,000 n) halogenated
organic is J ily 8, 1987, since no variance can be
granted.
Source: Steve i 1 382-4770
Research: .ndy Eicher
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UNITED STATES ENVIRONMENTAL. PROTECT 9551 1987(10)
Jt 1 2 1987
.iozi P.Lraqas 1 Director
£. ti.tue of Ch.iucej Wast. Maac,.nsnt
Ahc, s Island Awe, W
.)LLt 11)00
hai . iri tan, D.L. 20036
Li.ar .u ii1ens
•Ajur recent Letter of May 2i, 1987 concerning waste analysis
roçuir.m.ntp raised a question about the level of dstail raquirø.d
in anaiyses of incoming wast. shipa.nt.. This is an old problem
whicfl ha. surfaced again becaus. of the original. languag in
y26 . 7(c) at the land di . j restriction. rule pubLished on
L avember 7, 1986. I belie,, that your specific concern, over
the eset.1ng r.quir.ca under th. land disposal, restriction. rule
will be addressed by aorrection. in the r.g rlations soon th be
pu J.i .n.d in th. £‘ederal, R gi•t.r .
The corr.ctjan notice for the land disposal. restriction.
rui modifies the languags in the rule dualing with waste analysis
requLren for disposal f8aiLttj.. receiving wastes subj.ct to
under $268 The original, rule ( 1268.7(e)) required
th ownsr/aper 5 og to obtain west, analysis data through testing
or the waat• tu dster*Lzi. that th. wastes are izi compliance with
the applicable tsestasnt standard.. in $268.41. As the preamble
tu th. correct on notice eapisin.. th. original rule thcorr.ctl
i.z .iied that lvtPd dt.posa.l, faciLities. have an obligatI e .
dCfl incoming slipne . swan it the generator or treatment faci .ity
a. provad the diapo.&, facility with data indicating that the
L ucom . w.e.s at %S bS3es nt stands rds.
The r’nL* requires that testing to assur, wa Stes
re .Ln c. with t ss snt stands rda must be perfo rued
“accor b,quency specified in the facility’, waste
*eqtired by $264.13 or 4265.13.” Therefore
t’ sting iposi t is not n.c.ssarily required. Enclosed
iou will fi s c y at the correction notice as it viii a pear
in rn. bed.ral i.ter.
nor to ntsrii g into .an agreement to accept hasardaus
astc b from a generator or tr.atant facility, th. owner/operator
an oft-site disposal facility must o .aigi a detail’ d listing
of waste congtjtu.nts. While the frequency of comprehensive
JI-
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—2—
r1g uti]. d.pend upon the variabilitY of the waste strcam ,
rec mefl’ 1 ’ that a cietail d analySiS for the waste
0 5 ti.tueflt 5 regulated under the land dispOsal restrictions rule
c,rpl.t . d at least annuallY ty the generator or treater (s’e
51 Uc 40596, Novei i 7, 1966). If the owner/operator c the
dj4 sai ..€ cilitY doiI not ceLve such igL orTnation in writir .
. e itust periOrm the analysis to detarmine whether the waste’ meet
tn treatx1 C1 t stanciarcs accord C CJ to the waste analysis plan.
The AgenCY has i.sued ç uidaflCe that discusses the general
wabt anaiy 5 5 r uir fl eI t$ o 264.l3 (see Waste AnalysiS Plan
cu ance_t’ianu&l, September. i984; availabis iim C.PO.5 5 —°’ 0
stateS. tho ?reacceptaflce analysis
nust be repeated ii the , neratiflg process changes, or if inspectiOfl
o2 nccsning sii 1 .ne [ Lt$ reveals a discrePancY with the manifest
Off—dite disposal facilities are also required under 4264. 13(a)(4)
tc j.r.spect and, f necessar! , analyze ad snipmeflt of azarc’oU5
waste to ensure that the waste matches the , S jficati0n , in the
meOi test. hhen neCeSSaZY. shij.ments are sampled and analyzed
for a few key parameters. i.e.. a ISfjng.rprint M analysis.
‘ eh.ie screening of adi jncc* iflg .hipmeflt will usually
be limited to relativelY simple and rapid te*tS, such a. visual
inapeCtt0f. tests for p11. densitY. weight. .tc.. the dis 5al
faciditY has a responsibilitY to identifY any restricted waste’
that exC d treatment stancards . 5 n• fleXibilitY is allowd
undor 264.l3(C) as to the extent of analysis necesss!Y for . ach
6 t .msflt. The need for sampling and analysis depends on a ve Ei !tY
of 91 .tc_sp.cific factors which the permit writer should consider.
Such factOrs nc1ud . the variabilitY of the waste; the prLOr
hLstOrY of th. waste 9 .nerator’s erfor flCe and reliability; the
Lr. paCt or improperlY treate” wastc cn the waste management proCeSS
and :reqUefl Y and c tSflt of te tittY performed by the generator
or treater. The permit writer may r€.quire further analysis by the
owner/Operator, for example. if shipments of a highly variable
w.istestream ( ..g.. tr occasional b.tCh processes) are sent withOut
sujfiCi sflt an&Lysi s by the generator/treater tO determine if
waste icud the tr.atmeflt itandardS.
ODS .tt*t 9Y used by some disposal facilities to verify
ddtS sup$ied by g neratOrI is a rand sampling program f r
incomimq vast• shipments. In this program. the disposal facility
t es a T.pr.sSfltati sampli fr a .niall ,erc .I%t&g of incaflin’
waste shipasflt• and performs a coapreh 5fl5i chemical analysis.
such a .rOgram itay enc 3rag generatOrs anc treaters to prop -nY
test and treat restrmcted wabtel.
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—3—
I -beii.eve that the corrections to the land restrictions
rule anc the fl hibilitY inherent in the general waste analysis
re ulationa in §264.1 .3 adequately address the concerns you raised
L .our recc..nt j .tter. I have forwarded copies o. this memo and
your incoming letter to the Hazardous Waste Division Directors
i the Regions. P1 ase 16t me know if I can be of any further
help in this matter.
Sincerely,
Marcia Williams, Director
Of fice of Solid Waste
.riclosure
cc: Regional Division Directors
bce. Bruce eddle
Suzanne Rudzinski
Bob Kayser
Sylvia wrance
Jacqueline Sales
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UNITED STATES . QNNENTAL PROTECTION AGENCY 95 51.1987(12)
JJ 2’S I T
Mr. Robert H. Campbell
Sun Refining and Marketing
Company-
Ten Penn Center
1801 Market Street
Philadelphia, Pennsylvania 19103—1699
Dear Mr. Campbell:
Thank you for your June 8, 1987, expressing your concern
regarding the Environmental Protection Agency’s (EPA) regulatory
approach to land treatment, and in particular, the classification
of land treatment as land disposal.
Under the Resoruce Conservation and Recovery Act (RCRA), as
amended by the Hazardous and Solid Waste Amendments (HSwA) of
1984, land disposal is defined as including, among other things,
land treatment. Given the explicit statutory language found in
HSWA, the intent of Congress to include land treatment as land
disposal is clear. If a variance has not been granted extending
the effective date for the waste due to insufficient treatment
capacity, restricted waste may not be land treated (i.e., land
disposed) unless it meets the applicable treatment standard in 40
CFR 268 Subpart D, or has been granted a “no migration” exemption
under S 268.6.
The “no migration” exemption is based on a petition
demonstrating, to a reasonable degree of certainty, that there
will be no migration of hazardous Constituents from the disposal
unit of injection zone for as long as the waste remains hazardous.
The Agency is currently developing guidance on the S 268.6 “no
migration” petition. Until EPA develops this guidance, the Agency
will, evaluate such petitions on a case—by—case basis.
Thank you for your interest in this matter, and for expressing
your concerns.
Sincerely,
I
jJ J. Winston Porter
Assistant Adm&nistrator
— 475—8 /sjd/6..19...87/Control
No: AX701033/Due Date: 6 — 26 —87/CbNTRQLLED CORRESPONDENCE *13
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9551.1987(13)
1987
Mr. Donald E. Stone
Safety, P ajth and
nvjronrnenta 1. Manaqer
GSX Services of South Carolina, Inc.
Route 1, !ox 255
Pinewood, South Carclina 29125
Dear Mr. Stone:
This is written in resnonse to your letter 0 nril 74, l r 7,
requesting confirnatj.on of an earlier nhone conversation with a
r er ber of my staff concernina the reaulatory status of a sluc1c e
cont.aj ,yt fl 11, l—Trjchjoroethane (TCF).
As described in your letter and phone conversation, a
generator operates a surface 1r oundment for seDaratina etaX.,
from an electroplating waste stream prior to diechar ti c the water
to a POTW. The sludge is removed from the ir oundm’ nt, dewatere 4 ,
and then shipped to your facility for dis oea1. P xcal arisivele
of the Toxicity Characteristic Leachinq Procedure (TCLP) extract
from the sludge sh ed the presence of TCE in concent.rationc above
the arplicabje treatment standard, hut less than ens perc ent, Row—
ever, the generator has not used ?C! for two years you csur
that the TCE is a snent solvent residual from wastes Dlac d jn
the i ,ni? oundment at least two years nrior to the ef ective date.
The question is whether the TCE must meet the treatment standard
or whether the extension to the effective date for wastes containjnc,
cl% total F 01—FOO5 solvent constituents would apnly.
The Agency stated in the !?ovember 7,l P6, final rule (51 ‘P
40572) and in the June 11, 1987, “Totice of Availability of flata
(52 FR 22956), that wastes placed in storaae or land disnosed
prior to the effective date becom. subject to the lend disnosal
restrictions when removed from storacye or taken out of the land.
It is at thi, point (i.e., prior to treatment) that a deterr jnatjon
is made a. to whether the waste is subject to a variance or must
be treated to met the applicable treatment standard. Therefore,
if the total concentration of FOO1 ’0O5 solvent, constituents is
less than 1% as the sludge is removed from the ir ooundment, the
waste is subject to the variance.
. S. IIe -4s—a53
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I tr et that thi a letter ac eauate aci re ses your concerns.
If you have any further cuestlona please call Miteh P ir!weI1, ot
ry staffD at (202) 382—4P05.
Sincerely,
Stephen P. Wail, Chief
Land Disoogal Restrictions ranch
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9551.1987(14)
J.L. I 6 B1
4 r. D. L. Brucker, Plant Manaaer
Taft Plant
Union Carbide Corporation
Post 0ff ce Box 50
Hahnvij.le. Louisiana 70057
flear Mr. ?rucker
We have completed a preliminitry review of your anplication
for an extension of the effective date of the California list
land d sposa1 restrictions for corrosive wastewaters aenerated
at your facility. However, more information is needed before a
determination can be made to grant or deny your petition. This
information is necessary to demonstrate that the procedures for
a case—by—case extension to an effective date have been met,
as specified in 268.5 of the November 7, 1986 final rule.
The applicant ii required under 268.5(a)(l) to make a
good—faith effort to locate and contract with treatment, recovery,
or disposal facilities to manage his waste. Your petition ir,eiicetes
that you are aware of alternative capacity for your waste. More
sFec’ific information is needed, however, to properly evaluate
this showjna. Please submit the names and eddressee of all
off—site facilities that have been contacted in an effort to
provide alternative capacity for your wastewater.
Paraqraph (a)(2) requires a showing that the applicant has
entered into a binding contractual commitment to construct or
otherwise provide alternative treatment or disposal capacity
that meets the treatment standards specified in Subpart 1). In
your application you include copies of contracts with Jacobs
Enaineering and Daniel Construction Company; however, the contract
with Daniel Construction Company does not include a aianature
page. We are requesting this information so that we can further
process your application.
Paracraph (a)(3) specifies that due to circumstances beyond
the applicant’s control, alternative capacity cannot reasonably
be made available by the effective date. Althouah your aoplication
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er’phasizes that due to technical and practical difficulties
alternat ve capacity will not be available for your waste by the
July 8, 1987, effective date, it is unclear wPy the rro 4 ect to
provide alternative capacity or to provide a means of transportinri
these wastes off—site for treatment was not initiated at an
earlier date (the regulated community has been on notice since
December 11, 1986). We are requestina that you provide an explanation
or data indicating why such measures were not initiatel in a
more timely fashion.
Your application indicates that there are interim measures
that could be implemented in the event that EPA fails to respond
to your request for a case—by—case extension in a timely fashion.
It is necessary for EPA to evaluate these interim measures to
determine that a case—by—case extension and continued use of the
existing Reaenerant Neutralization Basin (R JB) is a viab1 option
n light of existing alternatives. Please submit a techn ca1
description of the interim measures and, if necessary, a complete
explanation of why these interim measures are not reasonably
available as a source of alternative capacity.
Paragraph (a)(7) specifies that any waste managed in a
surface impoundment or landfill during the extension period may
he disposed of at a facility only if each new landfill or surface
impoundment unit, each replacement of an existina landfill or
surface impoundment unit, and each lateral expansion of an exist ma
landfill or surface impoundment unit at the facility is in cor’t liance
with the minimum technological requirements of Part 265, Subnart P
and 265.301(a), Cc), and Cd) for interim status facilities. This
requirement applies not only to the RFP, but also to any such units
at your facility. Your application states that (t)here will be
no new surface impoundment installed, no replacement in kind
of the existing unit, nor will there be any lateral expansion
of the existing unit during the extension. ?o determine if
the facility itself is presently in compliance with the minimum
technological requirements for interim status facilities, we are
requesting that you submit data indicatina the current status of
all other units at the facility with respect to this requirement.
We are making every effort to respond to your request for
an extension of the effective date as quickly as possible. The
case—by—case extension of th. effective date is a rulemaking
procedure; although this proces. takes time, we will continue to
work with you to arrive at a suitable solution to your problem.
However, to expedite this effort, please submit your response to
the following address:
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Rhonda Craic
11.5. Ertv ronrtental Protection P aency
f 1ai1 Code: WM—562B
401 P1 Street, SW
Wagl-unaton, D.C. 20460
Should you have any questions reaar’dina this request, please
call onda Craig at (202) 382—4800.
Sincerely.
Marcia Wj11ja s
Director
Of fice of Solid Waste
3
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• AI PROTECTION AGENCY
9551.1987(16)
5E ‘f
M 5 3tricja M. Trajner
Ar U-TFCH, I’ CDPORl TFD
14’ . South Park street
Port ashirc ton, Wigco j 53074
Deer Ms. Trainers
In your l.tter of Auc’ust 12, you recueste” Ac’encv
guidance in clarifying the Interoretation of restrictec! wa te
as define under 4fl CFR Part 2F°, entitled Land Disoogal e strjc—
tions.
A restricted waste is a waste which i orohibitee! fror’ Ian . 4
disposal by requlatjon, even if such prohibitions are ccoi’ anied
by a delayed effective date, or which, ab ent any rectuiatorv
action by the Aceney, would be orohihited froir land disrc,gaj
by the statute.
The exartole given in your letter is a California li9t ]ir’tit 4
waste contajnjna iOn mo/i arsenic. Under Section ?Fq.7, wacPp
analysis and recordkeeoinq is the resoon ibilitv of the 9nitial
Qenerator to test the waste utilizina the Paint Fi1t r Uriufd
Test (PFLT) or use knowledae of the waste to deter,rjn, je th
waste is restricted from land disposal.
In your example, it is not specified whether the waste con-
taining 100 mg/I arsenic has been treated to reach that level.
If so, certification under Section 26 .7(a)(2) is reauired.
If the waste in your example contains 100 mo/i arsenic’ u ,on
generation, prior to any treatment, Section 2 R.7(a)(2) does
not apply. As a practical matter, the aenerator in your exa” Jp
iray have to prepare a certification, even thouch it is not !eoaPIv
reauired, in order to satisfy the land disoosal facility accentinc’
the waste.
You should also be aware that the Aoency solicited cor ’r ent i
on the possibility of lowering levels of toxic metals in licuid
wastes. Were we to take this action, your waste wou 1 c then P e
restricted and subject to all of the reauirements of eet1on 7 P.7.
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955 1.1987(jg)
RCRA/SUPERFTJND HOTLINE MONTHLY SUMMARy
SEPTEMBER 87
8. Land Disposal Restrictions - Corrosive Wâ t
A manufacturer generates an acidic aqueous hazardous
wa8te stream (D002, per 40 CFR 26 .122(a)) wj.th a pH of
1.8 in his production process. The waste is piped from
the production area to an acid neutralization tank.
where the pH is raised to an average of 3.0. After
reatrnent, the waste stream is shipped off-site to a
commercial wagtewater treatment plant where it i
neutralized further and then discharged under a NPDES
permit. Must the manufacturer comply with the
requirement of 40 CFR 268 . 7 (a)(2) to c. rtify that the
restricted waste may be land dispo c d without further
treatment when he ships the waste off- iL ?
No. If the waste stream was haz rc cjus solely for
the characteristic of corro ..vity (40 CFR
26 1.22(a)) and after treatment it do, not exhibit
any characteristic of a haz c1o waste, as
described in Subpart C of Part 262., the waste is no
longer a hazardous waste (40 CFR 261.3d)(j)).
According to the applicability provisions set forth
in 40 CFR 26 8.1a), “This part identifies hazardous
wastes that are restricted from land disposal and
defines those limited circumstances under which an
otherwise prohibited waste may continue to be land
disposed.” Consequently, if the waste cannot be
identified as a hazardous waste under RCRA. then
the regulations of Part 268 do not apply, including
the certification requirement of 40 CFR
268 .l(a) (2).
Source: Mitch Kidwell (202) 382—4805
Research: Kris ndersen
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9551.1987(20)
OCT 2 8 1987
Mr. James T. Bell
Manager Environmental Control
Advanced Environmental Technology Corporation
Gold Mine Road
F].ander, New Jersey 07836
Dear Mr. Bell:
In your letter of October 14, 1987, you requested confirmation
in writing of the application of the land disposal restrictions
notification requirements to Advanced Environmental Technology
Corporation (AETC) as a interim status treatment, storage, and
disposal (TSD) facility. it is our understanding that your
facility stores waste generated at off—site sources and packages
that waste for treatment or disposal elsewhere.
The generator is required to determine that he is managing a
restricted waste at the point of generation through analysis or
knowledge of the waste. The Environmental Protection Agency (EPA)
has imposed certain waste analysis, notice, and recordkeepjng
requirements on generators, treatment facilities and disposal
facilities. In the preamble to the final rule (51 FR 40597), the
Agency stated that testing and record]ceeping is essential to
implementation of the land disposal restrictions.
Although storage facilities were not directly referenced in 40
CFR 268.7 or the preamble, the intent reflects that these
requirements are applicable. In other words, a notification is
required when restricted waste is shipped to an off—site storage
facility.
I hope this information adequately addresses your concerns. If
you have additional questions, you may contact me at (202)
382—4770.
Sincerely,
Jim Thompson
Environmental Stecialist
n.e. —
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UNITED STATES ENVIRONMENTAL, PROTECTION AGENCY
9551.1987(2 1)
OCT 2 8 1987
Mr. Steven H. White
Regulatory Affairs Manager
Tricil Environmental Services Inc.
Talbott Tower, Suite 510
131 North Ludlow
Dayton, Ohio 45402
Dear Mr. White:
This letter repsonds to your request for information
regarding compliance with the California list final rule (52 FR
25760, July 8, 1987). I apologize for the delay in responding
to your correspondence.
Each of the issues raised in your letter is restated below
and followed by the appropriate response.
1. Tricil is a treatment facility and not a disposal
facility. Must generators of restricted waste notify
Tricil. that their wastes are restricted?
Yes, section 268.7(a)(].) requires generators managing
restricted waste to notify the treatment facility
that the waste does not comply with treatment standards
specified in 40 CFR 268, Subpart D and all applicable
prohibitions set forth in 40 CFR 268.32 or RCRA Section
3004(d).
2. When notified that a waste is restricted, must the
generator identify the appropriate treatment method or
standard?
Yes, the generator must identify equivalent treatment
standards and all applicable prohibitions set forth in
section 268.32 or RCRA section 3004(d).
3. Can notification information be placed on the
Uniform Hazardous Waste Manifest under the section
entitled Special Handling Instructions?
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yes, the federal regulations do not prohibit it, but
-sview your state regulations as they may.
I hope this information adequately addresses your concerns.
Please feel free to contact Jim Thompson at (202) 382-7438 if you
have any additionai questions.
Sincerely,
James . Thompson
Environmental Specialist
2
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9551.1987(22)
RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION
OCTOBER 1987
3. Export of Restricted Waste
A generator determines that he is managing a restricted
hazardous waste under the November 7, 1986 Land Disposal
Restrictions rule (see November 7, 1986 Federal Register , 51
FR 40572). However, the waste is going to be exported to a
Canadian disposal facility. Does the generator need to
attach a notification and/or certification for each shipment
of waste as per Section 268.7?
Yes. The June 4, 1987 correction notice (see June 4,
1987 Federal Register , 52 FR 21010) reiterates the
Agency’s intent that the Section 268.7 waste analysis,
notice, and recordkeeping requirements are applicable
regardless of whether or when such restricted wastes are
ultimately land disposed (52 21011). The key to
determination of applicability of the requirements is
whether the generator handles restricted wastes
exceeding the applicable treatment standards. (Id.)
The Agency realizes that the notification and/or
certification documentation is not legally necessary for
the Canadian disposal facility. However, the Agency
still requires the notification and/or certification for
each shipment of restricted waste. Unforeseen
circumstances may arise during the transportation of the
restricted waste and it might need to be handled by a
domestic hazardous waste treatment, storage or disposal
facility. The notification and/or certification
documentation will allow waste handling in accordance
with the land disposal regulations should this
situation arise.
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r
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON D.C 20460
9551.1987(23)
. _, 13 9 7
Mr. Richard C. Fortuna
Executive Director
Mazardous Waste Treatment Council
1440 New York Avenue, N.W.
Suite 310
Washington, DC 20005
Dear 1 ir. Fortuna:
Thank YOU for your letter of October 21, 1987 regardinq the
applicability of the California list land dispos.A1 pronjj jtjr ILs
to the practice of adding certain rnateria1 to restricted liqui.d
hazardous wastes solely for the purpose of rendering the wastes
nonhiquid. Specifically, you requested guidance on whether the
mixing of fly ash or cement kiln dust to California list
metal-bearing or cyanide-containing wastes COn titutes dilur c,ji
or an allowable method of treatment. In addition, you .inquireu
about the schedule for promulgating requirements relating to
containerized wastes, including the regulatory status for
incorporating the use of the Liquids Release Test.
In order for a metal-bearing or cyanide—containing I az rd us
waste to be subject to the Re ourc Co icervatioxi and I ecov ry
Act (RCRA) Section 3004(d) provisions, the waste must exist n
liquid form. As indicated in the July 8, 1987 final rule, L1I
Environanentdj Protection Agency (EPA) believes t1ie t. Congres: ’
primary intent behind tile California list prohibitions was to
eliminate the land disposal of highly toxic 1i uid hazardour
wastes as a starting point (emphasis added). A i you are aware,
California list metal and cyanide wastes are currently subject
to tile statutory prohibition levels and thus are restricted Irom
land disposal unless treated to concentrations below the
prohibition levels or rendered nonhiquid.
Under the land disposal restrictions program, the regulated
community is prohibited from diluting restricted wastes (a) as a
substitute for adequate treatment standards, (b) to avoid a
prohibition level for the California list wastes, and (C) to
circumvent the effective date of a prohibition on land
disposal. The Agency has noted that in many cases solidif i-
cat ion techniques may be considered treatment rather than
dilution. As you cited in your correspondence, Solidification
techniques that produce physical or chemical changes, or
otherwise immobilize the hazardous constituents, would be
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considered appropriate treatment. In other words, the ac1d ticn
of reagents (i.e., substances that take part in re ctionc r
processes) must aid in treatment of the hazardous waste in order
to be considered legitimate treatment. See generally 52
25778 (July 8, 1987).
With these considerations, the addition of fly ash or cement
kiln dust to metal-bearing or cyanide-corttajnjzig wastes must
Contribute to inunobilizatjon of the hazardous constituezits
colltiined in the liquid hazardous waste (througi chemical
fixation or some other reaction or process). If this
solidification teciuiique results only in the absorption or
mixing of the hazardous constituents with these materials, iJie
pract. would co1n titute impermissib] .e dilution. fliere iIi
addi: - fly ash or cement kiln dust generates a nonhiquid
wast opriat .ely immobilizes the hazarriow. c rtjLUc aL
the w be rendered nonhiquid legitimately and no longer
be prohibite... rrom land disposal (even it the constituent
concentration exceeds the prohibition leveic). As sU ited in the
July 8, 1987 final rule, however, should LredtIno1 t. L tiiU rth Uc
established for Calitornia list metal and cyanide wastu , these
wastes will have to meet the treatment levels or be treated by
the cpecified technology designated as the treatment standard.
You also inquired about the time frame for promulgating
restrictions on the disposal of containers holding liquid
hazardous wastes and free liquids. At present, the Agency is
intending to publish the final containerized liquids rule in
June 1988. An initial evaluation of the public comments on the
December 24, 1986 proposed rule and the June 24, 1987, notice of
supplemental information has been conducted. The Agency i
currently in the workgroup phase of developing a rinal
rulemaking. The Agency intends to include the Liquids Relc i e
Test to determine whether a containerized liquid treated with
absorbents would release liquids under pressure experienced in
landlills.
If I can be of any further assistance, please let me kno;i.
Sincerely,
J. Winston Porter
Assistant Administrator
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9551. 1987(24)
RCRA/SUPERFUND HOTLINE SUMMARY
NOVEMBER 87
Land Disposal Restrictions
An FOOl P002 waste subject to the November 7, 1986 land
disposal restrictions meets the criteria for the 1% National
Variance specified in Section 268.30. In the July 8, 1987 ,
treatment standards were set for most HOCs. FOOl and F002 wastes
are also HOCs. Would the FOOl F002 wastestream be subject to the
newly-promulgated HOC treatment standards even though it has been
granted a two—year variance for FO01—F005 solvent wastes?
The solvent would only be subject to the treatment standards
and effective date in the November 7, 1986 rule. In 52 FR
25762, it says that “where treatment standards and
prohibition effective dates are promulgated for California
list waste constituents that are also covered under the
November 7, 1986 rule, the treatment standards and effective
dates from the prior rule apply.” The general rule is that
where a constituent is subject to more than one treatment
standard, the treatment standard (and effective date) for
the more specific constituent applies. Example: the FOOl-
P005 treatment standard effective date presides because, as
a subset of the HOCs, it is more specific.
Also, for a waste where two or more treatment standards
apply because of different constituents (e.g., FOOl and
lead), both would apply with respective effective dates. In
the case above mixed with lead, the FOOl F002 treatment
standard and effective date would apply for the solvent
constituents (rather that the HOC standard) and would get a
variance until 11/8/88. However, the lead would be subject
to the requirements effective 7/8/87.
Source: Mitch Kidwell (202) 382—4805
Research: Mark Janaskie
This document has been retyped from the original.
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. c
9551.1988(01)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, 0 C 20460
4
APR -5
OcF ICE O
SOt.,IO WASE AND EME ENC ESP .SE
MEMORAMDUN
SUBJECT: Facility Testing Requirements and Solidification
Issues Under the Land Disposal Restrictions Rules
FROM: Sylvia K. Lowrance, DireCtO A. (• 1tP-.•
Office of Solid Waste
TO: Robert L. Duprey, Director
Hazardous Waste Management Division, 8 HWM -
Region VIII
This memo is in response to your memorandum of February 4,
1988 to Marcia WilliamS requesting clarification of two key
provisions of the Land Disposal Restrictions Rules. The issues
are related to the testing requirements under 40 CFR 268.7 and
the use of solidification/Stabilization prior to ],andfilling.
Issue 1 What are the exact testing requirements (appropriate
sampling conditions, analytical methods, frequency and
data comparisons) under 40 CFR 268.7(c) for off-site
commercial disposal facilities receiving land disposal
restricted wastes.
As you note, section 268.7 itself does not specify the
frequency of testing required for disposal facilities receiving
wastes from off—site (nor does it specify the frequency of
testing required for treatment facilities or on-site disposal
facilities). In particular, the requirements in section 268.7
only specify the frequency of testing required by generators,
treatment facilities or land disposal facilities by reference to
the facility waste analysis plan. Specifically, section 268.7(c)
requires that the owner or operator of the treatment or land
disposal facility must test the waste according to the frequency
specified in their waste analysis plan. Those plans may allow
the data to be supplied by the generator or treatment facility,
such determinations being the subject of negotiations between
the permit writer and the owner/operator during the development
of the permit. -
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I would note that the December 1, 1987 Codification rule (52
FR 45788) does allow the permits to be reopened to incorporate
HSWA provisions, and this could be used to reopen and modify the
Waste Analysis Plans to require testing at a specified
frequency.
We are aware of the potential cost of testing for not on y
the disposal facility, but also for the treatment facility and
the generator. We are also aware of the need for adequate data
for compliance monitoring and enforcement purposes. Unfor-
tunately, these factors work in opposite directions, one
indicating the need for more testing and the other the need to
minimize the testing burden. At the time the rules were
written, we felt that the individual permit writer would be in
the best situation to determine on a case by case basis the
appropriate frequency of testing that would best balance those
opposing factors while remaining in compliance with the general
parameters outlined under section 264.13 and secton 265.13.
This point is also addressed at 52 FR 21012, Col 2 (June 4,
1987).
Issue 2 Which wastes restricted under 40 CFR Part 268 Subpart C
may be treated at an off—site commercial facility
utilizing stabilization/solidification prior to
landfilling.
The Agency has not specified methods of treatment for
restricted wastes with the exception of PCB and most HOC wastes
under the California List (which must be incinerated). For
spent solvent and dioxin containing wastes covered by the
November 7, 1986 rule (51 FR 40572), the Agency has specified
performance standards based on a concentration of a hazardous
constituent in an extract generated using the Toxicity
Characteristic Leaching Procedure (Appendix I to 40 CFR Part
268). While tile treatment standards were based on incineration
of the wastes, the rules do not prohibit stabilization/solidif i—
cation in order to meet the treatment standard. On the other
hand, we do not encourage the solidification of wastes
containing high levels of organic constituents.
California List wastes may not be placed in land disposal
facilities as liquids with concentrations exceeding the
statutory levels. With the exception of PCBs and HOCs,
stabi lization/solidifiCatiOfl may be used to treat the wastes,
converting them to a non-liquid form, after which they may be
placed in land disposal units. However, I would call your
attention to the preamble language in the final California List
rule (July 8, 1987, 51 FR 25760) on page 25778 dealing with
dilution, where we note that:
“Where such physical or chemical changes do not occur,
or where hazardous constituents (e.g., metals) are not
otherwise immobilized, “solidification” techniques may
possibly be considered dilution as a substitute for
adequate treatment within the meaning of the section
268.3 prohibitiOn.”
2
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hi1e this language is not definitive, it does indicate that
solidification by si np1e absorption is not what ias in:enciec.
Further, the preamble goes on to note that even where
solidification techniques are not considered dilution, the
liquids in landfills proh bit ons remain applicable, and that
these provisions prohibit certain types of absorbency. The
specific document referred to is the “Statutory Interpretative
Guidance on the Placement of Bulk Liquid Hazardous Wastes in
Landfills,” OSWER Policy Directive *9487.OO—2A, June 11, 1986.
Your memorandum raises several other issues with respect to
the use of solidification that we have tried to address below.
On page 9 of the attachment to your letter, you state
“Apparently, solidification may be an appropriate treatment
methodology for FOOl-F005 solvent/solid/sludge mixtures and
dilute wastewater HOCs (and F020—F028 dloxin wastes?).” We do
not specify the methods that are used to meet the treatment
standards. The Part 268 regulations do not prohibit solidifi-
cation for either solvents or dioxins. As noted above, we are
not advocating the solidification of wastes containing high
concentrations of organic constituents. With respect to the
dioxin containing wastes, sections 264.317, 264.343 and 265.352
all deal with special requirements for handling the F020-F023
and F026-F028 dioxin containing wastes, and to our knowledge,
there are no commercial facilities treating or disposing of
these wastes in the United States.
Dilute HOC wastewaters, on the other hand, may not be
solidified to take advantage of the two year extension of the
effective date. If at the point of initial generation (i.e.
when the waste first meets the Part 261 listing description or
first exhibits a Part 261 characteristic of a hazardous waste),
the wastewaters are greater than 1,000 mg/kg HOCs, solidif i-
cation cannot be used to make the waste a non-liquid subject to
the two year extension of the effective date. In such a case,
the July 8, 1987 effective date attaches at the point of initial
generation, and solidification can only be used if it is
“treatment” and such treatment succeeds in lowering the
concentration below the 1,000 mg/kg statutory prohibition level
(which is applicable in the case of HOCs to both liquid and
non-liquid hazardous wastes.
Section 268.41 does not require the use of the TCLP and
GC/NS. In some cases, a total waste analysis could be used for
the F001—F005 solvent to show compliance with the requirements
of section 268.41. If the results of the total waste analysis
are less than 20 times the applicable Table CCWE concentration,
then the concentration in the waste extract cannot be greater
than the Table CCWE concentration. we agree that the require-
ment in the TCLP that the waste be ground or crushed does limit
the usefulness of stabilization for organics since no physical
3
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or chemical reaction is likely to be occurring. This s not, :r.
our view, an unfortunate result.
If the treatment standards or statutory levels are set as
total waste concentrations, then the total waste must be
analyzed, and not just an extract developed using the TCLP.
Finally, we are not aware of any easy surrogate tests that
provide any realistic information about Table CCWE or California
List HOC constituents. TOC and TOX tests do provide an upper
limit in that if the TOC or TOX concentrations are below the
relevant standard, then the waste must pass that standard, since
the standards are based on a subset of the constituents measured
by the TOC or TOX test. However, we realize that if the results
of the tests are greater than the regulatory levels (e.g. 1,000
mg/kg HOCs), we still know nothing about the actual levels of
the constituents of concern, which may in fact be below the
concentration of concern.
If you have further questions, please contact Stephen Weil,
Chief of the Land Disposal Restrictions Branch, on FTS 382-4770.
cc. Regional Waste Management Division Directors
Steven Silverman, OGC
Bruce Potoka, OWPE
Gary Jonesi, OECM
4
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9551 .1988(02)
RCRA/SUPERFUND HOTLINE MONTHLY SU O4ARY
APRIL 88
6. Dilution of Land Disposal Restricted Waste
A generator of a spent solvent, which contained one hundred percent (100%) acetone
before use, identified the waste as F003. She/he regenerates the spent solvent by
distillation, and then treats the stilibottoms in an accumulation tank by mixing them with
nonhazardous solid waste. The resulting mixture no longer exhibits the characteristic of
ignitability. According to 40 CFR Section 261 .3(a)(2)(iii), the material is no longer a
hazardous waste. However, the enforcement agency considers the mixing with nonha.z-
ardous waste to be dilution, which is prohibited by Section 268.3. Would the dilution
prohibition prevent the generator from being able to mix the F003 waste with nonhaz-
ardous solid waste?
The preamble to the November7, 1986 Federal Register (51 E&40592) specifies that the
prohibition on dilution of wastes restricted from land disposal, found at Section 268.3,
“does not affect provisions in other EPA regulations which may allow dilution for other
purposes.” Thus, if the generator’s purpose in mixing the stilibottoms with nonhaz-
ardous waste is to render the mixture nonhazardous she/he is not precludec from
doing so by Section 268.3. However, if the generator’s purpose in mixing t] e waste is
to dilute the F003 waste as a substitute for adequate treatment to achieve co ip1iance
with Part 268, Subpart D, the action is prohibited.
Source: Mike Petruska (202) 475-9888
Mitch Kidwell (202) 382-4805
Research: Becky Cuthberlson
Deborah McKie
4
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9551.1988(03)
‘
- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. 0 C. 20460
c . I .
r
iM 1 3 1988
;c ri
S TE . NO :; ic r .c
Dr. Paul Palmer, Ph.D.
Onscreen Directories Inc.
7345 Healdsburg Avenue
Suite 524
Sebastopol, California 95472.
Dear Dr. Palmer:
This letter is in response to your March 1, 1988 and
April 19, 1988. letters requesting an interpretation-of
40 CFR 268.7 requirements. Your letter of April 19, 1988
expresses a general frustration with EPA’s seemingly meaningless
recordkeeping and certification requirements. EPA believes that
these requirements are necessary, and I will try to explain the
rationale behind the rules.
EPA is responsible for enforcing the prohibitions on laud
disposal of untreated hazardous wastes imposed by Congress. A
determination that a waste is a listed hazardous waste
(40 CFR 261.31, and 261.32) is, in general, based on how the
material is used or the process by which it was generated, riot
on the .constituents in the wastes. Thus, only the oriaina .
generator can determine what the applicable waste codes are.
This information is frequently, but not always, on the
manifest. Waste codes have also been subdivided for the purpose
of setting treatment standards. The treatment, storage, or
disposal facility must be informed of the applicable standard.
In cases where no land disposal is antic.ipated, the notice is
still required to insure that the waste is not disposed of by a
facility not realizing that such disposal for that particular
waste is prohibited.
ll restricted wastes, whether treated and disposed on
site, or sent off—site to a RCRA treatment or disposal facility
or to a non RCRA recycling facility, are subject to testing and
recordkeeping requirements. Please note that although recycling
facilities may be exempt from RCRA regulation, the wastes they
receive and the resulting residues are regulated by RCRA and are
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subject to the land disposal restrictions. We believe that Llie
notifications are necessary to assure that the information for
insuring compliance with the statute is available to both LIie
handlers of the hazardous waste and to EPA.
Certification is a necessary tool for tracking restricted
wastes from generation to fiiial disposal. This law clearly puts
the burden on the generator to see that the waste is properly
managed and disposed of. Thus, the certification operates to
protect the generator in addition to providing EPA information
needed to efficiently enforce these regulations.
In response to the specific questions in your March 1
letter, I hope the following discussion will be helpful.
After a generator makes a determination that he is managing
a restricted waste which does not meet the appropriate
treatment standards, or where the waste does not comply with
the applicable prohibitions in section 268.32 or RCRA Section
3004(d), the generator must notify the treatment or storage
facility in writing of the appropriate treatment standards and
applicable prohibitions in section 268.32 or RCRA section
3004(d). This notification must accompany each shipment of the
waste.
As a treatment and storage facility that ships restricted
wastes off-site for further management, you must comply with the
notice requirements applicable tO generators in section
268.7(a)(l). You must also comply with the manifest
requirements of section 264.71(c) or section 265.71(c).
In the case of the operator of a cement kiln receiving
restricted wastes for further management (for use as a fuel
supplement), the treatment residues from these restricted wastes
are subject to all requirements under section 268.7(b)(2), Ci)
and (ii) prior to land disposal.
Your interpretation of 40 CFR 268.7 certification
requirement is correct. A certification,is required that tile
waste meets the applicable treatment standards before the
restricted waste may be land disposed. When the restricted
waste is not destined for land disposal a certification is not
required. However, a written notification must accompany each
shipment of restricted waste where further management is
appropriate before land disposal.
2
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I hope this information adequately addresses your conc “s.
I you have further questions, please feel free to cOnt acL Jim
Liompson, at (202) 382—7438.
Sincerely,
. ‘, - c
i —i-
Sylvi K. Lowrance, Director
Office of Solid Waste
cc: Region IX
3
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RCRA/SUPER D HOTLINE MONTHLY SUMMARY 9551.1988(04)
MAY 88
3. Land Disposal Restrictions - Manifest Requirements
The EPA regulations that prohibit land disposal of spent solvent hazardous
waste, specified in 40 CFR Section 261.31 (F001-F005), became effective on
November 8, 1986. These restricted wastes must meet applicable treatment
standards in 40 CFR Section 268.41 prior to land disposal. A two-year nationwide
variance from the effective date of the prohibition was piovided to small
quantity generators of 100-1,000 kilograms of hazardous waste per month, as per
40 CFR Section 268.30(a)(1).
These small quantity generators are still required, however, to determine if their
spent solvent hazardous wastes are restricted using waste analysis test methods
described in 40 CFR Section 268.7(a). If the wastes are restricted, a notice stating
that the waste is exempt from the land disposal restrictions must be sent with the
shipment of waste to the receiving land disposal facility as per 40 CFR Section
268.7(a)(3).
At the end of the two-year nationwide variance period, (November 8, 1988) the
small quantity generator’s restricted spent solvent wastes will be required to
meet the appropriate treatment standards prior to land disposal. As well, when
the restricted waste is now sent to a treatment facility prior to land disposal, the
applicable notification requirements are detailed in 40 CFR Section 268.7(a)(1)
(i-iv).
As required by 40 CFR Section 268.7(a)(1)(iii) the notice must ir 1 dude the
manifest number associated with the shipment of the waste. Under certain
conditions; (in example, 40 CFR Section 262.20(e)) small quantity g ne tors of
100-1,000 kilograms of hazardous waste are not subject to th manifest
requirements in 40 CFR Part 262, Subpart B. Specifically when the ge erator’s
wastes are being reclaimed under a contractual agreement with r .yc1ing
facility. When these conditions apply and the waste shipment is a restricted
waste being sent to a treatment facility, will a manifest be required to comply
with 40 CFR Section 268.7?
When a manifest is not required to be sent with a shipment of hazardous
waste (e.g., 100-1,000 small quantity generators having their wastes reclaimed
under contractual agreement with a recycling facility as per Section 262.20(e)),
a manifest number will not be associated with those shipments of hazardous
waste. Therefore, the manifest number information that is required in the
notification requirements in 40 CFR Section 268.7(a)(1)(iii), is not applicable to
shipments of restricted hazardous waste that do not require a manifest.
Shipments of hazardous waste previously not required to have a manifest
will not become subject to manifesting solely due to information required by
the land disposal restriction regulations.
Source: Mitch Kidwell (202) 382-4805
Research: George Kleevic
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9551.1988(05)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
MAY 88
4 Land Disposal Restrictions - Disposal of Wastes Granted a Variance
On November 8, 1986, au spent solvent wastes (F001-F005) were prohibited from
land disposal unless those wastes met treatment standards set forth in Section
268.41. However, based on a shortage of incineration capacity, EPA granted a
two-year variance for spent solvent wastes that meet the criteria set forth in
Section 268.30(a)(1-3).
According to Section 268.30(b), these wastes granted a variance may be land
disposed in a landfill or surface impoundment only if the facility is in
compliance with Section 268.5(h)(2) (minimum technological requirements).
Does this preclude land disj,osal of these wastes in other types of land disposal
units, such as a land treatment facility?
No, land disposal of these wastes in other types of land disposal units is not
precluded.
RCRA Section 3004(h) is the statutory authority that EPA uses to implement
Section 268.30(b). It applies only to land disposal in landfills and
impoundments, not to any other type of land disposal. The language in
RCRA Section 3004(h) is similar to that in Section 268.30(b) and states,
“Whenever another effective date (herein after referred to as a “variance”) is
established..., with respect to any hazardous waste during the period for
which such variance or extension is in effect such hazardous waste may be
disposed in a landfill or surface impoundment only if such a facility is in
compliance with the requirements of subsection (o).”
Section 3004(k) defines the term “land disposal” to include land treatment
facilities. Neither the RCRA statute nor the land disposal prohibition
regulations specifically prohibit the placement of these wastes in other types
of land disposal units such as land treatment facilities with the exception of
RCRA Section 3004(b). This section prohibits the placement of
noncontainerized or bulk liquids in any salt dome formation, salt bed
formation, underground mine or cave. Furthermore, RCRA Section 3004(h)
which requires all new, replacement or lateral expansion landfill or surface
impoundment units to have minimum technological standards in place,
does not require the minimum technology standards for otHer types of land
disposal units. Thus, wastes granted a variance under Section 268.30(a) may
be disposed in a land treatment facility that is not In compliance with the
minimum technology standards.
Source: Mitch KidwelI (202) 382-4805
Research: Susan Brugler
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9551.1988(°7)
13
Mr. Kerry Bennert
Coordinator Special Projects
E.I. du Pont de Neinours & Co. (Inc.)
Medical Products Department
331 Treble Cove Road
No. Billerica, MA. 01862
Dear Mr. Bennert:
I received your letter of April 18, 1988 in which you commented
that regulatory events limiting mixed waste disposal have impacted
your radioactive materials manufacturing operations. Specifically,
you cited as examples, the absence of disposal capacity for
“small-volume mixed waste laboratory generated (organic solvents)
materials” and lead.
As you know, EPA promulgated regulations which appeared in the
Federal Register of November 7, 1986 prohibiting land disposal of
certain spent solvent wastes unless they meet specific concentration
based treatment standards. Some solvent containing mixed wastes may
not lend themselves to incineration, the best demonstrated available
technology (BDAT) for solvent wastes. Such wastes could conceivably
be delisted and disposed in a low-level waste disposal facility
following treatment.
Enclosed is a copy of a letter to Mr. Terry Husseman, Chair,
Northwest Interstate Compact Committee which details the Agency’s
position on disposal of lead. As the Husseman letter points out,
EPA has not evaluated specific containerization or encapsulation
methodologies using the EP toxicity test. Such approaches to
managing lead mixed waste may be viable in certain circumstances.
Of course, States may adopt a more stringent position with regard
to regulation of lead or any other hazardous waste. We recommend
disposal of lead in a mixed waste unit.
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—2—
Also, I share your concern that neither of the three existing
cor ercia1 low—level radioactive waste disposal facilities have
applied for a RCRA per nit although U.S. Ecology has expressed a
strong interest in filing such an application. EPA and NRC developed
a series of guidance documents last year aimed at facilitating the
State and compact effort in siting and designing a low—level waste
disposal unit that could also accept mixed waste. As a regulatory
agency, EPA believes this level of involvement is consistent with its
nandate. The Agency is available to review alternate waste
management proposals developed by industry. However, until such time
as disposal capacity becomes available or treatment technologies are
identified, storage, an activity which also requires a RCRA permit,
may be the only waste management option available to generators of
mixed waste.
Although mixed wastes are not subject to Federal hazardous waste
regulations until the State applies for and obtains authorization to
regulate the hazardous component of the mixed waste, State law is
applicable in the interim. The deadline for filing mixed waste
authorization applications is July of this year. You may want to
contact Paul Bedrosian, the mixed waste coordinator for EPA Region I
(617-833-1792) to discuss your concerns. Further, I will apprise you
of any future developments on management of solvent containing mixed
wastes.
Sincerely,
Bruce R. Weddle, Director
Permits and State Programs Division
cc: Paul Bedrosian, Region I
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9551.1983(08)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCy
WASHINGTON D C. 20460
Pad
JUN 6 1988
OFFICE OF
SOLID WASTE AND EMERGENCY RESPOr . .SE
Subject: Land Ban Issues
I ’’
£. I
From: Sylvia K. Lowrance, Director ,‘ ‘
Office of Solid Waste
To: Hazardous Waste Division Directors, Regions I-X
The purpose of this memo is to alert you to a number of issues that
may arise on the Land Ban. As you know, during the period from early August
to mid-November of this year, the number of waste disposal activities
affected by the land ban will increase substantially. In August, we will issue
treatment standards for approximately 40 F’ and UKU waste codes. We expect
the standards to be immediately applicable for at least 33 of these wastes;
the remaining wastes will likely be subject to a two-year capacity variance.
In November, the previously-granted capacity variances for under-l% solvent
wastewaters, soil and debris, and small quantity generator wastes will expire.
Because of a substantial increase in liquid incineration capacity, we also plan
to rescind certain of the California list capacity variances in November,
making those wastes subject to the ban earlier than expected.
Final policy decisions have not yet been made on many of these issues,
but given the short deadlines on land ban rules, we wanted to apprise the
Regions of potential issues that some facilities may face. There appear to be
several areas in which the relationship between RCRA permit activities and
aspects of the land ban program may not be well understood. In this memo, we
are highlighting seven land ban issues which could affect permitting activities
or considera ons. Our intention is to alert regional permit staff to these
issues and invite you to consult with the staff of the Land Disposal
Restrictions Branch on these or any other issues.
Staff of the Land Disposal Restrictions Branch will be travelling to the
Regions near the time of promulgation of the final First Third rule to discuss
the content of the rule and any specific regional issues. In the meantime, if
you have any questions about the application of the land ban to facilities you
are dealing with, please call Barbara McGuinness or Steve Well at FTS-
382-4770.
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1. Surface Impoundment Retrofit Waivers
After November 8, 1986, a non-minimum technology surface impoundment
could not be used to treat a banned waste for which the effective date had
passed unless the impoundment had a 3005 (j)(2) or (j)(4) waiver. After
August 8, (988, soft hammers” will apply to a number of First Third waste
codes for which we will not set treatment standards; most notably, “soft
hammers” will apply to 107 P” and “U” waste codes and to all or part of 12 “F”
and “K waste codes. (See Attachment 1.) Surface impoundments cannot
receive banned wastes or “soft hammer” wastes on the basis of
U)(3) or U)(13) waivers alone, If an impoundment has received a (j)(3) or
(j)(1 3) waiver and wishes to receive a banned waste or a “soft hammer” waste,
a further equivalency demonstration under 3004(o)(2) is required. In the case
of a (j)(13) impoundment which already has releases, this is likely to be a very
difficult showing.
2. Minimum Technology Requirements During Extensions
In the April 8, 1988 Notice (the “First Sixth”), we proposed to change our
interpretation of the term “facility” in 3004(h)(4). This is the section which
specifies that “facilities” receiving banned wastes during an extension of the
effective date (i.e., a national capacity variance or a case-by-case extension)
must meet minimum technology requirements. Previously, we had defined
“faciiity” in the broad sense of property boundaries. Thus, as long as new,
replacement or expansion units met minimum technology requirements
(MTR), banned wastes with extensions of the effective date could go to
existing, non-MTR units.
In the April proposal, we changed that interpretation to equate “facility”
with “unit” for purposes of 3004(h)(4). As a result, after the effective date of
the change (most likely November 8, 1988 to avoid short- term disruptions for
surface impoundments), when banned wastes with capacity extensions are
placed in landfills or surface impoundments, those units must meet MTR.
Note that here, as in Issue 1, 3005 U)(3) or (j)(1 3) waivers will not
suffice unless the stricter 3004(o)(2) equivalency demonstration can also be
made.
Note that the equivalency demonstration required as part of the (j)(13)
waiver and that required for 3004 (0) (2) are quite different.
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3. Closures of Surface Impoundments
The expected closures of numerous surface impoundments over the next
several years could result in significant additional volumes of land-banned
wastes requiring treatment and disposal. At this time, EPA HQ does not have a
clear picture of how many impoundments will clean close (or require removal
of at least some accumulated material), or the time frame in which closures
will occur. As a result, it is difficult to assess whether adequate BDAT
treatment and disposal capacity will be available for these wastes.
We know of several industries likely to produce significant volumes of
banned wastes when impoundments are closed. These include wood preservers
(KOOl sludges), metal platers (F006 sludges), chemical manufacturers (FOOl -
005 solvent sludges). Some of these industries have expressed concern that
there will not be adequate capacity to treat wastes generated from closing
units. If this proves to be true, it may be necessary to delay closure, or to
close in place.
If you believe that a facility or industry will have a problem finding
treatment and disposal capacity for wastes from closures (particularly if
there is an indication of environmental damage that may be exacerbated by a
lengthy delay in closure or closure in place), please alert us to this situation.
4. Case-By-Case Extensions
In instances where capacity to treat banned wastes is determined to be
available (i.e., there is sufficient capacity on a national basis), but where BDAT
treatment capacity is not actually available to a specific facility, a generator
or owner/operator may apply for a case-by-case extension of the effective
date. A total of two one-year extensions may be granted.
For a successful case-by-case extension petition, the generator or owner/
operator must show that BDAT treatment is not available in fact and must
have a binding contractual commitment to build or acquire access to the
necessary capacity within the period of the extension. The first showing
cannot be based on cost or inconvenience, but rather must be based on actual
infeasibility of obtaining treatment. It must be supported by evidence that the
generator or owner/operator has attempted to obtain treatment capacity but
has been unable to do so. An example could be a facility with a very large
volume of material requiring incineration to meet BDAT. Commercial incin-
erators have rejected the material because of its volume and because the form
of the waste requires special loading and feed equipment which is not now in
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place. A case-by-case extension can be granted while the company (or a waste
treatment facility) completes construction of the needed facilities.
The Land Disposal Restrictions Branch is now preparing guidance on
case-by-case extensions; the draft guidance will be distributed to the Regions
for review and comment. Please note that the review and notice processes for
case-by-case extensions will require at least four to six months. After the
deadlines, facilities must comply with BDAT treatment standards until
case-by-case extension applications are approved.
The deadline for First Third wastes is August 8, 1988. Capacity variances
for three solvent waste groups (under 1 -% solvent wastewaters, small quantity
generator wastes and non-soil and debris solvent wastes from RCRA and
CERCLA actions) wüI be subject to land disposal restrictions. Also, after
November 8, restrictions may apply to RCRA and CERCLA soil and debris, and to
many California list wastes. At this point, it is not possible to process a
case-by-case extension of the August deadline by August 8. If any facilities
plan to seek a case-by-case extension of the August deadline, they should
recognize that they will be required to comply with the standards for at least
some period while the petition is reviewed and processed. Facilities seeking
case-by-case extensions of the November 8, 1988 deadlines should submit
petitions as soon as possible.
5. New Treatment Capacity Information
The May 17, 1988 proposal (the ‘Second Sixth’) contains new capacity data
from the comprehensive survey of treatment, disposal and recycling facilities.
In general, there is significantly more treatment capacity available than had
previously been assumed. This means that BDAT for most waste codes is likely
to go into effect August 8, 1988, and few national capacity extensions will be
granted. In particular, there is a large amount of liquid injection incineration
capacity available at both incinerators and cement kilns and other industrial
furnaces. Also, stabilization capacity is commercially available in virtually
every area of the country; stabilization is also relatively easy to bring on line,
given the availability of materials and technology (lime or cement dust and
mixing apparatus).
There has also been a significant increase in the amount of rotary kiln and
fluidized bed combustion capacity, although incineration capacity for solids
and sludges is still considerably more limited than for liquids. We expect that
only a few of the First Third waste codes (principally the petroleum refinery
wastes) will receive a two-year capacity extension.
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6. Contaminated Soil and Debris
The May 17, 1988 Notice proposed a two-year national capacity variance
for RCRA arid CERCLA contaminated soil (and possibly debris) which required
solids incineration. It now appears possible that there will be adequate solids
incineration capacity and that the variance will not be finalized. If this proves
true, soil and debris contaminated by First Third wastes will be required to
meet BOAT treatment standards as of August 8, 1988. Soil and debris from
Superfund and RCRA corrective actions contaminated with solvents and dioxins
or California list wastes would be required to meet BDAT treatment standards
as of November 8, 1988.
Guidance on treatment of contaminated soil and debris at RCRA and
CERCLA sites will be available soon. This will include guidance on obtaining a
site-specific, administrative treatability variance in cases where the basis
for BOAT is inappropriate for soil and debris.
OSW and OERR have been working for the past few months to develop
interim treatment levels for soil and debris; the interim treatment levels are
for use during the next several years while BDAT treatment testing for soil and
debris is conducted. When a treatability variance for contaminated soil and
debris is necessary, the interim treatment levels provide guidance on the range
of constituent concentration levels that can be achieved by well-designed and
well-operated technologies. The treatment levels were derived from Superfund
site data on constituent concentrations after treatment. Generally, several
alternative types of treatment can achieve the concentration levels within the
range.
The attached memo to Regional Superfund staff explains the purpose of
the interim levels and requests comments on the levels. We will be interested
in receiving comments from RCRA staff as well.
7. Soft Hammer Provisions
If the Agency does not set treatment standards for a First or Second
Third waste by the statutory effective date, the waste may continue to be land
disposed in a landfill or surface impoundment only if the generator has
investigated the availability of treatment capacity and certified to the
Regional Administrator that the use of the surface impoundment or landfill is
the only practical alternative to treatment currently available. Other forms of
land disposal are not affected.
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The proposed rule also allowed certification for disposal of wastes
that have been treated but for which no further meaningful ’ treatment is
practically-available. This was done to allow the generators of wastes for
which treatment standards have not been set to continue to operate, as we
believe that Congress intended them to use the available treatment rather
than shut down.
Several commentors have raised concerns as to how the Agency will
define treatment. In the proposed rule, the Agency asked for comment on
how to define treatment for the purposes of the soft hammer, discussing
concepts such as requiring meaningful ’ treatment, or specific percent
reductions. Owners and operators of disposal facilities tell us they will
not accept wastes if there is a chance that the RA will disallow the
certification and subject them to enforcement action. They feel that we
need a firmer definition. In the final rule, we are planning to discuss a
hierarchy of treatment technologies that should be investigated before
certification. For example, removal/reclamation is preferrable to
destruction which is preferrable to stabilization. Is this a workable
approach from your perspective? Is there a way to make this approach
even more concrete?
We are looking for ideas on how to make the certification meaningful,
and yet not bring the land disposal of all soft hammer wastes to a grinding
halt due to uncertainty regarding the criteria.
At this time, we expect to publish the First Third Final Rule around
August 8. Attachment 1 gives the expected status of all restricted wastes
(except those covered by UIC rules), assuming promulgation of the final
First Third rule by the August 8 deadline. The ‘Second Sixth’ comment
period closes June 16, 1988. It is possible that, given the short
timeframe, it may be several weeks after August 8 before the final rule is
signed and published, If this happens, the ‘soft hammer’ goes into effect
for all non-UIC First Third wastes.
As noted earlier, all of the policy calls on these issues have not been
made. Some of those we have indicated may change. However, we wanted
to give you an early alert on these potential issues. We will keep you
posted on developments.
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Attachments
cc: RCRA Branch Chiefs, Regions l-X
RCRA Section Chiefs, Regions l-X
Bruce Weddle, PSPD
Joe Carra, WMD
Dev Barnes, CAD
Elaine Stanley, OWPE, RCRA
Jon Cannon, OWPE
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Attachment 1
Expected Status of Restricted Wastes* as of August 8, 1988
1. Wastes with BOAT in Effect
Solvents and Dioxins
o Over 1 -% Solvents -- FOOl -005 (11/8/86)
o Listed Dioxin Wastes -- F020-023 and F026-028 (11/8/86)
California List
o Liquids or Free Liquids Containing Free Cyanides (7/8/87)
o Liquids or Free Liquids Containing Arsenic, Cadmium, Chromium,
Lead, Mercury, Nickel, Selenium, Thallium (7/8/87)
o Liquids or Free Liquids Containing Corrosives with pH 2 (7/8/87)
o Liquids or Free Liquids Containing PCBs 50 ppm (7/8/87)
o Halogenated Organic Compounds: Dilute Wastewaters
l,000 mg/I (7/8/87)
First Third
o F006 (8/8/88)
o KOOl, 004,008,015,016,018,019,020,021, 022,024,025,030,
036, 037, 044, 045, 046, 047, 060, 062, 069, 073, 083, 086
(solvent washes only), 087,099, 100, 101, 102, 103, 104, 106
(818/88)
2. Wastes with BOAT. with Caoacity Extension In Effect
Solvents and Dioxins
o Small Quantity Generator Solvents (11/8/88)
o RCRA and CERCLA Corrective Action Wastes (11/8/88)
o RCRA and CERCLA Soil and Debris (11/8/88)
o Under 1-% Solvent Wastes (11/8/88)
California List
o Other Halogenated Organic Compounds (11/8/88)
o RCRA and CERCLA Soil and Debris (11/8/88)
First Third
o K048, 049, 050, 051,052, 061, 071 (8/8/90)
3. No BOAT E tabllshed. “ Soft Hammer” In Effect
First Third
o F007, 008, 009,019
o KOll, 013,014,017,031,035,084,085,086 (solvent sludges and
wastewaters)
o First Third ‘P” and U’ Wastes
• Oth.r than U!C.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 95 51. 1988 (09)
1JG 111988
Mr. James W. Walpole
Plant Manager
BP Chemicals Internatjonai
Sohio Division
Ft. Ainanda Road
Post Office Box 628
Lima, Ohio 45802—0628
Dear Mr. Walpole:
This letter responds to your July 19, 1988, correspondence
requesting the Environmental Protection Agency (EPA) to act on
your case-by-case extension petition for an extension of the
applicable effective date of the land disposal restrictions.
This petition addresses KOll, K013, and K014 wastes, generated
at BP Chemicals International, which you want to continue
treating in a surface impoundment until November 8, 1988. We
have completed a preliminary review of your petition. However,
more information is needed before a determination can be made to
grant or deny your request. This information is necessary to
satisfy the demonstrations for a case-by-case extension of an
effective date specified in 40 CFR 268.5.
Under 40 CFR 268.5(a)(l) the petitioner is required to make
a good-faith effort to locate and contract with treatment,
recovery, or disposal facilities nationwide to manage his waste
in accordance with the land disposal restrictions. Your
application addresses off-site capacity by claiming that
off-site disposal capacity is available, but the logistics of
loading, transporting, and unloading the large volume of
wastewat prevents the use of such capacity. To satisfy this
demonstration you must also address the availability of On-site
capacity and, if the capacity is available, the feasibility of
using such capacity.
As required by 40 CFR 268.5(a)(2) the applicant must
demonstrate that there is a binding contractual Commitment to
construct or otherwise provide alternative treatment, recovery,
-------
or disposal Capacity. In your petition you give only the
signature dates for individual contracts which will provide
alternative treatment capacity. To make this showing you will
have to provide a copy of the signed contracts, which includes
the signature page. This material will be used by EPA to
determine the scope of the contracts and to verify that the
contracts have been signed.
As specified in 40 CFR 268.5(a)(4) a successful petition
must show that the capacity being Constructed or otherwise
provided will be sufficient to manage the entire quantity of
waste that is the subject of the application. Although your
petition states that the alternative capacity will have the
volume of the surface impoundment it is replacing you need to
provide numerical values for the volumes of the individual
treatment system units and the maximum flow rates that can be
accomodated by these units. This information will support your
general statement.
Under 40 CFR 268.5(a)(6) the petitioner must arrange for
adequate capacity to manage his waste during an extension period
and document in the application the location of all sites at
which the waste will be managed. You state that the waste will
undergo physical treatment in the surface impoundment to reduce
its solids content. This treatment should be described in more
detail, and you must include the location of the surface
impoundment. Furthermore, you fail to show how and where the
solids from physical treatment are to be managed. Locations can
best be shown on a map of your facility.
To properly evaluate your petition EPA is requesting
additional information pertaining to your facility. The Agency
wants to know whether the ground water in the vicinity of the
surface impoundment is contaminated. In addition, we are
requesting a brief description of the impact of curtailing
production.
EPA is making every effort to process your case-by--case
extension petition as quickly as possible. However, this is a
rulemaking procedure which for your application has the
following minimum schedule:
middle of August receive additional infor-
mation on petition
end of Augñst to write Federal Register
end of September notice proposing to grant
petition
beginning of October publish Federal Register
notice proposing to grant
petition
2
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beginning to end public comment period
of October
beginning of November write Federal Register
notice granting petition
middle of November publish ederaj Register
notice granting petition
To expedite the processing of your petition, please submit the
requested information to the following address:
Ms. Barbara McGuinness
Acting Section Chief
Regulation Development Section (OS—333)
U.S. Environmental Protection Agency
401 M Street, SW
Washington, DC 20460
Should you have any questions, please call. Barbara McGuinness at
(202) 382—4800.
Sincerely,
Stephen R. WeLL, Chief
Land Disposal Restrictions Branch
3
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9551.1988(10)
RCRA/SUPERF D HOTLINE MONTHLY SUW4ARY
SEPTEMBER 88
3. Land Disposal Restrictions - First Third
On August 17, 1988, EPA promulgated a final rule on the “first third” of listed wastes
which were banned from land disposal on August 8, 1988 (53 FR 31138). In this final
rule, the Agency did not establish treatment standards for many of the wastes that
were on the first third list, but did promulgate Tegulatiorts to allow for the
continued land disposal of these wastes (Section 268.8). These so-called “soft
hammer” wastes may be land disposed until May 8, 1990, or until treatment
standards or extensions to the effective date are promulgated, whichever is later and
provided the generator of the waste complies with Section 268.8.
What must a generator of “soft hammer” waste do in order to land dispose of his
waste?
Basically, the generator must demonstrate and certify that there is no practically
available treatment that reduces toxicity or mobility of the waste and that
disposal of these wastes in a landfill or impoundment is the only practical
alternative. (Any landfill or impoundment that receives “soft hammer” waste
must meet the minimum technological requirements of RCR.A Section 3004(o),
which consists of a double liner, leachate collection system and groundwater
monitoring.) If treatment is practically available, the generator must certify
that his waste is being treated by the treatment that provides the most
environmental benefit that is practically available. The residuals from
treatment of “soft hammer” waste remain “soft hammer” waste. Thus, if these
residues (e.g., incinerator ash) are disposed in a landfill or surface
impoundment unit, that unit must be in compliance with the minimum
technological requirements of Section 3004(o).
Where the generator determines that there i., no pract ally available treatment
prior to disposal, with the initial shipment of waste, the generator must submit
a copy of his demonstration/certification to the Regional Administrator and to
the receiving facility. With each subsequent shipment, only the certification is
required to be submitted, provided that the conditions being certified remain
unchanged. This paperwork trail is the same for situations where treatment
prior to disposal is practically available.
Source: Bill Fortune (202) 4756715
Research: Chris Bryant
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9551.1988(13)
RCRA/SUPERFUND HOTLINE MONTHLY SW’U4ARY
NOVEMBER 88
4 “ Soft Hammer” Certifications/Demonstrations
On August 17, 1988, EPA promulgated a final rule on the “first third” of listed
wastes which were banned from land disposal on August 8, 1988 (53 EE 31138). In
this final rule, the Agency did not establish treatment standards for many of the
wastes that were on the first third, but did promulgate regulations to allow for
the continued land disposal of these so-called “soft hammer” wastes. Generators
of soft hammer wastes who dispose of the waste in surface impoundments or
landfills must comply with the regulations found in Section 268.8. This section
requires the generator to demonstrate and certify that there is no practically
available treatment for the waste and that disposal in a landfill or suriace
impoundment is the only option. If treatmenc is available, the generator must
certify and demonstrate that the treatment method is the most environmentally
sound method available. These requirements also apply to the treatment
residuals of soft-hammer wastes (53 31138). Also, landfill or surface
impoundments must meet minimum technology standards for double liners.
and leachate collection systems.
A generator of “soft hammer” waste ships the waste to an incinerator. The
operator of the incinerator burns the waste and ;ubsequently ships the ash to a
hazardous waste landfill.
With respect to the ash that is shipped off-site from the incinerator, who is
responsible for meeting the demonstration/certification requirements of Section
268.8, the original generator of the waste or the incinerator operator?
In this situation, both are responsible. The original generator of the waste
that was sent to the incinerator would be responsible for complying with the
demonstration/ certification requirements of Section 268.8. Thus, a generator
is responsible for knowing the final disposition of the treatment residues
from his wastes. if the treatment residues are disposed of in a surface
impoundment or landfill, the original generator must comply with the
Section 268.8 requirements with respect to the shipment of that waste. The
generator is solely responsible for determining which treatment is the best
practicable and available alternative (or for certifying that no treatment is
practical or available). The operator of the incinerator would be required to
certify that the treatment of the waste had been properly accomplished.
Finally, the owner or operator of the disposal facility would be responsible for
ensuring that the treatment residuals were placed in a unit meeting
minimum technology requirements.
Source: Rhonda Craig (202) 382-4800
Research: Chris Bryant
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9551.1988(14)
RCRA/SUPERFUND HOTLINE MONTHLY SU?*IARY
DECEMBER 88
2. Land Disposal Restrictions: Soils and Debris from RCRA Corrective Act n
Under the land disposal restrictionS, some soil and debris have national capacity
variances. Must the response action under CERCLA be pursuant to Section 104
or Section 106 of CERCLA and must the corrective action under RCRA be
pursuant to a corrective action order?
Soil and debris contaminated with wastes from the “first third” list and for
which the promulgated treatment technology is incineration have a national
capacity variance until August 8, 1990. This variance, however, applies to all
soil and debris contaminated with these wastes not just to soil and debris
generated by CERCLA or RCRA dean-up actions (53 LE 31196). In contrast,
soil and debris contaminated with solvent, dioxin, or California list wastes are
subject to a variance only if they result from an action taken under Section
104 or Section 106 of CERCLA , or a corrective action under Subtitle C of
RCRA. This variance extends to November 8, 1990. EPA, however, can use
either orders or permits to require corrective action under RCRA. The
variance is limited to soil and debris from corrective action orders.
Source: Steve Weil (202) 382-4770
Steve Silverman (202) 382-7706
Research: Renee Pannebaker
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9551. 1988 C 15
JAN21 1988
MEMORANDUM
SUBJECT: Headquarter’s Clarification of the Regulatory
Status of Drainage Water Beneath Land Treatment
Units and Integration of the Region’s Permitting
Activities with the “No Migration” Petition Program
FROM: Marcia E. Williams, Director
Office of Solid Waste
TO: Charles E. Findley, Director
Hazardous Waste Division-Region 10
This memorandum responds to your December 4, 1987,
memorandum in which you raised several issues on permitting of
land treatment units at oil refineries in Region 10.
Your first question was whether ground water which is
seasonally drained from beneath land treatment units
constitutes a hazardous waste. You concluded that the
situation is roughly analogous to situations described in the
1985 policy memorandum clarifying application of the derived
from and mixture rules to petroleum refinery wastewater
treatment systems. Based on that 1985 policy, you concluded
that the drainage water is not a hazardous waste by
definition.
While we agree that ground water pumped from beneath a land
treatment unit is not necessarily hazardous, we do not agree
that ground water contaminated with hazardous waste leachate
from a land treatment unit can be categorically deemed
non-hazardous. The 1985 policy on wastewater treatment systems
does not address releases to ground water. The regulatory
status of Contaminated ground water is addressed more directly
in Marcia Williams’ memorandum of November 13, 1986, which
states that ground water contaminated with hazardous waste
leachate must be managed as if it were a hazardous waste. This
applies equally to land treatment units and other RCRA units.
-------
You also questioned whether the drainage water, which is
returned to an NPDES treatment System, must be addressed in a
“no migration” petition. Under the “no migration” standard,
there can be no migration from the unit . If the drainage water
is to be excluded from the “no migration” petition, the
petitioner must demonstrate that the drainage water is not
being contaminated by hazardous constituents migrating from the
land treatment unit. However, for a leachate collection System
that is considered part of the unit (e.g., it is above a
liner), and where leachate is pumped directly to a wastewater
treatment plant, the leachate would not be considered to be
migrating from the unit. However, any ditches or pipes used to
conduct leachate from a leachate collection system, or runoff
from the unit must meet the “no migration” standard, since
these Conduits could be extensions of the unit.
With respect to your suggestion that a Part B land
treatment demonstration can be used in lieu of a “no migration”
petition covering Subsurface transport, we do not believe that
an approved Part B land treatment demonstration can replace a
“no migration” petition. Although it is true that the
subsurface transport demonstrations for the permit and the
petition are very similar, the statutory standard that must be
met for a “no migration” demonstration is more stringent. For
example, “no migration” must be demonstrated for “as long as
the waste remains hazardous,” and not just for the permitted
life of the facility. Thus, a “no migration” demonstration may
have to meet a standard for a much longer time than the land
treatment demonstration. In addition, “no migration” must be
demonstrated for all media, including soil, surface water and
air. We realize that much of the information contained in a
Part B application is relevant to “no migration”
demonstrations. Thus, we have been encouraging potential
petitioners to attach a summary of all relevant Part B data
and/or specific sections of the Part B application. We are
planning to work very closely with both the Regions and the
States when reviewing “no migration” petitions, since the
permit writers can offer invaluable technical and historical
information on the site.
In response to your suggestion that a determination made
under a RCRA Facility Investigation (RFI) can replace an
evaluation of air emissions addressed in a “no migration”
petition, we do not believe that such a determination can
automatically substitute for a “no migration” demonstration.
The standard that must be met for no migration from the unit
will likely be more stringent than the demonstration required
under the RFI. We are continuing to evaluate the best way to
handle the air pathway for “no migration” demonstrations, and
propose to use health or environmentally—based exposure levels
at the edge of the unit. For the air pathway, we have not yet
defined what this will be, but one option is that the edge if
the unit be defined as the surface of the waste. In defining
the “no migration” standard the Agency must determine how this
2
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standard relates to the section 3004(n) standards which will
control air emissions from treatment, storage, and disposal
facilities as “may be necessary to protect human health and the
environment.” Finally, RFI information may not be available at
the time a “no migration” petition is submitted. When it is
available, it will be considered. We are encouraging the use
of all relevant site data in the “no migration” petition,
including information collected for permitting or corrective
action purposes.
In your memorandum you requested that authority to grant
“no migration” petitions be delegated to the Regional
administrators. We are planning to propose an interpretation
of the “no migration” language in the Federal Register for
public comment. Because of the controver sy surrounding the
interpretation of the “no migration” statutory language, and
the potential for changes in policy, we believe that
Headquarters should evaluate the initial set of “no migration”
petitions received. We will consider delegation to the regions
after the program is developed and initial petitions have been
evaluated to assess issues and establish precedent. Therefore,
you should advise facilities to submit petitions to the
idministrator. It would also be advisable to send a copy of
the petitions to the hssistance Branch of the Permits and State
Programs Division, which will have the lead on reviewing the
petitions. We will coordinate individual petition reviews on a
case-by-case basis. The 7igency expects to receive relatively
few viable petitions. The petition approval process should not
affect the November 1988 permitting deadline, since petition
approval is not a prerequisite for Part B permit approval.
In addition, you asked Headquarters tO have a staff person
devoted primarily to covering land treatment issues for the
Permit 7 ssistance Team (PuT). We understand your concern
regarding the need for technical expertise in this subject
area. Unfortunately, we do not have the resources to assign an
individual to land treatment on a full-time basis. We will
continue to use the technical staff available, and supplement
with contractual support when necessary. If you need
assistance or wish to discuss this, please contact Elizabeth
Cotsworth on (FTS) 382—4206.
For further clarification on these issues, please contact
Stephen Weil at (FTS) 382—4770.
3
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iir*r 9551.198g( 1)
j
Mr. Robert H. Sinunington
Senior Environmental Engineer
Niagara Plant - Waste Disposal
Occidental Chemical Corporation
P.O. Box 344
Niagara Falls, New York 14302
Dear Mr. Simmingtori:
In response to your letter of November 28, 1988 to
Mr. William Fortune, the following information is provided to
clarify your questions about hazardous wastes containing
halogenated organic compounds (HOCs). Mr. Fortune is no longer
with the Agency, so I in responding to your letter in his place.
As correctly stated in your letter, the two-year national
capacity variance for hazardous wastes Containing HOCs in
concentrations greater than 1000 ppm was rescinded in the First
Third rule (Federal Register, August 17, 1988, page 31138), with
the exception of HOC-contaminated soil and debris. Your
questions relate to the specific HOCs regulated by these
provisions. Your questions are repeated below, followed by our
response.
Ouestion 1 : “The HOCs to be included in the 1000 ppm are only
those listed in the Appendix III to Part 268 - List of
Malogenated Organic Compounds Regulated Under Part 1 8.32, as
published in the Federal Register, Vol. 562, No. 130 on
Wednesday, July 8, 1987.”
ResDonse : As stated in your question, the Agency has limited
the California list HOC prohibition to those HOCs listed in Part
268 Appendix III, which is a finite list of constituents for
which test methods exist. In determining the concentration Of
HOCS in a hazardous waste for purposes of the land disposal
restrictions, EPA has defined the HOCs that must be included in
the calculation as any compounds that have a carbon-halogen bond
and are listed in Appendix III. Therefore, those wastes
affected by the rescission of the two—year national capacity
variance for hazardous wastes containing HOCS in total
concentrations greater than or equal to 1000 mg/i are those
L ina tn Fart a
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Mr. Robert H. Simmingtofl
January 6, 1989
Page 2
Question 2 : “The Land disposal restrictions only apply to
hazardous wastes that contain over the 1000 ppm HOCs (i.e.,
wastes classified as non-hazardous that contain over 1000 ppm of
these HOCs or hazardous wastes with less than 1000 ppm of these
HOCs are not restricted from la.nd disposal).”
Response : The California list land disposal restrictions apply
to wastes that:
o Are listed as hazardous under 40 CFR Part 261; QE
o Exhibit one or more of the characteristics of hazardous
waste identified in Part 26]. (i.e., ignitability,
corrosivity, reactivity, or EP toxicity); AND
o Also contain a California list constituent.
In other ‘ iords, as indica1 ’ in v”ir question, the California
list l r disposal resrrictions cniy apply to wastes that are
listed or characteristic hazardous wastes and that also contain
a California list constituent in concentrations that exceed the
prohibition levels.
Your second example in question 2 mentions hazardous wastes
with less than 1000 ppm HOCs. While these wastes would not be
restricted from land disposal as California list wastes, they
might be restricted as solvent- or dioxin-containing wastes, or
as First Third wastes. These restrictions include treatment,
notification, demonstration, and certification requirements
prior to disposal (see 53 FR 31138).
Question 3 : You also requested an opinion as to whether the
PCBTF Finishing Filter Soda Mh described in your “OXY
CHEM-Niagara Plant Waste Characterization Form” is now subject
to the land disposal restrictions on the basis of its HOC
content, or viii. be in the future due to its characteristic of
EP Toxicity for arsenic.
Based on the data provided in your waste
characterization, it appears that the total concentration of
HOCS in this waste may exceed 1000 ppm (i.e., the value for
total organic halogen is 3.7 percent, or 37,000 ppm). As
indicated in the response to question 1 above, however, the HOCs
to be included in the calculation are only those listed
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9551.1989(02)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
MARCH 89
1. Mixed Waste and Land Ban
The owner/operator of a facility generates a liquid mixed
hazardous/radioactive waste. The waste contains P006 waste as well as
California list metals above the levels specified in RCRA Section 3004(dX2). Is
this waste subject to the land disposal restrictions? If so, which land di posa1
restrictions apply?
According to the August 17, 1988, Federal (53 LB 31202), First
Third waste mixed with radioactive waste is moved to the Third Third
schedule, whether that First Third waste has a treatment standard
associated with it or not. Section 268.10 identifies P006 waste as a First
Third Waste, thus mixed waste which cont Rina P006 will not be subject to
the land disposal restrictions until May 8, 1990. However, this action only
affects First Third wastes mixed with radioactive wastes. Mixed waste
containing spent solvents, dioxins and California list wastes or mixed
radioactive/Pirst Third waste that also conthins spent solvents, dioxins, and
California list waste (i.e., wastes prohibited under Sections 268.30, 268.31,
268.32) would still be subject to the land disposal resbictions associated with
those wastes. However, this is only true in unauthorized states or
authorized states that do not have mixed-waste authority. Therefore, mixed
waste which contains P006 and California list metal wastes must only
comply with the land disposal restrictions in Section 3004(d) of RCRA.
Sections 3004(d) states that California list metal wastes were prohibited
from land disposal as of July 8, 1987 unless the waste meets the statutory
prohibition standards in Section 3004(d)(2XB). However, if the State in
which the facility is located is authorized for the base RCRA program, and
the State has not yet received mixed waste authorization, the waste is not
considered hazardous and the land ban does not apply.
Source: Rhonda Craig (202) 382-4770
Research: Kim Jennings (202)382-3112
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9551.1989(03)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
SO&. .. ..S’ . %3 %• :: . P€SP .SE
____ DEC 2.0, :90
SUBJECT: Applicability of the Land Disposal Restrictions to
Recycled Hazardous Wastes
FROM: Devereaux Barnes, Director
Characterization and Assessment Division
TO: Gerald M. Levy, Chief
MA Waste Management Branch
Region I
This memorandum responds to your November 9, 1989, request
for clarification concerning the applicability of the Part 268
Land Disposal Restrictions (LDR) program to recycled wastes that
are subject to the provisions of Part 266; in particular,
recyclable materials from which precious metals are reclaimed
(i.e., wastes subject to 40 CFR 261.6(a) (2) (iv) and Subpart F of
Part 266).
The requirements of Part 268 g applicable (as stated at 40
CFR 268.1(b)) unless specifically provided otherwise in Part 261
(or in Part 268). Section 261.6(a) (2) does specifically
provide otherwise and, therefore, the LDR requirements,
including the applicable notification, certification and
demonstrations required by the generator of a restricted
hazardous waste, are applicable to those recyclable materials
listed in section 261.6(a)(2). (For comparison, section
261.6(a) (3) specifically provide otherwise and, therefore,
the LDR requirements do apply to those wastes listed in
261.6(a) (3)).
In future rulemakings, we will consider adding “Part 268” t
the introductory paragraph of 40 CFR 261.6(a) (2), specifically
stating that “the following recyclable materials” xg subject t
the LDR requirements to help clarify the applicability of Part
268. However, we have consistently maintained and believe it s
understood that such “recyclable materials” (and, in fact, LU
hazardous wastes, unless specifically provided otherwise) are
(or will be) subject to the LDR requirements. For example,
Subpart C of Part 266 was specifically modified (see 53 FR at
31197, August 17, 1988) due to the LDR statutory requirement
that a hazardous waste must meet the treatment standards pri
- ., . . - Djp
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—2—
to placement on the land. Were those recyclable materials
listed in 261.6(a) (2) not subject to Part 268, this modification
would not have been necessary.
Should you have further questions, or need more information,
plea.. contact Andrea McLaughlin, of my staff, at FTS 382—6946.
cc: R RA Branch Chiefs, Region. II-X
Jim Thompson, OWPE
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9551.1989(04)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON D.C. 20460
OFCICE OP
SOLID WASTE AND EMERGENCY RESPONSE
JL -6 989
MEMORANDUM
SUBJECT: Current Status of Health-Based Values for PAM’s in coke
By-Product Wastes
FROM: Susan Griffin, Ph.D.
Toxicologist
Health Assessment Section
Technical Assessment Branch (OS-331)
THRU: Stephanie R. Irene, Ph.D. 3
Section Chief
Health Assessment Section
Technical Assessment Branch (OS-331)
TO: Ron Josephson
Environmental Engineer
Listing Section
Land Disposal Restrictions Branch (OS—333)
Listed below are the PAR compounds commonly detected in coke
by-product wastes and their health-based numbers derived from
carcinogenic or non-carcinogenic endpoints. The Rf D’s indicate
non-carcinogenic health numbers verified by the reference dose
workgroup. The RSD’s (risk specific doses) indicate carcinogenic
numbers derived from cRAVE, the cancer risk assessment
verification workgroup, or from CAG, the cancer assessment group.
The risk level for the RSD is lxlO 6 .
Benzo(a)py mn.
-B 2 inogsn; RSD is 8.6x10 mg/kg/day (CAG profile)
Benzo (a) anthracen.
B 2 carcinogen; RSD is 3x10 7 mg/kg/day
(CAG profile)
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Benzo (b) fluoranthene
2 carcinogen; no quantitative RSD (CAG profile)
Benzo (k) fluoranthene
-B 2 carcinogen; RSD in l.1x10’ mg/kg/day (1985 NIOSH
RTECS
Benzo (g, h, i] perylene
-This compound was assigned an RSD equal to the RSD for
benzo(ajpyrene for the wood preserving listing.
Benz ene
-A carcinogen; RSD is 3.4x10 5 (CRAVE
verified)
-RfD inhalation is 5.7x10 3 mg/rn 3 (under review
by RfD
workgroup)
Chrysene
-c carcinogen; This compound was assigned an RSD equal to
the RSD for bnezo(a)pyrene.
(CAG profile)
Dibenzo (A, H] anthracene
-B 2 carcinogen; RSD is 2.0x10 mg/kg/day (CAG profile)
Ethy lbenzene
-Oral RfD 1x10 1 mg/kg/day (RfD workgroup
verified)
Indeno (1,2,3-cd) pyrene
-C carcinogen; RSD is 5.7x10 5 mg/kg/day (Water Quality
Criteria
Document)
2-Methyl napthalene
This compound was assigned an RfD equal to the RSD for
Indeno (1,2,3-cD) pyrene for the wood preserving listing.
2-Methyl phenol (o-creso].) (RfD workgroup
verified)
-oral RZD 5x10 2 mg/kg/day
4-Methyl ph o1 (p-creso].) (RfD workgroup
verified
-oral tD 5x10 2 mg/kg/day
Napthalene
-oral RZD 0.4 mg/kg/day (1986 Health
and
Environmental
Ef facts
Phenanthrene -
-This compound was assigned an RZD equal to the RSD for
Indeno (1,2,3-cd) pyrene for the wood preserving listing.
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Phenol
-oral RZD 6x10’ mg/kg/day (RfD workgroup
Verified)
Styrene
-oral RfD 2x10 mg/kg/day (RfD workgroup
verified)
-B 2 carcinogen; oral RSD 3.3xlO 5 mg/kg/day (CRAVE
verified)
-Inhalation RSD is 5.0x10 5 mg/kg/day
To luene
-oral RfD 3x10’ mg/kg/day (RfD workgroup
verified)
-inhalation RfD 2.0 mg/rn 3 (RfD workgroup
verified)
Xylenes
-oral RZD 2.0 mg/kg/day (RfD workgroup
verified)
-inhalation RfD 3.0x10 1 mg/rn 3 (RfD workgroup
verified)
The following PAM’s are in the process of having RfD values
developed.
Acenaphthene
• Acenaphthylene
Anthracene
Fluoranthene
Fluorene
2, 4-dirnethyl phenol
Pyrene
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9551.1989(05)
____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
JUN I 2 ‘?
OFFICE OF
SOLIO WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Health Status of PAH’s in Coke By-Product Wastes
FROM: . Susan Griffin, Ph.D.
0 Toxicologist
Health Assessment Section
Technical Assessment Branch (05-331)
THRU: Stephanie R. Irene, Ph.D. ________
Section Chief -
Health Assessment Section
Technical Assessment Branch (OS-331)
TO: Ron Josephson
Environmental Engineer
Listing Section
Land Disposal Restrictions Branch (05-333)
The foLlowing PAR’s currently have RfD values or CAG
classifications.
1. Benzo(a]pyrene 50-32—8
-B2 carcinogen, no quantitative data
2. Benzene 71—43—2
— A carci oqen; oral and inhalation slope factor
2.9x10 mg/kg/day
- RfD inhalation 5.7x10 3 mg/rn 3 (under review)
3. Ethylbenzefls 100—41—4
— D carcinogen
— RfD oral 1x10 mg/kg/day
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4. 2—Methyl phenol (o—cresol) 95-48-7
- No CAG data
- RfD oral. 5x10 2 mg/kg/day
5. 4—Methyl phenol (p—cresol) 106—44—5
- No CAG data
- RfD oral 5x10 2 mg/kg/day
6. Napthalene 91—20—3
- No CAG data
- RfD oral 0.4 mg/kg/day
7. Phenol 108—95—2
- No CAG data
- RfD oral 6xl0 mg/kg/day
8. Styrene 100—42—5 -
- No CAG data
- RfD oral 2xl0 mg/kg/day
9. Toluene 108—88-3
- No CAG data
- RfD oral 3x10 m /kg/d y
- RfD inhalation 2.0 mg/rn
10. Xylene 1330—20—7
— D carcinogen
- RfD oral 2.0 mg/kg/day
- RfD inhalation 3.OxlO 1 mg/kg/day
The following PAN’s are in the process of having RfD values
developed.
Acenaphthene
Acenaphthy lene
Anthracene
Fluoranthene
Fluorene
2, 4—dirnethyl phenol
Pyrene
The following PAN’s have health documents (HEEPs, Tox
Profiles, Hazard Profiles) indicating no evidence of systemic
toxicity and limited or inadequate evidence or carcinogenicity.
Benzo (b) fluoranthene
Benzo (k) fluranthene
Chyrsene
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Phenanthrene
Dib.nzo [ A, H) Anthracene
Benzo (a] anthracene
Benzo (gh,i) perylene
No information could be located on the following PAR’s.
Indeno (1,2,3—cd) pyrene
2 -methyl naphthalene
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WUJT!D PR T T Ni 9551.1989(06)
MAY 3 l9R 9
Ms. Barbara Young
Booz-Allen & Hamilton, Inc.
4330 East West Highway
Bethesda, MD 20814—4455
Dear Ms. Young:
I have received your letter of April 20, 1989 requesting
clarification on the Q. & A. associated with Ms. Barbara
McGuinness’ presentation at the Environmental Compliance
Conference in San Antonio, TX on January 31, 1989.
I have enclosed the necessary corrections and
clarifications to each question. If you have further
questions, you may contact me at (202) 382—4770.
Sincerely,
Micflaelle Wilson, Chief
Regulation Development Section
Enc losur
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Land Disoosa ]. Restrictions
Q. #1 Correct as stated.
Q. Does a facility have to certify a “SOft-hammered” waste
even if it is going to an incinerator and not to a
landfill?
A. “Soft hammer certifications/demonstrations are required
only when the wastes (or residues) are disposed in a
landfill or surface impoundment. Typically, incinerator
residues are disposed in such units and a certification is
required. The owner/operator must also certify that
treatment was conducted as per the generator
certification/demonstration.
0. Who would be responsible for providing the waste analysis
of residuals from incineration, and what sample would they
take?
A. The treatment facility would have to perform a waste
analysis before land disposal of incinerator residual
waste at the frequency indicated in the waste analysis
plan. The samples required for testing would be
incinerator ash and scrubber water.
Q. #4 .. .carry the waste codes...
0. Is waste that is sent to a recycler considered hazardous
waste?
A. This question relates to the definition of a solid waste,
not land disposal restrictions. Certain types of
recycling exclude the material from the definition of
solid waste, while others do not. See 40 CFR 261.2(c) and
(e). Also, for a more specific determination, contact the
appropriate State regulatory agency, EPA Regional office,
or the RCRA Hotline at 1-800-424—9346.
0. If a facility sends an F-solvent waste to a recovery
facility, do they have to notify them that it is an LDR
waste?
A. Yes. Recycling is defined as treatment and is likewise
subject to the recordkeeping requirements. Typically,
solve ñt recyclers generate a still bottom (that carries
the same waste codes) that must be treated to the
treatment standards prior to disposal. Recyclers are
definitely in the loop.
0. What facilities are allowed to store waste for up to a
year if they are storing solely for the purpose of
accumulating sufficient quantities for efficient recycling
or treatment?
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A. One year is the rule of thumb as far as delegating
responsibilities of the burden of proof. The rebuttable
presumption is that one year is sufficient time to store
wastes solely for the purpose of accumulating Sufficient
quantities to facilitate treatment. For less than one
year, EPA bears the burden of proof that Such storage is
not in compliance (i.e. , not for the Sole purpose allowed
by the Statute). For more than one year, the burden of
proof is on the storage facility. The facility is, of
course, subject to all other regulatory requirements,
including Part B permits, interim status, or the 90-day
generator Storage rule.
Answers to questions on Research Permits and Medical Waste are
correct as stated.
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UNITED STATES ENVIRONMENTAL PROTECTIOI 9551.1989(07)
40V 4 988
Mr. James P. Ward, Chief Chemist
Omaric Industries
Post Office Box 856
Lewiston, Idaho 83501
Dear Mr. Ward:
This letter is in response to your letter of July 19, 1988
req uesting Enviroyunent j Protection Agency (EPA) guidance with
respect to Oinar]c Industries generation and treatment of EPA
hazardous waste K044, a First Third restricted waste.
As you are aware, K044 was listed as hazardous waste
bera’js. exfl ,bjts the c racterjst ’- of ‘r ct1’z:,y. . (See 40
CFR 261.23.) In your letter you indicated that after the K044
material, is treated in the facility’s waste water treatment
process, it ceases to exhibit reactive/explosive characteristics
and thus should not be subject to the K044 land disposal
restrictions.
The Agency has addressed this Situation in 40 CFR
26 1.3(a)(2)(jij) which states that if a hazardous waste is mixed
with a solid waste, the resulting mixture is also a hazardous
waste unless the hazardous waste is listed solely because it
exhibited in characteristic of hazardous waste (as is the
situation for 1 (044). In that case, the mixture is only
considered to be a hazardous waste if it Continues to exhibit
hazardous characteristics describes in 40 CFR 261.21-.24. In
the case descrjb in your letter, the 1(044 no longer exhibits
the reactivity characteristic and is therefore no longer
considered to be 1(044, and no longer subject to the Land
Disposal Restrictions. However, should the treated waste
exhibit one of the other hazardous characteristics (i.e.,
ignitability corrosivity, or extraction procedure toxicity), it
must be designated as a hazardous waste.
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I would also note that the treatment standard promulgated
on August 8, 1988 for 1 (044 was “no land disposal”, based on the
ability to treat the waste so that it no longer exhibited the
characteristic of reactivity (53 FR 31158, August 17, 1988).
The treated waste generated by Omark therefore also meets the
applicable -treatment standard.
If your have any further questions, please get back to me.
Sincerely,
Stephen FL Weil, Chief
Land Disposal Restrictions Branch
cc: Pat O’Flaherty, CH 2 M Hill
Nike Gearheard, Region K
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9551.1990(01)
i D SP 4 ,
‘p
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON. D.C. 20460
?4L iIgO%tP
MAY 9i. -
II I
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONS
MEMORANDUM
STJB7ECT: R RA Waste Disposal Sites Potential
Association with
FROM: Sylvia K.
Office of Solid Waste
TO: Torn Kelly, Director
Office of Regulatory Management and Evaluation
Thank you for your memorandum of April 9, 1990, in which you
discuss the need for an assessment of industrial waste disposal
facilities and their proximity to wetlands, and suggest that we
coordinate a joint effort to examine these issues.
My office also shares a serious concern that many waste
management facilities -— hazardous as well as non—hazardous ——
are located in sensitive locations, including wetlands. We have
several efforts underway to analyze and, where appropriate,
control the risks posed by facilities in sensitive locations,
including in or adjacent to wetlands.
First, we expect to promulgate this summer revised criteria
for municipal solid waste facilities, and a notification
requirement that will apply to industrial solid waste disposal
facilities and to construction/demolition waste landfills. The
revised criteria for municipal facilities will incorporate
location standards, under which new facilities cannot be sited in
or adjacent to wetlands unless there is no alternative, impacts
will be minimized, and any wetlands that are destroyed will be
offset by the creation of new wetlands. The notification
requirement would include information on latitude and longitude,
which would enable us to access geographic information systems
and determine proximity to sensitive locations.
Second, it is our intention to request funding to complete,
distribute and evaluate the Industrial D Survey. Completion of
the survey can occur in tandem with the notification process
described above, and distribution of the survey can be targeted
to the facilities identified in the notification process. This
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survey will provide a comprehensive view of waste types, volumes
and management practices at industrial solid waste facilities for
a large sample of facilities. When coupled with information on
proximity to sensitive locations, this information will enable us
to characterize the potential risks posed by facilities in or
adjacent to wetlands.
Another major effort is the development of location
standards for hazardous waste management facilities. In the near
future the draft proposed location standards will enter Red
Border review. Under this proposal, wetlands would be one of the
sensitive locations in which the siting of hazardous waste
facilities would be restricted.
Finally, we are initiating an effort to characterize the
market and non—market values associated with wetlands due to a
variety of functions such as flood control, water qualj.ty
improvement, spawning grounds for fisheries, and ground—water
recharge. The values generated could be useful in examining the
resource damages due to industrial solid waste facilities.
We would welcome the opportunity to discuss further with you
how to coordinate our respective efforts. My understanding is
that Ruth Miller is working with ORD/Las Vegas on the study you
are currently initiating on industrial waste disposal facilities,
and that this study will characterize the proximity of facilities
to wetlands in several states (those with the best data available
on location). My staff are reviewing and will provide specific
technical comments on the proposed effort. I anticipate that the
results of your work will support OSW’s efforts to analyze and
control potential risks posed by facilities in wetlands. At this
time, I am designating Glen Galen (382—4654) to coordinate near—
term issues on the industrial waste facility study. For wetlands
issues in general, our contact is Fred Chanania, one of my
Special Assistants (382—4627). I suggest we also meet in the
near future to discuss longer—term coordination.
I look forward to a continuing discussion of these
critical issues concerning hazardous and non-hazardous facilities
located in proximity to wetlands.
cc: Loretta Marzetti
Dave Bussard
Bruce Weddle
David Davis
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UMITID . TES ENVIQONMENTM. PROTECTION • NCT
9551.1990( 02)
August 8, 1990
William J. Ziegler
Vice President of Health,
Safety and Environmental Affairs
ThermalKEM, Inc.
454 S. Anderson Rd.
BTC5 32
Rock Hill, Sc 29730
Dear Mr. Ziegler:
This letter responds to your request of July 12, 1990, for
clarification of the following aspects of the land disposal
restrictions rule for lab packs as published on June 1, 1990 (55
Federal Register 22520):
(1) EPA’S rationale for excluding EPA Hazardous Waste Codes
P046, P111, and U163 from Appendix IV, and
(2) whether §265.316(f) requires that fiber drums used for
disposal of lab pack waste be overpacked in steel
drums. -
In response to your first question, EPA inadvertently
excluded P046, P111, and U163 from Appendix IV. You are correct
in stating that these wastes are incinerable and should be
included in Appendix IV.
With respect to your second question, lab packs destined for
incineration in fiber drums are not required to be placed in
metal or steel containers. Paragraph (f) states that persons who
incinerate lab packs prior to landfilling “may use fiber drums i
place of metal outer containers” (emphasis added) . . . However,
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UNIT!O . .TES ENVtR WEIIT*L PROTECTION • .NCT
—2—
fiber drums used in this manner must be overpacked with inside
containers and absorbent material as described in § 265 • 316(b).
This provision does not require the use of metal shipping
containers; however, it continues to require safe packaging and
management of lab pack waste.
I hope that this letter adequately address your concerns.
If you have additional questions, you may contact Rhonda Craig at
382—7926.
Sincerely,
Richard lUnch, Chief
Waste Treatment Branch
E COPY
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RCRA/SUPERFTJND HOTLINE SUMMARY 9551 1990(03)
SEPTEMBER 1990
L SIGNIFICANT OUESTIONS AND RESOLVED ISStJES—SEYTI MBER 1990
RCRA
1. Pretreatment of Characteristic Wastes Subject to Land Disposal
Restrictions
A Treatment, Storage and Disposal Facility (TSuF) receives an ignitable waste
(DOOl) from a generator. The waste, which is identified as a high Total
Organic Carbon (TOC) DOOl has a specified technology of fuel substitution,
recovery of organics, or incineration as methods for treating the waste. Prior
to introduction to one of these technologies, the TSDF pretreats the material
by filtering or decanting the waste and separating it into a liquid and a solid
phase. The solid phase, upon testing, does not exhibit the characteristic of
ignitability. Would that portion of the waste that no longer exhibits a charac-
teristic not be subject to Subtitle C regulation and the notification/certifica-
tion requirements of Section 268.7 even though the waste was not treated by
the specified technology indicated in Section 268.42?
The noncharacteristic solid phase would no longer be regulated
under Subtitle C. EPA considers processes that separate phases of a
waste, in this case a solid and an ignitable liquid, to be recovery and
hence an acceptable form of pretreatment provided that the
remaining material that exhibits the characteristic is treated by the
required technology (June 1, 1990; 55 EE 1 22544). In this example, the
non-characteristic solid, assuming it is not hazardous for any other
reason, would pass from Subtitle C into Subtitle D solid waste
regulations. This would be the case for any aqueous, liquid, or solid
material which, as a result of pretreatment, no longer exhibits a
characteristic. Moreover, the notification/certification requirements
of Part 268 would not attach to the non-hazardous solid; however,
this paperwork would follow the remaining hazardous material (e.g.,
the ignitable liquid) to the treatment facility. Once the ignitable liquid
is treated and no longer exhibits the characteristic, then the
paperwork would be forwarded on to the Regional Administrator
and the remaining waste (e.g., any ash resulting from the treatment
of the liquid) sent to a Subtitle D facility per Section 268.9 (d).
Contact Larry Rosengrartt, 05W (202) 382-3678
Research: Steve Baker
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9551 1990(04)
1990
Mr. Joseph 3. Zimmerman
Sachs & Taylor
1140 Connecticut Avenue, N.W.
Washington, D.C. 20036—4002
Dear Mr. Zimmerman:
Thank you for your recent correspondence dated August 20,
1990 concerning the prohibitions on land disposal of untreated
hazardous waste and the prospect of a “no migration” variance for
your client, Giant Industries Arizona, Inc. (Giant).
In that letter, you correctly stated that the land disposal
prohibitions become effective for refinery hazardous wastes
(K048-K052) on November 8, 1990, after being extended from the
original effective date of August 8, 1990. You also correctly
reiterated EPA’S advisory that the processing of “no migration”
petitions, from the date of receipt by EPA, through internal
review, notification of any petition deficiencies, statutorily
mandated publication of a proposed decision in the Federal
Register , and public comments, to publication of the final
decision in the Federal Register , is likely to take approximately
12-18 months. (EPA records indicate that Mr. Jim Michael of my
staff discussed this issue with Mr. John Stokes of Giant in a
December 13, 1989 telephone conversation.) Finally, your
correspondence refers to EPA’S policy, where a national lack of
BDAT treatment, recovery, or disposal capacity can be
demonstrated, for granting a one-year, case—by-case extension to
the land disposal prohibition effective date, for provision of
alternative protective treatment, recovery, or disposal. (See 40
CFR 268.5.) However, you should be aware that the statutory
provisions under RCRA Section 3004(h) (3) require that the
applicant make several demonstrations, among them that a binding
contractual commitment has been made to construct or otherwise
provide alternative treatment, recovery, or disposal capacity
that protects human health and the environment. In order to
address this requirement, the Agency has indicated that this
provision may be satisfied by a Federal Register notice wherein
the Agency proposes to grant either a “no migration” or a
treatability variance. (See 55 22673—4, June 1, 1990.) The
Agency believes that once we have proposed to grant either a
treatability or “no migration” petition, the petitioner has made
a good faith effort to commit to obtaining alternative protective
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2
disposal capacity. In addition, the Agency’s action in proposing
to grant the petition serves as a preliminary determination that
the disposal unit is protective; the mere filing of a
treatability or “no migration” petition provides no such
indication of protectiveness and thus, cannot be deemed to
satisfy the statutory requirement.
However, contrary to statements in your letter, regulations
and draft guidance on the content and evaluation criteria for “no
migration” petitions are currently available to the public, and
have been for some time. Regulations currently exist at 40 CFR
268.6 describing the requirements for petitioning EPA to receive
a “no migration” variance. These regulations were promulgated
on November 7, 1986, and June 4, 1987, and since have been
amended on July 8, 1987 and August 17, 1988. EPA also antici-
pates proposal of another “no migration” rule in 1990 that would
further define “no migration” and would create new procedural and
substantive petition requirements. Furthermore, a draft guidance
document entitled “No Migration Variances to the Hazardous Waste
Land Disposal Prohibitions: A Guidance Manual for Petitioners”
has been available to the public upon request during the past two
years. It also is available from the National Technical Informa-
tion Service (NTIS, telephone number 703-487-4650), document
number PB90204736. EPA records indicate that Mr. Michael of my
staff responded to a January 16, 1990 request from Ms. Kim
Bullerdick of Giant for a copy of this draft guidance. A copy
of the latest draft of this guidance, dated March 1990, also is
attached for your convenience.
EPA recognizes the situation land disposers face as the
land disposal prohibitions become effective. However, the
prohibition of land disposal of K048-K052 hazardous wastes
prevents the continued land disposal of these wastes past
November 8, 1990. Land disposal is prohibited until the “no
—migration” variance has received final approval.
Although a “no migration” variance could be granted to Giant
after November 8, 1990, Giant is advised to be actively arranging
for other treatment or disposal after November 8, 1990. Should
Giant decide to petition EPA for a “no migration” variance, that
petition should be submitted to: U.S. Environmental Protection
Agency, Permits and State Programs Division, 401 M Street S.W.,
Washington, D.C. 20460. As Mr. Michael discussed previously with
Mr. Stokes of Giant, EPA strongly recommends that potential
petitioners meet with the Agency prior to development and submit-
tal of “no migration” petitions. You may contact Mr. Michael of
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3
my staff at 202—382—2231 to arrange such a meeting, or if you
have specific questions concerning the “no migration” petition
process.
Sincerely,
Sylv a K. Lowrance, Director
Office of Solid Waste
Attachment
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9551.1990(05)
OCT 9 O
MEMORANDUM
SUBJECT: Replacement of Contaminated Soil and Debris
Treated under a Treatability Variance
FROM: Sylvia K. Lowrance, Director
Office of Solid Waste
TO: David Ulirich, Acting Director
Waste Management Division, Region V
This memorandum is in response to your correspondence of
April 25, 1990, in which you requested guidance in relation to six
specific questions dealing generally with how the RCRA land
disposal restrictions may affect certain remedial situations. We
offer the fQllowing response to those six questions:
1. Q: Can soil and debris which has been treated in a tank
within the area of contamination (AOC) in accordance
with a treatability variance be replaced within the area
of contamination without meeting any additional 40 CFR
Part 264 requirements?
A: If contaminated soil and debris is treated to meet
standards specified in a treatability variance that has
been approved by the Agency, the treated soil/debris may
then be placed in any treatment, storage or disposal
unit that is in compliance with RCRA Subtitle C. This
could include an “area of contamination” (i.e., a RCRA
landf ill) that has been designated by the Regional
Administrator for the purpose of remediating the
facility or site. Thus, as a regulatory matter, there
would be no real distinction between soil/debris that is
treated to the standard(s) set in the treatability
variance and then placed in another unit, as opposed to
“pure” hazardous wastes that are treated to the
applicable Part 268 standards, and placed in another
unit, except as discussed in the response to Question #5
(concerning contaminated media which no longer contains
any waste).
B/stating in your question that the treated wastes
are to(redeposited into the AOC, we assume there is an
implied question as to what design and operating
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implied question as to what design and operating
standards would then be applicable to th AOC itself.
This is discussed in our response to question #6, below.
2. Q: Has the policy set forth on Page 5.12 of the document
Implementing the Lpnd Dispcsal Restrietions , October
1989, been revised?
A: This policy has not been revised. The policy states
that once an owner/operator receives a treatability
variance, completes treatment, and has a treatment
residual to be land disposed, the residue can be
directed to any permitted or interim status unit.
3. Q: For the purpose of land disposal, is the residue of soil
treated under a treatability variance to be
distinguished from the residue of waste treated
according to treatment standards?
A: No. See response to Question 1, above.
4. Q: For the purpose of land disposal, is the residue of soil
treated under a treatability variance in a tank within
the area of contamination to be distinguished from the
residue of soil treated under a treatability variance in
a tank outside of the area of contamination?
A: No. The location of the tank in relation to the “area
of contamination” would not create a distinction as to
how or where the treatment residuals could be land
disposed. This assumes, of course, that the wastes have
been treated to the standards specified in the
treatabi] .ity variance. A tank cannot be considered a
part of the AOC (landfill), regardless of where it is
physically located; thus, its location would have no
bearing on the standards that would apply to management
of the contaminated soils (or other hazardous wastes,
for that matter) after they have been treated in the
tank.
5. Q: Is a treatability variance for soil and debris to be
considered in effect a delisting? Do the principles of
the “contained in” policy for the treatment of
contaminated ground water have any applicability to the
treatment of contaminated soil and debris?
A: A treatability variance for soil/debris does not have
the effect of a delisting approved for the waste. The
treated residuals typically will still contain hazardous
wastes, and thus must be managed as such. In contrast,
when wastes are delisted they are generally no longer
subject to.Subtitle C regulation.
The “èontained in” policy applies to ground water
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and other contaminated media such as soil which are
contaminated with listed hazardous wastes. Thus, if
ground water or soil are treated such that
concentrations of the listed wastes are at or below
health based levels, the ground water or soil
would no longer “contain” the hazardous wastes, and
would therefore be no longer subject to Subtitle C
regulation. Enclosed is a recent memorandum which
provides a more detailed explanation of the contained-in
policy.
6. Q: If an AOC can be considered a RCR.A unit for the purpose
of closure, would an AOC ever be considered equivalent
to a RCRA compliant unit for the purpose of disposal?
(See page 6 of OSWER Directive 9234.2—O4FS RCRA ARARs
Focus on Closure Requirements. )
A: As outlined in the cited ARARs manual, the AOC is a
concept which can be applied in the context of
remediation under CERCLA response actions or RCRA
corrective actions. It is in many ways analogous to
situations where two or more regulated surface
impoundments would be treated as one unit in the context
of closure of the impoundments.
When applied in the context of RCRA corrective
actions or CERCLA remedial actions, the AOC concept
would allow the Regional Administrator to designate a
broadly contaminated contiguous area to be a RCRA “unit”
(i.e., a landfill) for the purpose of implementing the
remedy. In an existing landfill, the movement or
consolidation of hazardous wastes within the
designated area would not by itself trigger Subtitle C
requirements (including the land disposal restrictions
and the RCRA minimum technology requirements) since that
movement or consolidation does not constitute
“disposal” for Subtitle C purposes. If, however, wastes
are excavated from the designated area, treated in
another unit, and subsequently redeposited into the same
area or unit, disposal has occurred, and the landfill
would have to comply with applicable Part 264 or 265
requirements,including the LDR5, MTRs, closure standards
(264.310), and the ground water monitoring requirements
of Subpart F, Part 264 or 265.
The proposed Subpart S corrective action rule
explains the AOC (described therein as the “corrective
action management unit”) concept in more detail.
However, if you have more specific questions or issues
regarding AOC5, we will be glad to work with you or your
staff to resolve them.
If there are any questions on the above responses to your
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questions, please contact Dave Fagan (FTS 382-4497) or Judy
Goldberg (FTS 382—4534).
Enclosure
cc: Regional RCRA Branch Chiefs
PSPD Branch Chiefs
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9551.1990(06)
OCT I 4 1990
MEMORANDUM
SUBJECT: Guidance from Headquarters to help Determine Possible
Violation of the Land DtspoSal es rictioris
‘
FROM: Jeffery D. Denit, De uty Dc
Office of Solid Waste (OS )’\
TO: Bru ’ i , Director /
Office of Hazardous Waste Programs (3HW03)
Region III
This memorandum is written in response to your request for
assistance from EPA Headquarters in making a Land Disposal
Restrictions (LDR) determination for the Rhone-Poulenc facility
located in Institute, West Virginia. As stated in your
August 17, 1990, memorandum, Region III is concerned that the
facility may be impermissibly diluting several waste streams
subject to the LDR requirements. The restricted wastes of
concern are: (1) F039 multi-source leachate wastewater streams
from the Goff Mountain RCRA Landfill, from the site of Union
Carbide’s Private Trucking Operation, and from recovery well
(RW—1); and (2) U025 dichloroethyl ether “chlorex” from the RW—1
well. The characterization data provided by Rhone-Poulenc show
the F039 wastewaters as generated (prior to mixing) exceed both
organic and metal LDR treatment standards, and U025 wastewaters
as generated exceed the LDR treatment standard for dichloroethyl
ether.
As described by Rhone-Poulenc in the document entitled
“Treatment of Multisource Leachate in Rhone-Poulenc’s Institute,
West Virginia WWTU” submitted to EPA Region III on June 14, 1990,
the treatment system consists of primary treatment (e.g., mixing,
equalization, emergency diversion, neutralization and
clarification) in tanks and secondary treatment (biotreatinent and
clarification) in surface impoundments. Before entering the
primary treatment tanks, approximately 15,000 gallons per day
(GPD) of P039 and U025 wastewaters subject to the LDR are mixed
with approximately 4.5 million GPD of process water not subject
to the LDR. The resultant wastewater mixture apparently meets
the LDR levels for P039 and U025 wastewaters before entering the
secondary treatment system. Rhone-Poulenc did not analyze for
all regulated constituents or properly justify the selected
constituents.
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We believe that the facility may be violating the dilution
prohibition. They have not provided evidence supporting that
legitimate treatment for LDR organic or metal constituents is
occurring in their treatment system. We also believe that the
facility may be in violation of land disposing nonwastewaters
that exceed the U025 treatment standards because the facility
appears to have interpreted a portion of the LDR requirements for
nonwastewaters incorrectly. Our analysis is summarized below.
Possible LDR Dilution Prohibition Violation
Rhone-Poulenc argues that its system consists of an initial
aggregation point which equalizes wastes, followed by legitimate
centralized treatment in section 3005(j) (3) aggressive biological
treatment impoundment. (Chambers letter, pp. 4-5.) We discuss
this argument below with respect to organic and metal
contaminants.
Organics
The Agency’s discussion of this issue appears at 55 FR
22666. In general, we determined that initial aggregation of
similar wastes followed by legitimate centralized treatment may
be permissable (i.e., may not constitute imnpermissible dilution),
even if treatment occurs in a surface impoundment or other land
disposal unit (provided, of course, that the waste meets the
treatment standard before land disposal occurs, or that disposal
occurs in a section 3005 (j) (11) impoundment). (Thus, the issue
of treatment of organics in aggregation tanks is not relevant.)
In determining what constitutes legitimate centralized treatment,
we indicated that the clearest indication was use of the same
type of treatment as that on which the treatment standard for the
prohibited waste is based. Id col. 2. While biological
treatment was one of the treatment technologies relied upon by
the Agency in establishing treatment standards for multi-source
leachate, it is not the only treatment and is clearly not
appropriate for all F039 constituents. (See Background Documents
on BDAT for F039.) In addition, combination of leachate
containing organics with process wastewater containing organics
for biological treatment could be permissible aggregation,
because it appears that the facility could be combining different
wastes amenable to the same type of treatment technology. Id .
col. 1. Before a final assessment could be made, Rhone Poulenc
would need to submit characterization data demonstrating
similarities j composition between leachate and process
wastewaters (e.g., indicating biodegradable constituents at
approximately the same concentration levels). A demonstration
would also be needed indicating that the treatment impoundment is
capable of treating toxic organics in the commingled wastewaters,
i.e., that levels of these toxic organics are not so low as to go
untreated in the Rhone Poulenc impoundment. Absent such a
showing, EPA could not conclude that the impoundment is
legitimately treating the organics in the prohibited wastes.
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Assuming that the leachate is commingled with similar plant
vastewaters and that biodegradation is the appropriate treatment
for all of the F039 organics and for the plant wastewaters, the
treatment of organics would be permissible.
Metals
It appears that Rhone-Poulenc is impermissibly diluting
metals in its system. The same analysis used for organics would
indicate that biological treatment is inappropriate for metals
( id cal. 1—2 (“An example of a type of treatment that is
inappropriate for treatment of certain prohibited wastes would be
biological treatment standards for metals. In these systems,
metal removal is incidental and nowhere as efficient as systems
designed to treat metals. . .“)). The initial aggregation step, in
which metals are removed by settling, likewise probably does not
constitute proper treatment of metals. As Rhone-Poulenc states,
it is an aggregation step, not a treatment step; it achieves a
homogenous mixture that allows optimization of biological
treatment of organics. Adequate treatment of metals would
require chemical precipitation or some other type of comparable
treatment. (See Background Documents on BDAT f or F039.) At the
least, Rhone—Poulenc has not yet demonstrated that it can meet
the F039 wastewater metals standards by use of primary treatment
(i.e., settling in tanks for short periods of time).
Consequently, Rhone-Poulenc is taking a prohibited waste
with treatment standards for metals, which does not meet those
treatment standards as generated, mixing it with a large volume
of wastewater, and introducing it to a system that does not
provide anything more than incidental removal of metals. This
appears to constitute impermissible dilution. Id . at 22666 ccl.
1-2. (Rhone-PoulenC’s argument that the leachate does not differ
significantly from its process wastewater which is only treated
by biological treatment does not prove anything; it may be that
Rhone-Poulenc is not adequately treating the metals in its
process wastewater either. The key here is that there are metal
standards for multi-source leachate, Rhone—Poillenc’s leachate as
generated does not meet those standards, and the leachate only
meets those standards after it is mixed in a treatment system
that at no point does proper treatment for metals.)
Rhone-Poulenc submitted influent and effluent data from a
lab-scale model in an attempt to demonstrate the applicability
and treatment performance of the primary treatment system. The
data submitted show only some reduction for a few regulated
organic constituents and no data is provided to demonstrate
removal rates for any metal constituents. While the fthal
determination Ofl a case-specific dilution issue should generally
be made by the Region (or State), you should be aware of our
concerns with these data submitted by Rhone-Poulenc. (In many
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instances, our concerns are similar to those presented in a
memorandum from Region III to Rhone-Poulertc on July 30, 1990.)
The facility incorrectly labels their lab-scale experiment as a
more stringent test criteria than that required by the Agency to
demonstrate treatment performance and refers to the November 1989
proposal for the Third-Third rule. EPA proposed to require a
reduction of at least one BDAT list constituent at the point of
aggregation to demonstrate that the aggregation did not
constitute impermissible dilution (54 48372, 48494—48496).
The reason the Agency did not finalize this criteria is because
it was not stringent enough to provide the adequate information
needed to make a reliable determination of legitimate treatment
(55 22665).
We believe that the lab-scale data are inadequate to
demonstrate that appropriate treatment for F039 and U025
wastewaters is achieved before disposal into the surface
impoundments. Not only should data from the actual full-scale
treatment system be used to make a demonstration of treatment
performance, but it should include removal rates for all
regulated constituents determined to be present in the wastes.
(For F039, the regulated constituents include over 200
constituents, regardless of the original constituent listings of
wastes disposed in the landfill and surface impoundments.) Based
on our experience, the type of treatment used by Rhone—Poulenc
will likely not provide removal rates comparable to the levels
otherwise needed to legitimately treat the metals present in the
P039 wastes to BDAT levels; consequently, it appears the facility
is diluting metals impermissibly to achieve the LDR levels for
F039 wastewaters.
Possible Nonwastewater LDR Violation
It also appears that Rhone-Poulenc is in violation of
various standards for nonwastewaters. First, with respect to the
sludge derived from treating P039 wastewaters, the sludge
received a two-year national capacity variance and consequently
can only be disposed of in a minimum technology surface
impoundment during that period or must comply with F039
nonwastewater standards. See Section 268.35(h). Section
3005(j) (3) impoundments do not meet the minimum technology
requirement provisions unless they have received one of the
section 3004(o) (2) or (3) waivers. See 53 FR 31185—186 (August
17, 1988) (“although many commenters stated that the retrofit
waivers granted under 3005(j)(3) ... should also be recognized
under the land disposal restrictions, the Agency disagrees. EPA
believes that Congress would have included these waivers had it
intended to do so.”) Thus, absence compliance with a waiver from
minimum technology requirements (the section 3004(o) (2) waivers
are codified in 264.221(d) and (e) and 265.221(c) and (d)), the
sludge cannot be placed in the surface impoundment.
With respect to the treatment standard for U025, the
standard must be met before land disposal of the waste. API v .
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A , 906 F. 2d 729, 735—36 (D.C. Cir. 1990). Consequently, the
sludge in the impoundment-must meet the nonwastewater U025
standard. In addition, further placement of the sludge in the
Goff landfill is acceptable only if that landfill is a subtitle C
unit (and the sludge would have to meet the U025 treatment
standards before that land disposal as well).
Should you require additional information, please contact me
at FTS 382—4627 or Richard Kinch at FTS 382-7917.
Attachments
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9551.1990(07)
OCT 1 4 1990
Mr. G. A. Vogt, Manager
Environmental Compliance & Plant Services
Thompson Consumer Electronics, Inc.
P.O. Box 2001
Marion, Indiana 46953—4399
Dear Mr. Vogt:
This letter is in response to your July 10, 1990, letter
regarding clarification of the national capacity variance for
inorganic solids debris under EPA’S Land Disposal Restriction
Regulations for Third Third Wastes. In general, your letter
questioned the scope of the definition of inorganic solids debris
as well as its application. The delay in responding to your
letter results from the myriad related questions that the Agency
has received concerning these issues. The Agency can now offer
the following clarifications for your situation:
For the purposes of determining the applicability of the
capacity variance extension, the waste in question must only be
specified as a D004, D005, D006, D007, D008, D009, DOlO, or DOll
waste and must meet all the criteria listed in the definition of
inorganic solids debris in 268.2(g). (See 55 22686 (June 1,
1990).) It must also exactly fit one of the eight specific
categories of inorganic solids debris listed in 268.2(g) (1)—CS).
While some wastes may appear to fall under one of these
categories (e.g., 268.2(g) (6) and (7) include wastes identified
as containers, drums, pipes, valves, appliances, or industrial
equipment), they must first meet the criteria in the preceding
portion of the definition that clearly indicates that these
wastes must be inoraanic or metal materials . In the June 1, 1990
rule, the Agency also gave specific examples of organic solids
debris (55 22555) in order to help clarify the classification
of a waste as organic versus inorganic. These examples of
organic debris included: rags, paper, cardboard, clothes, gloves,
paints, paint chips, wood, grubbing materials, blankets, hoses,
bags, resins, plastic liners, and PVC piping. (Please see also
the discussion of inseparable mixtures of inorganic and organic
debris later in this letter.)
In response to your question on metal—contaminated cloth
filters, they would be classified as or anic solids debris
because cloth is typically comprised of organic materials. EPA
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2
has granted a national capacity variance for soil and debris for
which the underlying standard (i.e., waste code-specific
standard) is based on incineration, vitrification (D004 arsenic
wastes), or mercury retorting (D009 mercury wastes with greater
than 260 mg/kg total mercury). While the underlying standards
for most D004——D011 metal wastes were generally based on
stabilization rather than incineration, the Agency did state, at
55 22555 (June 1, 1990), “as a matter of treatment policy
prohibited metal wastes that are generated as an organo-metallic
or in an organic matrix can be incinerated ... , prior to
subsequent treatment of the ash (if necessary), in order to
comply with a concentration-based standard or to comply with a
technology—based metal treatment standard.” and that “... much of
the D004-—D01l organic debris may be treatable by washing or
extraction rather than incineration.” Thus, only organic solids
debris that must be treated by incineration, vitrification, or
mercury retorting in order to comply with the metal standards,
received a variance. If the metal-contaminated cloth filters
cannot be decontaminated to below the appropriate treatment
levels by washing or extraction with acids (or other appropriate
media) and would therefore have to be incinerated, they are
subject to the national capacity variance.
During a follow-up telephone conversation with my staff, you
also indicated that one of the wastes on which you were seeking
guidance consists of broken color picture tubes made primarily of
glass. While EPA has specifically identified glass as one of the
specific types of inorganic debris according to 268.2 (g)(3), one
needs to evaluate the applicability of the rest of the definition
of inorganic solids debris. One must first determine if the
waste is friable (i.e., easily or readily crumbled). Although
broken color picture tubes would be expected to be somewhat
friable, one must also determine whether the subsequent pieces
pass the 9.5 mm sieve size. Based on your remarks, we assume
that at least some of the waste (either “as generated” or the
friable residues) will indeed pass through, but not all. Also,
additional small pieces from other similar friable materials may
be generated during transportation and handling (i.e., more
pieces may be generated that would pass through a 9.5 mm sieve).
Thus, the questions become “When does one apply the standard?”
and “Is there a percentage of the waste that must not pass
through the sieve in order to be classified as an inorganic
solids debris?”
In responding to this question, one must examino the
Agency’s intent in promulgating the variance. The key to the
variance is that wastes in the inorganic solid debris categories
would have to be crushed or “ otherwise reduced in size ” prior to
stabilization (55 22556). The Agency had determined that -
there was inadequate capacity for “cutting, or crushing and
grinding in mechanical sizina eauthTnent ” for these wastes. Thus,
it is the link between the type of inorganic solids debris and
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3
the sizing equipment required as pretreatment (i.e., prior to the
stabilization process) that was the key factor in determining the
need for the capacity variance.
As a result, the Agency has determined that the point of
generation is where the waste is identified as inorganic solid
debris for purposes of the national capacity variance. If any of
the waste material does not completely pass through a 9.5 mm
sieve, then the entire quantity of waste material qualifies as
inorganic solid debris. In addition, if the waste material is
friable (i.e., easily crumbled) but some of the pieces will not
pass through a 9.5 mm sieve, then the entire quantity of waste
material is considered to be inorganic solid debris. Therefore,
any debris that may fall through a 9.5 mm sieve because of
transporting from the generator’s site to the disposal site is
also considered to be inorganic solid debris that is subject to
the national capacity variance.
Wastes appearing to meet the definition of inorganic solids
debris under section 268.2(g)(6) (metal cans, containers, drums,
or tanks) and (7) (metal nuts, bolts, pipes, pumps, valves,
appliances, or industrial equipment) often contain organic parts
that are difficult to separate. This occurs particularly in
cases such as: 1) industrial process equipment being dismantled;
2) industrial valves comprised of composites of organic and
inorganic materials; and 3) appliances containing multiple
connected parts. capacity for sizing and separation is also
lacking for this type of inorganic solid debris (which was the
basis of the variance is also applicable for this type of
inorganic solids debris. Thus the variance for inorganic solids
debris will apply to these inseparable mixtures except in
situations where during the dismantling, the organic materials or
a significant portion of the organic materials are manually
separable or separable by simple mechanical means. The separated
organic materials must then be treated for their metals content
and thus comply with the applicable treatment standards for D004
-— DOll (except as noted above). Only the inorganic solids
debris that are separated from the northazardous organics are
subject to the national capacity variance.
I hope this letter addresses your major concerns. If you
have any further questions, please call Richard Kinch, Chief of
the Waste Treatment Branch, at (202) 382-7927.
Sincerely,
9i .
ylvia K. Lowran
Director
Office of Solid Waste
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9551.1990(08)
OCT 24 1990
Mr. Fielding Formway
ARCO Products Company
Post Office Box 1127
Ferndale, Washington 98248
Re: No—Migration Petition submitted for ARCO Products Company’s
Ferndale, Washington Land Treatment Facility (F-90-NCPP-
FFFFF)
Dear Mr. Formway:
I am writing in regard to your September 5, 1989 “no-
migration” petition, which requests a variance under 40 CFR
§268.6 to allow ARCO Products Company (ARCO) to continue the land
treatment of restricted wastes (EPA Hazardous Waste Nos. K050 and
K051) at ARCO’s Ferndale, Washington Land Treatment Facility
No • 7 (LTF-7). After a careful review of your petition, we have
concluded that your facility does not meet the standard for a no-
migration finding. Therefore, we will recommend to the Assistant
Administrator for Solid Waste and Emergency Response that the
petition be denied.
Our decision to recommend denial of the petition is based on
several concerns:
• The ground-water monitoring system is inadequate for the
purpose of a no-migration variance, because it will not
detect migration at the earliest time.
• The separation between the bottom of the treatment unit and
the top of the seasonally high-water table exceeds the
minimum requirement.
• Unsaturated zone monitoring for benzene, chrysene, and
selenium indicate that hazardous constituents have already
migrated beyond the unit boundary, and are likely to
continue to do so in the future.
• Your air modeling shows concentrations of benzene at the
unit boundary that exceed the allowable health-based
standard.
The details of our concerns are described below.
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—2—
Ground-Water Monitorifl System
We have concluded that ARCO has failed to meet the
requirements of 40 CFR §268.6(a) (3) and (4). Specifically, we
believe that ARCO has not adequately determined background
conditions in both the ground water and soil—pore water
underlying LTF-7. First, ARCO proposed well AW-45 as an
upgradient well and wells AW-47, 48, 49, and 50 as downgradient
wells. ARCO notes elsewhere in the petition, however, that
because of the transient nature of the water table, wells 45 and
63 are considered downgradient as well as upgradient (V.1, page
5—30 and Section 6.6). We conclude, therefore, that ARCO’s
ground—water monitoring system at LTF—7 does not have an
upgradient monitoring well that is capable of consistently
providing samples of ground water unaffected by the treatment
unit.
Second, we question whether ARCO can collect samples of
soil-pore water which are representative of background
conditions, as required by 40 CFR §264.278(b)(l). specifically,
ground—water contours shown in Figure 3-7 of the petition
indicate a ground-water divide trending generally to the west
across Plot-7C. Although ground water is shown to flow generally
to the northwest under LTF-7, the presence of the ground-water
divide, as well as the southwesterly ground-water flow shown for
LTF-45 and LTF—47, indicate that ground water may flow to the
southwest from LTF—7 to the background plot and, thus, to the
background lysimeters located south of the southwest corner of
Plot-7C, (Figure 5—1 on page 5—14). (This means that one of the
background lysimeters may be downgradient of LTF-7.) We are
concerned that this flow pattern may be present since only the
general direction of ground-water flow is shown (e.g., an annual
average) and not its seasonal patterns. If ground water
periodically flows from LTF—7 to the background lysimeters for
Plot-7C, soil-pore water samples taken from these lysiineters
could not be reliably used to establish background
concentrations.
Maintaiflifla Minimum Separation
Federal regulations require that the depth to ground water
at land treatment facilities should be no less than three feet
from the bottom of the treatment zone to the seasonal high water
table (see 40 CFR H264.271(C)(2)). As ARCO acknowledged in its
petition (V.1, page 3—12), the ground water beneath LTF-7
sometimes rises to a level that is within the lower treatment
zone of LTF—7 (i.e., above a depth of five feet) due to the low
permeability of the subsoil and the area’s humid climate. Figure
3—8 of the petition displays the results of bi—weekly readings of
water levels in three sets of paired, shallow piezometers
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—3—
conducted from July 1988 to April 1989. These data show that
ground water was present during this period at depths in the
treatment zone as high as 2.8 feet below the ground surface and
that, in general, ground water was present at depths at or above
five feet below the ground surface between November and April of
the sampling period.
ARCO’s inability to maintain the minimum separation between
the bottom of the treatment zone and the top of the seasonally
high ground-water table is further supported by information
presented in Table E-4 of ARCO’s petition. Our evaluation of the
data presented in Table E-4 revealed that between January and
April 1987, ground water beneath LTF-7 was measured at depths
ranging from 0.89 to 6.1 feet below “top of casing.” Although,
ARCO did not provide information on the distance between the
ground surface and the “top of casing,” typical distances from
the ground surface to the top of the well casing are generally
between one and three feet. 1 Thus, even if the distance between
the ground surface and the “top of casing” was three feet, the
water table would only have been 3.89 to 9.1 feet below the
ground surface during the January — April 1987 period.
Presence of Constituents Below the Treatment Zone (BTZ1
Various data indicate that migration of hazardous -
constituents below the treatment unit has recently occurred. The
petition noted (V.1, page 5—18), that chrysene was detected in
ground—water monitoring well No. 43 in January, 1988 at 3.3 ppb,
which is in excess of the health-based level (HEL) of 0.2 ppb
used in no-migration decisions. Furthermore, correspondence
between ARCO and Washington Department of Ecology (WDOE)
(November 6, 1989 and January 24, 1990) that has been shared with
us indicates that benzene, chrysene, and selenium have also been
detected in soil—pore liquids beneath the treatment zone at
hazardous concentrations. We present these data below in
Table 1.
Table E-5 of Appendix A presents for monitoring wells
other than those listed on Table E-4, elevation measurements made
at the top of casing and surface grade. These data indicate that
the distance between the ground surface and the top of the well
casing ranged from a low of 0.59 feet (well number AP—46) to a
high of 2.15 feet (well number AP-64).
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—4—
TABLE 1
Soil—Pore Liquids Monitoring Data
Constituents
Lysimeter
No.
HBL(ppb)
Concentration(ppb) Date
Benzene
22
5
.
6.4
7.4
10.0
8/89
9/89
12/89
.1J
Chrysene
Composite
2/
0.2
1.4
9/88
Selenium
Composite
3/
10
14.0
2/87
1/ Composite sample (Based on page 1-5 of ARCO’s January
24, 1990 letter to Mr. Richard A. Burkhalter, Washington
Department of Ecology).
2/ Composite sample containing samples collected from
lysiineter numbers 21GB, 22GB, and 23GB.
3/ Composite sample containing samples collected from
lysimeter nwnbers 21PC, 22PC, and 23PC.
As shown above in Table 1, benzene, chrysene, and selenium
have migrated past the unit boundary at concentrations in excess
of the MBL used in no-migration petition decision-making. We
note that concentrations of the above constituents may actually
have been detected at an individual lysimeter at concentrations
higher than those reported, due to the averaging effect obtained
from compositing the lysimeter samples.
ARCO’s January 24, 1990 letter also stated that toluene,
ethylbenzene, and xylene were detected in lysimeters, which
“indicates a problem with the current operating practices for
landfarm Plot-lB.” ARCO indicates that hairline fractures in the
clay may be aiding contaminant transport from Plot-7B (Attachment
page 1—4) but also suggests that these hairline fractures are a
local phenomenon because similar lithology was not detected in
other borings. Because the petition states that fractures in the
clay are a source of recharge for the underlying ground water, we
conclude that future migration will continue to occur. ARCO
believes it can address this concern by decreasing waste loadings
made to Plot—lB. If this leads to an increase in waste loadings
made to Plots-7C and 7A, we are concerned that this increase may
cause additional migration.
Lastly, data presented in Table 5-8 of the petition, show
that chrysene was detected below the treatment zone at
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—5—
concentrations of 130 ppb for separate sampling periods in July,
1987 and January, 1988. We do not believe that ARCO can explain
the presence of chrysene as resulting from a recent, one—time
overapplication and the recurring presence of chrysene beneath
the treatment unit at concentrations in excess of the health-
based level of 55 ppb is a further basis for petition denial. The
presence of chrysene beneath the treatment zone, will also
obscure future determinations of whether chrysene is continuing
to migrate.
Air Monitorina
In its petition, ARCO stated that the CHEMDAT6 model
predicted concentrations of benzene at the unit boundary in
excess of the health-based standard by a factor of 1.4;
therefore, ARCO is “exploring waste minimization, pretreatment,
and operation modifications which can effectively reduce the
predicted emissions for benzene to meet appropriate standards if
necessary” (V.1, Executive Summary, pages 6—7). In fact, the
petition indicates (V.1, page 8-12) that the predicted annual
average concentration of benzene in the air at the unit boundary
is 1.0 ug/in 3 , which exceeds the health-based level of 0.12 ug/m
Elsewhere in the petition (V.1, page 7-11), the average
concentration of benzene in the air at the unit boundary is
reported as 1.56 ug/m 3 (including a May 1985 waste sampling
event), which also exceeds the health-based level 4 Therefore,
ARCO’s predicted benzene concentrations (1.0 ug/m ) at the unit
boun ry fail to satisfy the no—migration standard of 0.12
ug/m.
Finally, our review indicates that the petition is
incomplete and that information and clarification in areas beyond
those highlighted above, would be needed to complete the
petition. However, because of the problems above, we believe we
have enough information at this time to move toward a denial of
your petition.
It is our practice to give petitioners the option of
2 Based on our review of Tables E-24 through E-27, it
appears that the values of predicted maximum long-term ambient
air concentrations in Table 7-3 were not corrected based on the
results of the confirmatory monitoring program discussed in
Appendix E. If corrected for monitored concentrations, the
predicted concentrations of benzene at the unit boundary actually
may be higher than reported in the petition. In addition, it is
likely that ARCO’s confirmatory monitoring program may not have
been performed during worst-case emission and dispersion
conditions. As a result, the concentration of benzer*e may
actually be higher than measured and an even higher correction
factor may be warranted.
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—6—
withdrawing their petitions to avoid a negative publication in
the g. J 1 Register . If you prefer this option, you must send
us a letter withdrawing your petition and acknowledging that the
petitioned wastes are still considered to be restricted wastes
subject to the Third Third Land Disposal prohibitions scheduled
to be effective November 8, 1990. This letter should be
forwarded to the following address within two weeks of the date
of receipt of today’s correspondence:
Elizabeth A. Cotsworth, Chief
Assistance Branch (OS—343)
Of f ice of Solid Waste
U.S. Environmental protection Agency
401 M Street, S.W.
Washington, D.C. 20460
If you choose not to withdraw your petition, we will
recommend that a proposed denial decision be published in the
Federal Register .
Any questions regarding our findings may be submitted in
writing to Mr. James Michael of my staff.
sincerely,
Jeffery D. Denit, Deputy Director
Office of Solid Waste
cc: Michael Gearheard, Region X
Carrie SikorsJci, Region X
Dave Bartus, Region X
Kim Anderson, WDOE
Elizabeth Cotsworth, EPA HQ
James Michael, EPA HQ
Terry Keidan, EPA HQ
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—7—
bcc: Newman Smith, AB, PSPD, OSW
Dave Reeves, WilD, OSW
Richard Kinch, WilD, OSW
Kathy Stein, OE
Wanda Levine, WilD, OSW
Howard Finkel, ICF Incorporated
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9551. 1990(09)
NOV eis
Mr. David R. Saad
Environmental Coordinator
Marathon Petroleum Company
Marathon Avenue
Robinson, Illinois 62454
Re: No—Migration Petition submitted for Marathon Petroleum
Company’s Robinson, Illinois Land Treatment Facility and
Storage Surface Impoundments (F—90-NXPP-FFFFF)
Dear Mr. Saad:
I am writing in regard to your December 5, 1989 “no-
migration” petition, which requests a variance under 40 CFR
§268.6 to allow Marathon Petroleum Company (Marathon) to continue
the land treatment and storage of restricted wastes (EPA
Hazardous Waste Nos. K048 - 1 (052) at Marathon’s Robinson,
Illinois land treatment facility (LTF) and storage surface
impoundments. After a careful review of your petition, we have
concluded that your facility does not meet the standard for a no-
migration finding. Therefore, we will recommend to the Assistant
Administrator for Solid Waste and Emergency Response that the
petition be denied.
Our decision to recommend denial of the petition regarding
the land treatment facility is based on several concerns:
• Ground water and unsaturated zone monitoring data
indicate that hazardous constituents have already
migrated beyond the unit boundaries.
• The ground-water monitoring system for the land
treatment facility is inadequate for the purpose
of a no-migration variance because it will not
detect migration at the earliest practicable time
due to the presence of hazardous constituents
beneath the land treatment units.
• The separation between the bottom of the land
treatment unit an o * fi sOt tne seasonally nign
water t çce ds tfle *nimum recIu1remeflt .
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2
We also recommend denial of the petition for the storage surface
impoundments because Marathon will not be able to differentiate
between past releases from the previously unlined surface
impoundments and possible future releases from the retrofitted
units. The details of our concerns are described below.
Land Treatment Facility
esence of Constituents Below the Treatment Zone (BTZI
Ground-water and soil-pore monitoring data provided in
Marathon’s petition indicate that migration of hazardous
constituents below the treatment units has already occurred.
Specifically, analyses of ground-water samples collected during
May 1989 (Appendix C, V.3, Appendix E, Table E-14) have indicated
the presence of bis(2 —ethylheXYl)Phthalate in three monitoring
wells (P6B, P7C, and P12B) at concentrations ranging from 20 to
47 ugh. These data indicate that bis(2-ethylhexyl)Phthalate is
present in the ground water at concentrations in excess of the
health—based level of 3 ug/l used in no-migration petition
decision-making. In addition, results from six other monitoring
wells (P3D, P4C, P5C, P8B, P8C, and P12A) show the use of higher
than normal detection limits (20 or 36 ug/l rather than 10 ug/l)
for this same parameter, indicating this compound’s possible
presence at similar concentrations in the ground water at these
other locations.
In addition, benzene was detected at a concentration of 33
ug/l in the soil—pore liquid collected from lysimeter L—3 on
July 6, 1989 (Appendix C, V.3, Table E-14). (The health—based
level for benzene is 5 ugh.) Marathon infers that benzene is
commonly found in the air at refineries, and therefore, spurious
contamination of the sample may have occurred (Appendix C, V.1,
page 2-16). However, Marathon did not provide the necessary data
to support their speculation. Therefore, we can only conclude
that these data provide evidence of migration from the unit.
Detectina Migration at the Earliest Practicable Time
We have also concluded that Marathon’s groundwater
monitoring system will not be able to detect migration at the
earliest practicable time. Therefore, it failed to meet the
requirements of 40 CFR §268.6(a)(4). Specifically, we are
concerned that Marathon will be unable to differentiate between
past releases from other sources and past, present, and future
releases resulting from the operation of the LTF. We also are
concerned that Marathon’s unsaturated zone monitoring system will
not be able to detect potential migration in the northern section
of the West land treatment unit. We discuss our conclusions
below.
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3
Soil-core data provided by Marathon indicate that hazardous
constituents are present below the West land treatment unit.
Specifically, based on the presence of benzo(a)anthracene,
benzo(a)pyrene, benzo(b) f].uoranthene, bis(2—ethylhexyl)phthalate,
chrysene, and pyrene in below treatment zone (BTZ) soil cores,
Marathon has concluded that a “historical waste body” which
predates operation of the West land treatment unit, exists
beneath the unit (see Attachment I). Of these constituents,
benzo(a) anthracene, benzo (a) pyrene, benzo(b) fluoranthene, and
chyrsene were detected below the treatment zone at concentrations
exceeding the health-based levels used in no-migration petition
decision-making.
Marathon states that these data do not conclusively prove
that constituents are migrating below the treatment zone.
Rather, Marathon argues that the presence of the above
constituents is due to past operations at this same site.
Marathon, however, has not explained how and when this
“historical waste body” was deposited. Therefore, we conclude
that Marathon has not conclusively proven that the constituents
detected below the treatment zone did not occur as a result of
land treatment operations.
Regardless of whether the contaminants beneath the
treatment unit resulted from a “historical waste body” or from
current operations, we beliive that Marathon will be unable to
determine whether releases occurred because the waste
constituents detected below the treatment zone have also been
detected in the wastes managed at the land treatment unit. Due
to Marathon’s inability to differentiate between past releases
from other sources and past, present, and future releases (if
any) resulting from the operation of the LTF, we conclude that
Marathon has failed to meet the requirements of 40 CFR
§268.6(a) (4).
Lastly, in 1988, Marathon expanded the 17-acre West land
treatment unit to include an adjacent three acres (the northern
expansion). Run-off from both the East and West land treatment
units drain into this area and are routed to storage tanks and
the refinery’s wastewater treatment system. During storms,
however, the run-off does not drain as fast as it accumulates,
and the northern expansion area floods. As a result of the
ponding, a temporary hydraulic head is formed, increasing the
potential for migration of hazardous constituents. Although
Marathon recently installed new lysimeters in the northern
expansion, samples have yet to be collected. Marathon has
collected soil core samples from this area, but results have not
been submitted. Marathon, therefore, is unable to demonstrate
that there has been, or will not be migration of hazardous
constituents from this area of the West land treatment unit.
-------
4
Maintaining Minimum Set,aration
Federal regulations require that the depth to ground water
at land treatment facilities should be no less than three feet
from the bottom of the treatment zone to the seasonal high water
table (see 40 CFR § 264.27l(c)(2)). Data provided in the
petition indicate there may be a seasonal high water table or
perched water table within the till layer beneath the LTF, or at
least near the northern part of the LTF, that encroaches into the
three foot thick buffer zone required below the treatment zone.
Specifically, some of the monitoring wells screened in the till
and at the till/sandstone interface were found to have depth-to-
water level measurements of less than eight feet. The water
level measurements were taken during relatively dry months
(August and November) in which ground water is at a low level.
Marathon’s inability to demonstrate that it is maintaining the
minimum separation between the bottom of the treatment zone and
the top of the seasonally high ground-water table is a basis for
denial of the no-migration petition.
Surface Impoundments
We have concluded that Marathon has failed to demonstrate,
to a reasonable degree of certainty, that constituent migration
from the three storage surface impoundments will not occur. We
note that it is difficult to evaluate the long—term performance
of the liner system installed in the three surface impoundments
for the storage of both liquid wastes and bulk dry wastes.
Discussed below are the reasons why we have concluded that
Marathon has failed to demonstrate that there will be no—
migration of constituents at hazardous concentrations from the
three impoundments.
First, we are concerned that Marathon will not be able to
differentiate between past releases from the previously unlined
impoundments and future releases (if any) from the new lined
impoundments. Specifically, between 1980 and 1988, Marathon
operated the three surface impoundments without liners and leak
detection systems. After eight years of operating without
liners, we believe that it is likely that some contamination of
the subsoils has occurred beneath these impoundments. According
to the Geological Engineering Report for the three surface
impoundments (Appendix D, V.1, Attachment V, page 3-2), soil
borings taken from areas near the pits showed a layer of soil
with strong odor and appearance of hydrocarbons. The presence of
contaminated soils beneath the impoundments will hinder
Marathon’s ability to determine whether constituents are
migrating from the impoundments and affect Marathon’s ability to
detect constituent migration at the earliest extent practicable.
Second, on June 19, 1990, the Illinois Environmental
Protection Agency (IEPA) conducted a site visit at the Robinson
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5
Refinery. During the site visit, it was apparent that waste
overtopping had occurred as evidenced by the dead vegetation and
stained soil on the south side of the impoundment. In the
petition, Marathon has claimed that, to prevent overtopping, they
designed the impoundments with adequate freeboard (two-feet). As
overtopping, induced by local meteorological conditions, recently
occurred, Marathon’s design of the impoundments is insufficient
to prevent future occurrences of overtopping. As a result,
Marathon has failed to prove, to a reasonable degree of
certainty, that there will be no migration.
Third, Marathon stated that the Oily Sludge Pit had leaked
due to a one-inch tear in the upper flexible membrane liner in
the center of the pit, which “appeared to have been caused by
some external mechanism and was not the result of material
failure.” Marathon does not know how the liner was damaged.
Without this knowledge, Marathon can not guarantee that such an
event would not occur in the future. In addition, the petition
indicated that the bulk waste pit will be manually cleaned out
every one-to-five years, depending on the waste accumulation
rate. Without knowledge of how or why the impoundment liner was
damaged, Marathon will not be able to guarantee that the bulk pit
liner will not be damaged when personnel remove solids.
Completeness of Petition
Finally, our review indicates that the petition is
incomplete and that information and clarification, in areas
beyond those highlighted above, would be needed to complete the
petition. However, because of the problems noted above, we
believe we have enough information at this time to move toward a
denial of your petition.
It is our practice to give petitioners the option of
‘withdrawing their petitions to avoid a negative publication in
the Federal. Register . If you prefer this option, you must send
us a letter withdrawing your petition and acknowledging that the
petitioned wastes are still considered to be restricted wastes
subject to the Third Land Disposal prohibitions scheduled to be
effective November 8, 1990. This letter should be forwarded to
the following address within two weeks of the date of receipt of
today’s correspondence:
Patricia Cohn, Acting Chief
Assistance Branch (OS—343)
Office of Solid Waste
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
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6
If you choose not to withdraw your petition, we will
recommend that a proposed denial decision be published in the
Federal Register .
Any questions regarding our findings may be submitted in
writing to Mr. James Michael of my staff.
Sincerely,
Jeffery D. Denit, Deputy Director
Office of Solid Waste
Attachment
cc: Karl Bremer, EPA Region V
George Hamper, EPA Region V
Gale Hruska, EPA Region V
Larry Eastep, Illinois EPA
Patricia Cohn, PSPD, OSW
James Michael, PSPD, OSW
Terry Keidan, PSPD, OSW
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7
ATTACHMENT I
Summary of Constituents Detected in the BTZ (mg/kg)
He.tthBasd
Const tueflt$ Date Nuiter concentrat Qfl Level
B.nzo(a)anthrecmflS 07/11/89 LTDS-2 20 0.053
07/11/89 LTDIEZ 120
04/18/89 LTD-120 0.63
Oenzo(a)pyrene 07/11/89 LTDIE2 63 0.055
Bnz6(b)fluoranthene 07/11/89 LTDSE-2 52 0.055
Bis(2EH)phthalate 08/10/88 RI-liD 0.68 50
Chrysene 08/10/88 RI-SO 0.41 15 j/
07/11/89 LT0 502 110
04/19/89 LTD-5E 0.095
07/11/89 LTD5E-2 650
08/09/88 RI-lOD 1.3
08/10/88 Rl- 120 0.35
04/18/89 LTD 120 3.4
04/18/89 LTD-128 0.99
Pyrene 07/11/89 LTD-5-2 27 32 .000
07/11/89 LTD-5E-2 160
04/18/89 LTD-12D 0.63
1/ Calculated by Marathon using the RFI Guidance Manual.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9551.1990(10)
NOV 11990
Mr. R. G. Soehike
Plant Manager
Star Enterprise
Delaware City Refinery
2000 wrangle Hill Road
Delaware city, Delaware 19706
Re: No—Migration Petition submitted for Star Enterprise’s
Delaware city, Delaware Land Treatment Unit
(F—90—NSEP-FFFFF).
Dear Mr. Soehlke:
I am writing in regard to your December 26, 1989 “no-
migration” petition, which requests a variance under 40 CFR
§268.6 to allow Star Enterprise to continue the land treatment of
restricted wastes (EPA Hazardous Waste Nos. 1 (048 - 1(051) at
Star’s Delaware city, Delaware land treatment unit (LTU). After
a careful review of your petition, we have concluded that your
facility does not meet the standard for a no-migration finding.
Therefore, we will recommend to the Assistant Administrator for
Solid Waste and Emergency Response that the petition be denied.
Our decision to recommend denial of the petition is based on
two main concerns:
• Unsaturated zone monitoring for lead and nickel
indicate that hazardous constituents have already
migrated beyond the unit boundary.
• Ground-water monitoring for arsenic, chromium, lead,
selenium, and vanadium indicate that hazardous
constituents have already migrated beyond the unit
boundary.
The details of our concerns are described below.
Presence of Constituents Below the Treatment Zone (BTZ :
Analyses performed on the soil-pore liquids indicate that
lead and nickel have migrated out of the treatment zone. Soil-
pore samples taken during the first three quarters of the land
treatment demonstration (12/88 - 5/89) show the exceedance of
lead and nickel above their respective health-based levels. Lead
showed concentrations in excess of the health-based level of 0.05
mg/i for 13 out of the 34 samples taken, while nickel showed
concentrations in excess of the health-based level of 0.1 mg/l
-------
—2—
for 15 out of the 35 samples taken. These data demonstrate that
both lead and nickel have migrated below the treatment unit at
concentrations in excess of their respective health-based levels.
(See Attachment, Table 1).
Presence of Constituents in the Ground Water
Results of ground-water monitoring analyses also indicate
the presence above health—based levels of metals in the ground-
water at the LTU boundaries. Specifically, arsenic (125 ppb),
selenium (up to 50 ppb), lead (up to 208 ppb), chromium (up to
320 ppb), cadmium (up to 122 ppb), and vanadium (455 ppb) were
shown to exceed their respective health-based levels. (The
health—based level for arsenic, lead, and chromium is 50 ppb; for
selenium and cadmium, the health—based level is 10 ppb; and for
vanadium the health-based level is 240 ppb). While background
may have contributed somewhat to the measured levels of the
hazardous constituents, the differences between the upgradient
monitoring well concentrations and the downgradient monitoring
well concentrations exceeded the health-based levels. Therefore,
these data demonstrate that arsenic, selenium, lead, chromium,
cadmium, and vanadium have migrated to the ground-water above
their respective health-based levels. (See Attachment, Table 2).
Incomplete Petition
Finally, our review indicates that the petition remains
incomplete and that information and clarification in areas beyond
those highlighted above would be needed to complete the petition.
However, because of the problems above, we believe we have enough
information at this time to move toward a denial of your
petition.
It is our practice to give petitioners the option of
withdrawing their petitions to avoid a negative publication in
the Federal Register . If you prefer this option, you must send
us a letter withdrawing your petition and acknowledging that the
petitioned wastes are still considered to be restricted wastes
subject to the Third Third Land Disposal prohibitions scheduled
to be effective on November 8, 1990. This letter should be
forwarded to the following address within two weeks of the date
of receipt of today’s correspondence:
Patricia Cohn, Acting Chief
Assistance Branch (oS-343)
Office of Solid Waste
U.S. Environmental Protection Agency
401 14 Street, S.W.
Washington, D.C. 20460
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—3—
If you choose not to withdraw your petition, we will
recommend that a proposed denial decision be published in the
Federal Register .
Any questions regarding our findings may be submitted in
writing to Mr. James Michael of my staff.
Sincerely,
Jeffery D. Denit, Deputy Director
Office of Solid Waste
Attachment
cc: John HumphrieS, EPA Region III
David Turner, EPA Region III
Guy Lee, DNREC
Patricia Cohn, PSPD, OSW
James Michael, PSPD, OSW
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—4—
bcc: Terry Keidan, AB, PSPD, OSW
Allyson Ugarte, AB, PSPD, OSW
Dave Reeves, AB, PSPD, osw
Richard lUnch, WMD, OSW
Kathy Stein, OE
Nikki Roy, WMD, OSW
Howard Finkel, ICF Incorporated
-------
ATI’ACHMENT
ThBLB 1.
Summary of Soil—Pore Monitoring Data
For Lead and Nickel
Cell No.
First
(12/15/
Lead
Quarter
88-3/6/89)
Nickel
Second
(3/13/89
Lead
Quart•r
-5/1/89)
Nickel
(5/8/89
Lead
-7/3/89)
Nickel
I
<0.1
0.29
0.17
0.07
0.1
0.1
0.05
0.16
2
<0.1
0.18
0.1
0.04
0.1
0.11
3
<0.1
0.08
<01
0.06
‘0.1
0.1
4
(0.1
0.2
€0.1
0.09
0.14
0.12
5
‘0.1
0.15
0.12
0.18
60.1
<0.06
6
<0.1
0.08
<0.1
‘0.04
‘0.1
0.05
7
<0.1
0.12
60.1
0.05
0.17
0.16
8
<0.1
0.08
0.12
0.14
NA
NA
9
<0.1
0.12
<0.1
<0.04
€0.1
<0.04
10
<0.1
<0.04
‘0.1
€0.06
0.17
0.25
11
NA
0.31
0.21
0.25
0.1
0.05
12
<0.1
0.06
0.11
<0.06
<0.1
‘0.04
eL -I
NA
NA
cO.1
0.06
<0.1
‘0.04
Triple Blank
<0.1
<0.04
€0.1
40.04
- All units are in ppm.
- The health-based level for lead- is 0.05 ppm, and for nickel it
is 0.1 ppm.
- No—Migration Petition, Volume 1, Tables 4-1 to 4-3.
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TABLE 2
GROUND-WATER MONITORING DATA
YEAR
Arsenic
Selenium
Lead Chromium
Cadmium
90
Vanadium
130
BKG*
<50
<10
<50
<50
10
240
HBL
50
10
50
50
1980
1981
1982
1983
1984
1985
1986
1987
1988
1989
125
50
15
173
96
136
208
60
230
320
73
55
104
122
455
BackgroUnd values shown record the highest reported value.
Background value for cadmium (well no. 26) was taken 9/86, and
f or vanadium (well no. 36D) was taken 6/89.
- Downgradieflt values are taken from well numbers 18, 19 and 41.
- All units are in ppb.
- Only the highest values detected are shown in this table.
- No—Migration petition, Appendix B, Volume 3, Section E-2.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9551. 1990(11)
NOV 71990
Mr. D. D. Smart
Manager of Health, Safety, and Environment
Shell Oil Company
AnacorteS Refinery
P.O. Box 700
Ariacortes, Washington 98221
Re: No—Migration Petition submitted for Shell Oil Company’s
Anacortes, Washington Land Treatment Facility
(F—90—NSAPFFFFF).
Dear Mr. Smart:
I am writing in regard to your January 17, 1990 “no-
migration” petition, which requests a variance under 40 CFR
§268.6 to allow Shell Oil Company to conduct the land treatment
of restricted wastes (EPA Hazardous Waste Nos. K049, K05l, K052,
and WPO3) at Shell’s Anacortes Refinery land treatment facility
(LTF). After a careful review of your petition, we have
concluded that your facility does not meet the standard for a no-
migration finding. Therefore, we will recommend to the
Assistant Administrator for Solid Waste and Emergency Response
that the petition be denied.
Our decision to recommend denial of the petition is based on
several concerns:
• Soil-pore and soil-core monitoring indicate that
hazardous constituents have already migrated beyond the
unit boundary.
Shell will not be able to detect migration at the
earliest time because Shell has indicated that ground-
water monitoring wells will not be used to demonstrate
no—migration.
The details of our concerns are described below.
Presence of Hazardous Constituents Below the Treatment Zone (BTZ )
Soil-pore and soil-core monitoring data provided in Shell’s
petition indicate that migration of hazardous constituents below
the treatment unit has already occurred. specifically, analyses
of soil-pore data collected from 1987-1990 have indicated the
presence of antimony, benzene, benzo(a)anthraCefle,
benzo (b) fluoranthene, benzo(k) fluoranthefle, and chrysene above
-------
2
health-based levels used in no-migration decision-making. The
results of these analyses are presented in Attachment 1.
In addition, several soil samples from beneath the treatment
zone indicated the presence of antimony, benzo(a)anthracene, and
benzo(b)fluoraflthefle above health-based levels. The results of
these analyses are provided in Attachment 2. Shell personnel, in
the course of a March 1990 site visit by EPA representatives,
suggested that the presence of certain of these contaminants may
be due to cross-contamination in the coring process. However,
since these contaminants were found beneath several management
sites within the land treatment facility, we question Shell’s
explanation. Furthermore, many of these contaminants are also
present in the soil-pore water, which could not be attributed to
cross-contamination during coring activities.
Detecting Migration at the Earliest Practicable Time
We have concluded that Shell has failed to meet the
requirements of 40 CFR §268.6(a)(4). Specifically, Shell has
stated in the petition that ground-water monitoring wells are not
part of the no-migration monitoring plan. Shell’s determination
is inconsistent with 40 CFR §268.6(a) (4) which requires a
monitoring plan that detects migration at the earliest
practicable time. In addition, Shell has not provided any
ground-water monitoring data more current than 1985. Due to
Shell’s failure to provide this data, the petition is incomplete
and significant amounts of information and clarification would be
needed to complete the petition. However, because the technical
basis for denial already exists, we are not requesting you to
provide further information.
It is our practice to give petitioners the option of
withdrawing their petitions to avoid a negative publication in
the Federal Register . If you prefer this option, you must send
us a letter withdrawing your petition and acknowledging that the
petitioned wastes are still considered to be restricted wastes
subject to the Third Third Land Disposal prohibitions scheduled
to be effective November 8, 1990. This letter should be
forwarded to the following address within two weeks of the date
of receipt of today’s correspondence:
Patricia Cohn, Acting Chief
Assistance Branch (OS—343)
Office of Solid Waste
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
If you choose not to withdraw your petition, we will
recommend that a proposed denial decision be published in the
Federal Register .
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3
Any questions regarding our findings may be submitted in
writing to Mr. James Michael of my staff.
Sincerely,
Jeffery D. Denit, Deputy Director
Office of Solid Waste
Attachments
cc: Michael Gearheard, Region X
Carrie Sikorski, Region X
Kim Anderson, Washington DOE
Patricia Cohn, PSPD, OSW
James Michael, PSPD, OSW
Terry Keidan, AB, PSPD, OSW
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Attachment 1
Soil—Pore Results
Units
Lysimeter
1
2
3
4
5
6
7
8
April 11, 1987
Antimony
mg/I
•0.65
July 23, 1987
Antimony
mg/I
0.78
Oct19 1987
Antimony
mg/I
0.77
Jan 20, 1988
Antimony
mg/I
0.32
May 1989
Antimony
mg/I
0.047
0.012
0.7
September 1989
Antimony
mg/I
0.05
0.8
December 1989
Antimony
Benzene
Benzo(a)anthracene
Benzo(b)fluoranthene
Benzo(k)fluoranthene
Chrysene
mg/I
mg/I
mg/I
mg/I
mg/I
mg/I
0.0017
0.0022
0.0022
0.0072
0.064
0.4
0.3
0.5
0.3
March 1990
Antimony
Benzene
mg/I
mg/i
1.2
0.038
Composite sample with lysimeter 5
— Health—based levels:
Antimony 0.01 mg/I
Benzene = 0.005 mg/I
Benzo(a)anthracene = 0.0002 mg/I
Benzo(b)lluoranthene = 0.0002 mg/I
Benzo(k)fluoranthene = 0.0002 mg/I
Chrysene 0.0002 mg/I
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9551.1990(12)
NUV 81990
Mr. Joel Rich
Sinclair oil Company
902 West 25th Street
Tulsa, OK 74107
Re: No-Migration petition submitted for Sinclair Oil Company,
Walnut Grove Land Treatment Facility, Tulsa, Oklahoma
Dear Mr. Rich:
I am writing in regard to your June 14, 1990 “no—migration”
petition, which requests a variance under 40 CFR §268.6 to allow
Sinclair Oil Company to continue the land treatment of restricted
wastes (EPA Hazardous Waste Nos. K049, K050, K051 and K052) at
the Walnut Grove land treatment facility in Tulsa, OK. We have
completed an initial review of the petition for overall
administrative and technical completeness. As you know, the
statute establishes a very strict standard for no-migration
variances. The standard to be met requires demonstration of no
migration (to a reasonable degree of certainty) of hazardous
constituents beyond the unit boundaries. Based on our evaluation
of the petition, we have concluded that Sinclair’s Tulsa facility
does not meet that stringent standard. As a result, we intend to
dismiss your petition.
It is our policy to dismiss petitions that contain
deficiencies which require more than six months for the
petitioner to correct, or that show evidence clearly indicating
releases of hazardous constituents to environmental media have
already occurred. Our decision to dismiss your petition is based
on the present groundwater monitoring system not being able to
detect migration at the earliest practicable time as required by
the Agency’s no-migration petition requirements (see 40 CFR
§268.6(a) (4)) and that soil-pore data provided in the petition
indicate that releases have already occurred at the land
treatment facility.
First, EPA’S review of the Groundwater Assessment Plan and
the Third quarterly Progress Report of the RFI Workplan revealed
that the current groundwater monitoring system is inadequate to
Lh &i &cIt a& ,f tU nt3 f..em tI Wa1 1 u
Gruve tpildL !1 i1ies aLLiLaU14
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2
Groundwater Assessment Plan was required by a Consent Agreement
between Oklahoma State Department of Health (OSDH) and Sinclair
on April 9, 1990 because of non-compliance with the land
treatment facility’s (LTF) permit. The LTF’S background
groundwater monitoring well (WTP—4) is located in a solid waste
management unit (SWMU-C) and is also being affected by a
hydrocarbon plume. To come into compliance, Sinclair agreed to
expand the groundwater sampling and analysis plan to meet the
requirements of 40 CFR §270.14(C)(4). specifically, Sinclair
must develop a plan capable of determining the extent of
migration of hazardous constituents into the groundwater and the
background concentration of all Appendix IX constituents detected
at the point of compliance. A plan has not yet been approved by
OSDH. In addition, the Third quarterly Progress Report states
that the existing upgradient and downgradieflt monitoring wells at
the Walnut Grove facility may not comply with EPA’S Technical
Enforcement Guidance Document (TEGD) well installation and
completion requirements. Further investigation is required to
determine if the wells are in compliance.
Second, lead has been detected in the soil-pore water
monitored at the land treatment unit. Sampling analysis data
from all the lysimeters at the Walnut Grove facility (WGL-1, WGL-
2, WGL-3, WGL-4, WGL-5, and WGL-6) from 1981 through 1988 show
concentrations above the health-based level (0.05 mg/L) for lead.
More recent data were not provided in the petition. The sampling
analysis data provide evidence that migration has already
occurred beyond the unit boundary at hazardous concentrations.
The effect of our dismissal will be to close your petition
file. If you disagree with our intent to dismiss your petition,
you may submit a letter explaining why you believe a dismissal is
not warranted. If we do not receive such correspondence within
two weeks from the date you receive this letter, the dismissal of
your petition will become effective. You may choose to submit a
new petition for this land treatment facility in the future, once
you have an approved plan for a groundwater monitoring system in
compliance with 40 CFR §265 and §270 requirementS. However, the
evidence that releases of hazardous constituents have migrated
beyond the unit boundary would serve as the technical basis for
the development of a proposed Federal Register denial of the
petition.
If you have any questions regarding the dismissal of your
petition or require additional information, please contact Jim
Michael of my staff at (202) 382—2231.
Sincerely,
Don R. Clay
Assistant Administrator
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cc: patricia Cohn, PSPD, OSW
James Michael, PSPD, OSW
Terry Keidan, PSPD, OSW
Bill Honker, Region V I
Bill Gallagher, Region VI
3
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4
bcc: Athena Rodbell, PSPD, OSW
Richard Kinch, WMD, OSW
Kathy Stein, OW
Niicki Roy, WND, OSW
Howard Finkel, ICF, Incorporated
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UNITED STATES ENVIRONMENTAL PR0TECT 0N AGENCY 9551.1990(13)
NOV 8 1920
Mr. R. B. Sheldon
Manager
Amoco Casper Refinery
P.O. Box 160
Casper, Wyoming 82602
Re: No-Migration Petition submitted for Amoco’s Casper Refinery
Land Treatment Unit (F-90-NACP-FFFFF)
Dear Mr. Sheldon:
I am writing in regard to your October 24, 1989 “no-
migration” petition, which requests a variance under 40 CFR
268.6 to allow Amoco oil Company to continue the land treatment
of restricted wastes (EPA Hazardous Waste Nos. K049 and 1 (051) at
Amoco’s Casper Refinery land treatment unit (LTU). After a
careful review of your petition, we have concluded that your
facility does not meet the standard for a no-migration finding.
Therefore, we will recommend to the Assistant Administrator for
Solid Waste and Emergency Response that the petition be denied.
Our decision to recommend denial of the petition regarding
the land treatment facility is based on two main concerns;
• Ground—water monitoring data indicate that hazardous
constituents have already migrated beyond the unit
boundaries.
• The ground-water monitoring system for the land
treatment facility is inadequate for the purpose of a
no—migration variance because it will not be able to
detect migration at the earliest practicable time due
to the presence of hazardous constituents beneath the
land treatment units.
The details of our concerns are described below.
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2
Presence of Hazardous Constituents Below the Treatment Zone
Our review of Amoco’s 1989 ground—water monitoring report
for the LTU submitted subsequent to its petition indicates that
migration of hazardous constituents beyond the unit boundaries
has already occurred. Attachment 1 indicates that exceedance
criteria’ values were surpassed on 54 occasions, and, on 11
occasions, concentrations surpassed both the exceedance criteria
and the health—based level for the following analytes: antimony,
beryllium, chromium, and lead. Respectively, the maximum
downgradient concentration as compared to the health-based level
for each metal is (in mg/i): 0.26 vs. 0.005, 0.03 vs. 0.002,
0.327 vs. 0.035, and 0.07 vs. 0.002. Therefore, we can only
conclude that these data provide evidence of migration from the
unit.
Benzene was also found above the health—based level of 5
ugh in downgradient well LF-43 during the second and fourth
quarters at concentrations of 17 and 6 ug/l, respectively.
Because benzene was not reported in any of the upgradient wells,
we have concluded that benzene has migrated beyond the unit
boundaries.
Detectjn Migration at the Earliest Practicable Time
We believe that Amoco is unable to detect migration from the
treatment unit to the ground water at the earliest practicable
time and therefore has failed to meet the requirements of 40 CFR
§268.6(a)(4). Specifically, we are concerned that Amoco will be
unable to determine the occurrence of migration directly beneath
the L 1 TU and that Amoco has not identified an acceptable method of
differentiating between “background” contamination and releases
from the LTU.
Analysis of ground-water monitoring data indicates the
presence of contaminants in upgradient, as well as downgradient,
wells near the LTU. In addition, Amoco has suggested that prior
tank farm activities in the vicinity of the LTTJ, particularly on
the eastern side, may contribute to downgradient contamination.
Several problems arise from these conditions which contribute to
the deficiency of Amoco’s monitoring program.
Amoco speculates that petroleum contamination in the ground
water and soils both upgradient and downgradient of the LTU (and
The RCRA permit for the facility establishes exceedance
criteria for compliance purposes; these include
“critical values” for metals and “reporting limits” for
organics (page 6).
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3
possibly beneath the plots as well) is derived from leakage from
petroleum storage tanks that previously occupied the area.
Amoco, however, has provided neither analytical results that
describe the possible source(s) nor an adequate plan to
differentiate releases from the LTU from such a source. Because
the constituents of a weathered petroleum product plume would
likely be very similar to a release from the LTU, it would be
difficult to discern one from the other. Furthermore, since the
concentration of a contaminant from an upgradient source would be
higher closer to the source, the dilution effect as the plume
moves downgradient would likely mask concentrations due to a
release from the LTtJ, making a statistical comparison
meaningless.
Amoco has suggested that because the ground-water samples
show similar characteristics, they are most likely derived from a
common, upgradient source. As noted by Amoco, similar
characteristics are to be expected in the various fractions of
crude and refined oil found within the refinery. However, the
samples from the downgradient wells indicate a wider variety of
benzene, ethylbenzene, toluene, and xylene than the upgradient
samples, an observation that is contrary to what would be
expected from a common source.
ComD].eteness of Petition
Finally, we have found that the petition is incomplete and
that information and clarification, in areas beyond those
highlighted above, would be needed to complete the petition.
However, because of the problems noted above, we believe we have
enough information at this time to move toward a denial of your
petition.
It is our practice to give petitioners the option of
withdrawing their petitions to avoid a negative publication in
‘the Federal Re ister . If you prefer this option, you must send
us a letter withdrawing your petition and acknowledging that the
petitioned wastes are still considered to be restricted wastes
subject to the Third Third Land Disposal prohibitions scheduled
to be effective November 8, 1990. This letter should be
forwarded to the following address within two weeks of the date
of receipt of today’s correspondence:
Patricia Cohn, Acting Chief
Assistance Branch (OS—343)
Office of Solid Waste
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
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4
If you choose not to withdraw your petition, we will
recommend that a proposed denial decision be published in the
Federal Register .
Any questions regarding our findings may be submitted in
writing to Mr. James Michael of my staff.
Since ly,
Jefl e D benit , De Director
Offid4 /of Solid Waste
Attachment
cc: Carol Campbell, Region VIII
Felix Flechas, Region VIII
Patricia Cohn, PSPD, 05W
James Michael, PSPD, OSW
Terry Keidan, PSPD, 05W
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Attichm.nt 1
SUMMARY OF DOWNGRADIENT GROUND.WATER MONITORING DATA
ANALYTE
>
CEEDANCE
cRiT ER *
> CEEDANCE
c E A AND
McL 3
DERMR4ATE
LOW
CONCENTRATION’
Antimony
3
20
Arisnuc
3
9
Beryllium
3
17
Cobalt
5
Cadmium
Chromium
1
1
9
4
Copper
5
Lead
4
21
Mercury
I
Selenium
10
Silver
1
Vanadium
S
Zuic
13
7
3
9.nz.n.
3
Ethylb.nz.ns
3
Toluen.
8
Xyl.ne
9
2-Methyl
naphthslon.
2
Naphthal.ne
2
2,4-Oimsthyl
phenol
1
The RCPA pormlt for the facfflty . bllshec ‘Sxcssdancs cntsna’ for contaminwI th include critical values for
inorganic. end reporting Ilirib for organic.. Thre column shows ths riumbir of .ornpl.. colicctsd from downgrsdicr*
welle th vIo1 sd th escssdsncs ctlts.fi for a particular anaI 1s. Viol ona of both the eicssdancs entena arid the
MCL are countsd .epwly.
Numbers in this column reflect v,ol oc. of both the .zcsedance criteria the MCL
Contwninsrit levels wets reported only es less than (a given vslusV end 1 cannct be dmsnnin.d whither th ow
higher or lower than the excesdenes crIteria sri*or MCI..
Although nct in violation of exciedenus cdbd or MCL cor b snb wets debctsd In the downgrsdlerut samples
indicaSng thef ruilgredon is takIng plan..
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9551.1990(14)
itO
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9551.1990(14)
WASHINGTON. D.C. 20460
PE I I f J
OFFICE OP
SOLIO WASTE ANO EMERGENCY RESPONSE
Mr. Garth Dull, Director
Department of Transportation
State of Nevada
1263 South Stewart Street
Carson City, Nevada 89712
Dear Mr. Dull:
Thank you for your letter of November 21, 1990, requesting a
written confirmation that the asbestos/lead/soil/debris material.
on property intended for highway construction is classified as
inorganic solids debris. In previous letters, you have described
this material as lead dross, concrete hooker cell, metal drums,
masonry and refractory bricks, scrap metal, carbon anode blades,
and concrete pipes.
The Environmental Protection Agency (EPA) has defined
“inorganic solids debris” as wastes contaminated with
characteristic metals that are nonfriab].e and that do not pass
through a 9.5-mm sieve tray. These wastes fall into eight
classifications, such as bricks, metal cans, metal pipes, and
scrap metal. Based on the description you provided, your waste
falls under the inorganic solids debris treatability group. EPA
has determined that this treatabi].ity group has a two-year
capacity extension of the effective date of the land disposal
restrictions. Therefore, this material currently does not need
to be treated to comply with the treatment standard for lead, and
can be disposed of in a Subtitle C landfill that meets minimum
technological requirements.
If you have further questions, please do not hesitate to
call Richard Kinch at (703) 308—8434.
Sincerely yours,
t 2<.
Sylvia K. Lowrance, Director
Office of Solid Waste
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u r STATES ENVIRCNMEHTAL ?R0TEC AGZNCY
9551. 1990(15)
DEC 20 1990
Mr. Douglas MacMillan, Director
Hazardous Waste Policy
National Solid Wastes Management Association
Suite 1000
1730 Rhode Island Ave., N.W.
Washington, DC 20036
Dear Mr. MacMillan:
This letter responds to your inquiry dated October 11, 1990
about several aspects of the Third Third land disposal
restrictions final rule. Your letter includes questions about
the following topics: lab packs, inorganic solid debris,
certification/notification requirements, and the disposal of DOOl
ignitable wastes. Responses to the specific questions about each
of these topics are presented below.
1. Lab Packs
Your question concerns the language in 40 CFR 264.316(f) and
40 CFR 265.316(f). You refer specifically to perceived
contradictions between the first and second sentences of these
paragraphs; however, it is assumed that you are actually
concerned with the language of the second and third sentences
which specifies that “(p]ersons who incinerate lab packs
according to the requirements in 40 CFR 268.42(c) (1) may use
fiber drums in place of metal outer containers. Such fiber drums
must meet the DOT specifications in 49 CFR 173.12 and be
overpacked according to the requirements in paragraph (b) of this
section.” In particular, you request clarification of whether
this language requires fiber drums to be overpacked in metal
drums. It is assumed that your confusion stems either from the
DOT specifications in 49 CFR 173.12, or the overpacking
requirements in 40 CFR 264.316(b) and 40 CFR 265.316(b). The
language of the DOT specifications and the § 264.316(b) and
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265.316(b) does not require overpacking of fiber drums in metal
drums. The first sentence of § 264.316(b) and 265.316(b)
(“(t]he inside containers must be overpacked in an open head DOT-
specification metal shipping container”) does not apply because
H 264.316(f) and 265.316(f) clearly state that “(p]ersons who
incinerate lab packs according to the requirements in 40 CFR
268.42(c) (1) may use fiber drums in place of metal outer
containers.” The H 264.316(b) and 265.316(b) language that does
apply, however, is the requirement to pack a sufficient quantity
of absorbent material around the inner containers to completely
absorb all of the liquid contents of the inside containers,
making the outer container full after packing.
As you mention in your letter, the preamble language on page
22631 of the Third Third final rule explains the Agency’s
decision to allow fiber drums to be used as outer containers for
lab packs being incinerated according to the requirements in
40 CFR 268.42(c) (1). The language of H 264.316(f) and 265.316(f)
does not eliminate this decision by otherwise requiring the fiber
drums to be overpacked in metal drums.
2. Containers
You request clarification of why containers are included in
the “inorganic solid debris” definition. You also ask when an
empty container would be judged to carry a characteristic of
hazardous waste.
By way of background, inorganic solid debris is defined in
40 CFR 268.2(g) as nonfriable inorganic solids contaminated with
D004 — DOll hazardous wastes that are incapable of passing
through a 9.5 mm standard sieve; and that require cutting, or
crushing and grinding in mechanical sizing equipment prior to
stabilization; and, are limited to certain types of debris
specified in subsequent paragraphs. Paragraph (g) (6) of
§ 268.2 includes metal cans, containers , drums, or tanks in the
definition of inorganic solid debris.
As a further point of background, the answers to your
questions are impacted by whether the container being discussed
is empty as defined at 40 CFR 261.7(b). Under the § 261.7(b)
provisions, a container that has held hazardous waste (other than
a compressed gas or an acute hazardous waste) is “empty” if it
meets certain criteria. All wastes must have been removed that
can be removed using the practices commonly employed to remove
materials from that type of container. To assure that all waste
has been removed, there may be no more than 2.5 centimeters (one
inch) of residue remaining on the bottom of the container or
inner liner; or no more than 3 percent by weight of the total
capacity of the container remaining in the container or inner
liner if the container is less than or equal to 110 gallons in
size, or no more than 0.3 percent by weight of the total capacity
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of the container remaining in the container or inner liner if the
container is greater than 110 gallons in size.
In response to your first question, containers are included
in the definition of inorganic solid debris to cover the possible
scenario of a container that has been discarded by means of land
disposal (as defined in 268.2), that does not meet the
§ 261.7(b) definition of empty, and that is contaminated with a
characteristic metal waste. This scenario could occur, for
instance, during an excavation at a corrective action site. A
container might be uncovered that is damaged (e.g., crushed) so
that the hazardous waste within it cannot be removed sufficiently
to meet the § 261.7(b) definition of empty. Such a container
(i.e., including its contents) is a hazardous waste subject to
the land disposal restrictions if it is subsequently land
disposed. Furthermore, it is likely that the disposed container
would be considered contaminated debris (such a determination may
depend upon site—specific conditions best made by an authorized
State or EPA Regional representative). If the waste
contaminating this disposed container is a characteristic metal
waste (D004 - DOll), the container would likely meet the
§ 268.2(g) (6) criteria of inorganic solid debris, and would thus
be subject to a national capacity variance until May 8, 1992 (see
§ 268.35(b)).
In response to your second question, a container meeting the
§ 261.7(b) definition of empty may be judged to be a
characteristic metal waste under two scenarios. In the first
scenario, a container that has never held any hazardous waste may
be a characteristic waste if: (1) it is being discarded; and, (2)
if the container is in itself a characteristic waste.
In the second scenario, an emDtv container (as defined in
§ 261.7(b)) may be a characteristic waste if: (1) it is being
discarded; and, (2) if the container is in itself a
characteristic waste. It should be noted, however, that any
residue remaining in the container is exempt from regulation
under the provisions of § 261.7(a) that states that “(a]ny
hazardous waste remaining in either (i) an empty container or
(ii) an inner liner removed from an empty container, as defined
in paragraph (b) of this section, is not subject to regulation
under Parts 261 through 265, and Parts 268...”
3. Certifications
You request clarification of the record keeping requirements
for a particular scenario: A waste that the generator determines
(based on process knowledge) does not meet the treatment standard
is sent to a treatment facility. The treatment facility
determines the waste does meet the treatment standard. You di
not suggest how such a determination was made. Your question is,
how would the record keeping requirements be affected?
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In this particular scenario, the treatment facility should
analyze the waste in order to determine that the waste meets the
treatment standard according to the provisions of their waste
analysis plan. It should be noted, however, that there is no
requirement that treatment facilities analyze each shipment of
waste received, except as specified in their waste analysis plan
(see § 268.7(b). In this particular scenario, however, the
generator has made the determination that the waste must be
treated based on his knowledge of the waste. The treatment
facility is countering the generator’s determination with a
determination that the waste meets the treatment standard as
generated; therefore, the Agency believes that it is appropriate
to ask the treatment facility to support their determination with
analytical data. The treatment facility also must complete a
certification that the waste met applicable treatment standards
as generated (see § 268.7(a) (2) (ii), supported by the general
principle expressed in § 268.7(b) (6) requiring treatment
facilities to comply with notice and certification requirements
applicable to generators).
The treatment facility must send the waste analysis data
(see § 268.7(b) (4) (iv)), the certification, and a notification
(either the generator’s notification may be sent, or the facility
may create a new notification) to the disposal facility. Copies
of the waste analysis data, the generator’s notification (as well
as the treatment facility’s notification if a new notification
was created), and the certification must be kept as records in
the treatment facility’s files.
4. Notification/Certification
A scenario was presented of a TSD company that has a sister
company on adjacent property that recycles “side-stream” and
“off-spec” chemicals and other wastes containing recoverable
amounts of organics by means of a custom distillation process.
This process generates still bottoms and wash waters that are
subject to the land disposal restrictions. These restricted
wastes are piped directly back to tanks at the TSD facility,
sometimes on an intermittent basis, sometimes continuously. The
question is asked: Row must these piped transfers of hazardous
wastes from the recycler to the TSD be handled from the
perspective of notification/certification compliance?
Even though the recycling facility and the TSD facility are
sister companies on adjacent property, they would have been
assigned different EPA identification numbers and are thus
considered separate facilities. Therefore, the waste that is
piped to the TSD facility (regardless of whether it is on a
continuous or an intermittent basis) is subject to the record
keeping requirements of § 268.7.
The recycling facility would be subject to the generator
requirements of 5 268.7(a), which specify that a notification
must be sent with each shipment of waste (in this case, from the
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recycling facility to the TSD facility). The TSD facility must
comply with the requirements of § 268.7(b). Questions on how
frequently the required paperwork should be sent from the
recycling facility to the TSD (i.e., what constitutes a
“shipment”) should be directed to the EPA Regional land disposal
restrictions contact.
5. DOOl
The question is whether 40 CFR 264.312 allows for the land
disposal of a DOOl waste. Until promulgation of the Third Third
final rule on May 8, 1990, 40 CFR 264.312 (and § 265.312) set out
special management requirements for ignitable or reactive wastes
that were disposed in a surface impoundment, waste pile, land
treatment unit, or landfill. On page 22553 of the final rule,
however, the Agency explained that these management requirements
are superseded by the treatment standards promulgated in the
Third Third final rule. This means that “(f)acilities handling
ignitable and reactive wastes will have to comply with the
promulgated treatment standards for these wastes in order to land
dispose them.” The Agency made changes to the regulatory
language of § 264.312 and 265.312 in the Third Third final rule
to incorporate the requirement that the treatment standards for
ignitable and reactive wastes must be met prior to land disposal.
Furthermore, the Agency’s intent is clearly expressed in the
preamble (55 FR 22553).
Therefore, land disposal is allowed only for those DOOl
wastes that meet the treatment standard. (The treatment standard
for DOOl wastes containing less than 10% total organic carbon
(TOC): deactivation; for DOOl containing greater than 10% TOC:
incineration or fuel substitution; see 40 CFR 268.42, Table 2.)
I hope you find these answers to be helpful. If you have
any further questions, please feel free to contact
Matthew A. Straus at (703) 308-8414.
Sincerely,
Sylvia K. Lowrance
Director
Office of Solid Waste
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9551.1990(16)
RCRA/SUPERFUND HOTLINE MONThLY SUMMARY
DECEMBER 1990
1. LDR Requirements During Nabortal Capacty Variances
During a corrective action removal, a RCRA permitted treatment facility generates
a contaminated soil that is characteristic for arsenic (D004). The generator
determines that the waste has a treatment standard established in 40 CFR 268.41 of
the Land Disposal R2strictions (LDR) Third Third Final Rule. (55 22520)
However, Section 26835(e) of the final rule also establishes a 2-year variance from
the land disposal prohibitions for D004 nonwastewaters due to insufficient
treatment capacity. What LDR requirements remain in effect during the period in
which a waste is granted a national capacty variance?
Section 3004(h)(2) of RCRA provides EPA with the authority to grant national
capacty variances from the statutory effective dates upon which land disposal
prohibitions become effective if there is insufficient alternative treatment,
recovery or disposal capacity for the wastes subject to the prohibition. In
determining whether a variance is warranted, EPA compares the nationally
available treatment capaaty that will be in operation on the prohibition
effective date with the volume of wastes generated. If a significant shortage
exists, an alternate effective date will be established based on the earliest date
such capacity will become available. (55 E 22526)
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1. LDR Requirements During National Capacity Variances (Con j
Although a national capadty variance temporarily extends prohibition effective
dates, it does not supersede the requirements applicable to hazardous wastes
that are “restricted”. (see 55 EE 22592) Effective May 8, 1990, all hazardous
wastes, except those identified or listed after the enactment of HSWA, are
‘ restricted” and therefore subject to certain provisions. (55 22521) These
include three major requirements. First, generators of such restricted wastes
must comply with applicable waste analysis and recordkeeping requirements
established in Section 268.7, including the special notifIcations found at
268.7(a)(3) for wastes sub je-t to a national capacity variance that are sent off -c’ e
for treatment, storage or disposal. (53 31208)
Second, in addition to fulfilling relevant recordkeeping requirements,
generators of hazardous wastes subject to a national capacity variartce must
evaluate their waste against the California List prohibitions. (55 E 22529) The
California List establishes treatment standards and land disposal restrictions for
certain liquid wastes containing free cyanides, metals, corrosives and PCBs, and
for HOCs in either solid or liquid form (See Section 268.32 and RCRA Section
3004(d)]. In the interim period in which a national capadty variance is in effect,
the California List requirements apply. (53 EE 31118)
Finally, if the generator determines that no other land disposal prohibitions are
applicable, the waste may be managed in a landfill or surface impoundment
provided the waste is placed in a unit that meets the minimum technology
requirements set out in 2685(h)(2). After the national capacity variance has
expired. such restricted hazardous waste may be land disposed only if the
applicable trea nent standard is attained or disposal occurs in a unit that
satisfies the ‘no migration” demonstration found at 40 CFR 268.6. (55 E 22521)
Please note, however, for wastes that are subject to more than one treatment
standard, that during a national capacity variance for one of the wastes, the
treatment standards for any of the other waste codes that have not received
such a variance must be met. (55 ER, 22660)
Source: Rhonda Craig, 05W (703) 308-8451
Research Stephen Buchanan
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9551. 1991(01)
JAN 3 — 19 ’
Mr. John R. Kampthenkel
Chief Environmental Engineer
Koch Refining Company
P.O. Box 2608
Corpus Christi, Texas 78403
Re: No-Migration Petition submitted for Koch Refining’s Corpus
Christi, Texas Land Treatment Unit (F-90-NXCP-FFFFF)
Dear Mr. Kampfhenkel:
I am writing in regard to your April 26, 1990 “no—migration”
petition, which requests a variance under 40 CFR §268.6 to allow
Koch Refining Company (Koch) to continue the land treatment of
restricted wastes at Koch’s Corpus Christi, Texas land treatment
unit (LTU). After a careful review of your petition, we have
concluded that your facility does not meet the standard for a no—
migration variance. Therefore, we will recommend to the
Assistant Administrator for Solid Waste and Emergency Response
that the petition be denied.
Our decision to recommend denial of the petition is based on
the following concerns:
• Soil—pore and soil-core monitoring indicate that
hazardous constituents have already migrated beyond the
unit boundary.
• Ground-water monitoring for vanadium indicates that
this hazardous constituent has already migrated beyond
the unit boundary.
Presence of Hazardous Constituents Below the Treatment Zone (BTZ )
Soil—pore and soil-core monitoring data provided in Koch’s
petition indicate that migration of hazardous constituents below
the treatment unit has already occurred. Specifically, analyses
of soil pore liquid samples collected during August and September
of 1988 and in February, April, May, June, and October of 1989
indicate the presence of beryllium, cadmium, chromium, lead,
nickel, selenium, toluene, benzene, styrene, 2-butanone, 1,2-
dichloroethane, and ethyl benzene in excess of their respective
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-2—
health-based levels used in no-migration decision-making. The
results of these analyses are presented in Attachments 1 and 2.
Analyses of soil core monitoring data collected in December
1989 indicate that beryllium was detected at concentrations
exceeding the health—based level (HBL) of 0.2 mg/kg for soil
ingestion in Bores 1, 2, 3, 4, and 6. Antimony was also detected
at a concentration exceeding the HBL of 30 ag/kg for soil
ingestion in Bore 6 during December 1989. (See Attachment 3)
Furthermore, Attachment 3 also shows that several organic
constituents were detected in the BTZ. Concentrations of
benzo(a)pyrene (6.5 mg/kg) and methyl chryseno (4.4 mg/kg) were
detected in Bore 1 above their respective HBL’s of 0.055 mg/kg
for soil ingestion. Oil and grease levels in soil bores averaged
4,500 mg/kg for Bore 1 and 193 mg/kg for Bore 4 in December 1989.
The individual values for the BTZ samples from Bore 1 were 1,900
mg/kg (5.0—5.5 feet); 7,000 mg/kg (5.5—6.5 feet); and 4,600 mg/kg
(6.5-7.5 feet). The presence of benzo(a)pyrene and methyl
chrysene and elevated levels of oil and grease beneath the
treatment zone further demonstrate that hazardous constituents
have migrated below the treatment unit.
Ground-Water Monitoring Data
Ground-water monitoring data presented in Koch’s petition
indicate that migration of hazardous constituents to the ground
water has already occurred. Specifically, a review of the August
1988 ground-water monitoring data indicate the presence of
vanadium in downgradient wells LE-3 (0.39 mg/i) and LE-5 (0.28
mg/i) in excess of the MDL (0.24 mg/i) used in no-migration
petition decision-making. (See Attachment 4.)
In addition, total organic carbon (TOC) levels were
significantly higher in downgradient wells LE—3, LE-4, LE-5, and
LE-6 than in upgradient wells in September of 1988. However, we
are unable to determine whether organics are present at levels of
concern because Koch did not provide a fractional analysis of the
constituents in the TOC samples. Lastly, although the difference
between the dovngradient and upgradient monitoring wells did not
exceed the health-based levels, the downgradient concentrations
for arsenic (LE-3 and LE-4), mercury (LE-6), and selenium (LE—6)
did exceed the upgradient concentrations during August of 1988.
Incom lete Petition
Finally, our review indicates that the petition is
incomplete and that information and clarification in areas beyond
those highlighted above would be needed to complete the petition.
However, because of the problems discussed above, we believe we
have sufficient information at this time to move toward a denial
of your petition.
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—2—
health-based levels used in no-migration decision—making. The
results of these analyses are presented in Attachments 1 and 2.
Analyses of soil core monitoring data collected in December
1989 indicate that beryllium was detected at concentrations
exceeding the health-based level (HBL) of 0.2 mg/kg for soil
ingestion in Bores 1, 2, 3, 4, and 6. Antimony was also detected
at a concentration exceeding the HBL of 30 mg/kg for soil
ingestion in Bore 6 during December 1989. (See Attachment 3.)
Furthermore, Attachment 3 also shows that several organic
constituents were detected in the BTZ. Concentrations of
benzo(a)pyrene (6.5 mg/kg) and methyl chrysene (4.4 mg/kg) were
detected in Bore 1 (December 1989) above their respective HBL’s
of 0.055 mg/kg for soil ingestion. Oil and grease levels in two
of the soil bores averaged a500 mg/kg for Bore 1 and 193 mg/kg
for Bore 4 in December 1989. The individual values for the BTZ
samples from Bore 1 were 1,900 mg/kg (5.0-5.5 feet); 7,000 mg/kg
(5.5—6.5 feet); and 4,600 mg/kg (6.5-7.5 feet). The presence of
benzo(a)pyrene and methyl chrysene and elevated levels of oil and
grease beneath the treatment zone further demonstrate that
hazardous constituents have migrated below the treatment unit.
Ground-Water Monitorina Data
Ground-water monitoring data presented in Koch’s petition
indicate that migration of hazardous constituents to the ground
water has already occurred. Specifically, a review of the August
1988 ground—water monitoring data indicate the presence of
vanadium in downgradient wells LE—3 (0.39 mg/i) and LE—5 (0.28
mg/i) in excess of the HBL (0.24 mg/i) used in no-migration
petition decision-making. (See Attachment 4.)
In addition, total organic carbon TOC) levels were
significantly higher in downgradient wells LE-3, LE-4, LE-5, and
LE-6 than in upgradient wells in September of 1988. However, we
are unable to determine whether organics are present at levels of
concern because Koch did not provide a fractional analysis of the
constituents in the TOC samples. Lastly, although the difference
between the downgradient and upgradient monitoring veils did not
exceed the health-based levels, the downgradient concentrations
for arsenic (LE-3 and LE—4), mercury (LE-6), and selenium (LE-6)
did exceed the upgradient concentrations during August of 1988.
IncomDlete Petition
Finally, our review indicates that the petition is
incomplete and that information and clarification in areas beyond
those highlighted above would be needed to complete the petition.
However, because of the problems discussed above, we believe we
have sufficient information at this time to move toward a denial
of your petition.
-------
—3—
It is our practice to give petitioners the option of
withdrawing their petitions to avoid a negative publication in
the Register . If you prefer this option, you must send
us a letter withdrawing your petition and acknowledging that the
petitioned wastes are still considered to be restricted wastes
subject to the Third Third Land Disposal prohibitions. This
letter should be forwarded to the following address within two
weeks of the date of receipt of today’s correspondence:
patricia Cohn, Acting Chief
Assistance Branch (OS-343)
u.s. Environmental protection Agency
401 M Street, S.W.
Washington, D.C. 20460
If you choose not to withdraw your petition, we will
recommend that a proposed denial decision be published in the
Federal Register .
Any questions regarding our findings may be submitted in
writing to Mr. James Michael of my staff.
Sincerely,
Jeffery D. Denit, Deputy Director
Office of Solid Waste
Attachments
cc: Bill Honker, EPA Region VI
Tony Robledo, EPA Region VI
Minor Hibbs, Texas Water Commission
Patricia Cohn, PSPD, OSW
James Michael, PSPD, 05W
-------
—4—
bcc: Terry Keidan, AB, PSPD, 05W
Jeffrey Gaines, AB, PSPD, OSW
Dave Reeves, AB, PSPD, OSW
Richard Kinch, WMD, OSW
Kathy Stein, OE
Nikki Roy, WMD, 05W
Howard Pinkel, ICF Incorporated
-------
ATTACHMENT 1.
Soil-Pore Liquids - Inorganic Constituents ( g/1)
As
Ba
Be
Cd
Cr
Pb INg
NI
Se
TOC
8188
LY-1
0.89
0.13
LY-5N
0.0072
0.0055
0.019
31
9/88
LY-1
0.19
0.03
0.053
0.09
LY-2N
0.013
0.021
0.0034
0.018
54
LV-3N
0.021
0.0093
0.19
0.11
0.36
0.0045
0.51
LY-4N
0.02
0.13
0.075
0.17
0.0057
0.34
LY-5N
0.013
0.046
0.076
0.0069
0.13
19
LY-5S
0.069
0.0093
0.12
0.099
11188
LY-2N
0.029
0.03
0.0016
0.011
57
LY-5S
31
2/89
LY-2N
0.04
29
LY-4N
0.23
0.097
0.12
33
LY-5N
0.07
0.055
13
3189
LY-2N
0.16
80
LY-3N
LY-4N
0 24
0.092
0.086
LY-5N
0.14
0.059
15
LV-5S
0.19
0.037
4/89
LY-4N
0.018
0.11
38
LV-5N
0.021
6/89
LV-2N
LY-3N
LY-5N
L .Y-5S
0.047
0.047
0.013
0.29
0.0061
10/89
LY-3S
0.066
10
HBU
0.05
1
0.001
0.01
0.05
0.05
0.002
0.1
0.01
LY-1 is the b.ckgroiwd Iysimet r
-------
TTACIO NT 2
Soil-Pore Liquids - Organic Constituents (ugh)
Xytenes
rohiane
Senzen
Styrene
2—øutanone
1 ,2-Dlchloroettiarte
Ethylbenzene
9/88
L.Y—2N
4,200
2,100
1,600
110
14,000
950
2,800
LY—3N
28
6
13
LY—5N
7
11/88
LY—2N
9
5
6
6/89
LY—2N
8
6
LY-3N
5
LY—5N
19
6
HBL ,s
10,000
2,000
5
5
2,000
5
700
Or 1nIc Constituents have not been found in thi Background Lysimeter (LY-1)
-------
AT1ACHMENT 3
Soil. Core Data from the BTZ - LTU Expansionb
Bo :s 6 Bars 1 Bars 2 Bars 3 Bors 4 Bo:. 6
(6/29/89) (12/14/89) (12/13/89) (12/13/89) (12/13/89) (12/13/89)
pH (ran..) 9.1-9.4 8.1-8.2 7.9-8.0 8.1—8 2 7.8-8.0
Oil and Gush (mean) <10 4.500 <10 <10 193 <10
8.ryU iun --— O.Si/O. 6 a 0 5/0.8 0.3610.46 0.57/0.72 2.5/0 65
Antimony —— -—— --- -—- --— 16 . 8 / 32 c
8.nzsn. 13.0
Talusns 13.0
l-tl.thy lnaptha l.ne - 4.3
Anthracens 4.2
B.nzo(a)Pyrsns 6.5
lsthyL Chrysens --— 4 .
Phsnanthrsne --- 24.0 --
• Tb... data irs aiarizsd from thrss samples from thrss BTZ dspths at. •sch soil borin 5: 3 03 3 sst;
5.5-6.3 f..t; end 6.37.5 feet. A total of 12 sail bars. wsrs taken durtn 1989 irs the LTU Expansion
Six core. were callsctsd in Jun. 1989. and six cars. ws:s ceLlsctsd in Jun. 1989.
b A1thou h unite irs net sp.cifi.d in Tab]. 4-1 of Us. p.titton (V.t pa;. 4-5 thrau;h 4-W
aasunsd that the data irs reported in units of m/k ;. with the •xc.ptien of pH and o :$anica :aa c
concentrations wets apparently raported as & ;lks irs Table 4-1 and wets converted to rs/k ; for :s
sxhibit.
C The values this row csp;...nt the HTZ nssn from the three d.pths. followed by the maximi a.ie r s
Us. three ETZ depths.
-------
ATTACHMENT 4
Ground-Water Monitoring Data (mg/i)
TOC
Be
Cd NI
So V
As Hg
8/88
ti
9.1
0.014
0.027
0.12
0.01
0.0007
LE-I
14
0.027
0.12
0.014
0.0076
0.0008
LE-3
13
0.009
0.055
0.0066
0.39
0.011
0.0008
Lrr
12
0.0059
0.012
0.0009
L
8.8
0.018
0.12
0.0092
0.28
0.0093
0.001
r —
8.9
0.055
0.019
0.009
0.0008
9/88
L
5.4
0.11
LE-1
U
0.078
LE-3
48
LE-4
54
L
29
0.078
L
9.8
0.05
1/89
LEO
5.2
0.17
1ir
4.9
0 .063
L
5.1
0.084
L
2.7
0.084
L.E-5
2.6
0.15
0.084
y89
LE-O
1.9
0.029
L
0.044
LE-3
0.044
i T
0.067
ti:i
o.o g
ir
0.018
&89_____________
LE-0
1.5
LE—t
L.E-3
1.3
LE-4
1.5
LE-5
1.2
LE-6
12/89
I.E- ö
2.1
LE—t
LE
3.4
LE-4
1.5
0.073
LE-5
1
LE-6
2.4
HBL
0.001
0.01
0.1
0.01
0.24
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9551 .1991(02)
JAN I 7 1991
Mr. W. Thomas McCollough
Refinery Manager
Sun Refining and Marketing Company
P.O. Box 2039
Tulsa, Oklahoma 74102
Re: No-Migration Petition submitted for Sun Refining and
Marketing Company’s Tulsa, Oklahoma Land Treatment Facility
(F—90—NMSP—FFFFF)
Dear Mr. McCollough:
I am writing in regard to your March 16, 1990 “no-migration”
petition, which requests a variance under 40 CFR §268.6 to allow
Sun Refining and Marketing Company (Sun) to continue the land
treatment of restricted wastes at Sun’s Tulsa, Oklahoma land
treatment facility (LTF). After a careful review of your
petition, we have concluded that your facility does not meet the
standard for a no-migration variance. Therefore, we will
recommend to the Assistant Administrator for Solid Waste and
Emergency Response that the petition be denied.
Our decision to recommend denial of the petition is based on
the following conceriis:
• soil-pore monitoring indicates that benzene has already
migrated beyond the unit boundary.
• Ground-water monitoring indicates that hazardous
constituents have already migrated beyond the unit
boundary.
• The required minimum separation between the bottom of
the treatment unit and the top of the seasonally high
water table has not been demonstrated.
• Air modeling shows concentrations of arsenic at the
unit boundary that exceed the allowable health-based
standard.
The details of our concerns are described below.
-------
—2—
sence of Hazardous Constituents Below the Treatment Zone (BTZ )
Soil—pore liquids monitoring data collected from lysimeter
14 indicate the presence of benzene (33.4 ppb) beneath the
treatment zone at concentrations above the health—based level
(HBL) of 5 ppb used in no—migration decision-making. Sun
explained that during the installation of lysimeter 14 (in March
1987), the borehole had been contaminated by a load of spent jet
fuel filter clay dumped nearby. We, however, question whether
the contamination can be attributed to nearby applied spent jet
fuel filter clay for the following reasons:
First, it stands to reason that if the borehole were
contaminated during the installation process, then the first-
quarter soil pore—water sample taken between March and April of
1987 should have shown high levels of benzene (which is very
mobile). However, elevated levels showed up only after the
third—quarter samples were taken in October 1987. (No second-
quarter data was provided in the tables.) Thus, the
contamination occurred at a later date rather than during initial
installation.
Secondly, the results from analyses of the spent jet fuel
filter clay reported benzene as “NP” (not present) and the
petition stated that “the other (non—hazardous, including the
spent jet fuel filter clay] wastes, in comparison, are
insignificant in oil/organic content and/or annual quantity
disposed of; the presence of various specific organic compounds
in these wastes would have little or no impact on the overall
soil/waste system at the LTF” (V.1, pages 4-11 and 4-15).
Therefore, Sun, in one instance claimed that they did not have to
analyze the non—hazardous wastes for organic constituents, yet in
another instance, claimed that the bore hole was contaminated by
the spent jet fuel filter clay.
Lastly, benzene has been detected in both background and
active LTF area lysimeters. (See Attachment I) The continuous
detection of low levels of benzene, especially at lysimeter 15,
indicate that benzene has migrated below the treatment zone. We,
therefore, believe both that Sun has failed to demonstrate that
the benzene detected at ]ysimeter 14 is due to contaminaticn and
that the presence of benzene in the soil-pore liquids clearly
demonstrates that this constituent has migrated below the LTF at
hazardous concentrations.
Ground—Water Monitorina and Detecting Releases at the Earliest
Extent Practicable
As shown in Attachment II, ground-water monitoring between
May 1984 and January 1990 indicate that barium, chromium,
mercury, lead, and benzene were detected at concentrations above
their respective health-based levels. Sun claims that these
-------
UNITED STATES E$VI Os EI TAL PROTECTION AGENCY
9551.1991(03)
JAN 2 9 1991
Mr. David R. Chapman
Exxon Research and Engineering Company
P.O. Box 101
Florham Park, NJ 07932-0101
Re: Exxon, Baytown, TX No—Migration Petition (F—91-NMEP—FFFFF)
Dear Mr. Chapman:
At our meeting, September 26, 1990, to discuss EPA’s
technical evaluation of the no-migration petition submitted for
the Baytown Refinery’s North Landf arm, you requested some
documents and further clarifications of a few issues. In
response, I have enclosed copies of the Register notices
for the §3004(n) rule (June 21, 1990, 55 25454) and the
Benzene NESHAP (March 7, 1990, 55 8292) and provided below
additional information on static fracturing and the use of
indicator chemicals in risk assessment. We are presently
developing information that will address the third issue, n etals
mobility, and will provide it to you as soon as it is completed.
Static Fracturing
The term “static fracturing,” although not a formal term, is
used to describe the cracking of earthen materials without
significant movement along the crack (plane of failure). It is
used in contrast to dynamic fracturing (e.g., faults) where the
fracture is related to shear or slip along the plane of fracture.
The terms are not mutually exclusive as many small fractures with
only slight movement can make up zones of slip (e.g., shear
zones) that are associated with dynamic processes.
Static fracturing in relation to no-migration petitions is
usually limited to shrinkage cracks. Three examples of static
fractures are described below for your information. However, the
first (desiccation cracks) is the only one that would possibly
apply to the Baytown landf arm.
Desiccation cracks — These cracks form as a result of
shrinkage from drying. The simplest example is the
formation of mud cracks. Soils and sediments that contain
g”r andtbl. clays ri utth91y ?xpand i1u in’ j rainy pa ists ant
-s ir .nk and eqaek dry perie s.
•iri•• * the
aepth. depen ina on the makeuDi of the sbil and uhderlvin
-------
2
sediments, they are reported to exist at depths in the tens
of feet. In areas where montmorillonitic shales weather
from surface soils, desiccation cracks can be exceptionally
deep.
Coolina fractures - These fractures are common in basalts
and are almost characteristic of plateau basalts. Commonly
referred to as “joint sets” or “columnar jointing,” fracture
patterns developed in cooled lava, are widespread. These
fractures result from shrinkage in the lava as it cools to
basalt rock, and often penetrate the entire layer.
Tension fractures - Any rock unit subjected to structural
tension may fracture in a direction perpendicular to the
tension. This is very typical of folded units where rock
layers on the outside of the fold undergo tension relative
to rocks along the inside of the fold. Subsequent leaching
by downward movement of surface waters can enlarge
fractures. This is typical of limestone terrains.
Indicator Chemicals in Risk Assessment
EPA’S recent guidance - Risk Assessment Guidance for
Superfund - Volume 1: Human Health Evaluation Manual (Part A)
Interim Final (EPA/540/l—89/002) — defines the indicator chemical
approach in more detail than the 1986 Superfund Public Health
Evaluation Manual, which was used by Exxon in its environmental
risk assessment. The methods used to select indicator chemicals
for a no—migration petition are similar to risk assessments
performed for Superfund sites. However, it appears that Exxon
did not completely apply the Superfund approach. EPA’s position
is described below and an example of how this approach could be
applied to the environmental risk assessment in your no-migration
petition is presented.
Most Superfund sites have a few chemicals that are usually
present in concentrations that present much higher risks (i.e.,
three or more orders of magnitude or higher) than the remaining
chemicals at the site. Based on this experience, EPA suggested,
at Superfund sites, that between 5 and 10 chemicals with the
highest individual risk factors would be manageable and possibly
sufficient for a human health risk assessment. The selection of
indicator chemicals is not a process of selecting a single
chemical to represent each class of chemicals that may be
expected to exhibit similar fate and transport characteristics
and similar toxicities, but rather, it is a process to exclude
from further consideration, those chemicals that are unlikely to
contribute significantly to risk. Use of the Superfund approach
with wastes placed at refinery landfarms may result in a list of
more than 5 or 10 indicator chemicals, but it is likely to
eliminate from further consideration some of the chemicals that
have been detected in the waste.
-------
3
The selection of indicator chemicals is optional; it is
often prudent to consider all chemicals. If there are clear
reasons to believe that not all chemicals are likely to
contribute significantly to the total risks, the number of
chemicals carried through the risk assessment modeling may be
reduced using a concentration-toxicity screen.
The indicator chemical selection procedure is a quantitative
approach that requires an evaluation of each chemical detected at
concentrations above background levels: specifically, one must
compare the concentration of the chemical in a medium to a
toxicity benchmark for that medium. Other considerations such as
persistence, solubility and bioaccuinulation are included in the
final selection of chemicals.
To select indicator chemicals, each chemical is assigned a
score by dividing the concentration (C) of the chemical in a
medium by the toxicity benchmark (TB). The medium may be a
source medium (e.g., applied wastes), or a transport medium
(e.g., surface water), depending on the availability of
measurement data. The source of the toxicity benchmarks are
dependent on the potential receptors (e.g., recommended criteria
values for the protection of freshwater aquatic life can be
calculated from Ambient Water Quality criteria documents). The
scores are then summed for all chemicals to estimate a “total
risk factor” to serve as an initial screen. After consideration
of other factors (e.g., persistence, bioaccuinulation), one may
eliminate from the risk assessment chemicals with C/TB values
that are very low compared with C/TB values for other chemicals
of the same class in that medium. “Very low” may be defined as a
lower limit to the percentage of the total risk factor accounted
for by a single chemical. For Superfund sites, the remedial
project manager may choose a “cutoff” for “very low” of one
percent of the total risk factor screen, or a lower value if the
site risks are expected to be high.
In the no-migration petition, it appears that Exxon did not
follow the indicator chemical selection approach as described
above. The concentrations of the chemicals in the composite
waste sludge were discussed with qualitative statements about
relative aquatic toxicity of the chemicals rather than comparing
them to numeric toxicity benchmarks. When the appropriate
application of the indicator chemical approach is followed, there
appears to be no justification for Exxon’s exclusion of any of
the VOCs and most of the PAHs from further analysis. To assist
Exxon, we have prepared a couple of exhibits applying the
suggested indicator chemical selection approach using the same
organic waste constituents information provided in the risk
assessment section of the no-migration petition. The same
principles also apply to inorganic constituents, but are not
illustrated in the example. Note that Exxon should begin the
-------
4
risk assessment by evaluating comprehensive waste
characterization data from all the wastes applied to the
landfarm, not just the listed hazardous wastes,
Exhibit 1 shows the aquatic toxicity values that are
recommended for the particular organic constituents in the waste
as identified by Exxon in the petition. Please contact EPA if
you need assistance in determining appropriate toxicity benchmark
values for additional chemicals if they are detected in the
waste. Calculations for the indicator chemical selection process
are presented in Exhibit 2. In this exhibit, column 1 is the
reported concentration of the chemical in the composite sludge
waste that Exxon used to select waterborne indicator chemicals
for the no—migration petition: column 2 lists the aquatic
toxicity benchmarks shown in Exhibit 1: and column 3 is the ratio
of waste constituent concentration to the aquatic toxicity
benchmark, or the chemical-specific risk score. The chemical-
specific risk scores are then summed for all chemicals within a
chemical class to estimate a “total risk factor” for the medium
and the chemical class. The chemical classes are evaluated
separately because they are likely to exhibit different fate and
transport characteristics.
In this example, if one follows the guidance for Superfund
sites, four chemicals (anthracerie, benzo(b)fluoranthene, pyrene,
and fluoranthene) each have a total risk factor of less than one
percent (1%). These chemicals could probably be eliminated from
further consideration if there are no other reasons for retaining
the chemical (e.g., high bioaccumulation potential). However, we
need to stress that the risk assessment report should include a
discussion of each chemical that is eliminated from further
modeling, indicating that other characteristics of the chemical,
such as bioaccumulation and persistence, have been considered.
I hope this information will be useful in the preparation of
Exxon’s response to EPA’s technical evaluation of the no-
migration petition. If you need additional assistance, please
contact Athena Rodbell of my staff at (202) 382-4519.
Sincerely,
James F. Michael, Chief
Disposal Technology Section (OS-343)
Office of Solid Waste
Attachments (2)
cc: Dave Reeves, PSPD, OSW
Athena Rodbell, PSPD, OSW
Terry Keidan, PSPD, OSW
Howard Finkel, ICF
-------
Exhibit 1
Recommended Criteria Values for the Protection of Aquatic Life
Chemical Toxicity Type of Recommended
Value Value Criterion Rationale
( /L) ( slL)
benzene 5,300 EPA LC 110 (a)
ethylbenzene 32,000 EPA LC 640 (a)
toluene 17,500 EPA LC 350 (a)
xylene 3,185 LIT LC 50 64 (a)
anthracene 800 (b)
benzo(a)anthracene 1.2 EPA CC sed 1.2 (C)
benzo(b)fluoranthene 300 EPA PAH LOEL 60 Cd)
benzo(a)pyrene 1.2 EPA CC sed 1.2 (C)
chrysene 1.2 EPA CC sed 1.2 (C)
1—methy lnaptha lene 120 (e)
naphthalene 620 EPA LOEL 120 (f)
phenanthrene 300 EPA PAH LOEL 60 (d)
pyrene 300 EPA PAH LOEL 60 (d)
fluoranthene 3,980 EPA LOEL 800 (f)
EPA values are those identified in the chemical-specific Ambient
Water Quality Criteria Documents. “CC sed” is EPA’s chronic
criterion for PAils in pore water of sediments as identified by
Exxon.
(a) EPA or literature (LIT) LC 50 value divided by a factor of 10
to extrapolate from an acute to chronic value and a factor
of 5 for variation in species sensitivity.
(b) Assume toxicity value equal to that of fluoranthene (could
use a more conservative assumption than this).
(C) EPA chronic criterion for benzo(a)pyrene in water pore of
sediments, as identified by Exxon
(d) EPA LOEL (Lowest Observable Effect Level) identified for
PAHs in general, divided by a factor of 5 for variation in
species sensitivity.
(e) Assume toxicity value equal to that of naphthalene.
(f) EPA LOEL (Lowest Observable Effect Level) divided by a
factor of 5 for variation in species sensitivity.
-------
Exhibit 2
Indicator Chemical Approach Examples for Exxon, Baytown, TX
Constituent Waste Aquatic Chemical Percent of
Concentra- Toxicity Specific Total
tion Benchmark Risk Risk
( Ikg) ( IL) Factor
(C) (TB) (C/TB)
(1) (2) (3) (4)
Indicator Chemical
Selection
APDlied to
VOCs
145
6.5
%
benzene
16
0.11
ethylbenzene
19
0.64
30
1.3
%
toluene
87
0.35
249
11.1
%
xylene
116
0.064
1813
81.1
%
VOC TOTAL
=
2236 None < 1
%
Indicator Chemical Selection APDlied to PAils
anthracene 39 0.8 49 0.05 %
BaA 81 0.0012 67500 64.2 %
BbP 12 0.06 200 0.2 %
BaP 16 0.0012 13333 12.7 %
chrysene 21 0.0012 17500 16.6 %
1—methy lnapth. 267 0.12 2225 2.1 %
naphtha lene 138 0.12 13.50 1.1 %
phenanthrene 134 0.06 2233 2.1 %
pyran. 45 0.06 750 0.7 %
fluoranthen. 141 0.8 176 0.17 %
PAH TOTAL= 105117 Four < 1. %
(1) From Exxon, Baytown, TX, Table 9.5-2: sludge composite waste
concentrations.
(2) Aquatic toxicity values from Exhibit 1 (expressed in mg/L
instead of Mg/L)
(3) (1) divided by (2), i.e., concentration in the waste divided
by aquatic toxicity values assuming 1 kg waste equivalent to
I. liter (i.e., 1. kg) of water.
(4) Percent of total risk factor for all chemicals contributed
by the specified chemical.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9551.1991(04)
JAN 30 199!
Mark J. Lupo, Ph.D.
Manager, Applied Sciences
K. W. Brown & Associates, Inc.
500 Graham Road
college Station, TX 77845
RE: Standards for Air Pathway for Metals and organic Chemicals
Dear Dr. LupO
We have reviewed Tables 1. and 2 and the information you
provided in your letter of January 11, 1991. In the tables,
three of the columns (TWA, STEL, and ceiling) are only applicable
to OSHA standards. Although a petitioner does not have to make a
demonstration of no-migration for the short term events, they
must still certify compliance with the OSHA requirement.
Attached are the most current levels for metals in the air phase.
The Health Based Level (HBL) for chromium is based on
hexavalent chromium which is carcinogenic when inhaled. EPA
determines exceedance based on the total volume of chromium using
the hexavalent HBL. If BP Oil is to use only the amount of
hexavalent chromium to determine exceedance, they must
substantiate how these values are separated from total chromium.
Also attached are the most current standards for organics in
the air phase. Three of the compounds in Table 2 do not relate
to no—migration and have been deleted. 1_MethylflaPhthalefle and
Indene are not Appendix VIII or ix compounds and 3-Methyl-
cholanthrefle, while an Appendix VIII compound, is not on the
Modified Skinner List. These three compounds do not have Health
Based Levels (HBL). Although Benhidifle is not on the Modified
Skinner List, it is an Appendix VIII constituent and has a HBL
and is therefore included in the attachment.
sincerely,
Newman Smith
Disposal Technology Section
Office of Solid Waste
cc: Terry Keiden, AB, OSW
Athena Rodbell, AD, OSW
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UNITED STATES ENVIRONMENTAL PROTECTION A ENCT
9551.1991(05)
FEB -5 1991
Mr. Gregg L. Loriinor
Refinery Manager
Kerr-McGee Refining Company
P.O. Box 305
Wynnewood, Oklahoma 73098
Re: No-Migration petition submitted for Kerr-McGee Refining
Company’s Wynnewood, Oklahoma Land Treatment Facility
(F—9 1—NWOP-FFFFF)
Dear Mr. Lorimor
I am writing in regard to your June 22, 1990 “no-migration”
petition, which requests a variance under 40 CFR §268.6 to allow
Kerr-McGee Refining Company (IGIRC) to continue the land treatment
of restricted wastes at }O C’s Wynnewood, Oklahoma land treatment
facility (LTF). After a careful review of your petition, we have
concluded that your facility does not meet the standard for a no-
migration variance. Therefore, we will recommend to the
Assistant Administrator for Solid Waste and Emergency Response
that the petition be denied.
Our decision to recommend denial of the petition is based on
the following concerns:
• Soil-pore monitoring indicates that hazardous
constituents have already migrated beyond the unit
boundary;
• The ground-water monitoring system is inadequate for
the purpose of a no—migration variance, because it will
be unable to detect constituent migration at the
earliest time practicable; and,
• The required minimum separation between the bottom of
the treatment unit and the top of the seasonally high
water table has not been demonstrated.
We discuss our concerns below.
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—2—
Presence of Hazardous Constituents Below the Treatment Zone (BTZ )
Soil—pore liquids monitoring data collected from the active
LTF and from the land treatment demonstration (LTD) plot indicate
that constituents have already migrated beyond the unit boundary
at hazardous concentrations. As shown in Attachment 1, soil-
pore monitoring data collected during the LTD (November, 1988 -
February, 1989) indicate that antimony, arsenic, barium, benzene,
and 2,4—dimethylphenol were detected at concentrations in excess
of their respective health—based levels. Additionally, as shown
by Attachment 2, soil-pore monitoring data collected from the LTF
between December 8, 1983 and November 12, 1986 indicate that lead
has migrated beyond the unit boundary at hazardous concentrations
above the health-based level (0.05 mg/i). We, therefore,
conclude that the presence of these constituents in the soil-
pore liquids clearly demonstrates that these contaminants have
already migrated below the LTF at hazardous concentrations.
Ground-Water Monitoring Data and Detecting Releases at the
Earliest Time Practicable
As shown by Attachment 3, benzene was detected in shallow
well LMW-5—0 at concentrations exceeding the health-based level
of 0.005 mg/i during four ground-water sampling events between
February and November, 1989. ICMRC claims that the benzene
detected in this well was attributable to a soil—core sampling
event in January, 1989, when LTD soil-core samples were augered
through nine inches of standing water (precipitation). I C
states that this enabled water to run down the boreholes,
carrying hazardous constituents to a depth of at least 5.5 feet
below the surface. However, KMRC has failed to prove
conclusively that the soil—core sampling event is directly
related to the presence of benzene in shallow well LMW-5—0. For
example, the benzene levels found in the sampling events have
fluctuated (0.310 mg/i in February, 1989; 0.130 mg/i in May,
1989; 0.240 mg/i in August, 1989; and, 0.130 mg/i in November,
1989). If the soil—core sampling event was directly related to
the presence of benzene in the shallow well, it would stand to
reason that the benzene concentrations would have peaked, then
tapered off. However, since the benzene concentration has
fluctuated, we have concluded that the operations at the LTF are
contributing to the to the presence of benzene in shallow well
LMW—5—0.
Additionally we believe that IQ C has failed to meet the
requirements of 40 CFR §268.6(a)(4). Specifically, 0 RC has not
demonstrated that the ground-water monitoring system at the LTF
is capable of detecting (and differentiating) releases at the
earliest extent practicable.
]0 C’s current ground—water monitoring system consists of
seven pairs of veils, each pair consisting of a shallow veil
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—3—
(indicated by a “-0 ” suffix) and a deep well. Free hydrocarbon
products were detected in the ground water at LWM-l during the
first sampling event on November 17, 1981 (LMW-6 replaced LMW-1
in 1984). According to RC, this was the first indication of
the existence of a liquid hydrocarbon plume on the refinery
property. Ground—water monitoring between November 1988 and
November 1989 at deep wells LMW-2, LMW-4, LMW-5, LMW-6, and RW-2
indicated the presence of benzerte above health-based levels,
which I C attributed to impacts from the hydrocarbon plume.
We believe that the locations of the monitoring wells are
generally adequate, provided that the local ground-water flow
pattern vii ]. not change in the future. However, given the
proposed free oil recovery and ground-water remediation to be
carried out in the next few years by 1 C, the local
hydrogeologic regime may be drastically altered because of the
hydraulic drawdown (to remove free products) in the currently
upgradient processing area. In response to the planned
remediation activities, some of the upgradient wells may become
temporarily downgradient (e.g., RW-2 and RW-2-O) to those wells
that are currently downgradient.
Lastly, the ramifications of the contamination resulting
from the underlying hydrocarbon plume in regard to ground-water
monitoring of the LTF are unclear. 1 1RC has not provided
detailed analytical results that desãribe the extent of the known
contamination beneath the LTF and KMRC is relying on the shallow
wells to differentiate between releases from the LTF and the
underlying hydrocarbon plume. Shallow well LMW-5—O, however, is
already contaminated with benzene. We, therefore, believe that
1 C will be unable to differentiate between the two releases and
therefore, conclude that the ground-water monitoring system will
not be able to detect constituent releases at the earliest extent
practicable.
Maintaining Minimum Separation
Federal regulations require that the depth—to-ground water
at land treatment facilities be no less than three feet from the
bottom of the treatment zone to the seasonal high water table
(see 40 CPR 264.271(c)(2)). Based on the discussion below, we
have concluded that KMRC has not demonstrated that the required
minimum separation of three feet between the bottom of the
treatment unit and the top of the seasonally high water table is
consistently maintained.
1Q C stated that during the LTD in 1988-89, the water table
beneath the LTF averaged from 9.2 to 11.9 feet, with seasonal
fluctuations ranging from 1.22 to 1.82 feet. Given this range,
the water table can rise to 7.38 feet of the surface, or 2.88
feet below the treatment zone. Historically, however, the water
table at the LTF has shown much more fluctuation than observed
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—4—
during the LTD. In June, 1985, a depth of 4.92 feet was recorded
at well RW—l, and in March, 1987, depths of 5.03, 5.82, and 6.01
feet were recorded at LMW—3, LMW-6, and LMW-2, respectively (Part
B Permit Application, pages E-38 to E—41). These data indicate
that fluctuations ranging from 0.42 to 1.51 feet of separation
between the treatment zone (4.5 feet deep) and the water table
have occurred, showing that the required three foot separation is
not maintained.
Incomplete Petition
Finally, our review indicates that the petition is
incomplete and that information and clarification in areas beyond
those highlighted above would be needed to complete the petition.
However, because of the problems discussed above, we believe we
have sufficient information at this time to move toward a denial
of your petition.
It is our practice to give petitioners the option of
withdrawing their petitions to avoid a negative publication in
the Federal Reaister . If you prefer this option, you must send
us a letter withdrawing your petition and acknowledging that the
petitioned wastes are still considered to be restricted wastes
subject to the Third Third Land Disposal prohibitions. This
letter should be forwarded to the following address within two
weeks of the date of receipt of today’s correspondence:
Patricia Cohn, Acting Chief
Assistance Branch (OS-343)
U.S. Environmental Protection Agency
401 H Street, S.W.
Washington, D.C. 20460
If you choose not to withdraw your petition, we will
recommend that a proposed denial decision be published in the
Federal Register .
Any questions regarding our findings may be submitted in
writing to Mr. James Michael of my staff.
Sincerely,
Jeffery D. Denit, Deputy Director
Office of Solid Waste
Attachments
cc: Bill Gallagher, Region VI
Fenton Rood, OSDU
Patricia Cohn, PSPD, OSW
James Michael, PSPD, OSW
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—5—
bcc: Terry Keidan, AB, PSPD, OSW
Jeffrey Gaines, AB, PSPD, OSW
Dave Reeves, AB, PSPD, OSW
Richard Kinch, WMD, OSW
Kathy Stein, OE
Nikki Roy, WMD, OSW
Howard Finkel, ICF Incorporated
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ATTACW(Z IT 2
Summary of Soil-Pore Liquids Monitoring Data
For Constituents Detected Above Health-Based Levels (mg/i)
(Data from LTD Final Report, Appendix C)
Sampling Lysimeter Health-Based
Constituents Dates Numbers Concentrations Levels
Antimony .2 ) 11/88 3 0.036 0.01
Arsenic .2) 11/88 3 0.06 0.05
Barium jJ 11/88 3 1.7 1.0
Benzene 11/88 2 1.3 0.005
3 2.3
01/89 3 2.1
4 0.014
02/89 2 1.5
4 0.32
bkgrnd 0.011
04/89 2 2.6
4 0.36
07/89 1 0.71
4 0.42
08/89 4 0.43
2,4-Dimethyl
Phenol 11/88 2 0.044 0.02
04/89 2 0.029
J Analyses for inorganics only performed on 11/88 samples
due to limited volume of soil-pore liquids collected
during subsequent sampling events.
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ATTACHMENT 2
Summary of Soil—Pore Liquids Monitoring Data
For Constituents Detected Above Health-Based Levels (mg/i)
(Data from LTF, Recon. Report, Table 3-4)
Sampling
Lysimeter
Health-Based
Constituents Dates
Numbers Concentrations Levels
Chromium 06/05/84 1 (bkgrnd) 0.2 0.05
2 0.05
3 0.16
4 0.05
06/12/85 2 0.08
05/16/86 2 0.07
5 0.05
Lead 12/08/83 2 0.19 0.05
4 0.18
5 0.14
05/16/86 1 (bkgrnd) 0.29
2 0.45
3 0.5
4 0.37
5 0.4
11/12/86 1 (bkgrnd) 0.06
3 0.05
4 0.09
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ATTA ZME IT 3
aumnary of Ground-Water Monitoring Data For Benz ene Pound
at Concentrations Abov• the Health-Based Level 6
Cri .tratIcn
( /t)
Dcs,SredIe t lLs
l gr.diwt etts
Date
UW-3
UUi-3-0
L*-4 IJUJ-4-O IJIfS LJUJ5-O
Mi1
5I1 0
UW2 USi 2O
L156 Ll5-6-O Rv2 RV2 O
Nov., 1988
LDb
LD
0.049 Lt 0.056 Lb
LD
ID
0.034 10
0.049 Lb 0.500 LD
Feb., 1989
Lb
lb
0.033 ID 0.036 0.310
15
ID
0.0047 10
0.022 Lb 0.150 LS
May, 1989
Aug., 1989
LS
Lb
Lb
Lb
0.0073 Lb 0.064 0.130
LS ID 0.023 0.240
IS
LS
Lb
ID
0.0061 Lb
Lb ID
0.023 LD 0.180 10
0.025 10 o.no
Nov., 1989
Lb
ID
0.018 10 0.140 0.130
Lb
ID
ID 10
0.017 ID 0.190 ID
Footnote:
a. The current health based level for benzene is 0.005 mg/I.
b. L0 means a concentration lower than the detection Limit.
c. NLSN umans a concentration greeter than the detection limit t less than the drinking water standard.
d. M N means data u not available.
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UH$TED STATES EMVIRONMEHTAI. PROTECTION ACEtIC? 9551.1991(06)
APR 22 jgg
Mr. J. R. Mclntire
Refinery Manager
Atlantic Refining & Marketing Company Corporation
3144 Passyunk Avenue
Philadelphia, Pennsylvania 19145
Re: No-Migration Petition submitted for Atlantic Refining &
Marketing Company Corporation’s Philadelphia, Pennsylvania
Land Treatment Facility (F-91-NARP-FFFFF)
Dear Mr. Mclntire:
I am writing in regard to your May 16, 1990 “no-migration”
petition, which requests a variance under 40 CFR §268.6 to allow
Atlantic to continue the land treatment of restricted wastes at the
Philadelphia, Pennsylvania land treatment facility (LTF). After a
careful review of your petition, we have identified three major
technical problems. These are:
• Evidence of releases from the LTF in excess of health-
based levels;
• Inadequate ground-water and soil-pore monitoring systems
for no—migration purposes; and,
• Apparent non-compliance with other regulatory
requirements.
Therefore, we have concluded that the Atlantic facility does not
meet the standard set by the statute for a no-migration variance.
We will, therefore, recommend to the Assistant Administrator for
Solid Waste and Emergency Response that a no-migration variance for
Atlantic be denied.
Each of the major technical deficiencies identified from our
evaluation of your petition is discussed in detail below. Any
questions concerning any of our technical analyses and findings may
be submitted in writing to Mr. James Michael of my staff.
Presence of Hazardous Constituents in the Ground-Water
Atlantic states that “ground-water will not be used for the
purposes of no—migration” (Vol.1, section 5.3.1.2.2, page 138), and
no quantitative analysis of ground-water was provided in the
petition. Therefore, in order to conduct a complete evaluation of
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2
Atlantic’s no-migration petition, we sought ground-water data from
the Pennsylvania Department of Environmental Resources (PADER).
Hazardous constituents above hea1th based levels were detected
in the 1987 and 1990 sampling events. Specifically, in 1987,
PADER detected benzene, chlorobenzene, l,4—dichlorobenzene, and
ethyl benzene above their respective health-based levels in the
downgradient monitoring wells. In 1990, PADER again detected
benzene and 1,4-dichiorobenzefle above their respective health-based
levels in the dowrigradient monitoring wells (see Table 1).
TABLE 1 - GROUND-WATER CONTAMINATION
HAZARDOUS
CONSTITUENT
(mg/i)
HEALTH-BASED
LEVEL
(mg/i)
1987: MAXIMUM
CONCENTRATION
DETECTED
(mg/i)
1990: MAXIMUM
CONCENTRATION
DETECTED
(mg/i)
BENZENE
0.005
3.652
2.990
CHLOROBENZENE
0.100
0.675
1,4—
DICHLOROBEWZENE
0.075
0.425
0.140
ETHYL BENZENE
0.700
1.825
Although Atlantic argues that the underlying ground-water has
been contaminated from other pre-existing sources, Atlantic’s
petition has failed to demonstrate that the existing ground-water
contamination did not result, even in part, from LTF operations.
A comparison of PADER data for the LTF’s upgradient and
downgradient wells shows in all cases that concentrations of
hazardous constituents in the downgradieflt monitoring wells exceed
the concentrations of the same constituents, if detected at all, in
the upgradient monitoring well. This indicates to us that
migration has already occurred that may be attributable to the
wastes in the LTF unit and not the hydrocarbon plume underlying the
general area where the LTF is located. Furthermore, we do not
believe that Atlantic’s ground-water monitoring system is capable
of differentiating the source of the constituents already detected
(see discussion below). As a result, we cannot definitively
conclude that the contamination which is already evident is not due
to migration of constituents from the LTF unit. This finding is
1 PADER performed only a qualitative analysis of organic
constituents in 1988, and did not perform any analyses for organic
constituents in 1989.
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3
necessary to satisfy the no-migration standard for land disposal of
restricted hazardous wastes.
Presence of Hazardous Constituents in the Soil—Pore Liauids
We understand that the LTF is divided into eight plots, A-H,
with one lysimeter located on each plot, and that Atlantic has not
applied wastes to plots G and H since 1985. The RCRA Permit
specifies that Atlantic should conduct soil—pore monitoring for
each plot on a semi-annual basis for the principal hazardous
constituents (PHC’s) identified, which include volatile and semi-
volatile organics and inorganics. In contrast to this requirement,
Atlantic’s petition included soil-pore monitoring data from only a
few plots, specifically, soil-pore liquid samples were collected
from only three plots in April 1989, four plots in July 1989, and
three plots in October 1989. Moreover, even though plot H has been
inactive since 1985, only the soil-pore liquids collected from plot
H were analyzed for the inorganic indicator constituents. These
limited data showed that benzene was detected above the health-
based level of 0.005 mg/i (see Table 2). The instances of benzene
in the soil pore liquids above the health-based level indicates
that this contaminant has migrated below the LTF at concentrations
considered hazardous by EPA.
Furthermore, because the soil-pore monitoring data provided by
Atlantic are so limited, we consider them insufficient to
demonstrate, to a reasonable degree of certainty, that inorganic
and other organic constituents have not migrated from the LTF.
TABLE 2 - SOIL-PORE CCNThXINATION OF BENZENE (mg/i)
5/21/89 I 7/19/89 I 10/24/89
PLOT H
0.013 I 0.010 I 0.007
Health—
based level
0.005 xng/l
Detectifla Releases at the Earliest practicable Time
In its petition, Atlantic has not demonstrated that the
ground-water and soil-pore monitoring systems at the land treatment
facility (LTF) are capable of detecting releases from the LTF at
the earliest practicable time, as is required by 40 CFR
§268.6(a)(4). Of particular concern is the inability to clearly
differentiate between past and present releases.
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4
Ground-Water Monitoring System
Atlantic stated that it developed its ground-water detection
monitoring program “in light of well-documented, pre-existing
ground-water contamination associated with the general area where
the LTF is located” (Vol. 1, section 6, page 55). We note that
during the 1989 and 1990 compliance monitoring evaluation (CME)
inspections, approximately three feet of standing oil was observed
in the downgradieflt monitoring well (W6), preventing collection of
ground-water samples with a three foot bailer. In addition, older
CME monitoring results indicated the presence of significant levels
of contamination, particularly total organic carbon (TOC) in the
underlying ground-water, up to 98,000 mg/i.
Although Atlantic attributes this contamination to pre-
existing site conditions and argues the LTF has not affected
ground-water quality, we are not aware of any assessment monitoring
program conducted by Atlantic during interim status, nor did the
petition describe any facility attempt to locate the sources of the
ground-water contamination. In addition, the constituents of a
weathered petroleum product plume would be very similar to those
detected in a release from your LTF managing wastes from petroleum
refining activities. Clear differentiation between the sources of
releases is necessary to support a finding of no-migration.
However, your petition does not provide this level of certainty.
In order to determine whether migration of hazardous
constituents has occurred, Atlantic plans to perform a trend
analysis on each of the constituents detected in the ground water.
We believe, however, that the elevated levels of constituents
contributed by the “free—product plume” will mask all but massive
releases from the LTF. We are concerned that, Atlantic intends to
rely on a si nificartt increase in the concentrations of the
volatile aromatic organic indicator compounds to provide early
detection of migrating hazardous constituents. For the purposes of
r o—migratiofl, we require petitioners to clearly demonstrate that
their facility is not contributing contaminants at concentrations
in excess of the applicable health-based levels. We do not believe
that a trend analysis will enable Atlantic to identify releases at
low concentrations which are frequently used as health-based levels
(e.g., 0.005 mg/l of benzene). We, therefore, conclude that
Atlantic’s ground-water monitoring system is inadequate for the
purposes of detecting constituent releases from the LTF at the
earliest practicable time.
Soil—Pore Liquids Monitoring System
Similarly, Atlantic has not demonstrated that its soil-pore
monitoring program will allow for the detection of constituent
migration at the earliest practicable time.
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5
Atlantic’s soil-pore monitoring program does not appear to
adequately monitor the effect of accumulated waste on localized
migration of hazardous constituents (i.e., hot-spots). Atlantic’s
petition indicated that it dumps wastes at the access ramps of each
plot and does not distribute these on the plots until several loads
have accumulated. The wastes spread over the plot may not be
evenly distributed, as evidenced by the “long-term accumulation of
treated waste residues in the proximity of waste off-loading ramps”
(App.l, page LTP—l8). The placement of the lysimeters was chosen
using a random number approach and are not placed near the access
ramps where the wastes are placed. It is, therefore, likely for
hot-spots to exist within the LTF, for which Atlantic’s soil-pore
monitoring program does not adequately account.
Second, in the petition, Atlantic described the physical and
chemical consistency of the soils as being highly variable over
short distances. We believe that the physical heterogeneity of
soil texture in the lower treatment zone (LTZ), as described, may
establish pathways of reduced resistance to migration of hazardous
constituents. We expect these pathways of reduced resistance to
“short—circuit” the land treatment processes and facilitate the
migration of hazardous constituents below the treatment zone. In
addition, if slag, ash, bricks, large chunks of concrete, wood
timbers, wires, and construction debris are present within the LTF,
as the petition states, we are concerned that these materials also
will form pathways of reduced resistance to soil water flow, or
themselves be a source contributing hazardous constituents.
Neither Atlantic’s placement of lysimeters, nor its predictive
computer modeling, accounted for the potential effects of such soil
variability or foreign material on the physical and chemical
processes within the treatment zone. We conclude, therefore, that
Atlantic’s soil-pore monitoring system is not capable of detecting
constituent migration at the earliest practicable time.
Maintaifliflc Minimum Separation
Federal regulations require that the depth-to-ground water at
land treatment facilities should be at least three feet from the
bottom of the treatment zone to the seasonal high water table (see
40 CFR 264.271(C) (2)). Specific depth-to-ground—water measurements
beneath the LTF have not been provided in this petition. However,
based upon topographic maps provided by Atlantic, it appears that
most of the Atlantic’s LTF is at an elevation of about 20 feet
above sea level. In addition, seven to thirteen feet above sea
level was cited as the water table elevation range (Vol.1, section
4.5.1, page 4-21), therefore, we estimated the depth of the water
table as also being between seven and thirteen feet below ground
surface. This estimate indicates that portions of the LTF may not
be three feet above the seasonal high water table as is required by
40 CFR §264.271(C) (2).
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6
In addition, Pennsylvania State regulations define the
seasonal high water table as “the presence of mottling” (see 25
Pa.Code §75.264 (U) (5)). As is shown by Attachment I, mottles were
reported at various depths within the LTF. The presence of mottles
in the LTF indicates that there may be an insufficient separation
between the LTZ and upper saturated zone (i.e., the presence of
saturated soil conditions). We believe, therefore, that the
presence of mottles within the LTF soils further supports our
determination that Atlantic has failed to demonstrate compliance
with 40 CFR §264.271(c) (2).
Incomplete Petition
Finally, our review indicates that the petition is incomplete
and that information and clarification in areas beyond those
highlighted above would be needed to complete the petition.
However, because of the problems discussed above, we believe we
have sufficient information at this time to move toward a denial of
your petition.
It is our practice to give petitioners the option of
withdrawing their petitions to avoid a negative publication in the
Federal Register . If you prefer this option, you must send us a
letter withdrawing your petition and acknowledging that the
petitioned wastes are still considered to be restricted wastes
subject to the Third Third Land Disposal prohibitions. This letter
should be forwarded to the following address within two weeks of
the date of receipt of today’s correspondence:
Elizabeth Cotsworth, Chief
Assistance Branch (OS—343)
U.S. Environmental Protection Agency
401 14 Street, S.W.
Washington, D.C. 20460
If you choose not to withdraw your petition, we will recommend
that a proposed denial decision be published in the Federal
Register .
Sincerely,
Jeffery D. Denit, Deputy Director
Office of Solid Waste
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7
cc: Elizabeth Cotsworth, PSPD, OSW
James Michael, PSPD, OSW
Paul Gotthold, Region III
Hon Lee, Region III
Larry Lunsk, PA DER
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8
bcc: Terry Keidan, AB, PSPD, OSW
Allyson Ugarte, AB, PSPD, OSW
Dave Reeves, AB, PSPD, OSW
Kathy Stein, OE
Bill Kline, WMD, OSW
Douglas Donor, Region III
Howard Finkel, ICF Incorporated
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9
ATTAC 4ENT I
Depth to Uppennost Occurrence of Mottles (inches)
Plot
Horizon
Depth
BTZ
Separation
A
2F1
37—48
37
None
B
2F
39—51
39
None
C
Z0 12
11—40
40
28
None
D
2F2
35—44
7
E
Z0 12
10—35
35
None
F
Z0 12
10—38
38
None
G
2F1
28-32
28
None
H
4F3
48—53
28
20
Background
Fl
0-28
BTZ is the
fill zone)
Source:
App.3, Attachment 5-2
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,ID
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9551. 1991 (07)
WASHINGTON. D.C. 20460
—. .. OFcICE O
3 - . . SOLID WASTE ANO EMERGENCY RESPONSE
MEMORANDUM
SUBJECr: Applicability of the Land Disposal Restrictions to Exported Wastes
FROM: Sylvia K. Lowrance, Dir ,
Office of Solid Waste
TO: Gerald M. Levy, Chief
MA Waste Management Branch
Region I
This memorandum responds to your March 8, 1991, request for clarification
concerning the applicability of the Part 268 Land Disposal Restrictions (LDR) program
to wastes to be exported for treatment and/or recovezy; in particular, the testing and
record.keeping requirements of Part 268.7.
The requirements of Part 268 are applicable to hazardous wastes (as stated at 40
CFR 268.1(b)) unless specifically provided otherwise in Part 261 or Part 268. Neither
Part 261 nor Part 268 generically exclude the export of hazardous wastes from the LDR
requirements. Therefore, the requirements of Part 268.7(a) are applicable. However,
this is not meant to imply that the treatment standards must be met prior to disposal in
another country.
As a secondary matter, the description “corrosive, metal.cont2ining wastes” used
in your March 8, 1991 correspondence is insufficient to make a determination regarding
the regulatory status of the secondary material when destined for rec1 mation.
Specifically, as presented in Table 1 of Part 261.2, a characteristic by-product or sludge
that is reclaimed is not a solid waste (and therefore not subject to the part 268
requirements); however, a characteristic spent material that is reclaimed is a solid waste
(and therefore must comply with the Part 268 requirements). In addition, scrap metal
that is hazardous solely due to a characteristic is not subject to the LDR Part 268
paperwork requirements (See 40 CFR 261.6(a)(3)(B)(iv)).
Should you have further questions, or need more information, please contact
Charles Hunt, of my staff, at Fl ’S 475-8551.
nnte i oi l ReCYCIea Pace’
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9551.1991(08)
M.AY 29 ‘ :‘
Mr. Glenn A. Weiss
Refinery Manager
Texaco USA
Puget Sound Plant
P.O. Box 622
Anacortes, Washington 98221
Re: No-Migration Petition submitted for Texaco’s AnacorteS,
Washington Land Treatment Facility (F-91-NTAP-FFFFF)
Dear Mr. Weiss:
I am writing in regard to your May 18, 1990 “no-migration”
petition, which requests a variance under 40 CFR §268.6 to allow
Texaco to continue the land treatment of restricted wastes at its
Anacortes, Washington land treatment facility (LTF). After a
careful review of your petition, we have identified three major
technical problems. These are:
• Evidence of releases from the LTF in excess of health—
based levels;
• Inadequate ground-water monitoring system for purposes
of no-migration; and,
• Apparent non-compliance with other regulatory
requirements.
Based on these technical deficiencies, we have concluded
that the Texaco facility does not meet the standard set by the
statute for a no-migration variance. We will, therefore,
recommend to the Assistant Administrator for Solid Waste and
Emergency Response that a no-migration variance for Texaco be
denied.
Each of the major technical deficiencies identified from our
evaluation of your petition is discussed in detail below. Any
questions concerning any of our technical analyses and findings
may be submitted in writing to James Michael of my staff.
Presence of Hazardous Constituents Below the Treatment Zone
Our review of Texaco’s 1988 soil-pore monitoring data for
the LTF indicate that chromium, benzene and nickel have already
migrated beyond the unit boundary above their respective health-
based levels (HBLs). See Table 1.
-------
2
TABLE 1 - EVIDENCE OF MIGRATION BEYOND UNIT BOUNDARY
HAZARDOUS
CONSTITUENT
HEALTH-BASED
LEVEL
1988: MAXIMUM
CONCENTRATION
DETECTED
BENZENE
0.005 mg/i
0.019 mg/i
NICKEL
0.01 mg/i
0.263 mg/i
CHROMIUM
0.01 mg/i
0.121 mg/i
Furthermore, the analysis of soil core monitoring data
collected in 1989 indicates that benzo(a)-anthraCefle,
benzo(a)pyrefle, and benzo(b)fiUOraflthefle were detected below the
treatment unit in excess of their respective HBL5. See Table 2.
In addition, chrysene, fluoranthene, naphthalene, i-methyl-
naphthaiene, phenanthrene, and pyrene were detected in the soil
cores at statistically significant concentrations. Although the
concentrations detected do not exceed HBL5, statistically
significant concentrations below the treatment zone indicate that
these constituents are migrating and further add to our concern
(see Attachment 1).
TABLE 2 - EVIDENCE OF MIGRATION BEYOND UNIT BOUNDARY
HAZARDOUS
CONSTITUENTS
HEALTH-BASED
LEVELS
LYSIMETER
SAMPLE DATE
AND NUMBER
1989: MAXIMUM
CONCENTRATION
DETECTED
BENZO(A)
ANTHRACENE
0.055 mg/i
Jun/89
1.361 mg/i
Oct/89
0.993 mg/i
BENZO(A)
PYRENE
0.055 mg/i
Jun/89
0.454 mg/i
Oct/89
0.3i0 mg/i
BENZO(B)
FLUORANTHENE
0.055 mg/i
Jun/89
0.784 mg/i
Oct/89
1.676 mg/i
-------
3
Another indication of the migration of hazardous waste
constituents is the increase in the concentration of total
organic carbon (TOC) at the base of the treatment zone.
Attachment 2 shows the concentrations of TOC in samples collected
from the 1988 lysimeter monitoring events. The average
concentration of the background lysimeter samples in plot BG-SE
is 13 mg/i. A significant increase in TOC concentration is
considered to be the average background value plus two standard
deviations, or 27 mg/i. As can be seen from Attachment 2, the
average concentration of TOC detected from the 1988 lysimeter
system exceeds the significance level of 27 mg/i. These data
indicate to us that the LTF is not successfully degrading or
immobilizing all wastes and further support our conclusion that
the migration of hazardous constituents is occurring.
In the petition (Section 1, page 5), Texaco attributes
the detection of constituents at the base of the treatment zone
in the West LTF (WLTF) plot #8 to wastes buried during the
terracing of the plot. There is no explanation in the petition
of how this could occur. Lacking this explanatory information,
we cannot evaluate your statement, particularly since the plot
is situated in a relatively flat area, only portions of the
surface layer were modified, and buried wastes are located 7.5
feet below the surface of the plot ( i.e. , plot #8 would have
required very little cut and fill). Furthermore, Texaco’s
petition did not explain the presence of hazardous constituents
detected in the other plots, such as plot #9, also in the WLTF
(see Attachment 2).
Detectina Releases at the Earliest Practicable Time
In its petition, Texaco has not demonstrated that the
ground-water system at the land treatment facility (LTF) is
capable of detecting releases at the earliest practicable time,
as is required by 40 CFR §268.6(a) (4)
According to the petition, the depth to ground water is too
great to deem it an important factor in determining subsurface
contaminant migration (Volume 1, Table Exec—1). Texaco based
this conclusion on the historic absence of contaminants in
ground—water monitoring samples. Consequently, Texaco does not
recommend monitoring of the primary aquifer. The petition
indicated elsewhere, however, that perched water tables are
present at the facility and that saturated conditions are present
through most of the geologic units. Based on this facility
description, we consider ground-water monitoring to be important
for the purposes of a no-migration variance for the LTF.
Based on our evaluation of some of the features of Texaco’s
ground-water monitoring system, we believe this system is
inadequate for early detection of migration because of well
screen location. Attachment 3 illustrates well-screen position
-------
4
for twenty monitoring wells at the East and West LTFs, nine of
which are down-gradient wells. Of those nine, six are screened
between six and twenty one feet below the top of the water table
making it possible for a shallow plume to be missed by
monitoring. In addition, as illustrated in Attachment 3, two
monitoring wells have been screened over an interval that does
not intercept ground water, and well 17 is screened above the
ground-water depth.
Maintaining Minimum Separation
Federal regulations require that the depth-to-ground water
at land treatment facilities should be at least three feet from
the bottom of the treatment zone to the seasonal high water table
(see 40 CFR §264.271 (c)(2)). We believe that Texaco has failed
to demonstrate that either the West or East Field of Texaco’s LTF
has successfully maintained this minimum separation.
Unfortunately, the petition did not present a comprehensive
data set showing depths to the water table. Attachment 4,
however, displays that a sufficient amount of data was compiled
from the no-migration petition to indicate that a water table
exists within three feet of the treatment zone in the East LTF
(ELTF). If an accumulated waste layer is assumed, we estimate
the minimum acceptable depth to the seasonal high water table to
be 9.5 to 11.5 feet below the soil surface (depending on waste
accumulation). Attachment 4 shows that at the ELTF, a separation
in that range occurs infrequently in any piezometer or monitoring
well.
Texaco indicates that the observed “perched” water table is
seasonal and confined to a shallow surface soil layer (App. I,
Vol.5, pages XIX-27 and XIX—32). Texaco, therefore, does not
consider this to be a perched water table, but rather a temporary
condition of excessive soil wetness. Texaco further associates
nigh water table readings with leakage around the piezometer
casing allowing surface water to enter the piezotueters (App. I,
Vol.5, page XIX-38). only two of the five piezometers tested,
however, showed any immediate response to a rainfall event. The
data shown in Attachment 4 indicate that this condition persists
throughout the year with slight fluctuations in level. The
hydrology section of Texaco’s permit application also indicates
that saturated conditions appear continuous through zone E
(App.I, Vol.3, page XV—20) and are not restricted to a shallow
surface layer. We, therefore, do not believe that the data
support a zone of restricted downward flow. Instead, we conclude
that the data support the existence of a perched water table and
that continuous saturated conditions exist throughout the
treatment zone, particularly at the ELTF.
-------
5
Data supplied with the petition does not indicate that
sufficient depth to the water table exists under the West LTF
(WLTF). In fact, mottling, indicating saturated soil conditions,
was reported in the WLTF soil descriptions in all profiles and
within 9 to 34 inches from the soil surface (Sec.4, page 8).
Saturated conditions in the WLTF surface layer is also reported
in the hydrology section of the permit application (App.I, Vol.3,
page XV-35). In light of this information, Texaco did not
provide sufficient piezoinetriC data for the WLTF to substantiate
that depth to the seasonal high water table meets the
requirements. Therefore, in regard to both the ELTF and WLTF,
the minimum separation required by 40 CFR §264.271(C) is not
being maintained. This is a deficiency that precludes granting a
no—migration variance to the facility.
Incomplete Petitiofl
Finally, our review indicates that the petition is
incomplete and that information and clarification in areas beyond
those highlighted above would be needed to complete the petition.
However, because of the technical nature of the problems
discussed above, we believe a technical basis already exists that
is sufficient to support a denial of your petition.
It is our policy to give petitioners the option of
withdrawing their petitions to avoid a negative publication in
the Federal Register . If you prefer this option, please send us
a letter withdrawing your petition and acknowledging that the
petitioned wastes are still considered to be restricted wastes
subject to the Third Third Land Disposal prohibitions. This
letter should be forwarded to the following address within two
weeks of the date of receipt of today’s correspondence:
Elizabeth Cotsworth, Chief
Assistance Branch (OS-343)
u.s. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
If you choose not to withdraw your petition, we will
recommend that a proposed denial decision be published in the
FederaL Register .
Sincerely,
Jeffery D. Denit, Deputy Director
Office of Solid Waste
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ATTACEXENT 3.
su aary of Significant BTZ Soil-Core Detections (Mg/kg)
J I 89
Jir 89
Oct89
9
Oct89
9 D
N.Mth•
- IMI
Constftusnt/PLot 8
bi
knzo(.)AIIthraCIflS 1361.4 1666.5 1464.5 993.4 55
I.nzo(.)PyreVIS 660.1 453.8 653.8 310.4 55
S.nzo(b)FtuOfWlthIflS 783.8 2475.2 2475.2 1676.4 55
Chryar 3465.3 1382.0 1382.0 910.6 --
F uoranthens ND 2681.5 2681.5 1821.3 3.2 .E7
NØ thsIsns ND 206.3 206 ..3 ND 3.2.f7
1-PS.thytn.ØithatinS 5775.6 762.6 742.6 476.0 1.6.E6
P$in nthsns 3259.1 4746.2 4746.4 3311.4 3.2 .87
Pyr.ns 2681.5 391.9 248.6 3.2.87
Note: £‘ r.preuntS 1 x lO l l
-------
ATTA MENT 2
TOC Concentrations in Samples Collected
From the 1988 Lysimeter System (mg/i)
11/3/88
12/21/88
GBRICK AVERAGE
Plot PCUP GBRICK
PCUP
1 32 44 53 57 46
3 70 91 101 96 89
4 47 75 115 102 85
6E 82 15 106 61 66
6EC 23 28 81 79 53
6W 256 261 185 203 226
7 114 189 190 236 182
8 384 348 293 289 329
9 287 287
lOW 168 248 116 194 182
11 58 47 142 60 77
BG—SE 6 24 12 19 13
BG—T1 18 4 5 9
BG+2STD 27
-------
ATTA IBNT 3
Distances Froa Top of Well Screen to Water Table (feet)
atsr
Depth of
Feet to
Top of
GroLv
Well Gro..I
Depth
to
wtsr
Screen
Gro.s
Iottcu of
Top of
?ra
to
Well No. $urf.ce
Screen
Screen
Groiad
1 1.49 70.79 60.79 56.49 4.3
2 1.79 45.27 35.27 30.12 5.15
3 2.25 75.01 65.01 43.13 21.88
4 Abw dwisd- July 1916
11 2 51.14 61.14 13.09 21.05
12 1.5 39.51 29.51 NA NA
13 1.92 30.06 20.06 3.22 16.84
14 1.92 33.03 23.03 18.34 4.69
15 2.03 51.53 61.53 22.77 18.76
16 1.3 59.96 47.96 51.65 -10.13
17 2.01 46.1 36.1 59.14 -23.04
21 2.06 25.21 15.21 1.71 13.5
22 2.12 25.28 15.2$ 0.91 14.37
23 2.07 24.78 14.78 8 6.78
24 2.26 40.13 30.13 $ottcd at
25 1.92 36.03 26.02 34.1 -1.71
26 1.25 50.02 60.02 S.ttcd at
31 1.82 27.06 17.1$ 16.23 0.95
32 1.9 65.79 35.89 38.44 -2.55
33 2.28 51.12 48.22 52.37 -4.15
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ATTA EXE1IT 4
Distance froa the Soil Surface to the Piezometric Surface
Dets p 6 p6 p6 p7 p8 p10. p12. w13 w21 w22 w23 1
where: the letter prefix to the label (p,v) denotes whether it is
a piezo eter or a zonitoring well.
N.r-8S
2.4
2.1
2.3
3.2
2.7
3.8
4.1
1.4
2.3
Jui- 85
2.2
1.1
2.0
2.9
2.2
5.5
3.5
1.4
2.7
Jul-85
3.4
3.3
3.7
4.4
3.2
7.6
4.9
3.2
5.0
S.p-85
3.4
3.2
3.7
3.9
2.1
9.0
4.6
2.1
5.7
u -as
1.8
1.9
2.6
3.6
2.6
2.2
1.4
0.6
0.7
0.c-$5
1.3
2.0
2.6
3.6
2.6
2.2
1.4
0.6
0.7
Apr-86
1.7
1.3
1.6
2.3
1.9
2.5
1.7
0.5
0.1
M -86
3.4
3.3
3.6
2.8
2.3
7.2
4.6
2.8
4.8
t-86
3.2
3.1
3.5
3.5
3.1
8.0
3.5
2.5
4.4
D.c-86
6.2
6.6
7.3
4.7
2.5
2.8
2.6
0.8
1.2
Jw -87
6.4
6.7
8.3
4.5
2.0
2.1
1.2
0.4
0.1
Apr-87
7.4
8.6
9.8
6.1
3.5
3.8
3.2
1.0
1.2
Jiii-87
8.3
LI
9.9
6.1
3.9
6.1
4.1
2.7
3.8
Sip- Il
9.3
9.2
10.2
1.3
5.2
9.5
5.2
3.9
6.2
Nov-87
7.5
10.2
11.4
8.9
5.2
11.0
4.1
3.2
6.2
Apr- I8
5.0
8.1
10.4
5.4
2.0
2.7
0.8
2.9
3.2
0.9
1.9 4.9
N.y-al
6.3
8.6
10.3
6.1
2.5
2.5
0.0
1.2
Ju’i-88
6.2
8.6
10.3
6.0
2.8
2.3
0.8
3.3
1.7
0.9
8.0 3.8
Jut-U
7.4
8.5
10.3
6.6
3.4
3.6
2.9
7.0
3.9
2.6
4.4 3.6
Ne-8 1
$3
LI
10.2
7.0
4.5
4.1
3.7
7.5
4.4
3.1
5.3 4.3
Sip-U
8.1
9.2
10.5
7.3
49
4.2
4.2
86
4.7
3.6
5.9 4.3
o v- 8S
7.5
10.2
11.6
8.9
5.2
2.5
1.9
0.5
0.9 2.6
D.c-U
4.6
7.6
10.6
6.0
1.6
2.3
0.2
D .c-I l
6.0
7•
11.6
4.3
0.2
2.3
0.3
2.0
2.3
3.1
0., 2.7
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9551.1991(09)
MAT 29 1991
Robert A. Olsen
Senior Process Engineer
Conoco Billings Refinery
P. 0. Box 2548
Billings, MT 59103—2548
Re: No Migration Petition for Conoco’s Land Treatment Facility
(LTF), Billings, MT (F-91-NCBP-FFFFF)
Dear Mr. Olsen:
The purpose of this letter is to respond to issues raised by
Conoco during EPA’S site visit on May 7, 1991. Specifically,
Conoco requested guidance on how they should address
bioaccuinulation in the assessment of environmental impacts at the
Billings land treatment facility. To address this issue, Conoco
should first assess the environmental threat that exists at the
LTF. An environmental threat can be assumed to exist at a LTF
only if three criteria are met. These are:
1) Sensitive environmental receptors are within the
vicinity of the site (such as aquatic ecosystems or
endangered or threatened species located within 1000
feet);
2) There is an exposure pathway by which these receptors
may be exposed to contaminants from the site (is there
hydraulic connection between ground water and receptors
or airborne transport of contaminants); and,
3) The receptor could be exposed to the contaminants at
hazardous levels.
If any of these three conditions does not hold, then no
significant ecological threat is presumed to exist and the issue
of bioaccumulation does not need to be addressed. If these
conditions do exist, Conoco should:
1) Determine and state which substances present in
Conoco’s hazardous waste have a bioconcentration factor
(BCF) over 1000, particularly mercury, cadmium, lead,
and zinc. The most reliable source of peer-reviewed
BCF values are EPA ambient water quality criteria
documents;
-------
2
2) Acknowledge those substances present in the waste and
their potential for bioaccumulation; and,
3) And dismiss possibilities (no hazardous constituents
leaving the treatment zone, no environmental receptors,
no surface runoff).
If you have any additional questions on this issue or
related issues, please call me at (202) 475-9712.
Sincerely,
Newman Smith
Office of Solid Waste
Disposal and Technology Section (OS—343)
cc: Mike Gansecki, Region VIII
Stephanie Wallace, Region VIII Montana Office
Duane L. Robertson, DHES
James Michael, PSPD, OSW
Terry Reidan, PSPD, OSW
Howard Finkel, ICF, Inc.
-------
UP • .0 STATES ENYI2GS MES4TA1. PROTEC.. .JN AGENCY
9551. 1991(10)
JUN 5 1991
Mr. Allen P. Lusby
Safety/Environmental Director
EFCO Corporation
County Road & Bridle Lane
Monett, Missouri 65708
Dear Mr. Lusby:
We have received your letter of May 16, 1991, concerning
certification/notification for multiple-constituent wastes
subject to the land disposal restrictions.
As you stated in your letter, EFCO Corporation generates
F019 sludge waste and thus must make a determination if the waste
is restricted from land disposal under 40 CFR 268. F019 waste is
listed in 40 CFR Part 261, Subpart D. Pursuant to 40 CFR
267.7(a), based on knowledge and testing of. the extract, the
waste is determined to be restricted from land disposal under
Part 268.
Under 40 CFR 268.7(a) (1), if the waste does not meet the
applicable treatment standards or exceeds applicable prohibition
levels, EFCO is required to notify, in writing, the treatment,
storage, or disposal facility (TSD) what the appropriate
treatment standards and applicable prohibition levels, as set
forth in Subpart D, are.
EFCO makes notification to the TSD that it is managing a
restricted waste under 40 CFR 268 and that the waste does not
meet the applicable treatment standards for Chromium (total), EPA
Waste Code D007 (268.41, Table CCWE).
According to 40 CFR 268.41, Table CCWE, and 40 CFR 268.43,
Table CCW, F019 waste (nonwastewater) contains three regulated
hazardous constituents. EFCO’s F019 waste does not meet the
applicable treatment standards for the Chromium (total) waste
constituents, but it does meet the applicable treatment standards
for the Cyanides (total) waste constituent.
-------
Wr.. • .D STATES ENVIROtLMEI4TAL PROTEC. .JH AGENCY
—2—
The Agency’s position on the question of multiple-
constituent waste in which some constituents meet the treatment
standards and others do not is that the waste--not individual
constituents-—must be certified to meet the standards. The
phraseology is specific regarding “waste” in 268.7(a) (1) and
(a) (2) (ii). Thus, in your case, even though the Cyanides (total)
component meets the standard, you must notify the TSD that your
waste as a whole does not meet the standard because of the
Chromium (total) component. The TSD should, therefore, be told
to treat all constituents of the waste to the treatment
standards.
Should you need additional information, you may contact Pat
Fox at (703) 308—8458.
Sincerely,
Sylvia K. Lowrance
Director
Office of Solid Waste
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9551. 1991(11)
SEP 21 1991
T.L. Nebrich, Jr.
Waste Technology Services, Inc.
640 Park Place
Niagara Falls, New York 14301
Dear Mr. Nebrich:
I am writing in response to your letter of September 18, 1991
regarding the land disposal restrictions program. In particular,
you raise two questions concerning the applicability of California
list prohibitions following promulgation of the Third Third.
First, you ask what treatment standards must be met to land
dispose of soils or other wastes that are granted a national
capacity variance but must meet California list prohibitions? The
treatment standard that must be met depends on which California
list waste is present. Under 40 CFR 268.42(a)(1), liquid and
nonliquid PCBs of certain concentrations must be incinerated or
burned in high efficiency boilers. Under 40 CFR 268.32 and
268.43(a), numerical concentrations are specified as prohibition
levels or treatment standards. Any appropriate technology may be
used to meet numerical treatment standards.
Second, you ask whether the California list prohibitions
remaining in effect for HOC3 apply only to characteristic wastes
or also to listed wastes containing HOCs? EPA specified in the
preamble to the California list final rule that California list HOC
standards ar. only applicable to those HOCs that are not covered
by other Ag CY ruleniakings...’ 52 Fed. Req. 25760 at 25773.
Similarly, the regulations specify at 40 CFR 268.42(a)(2) that
California list HOC standards ‘do not apply where the waste is
subject to a part 268, subpart D treatment standard for a specific
HOC (such as a hazardous waste chlorinated solvent for which a
treatment standard is established under (section] 268.41(a)).’
The California list HOC standards apply only to characterist4c
wastes because all listed wastes either have their own treatment
standards or, because they are newly listed wastes. the Califnrn4i
-------
list prohibitions do not apply; more specific (i.e., waste code-
specific) standards have now been promulgated for all wastes listed
prior to November 1984, and the California list prohibitions do not
apply to wastes listed after November 1984. 55 Fed Reg. at 22674-
22 675.
I hope you find this discussion helpful. Please feel free to
contact me at 703-308-8434 if you have any further questions.
Sincerely,
Richard J. lUnch, Chief
Waste Treatment Branch
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9551.1991(12)
l)tt I J 1991
Mr. John R. Kampfheflkel
Chief Environmental Engineer
Koch Refining company
p.o. Box 2608
Corpus Christi, Texas 78403
Re: No_Migration Petition submitted for Koch Refining’s Corpus
Christi, Texas Land Treatment Unit (F_9lNKCPFFF ’fl
Dear Mr. Kampfheflkel:
We have reviewed the information Koch Refining CompanY
(Koch) submitted on FebrUary 1, 1991 regarding the no-migration
petition for the Corpus ChriSti Refinery land treatment unit
(LTU), and found the additional information on unsaturated zone
and ground-water monitoring useful in answering some of the
we had about the petition. However, the
information from Koch did not resolve some of the critical
deficiencies noted in the original petition submission. These
include the presence of hazardous constituents in soil-pore
liquidS, below the treatment zone, and in the ground water.
PRESENCE OF HAZ RDOUS CON5TITUEN’rs IN THE SOIL-PORE LIQUIDS
Your letter suggests that the detection of benzefle in soil-
pore liquids was most likely caused by using a pump contaminated
with oil and grease. However, after our review of the type of
lysimeter used by Koch, we do not consider this explanation to be
convincing. specificallY. our examination of the mechanics of
the pressure-Vacuum type lysiineter indicates that the presSure
vacuum pump and the connecting tube do not come in contact with
the liquid sample. Therefore, any contamination occurring from
the pump would be limited to the air pumped into the lysimeter
during the evacuation phase.
During the September 1988 sampling event, 2-butanOne and
ethyl benzefle were detected at higher levels than was benzene.
Since benZefle is a relatively volatile constituent, and is
expected to degrade at a faster rate than 2 -butanOfle or ethyl
benzefle, the absence of these more persistent constituents during
‘!p 1 i TitC 4ri r r 4 iippnrt 1 tthri r ntR as. .
Tf th
e crQ. aurlrLq i d i on1tOr1fl event..w4s..G i6 W
_ t , i 9 O
-------
—2—
residual contamination from the September 1988 sampling event, 2-
butanone and ethyl benzene also should have continued to be
present. Your letter also fails to provide any alternative
source or explanation for the detection of 1,2-dichioroethane,
toluene, and styrene in the soil-pore liquids at concentrations
exceeding the health based levels.
In regard to the inorganic constituents, your letter
concludes that “because there are no data available from LI-i
since September 1988, it cannot be determined whether the
concentrations of heavy metals from the LTU soil-pore liquid
samples are the result of a release from the LTU or due to other
factors (e.g., varying background conditions, laboratory
inaccuracies).” Koch’s inability to collect background
monitoring data after September 1988 is unfortunate for the
showing you are attempting to make. However, for the purposes of
EPA’S data evaluation, a sample was successfully collected from
the background lysimeter (LI-i) during the September 1988
monitoring event when the bulk of the data showing migration also
were collected. Those data show that beryllium, chromium, lead,
and nickel were detected in the active area lysixneters, at
concentrations exceeding the HBLs, but not in the background
sample. The lack of background data from other monitoring events
does not affect the validity of the data obtained from the
September 1988 sample. Without supportive comparative background
data, we are obliged to discount other factors for the
contamination. We, therefore, continue to conclude from Koch’s
petition data that hazardous constituents have already migrated
beyond the unit boundary.
PRESENCE OF HAZARDOUS CONSTITUENTS BELOW THE TREATMENT ZONE
Your letter claims that because background soil-core data
have not been collected, EPA cannot assume that data showing
antimony and beryllium below the treatment zone indicate
migration. While it is unclear why Koch did not collect
background soil cores ( i.e. , the permit stipulates that Koch must
collect background soil—core samples within 30 days of permit
issuance — August 31, 1988), in their absence it is impossible to
make a conclusive showing that migration has not occurred. We
also consider the detection of beryllium in soil-pore liquids in
the active area lysiineters to strengthen our conclusion that
beryllium detected in the soil-core sample is from the LTU.
In addition, Koch claims that the detection of organics and
oil and grease below the treatment zone was caused by waste
migrating from Carson’s Pit and not the LTU. Koch supports their
claim by stating that concentrations of the organic constituents
increased with depth below the lower treatment zone, and organic
constituents were not detected in any of the soil-core samples
-------
—3—
collected from the three sampling intervals ranging from 1.5 to
5.5 feet.
Although it may be possible for organic constituents and oil
and grease to have originated from Carson’s Pit, due to either
mounding or as a direct result of a portion of Carson’s Pit
extending beneath the LTU, we do not believe that Koch has
clearly demonstrated thab Carson’s Pit accounts for the observed
contamination levels and patterns. Your suggestion of Carson’s
Pit as the contamination source provides no explanation of the
various data in the petition showing detection of the following
constituents in the 1.5 to 3.25 foot interval in one or more
locations and/or occasions:
benzene, ethyl benzene, xylenes, 1-methylnaphthalene,
3-methylphenol, 7, 12-dimethylbenZ(a) anthracene, chrysene,
methyl chrysene, naphthalene, phenanthrene, benzo(a)pyrene,
2,4-dinitrophenol, fluoranthene, pyrene, and toluene.
Your claim that organic constituents were not detected in any of
the soil—core samples collected from the three sampling intervals
ranging from 1.5 to 5.5 feet is at odds with these petition data.
We, therefore, continue to believe that wastes are moving through
the unit, and that Koch has failed to demonstrate to a reasonable
degree of certainty that there will be no migration of hazardous
constituents from the disposal unit.
PRESENCE OF HAZARDOUS CONSTITUENTS IN TEE GROUND WATER
Finally, the presence of vanadium above its health based
level in the ground water, as detected in August 1988, remains a
primary concern. Koch claims that the August 1988 monitoring
data may be unreliable and nonrepresentative of the ground water
because inorganic constituents were found in all of the
monitoring wells, but were not found during subsequent events.
Koch’s conclusion that the August 1988 monitoring data may
be invalid is not supported by the fact that low levels of other
inorganic constituents (beryllium, cadmium, nickel, arsenic, and
mercury) were only found during the August event. Rather, the
presence of the inorganic constituents could indicate that
contamination plumes occur sporadically. We note that vanadium
was detected in two of the four downgradient monitoring wells,
but not in the upgradient monitoring wells during the August 1988
sampling event.
Furthermore, based on the petition, we disagree with Koch’s
assertion that inorganic constituents were not detected during
subsequent monitoring events. Although not found above its
health-based level, vanadium was detected during the March 1989
monitoring event at concentrations ranging from 0.018 mg/i to
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—4—
0.057 mg/i. In addition, nickel was detected during September
1988, January 1989, and December 1989 sampling events at
concentrations ranging from 0.055 mg/i to 0.15 mg/i.
In order to help support a claim regarding unreliable
ground-water data, analytical data ( e.a. , QC data) indicating
field or laboratory contamination would be necessary. We,
therefore, continue to believe that the petition data show that
vanadium has already migrated beyond the unit boundary.
As a result of our review of your supplementary information,
we have concluded that the technical basis still exists for
proposing to deny your petition. After making our recommendation
to EPA’s Assistant Administrator for Solid Waste and Emergency
Response, we will proceed to publish a proposed denial in the
Federal Register . If you wish to avoid a negative publication,
you may send a letter withdrawing your petition and acknowledging
that Koch Refining Company considers the petitioned wastes to be
restricted wastes subject to the Third Third Land Disposal
prohibitions. You should forward this letter to:
James Michael, Acting Chief
Assistance Branch (OS-343)
Office of Solid Waste
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
Any questions regarding our findings may be submitted in
writing to Mr. Chris Rhyne of my staff.
Sincerely,
Jeffery D. Denit, Deputy Director
Office of Solid Waste
cc: James Michael, PSPD, OSW
Chris Rhyne, PSPD, OSW
Bill Honker, Region VI
David Neleigh, Region VI
Minor Hibbs, Texas Water Commission
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Suxnmarv of Soil-Core Monitoring Data for Oil and Grease ( ina/ka )
Soil— Core
#
0’ —
1.5’
1.5’ —
3.25’
3.25’
—5.0’
5.0’ —
5.5’
5.5’ —
6.5’
6.5’ —
7.5’
06/29/89
1
75,000
160
58
51
<10
<10
2
29,000
256
74
<10
18
<10
3
120,000
340
1,000
34
26
<10
4
190,000
46,000
100
50
<10
<10
5
42,000
34
<10
<10
<10
<10
6
110,000
520
18
<10
<10
<10
12/19/89
1
11,000
290
92
1,900
7,000
4,600
2
110,00
290
<10
<10
<10
<10
3
<10
<10
<10
<10
<10
<10
4
110,000
50,000
31,000
170
160
250
5
69,000
92
94
50
<10
<10
6
940
<10
<10
<10
<10
<10
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9551.1991(13)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
O ICEOF
SOLID WASTE AND EMERGENCY RESPONSE
Mr. Douglas MacMillan, Director
Hazardous Waste Policy
National Solid Wastes Management Association
Suite 1000
1730 Rhode Island Ave., N.W.
Washington, DC 20036
Dear Mr. MacMillan:
This letter responds to your inquiry dated October 11, 1990
about several aspects of the Third Third land disposal
restrictions final rule. Your letter includes questions about
the following topics: lab packs, inorganic solid debris,
certification/notification requirements, and the disposal of DOOl
ignitable wastes. Responses to the specific questions about each
of these topics are presented below.
1. Lab Packs
Your question concerns the language in 40 CFR 264.316(f) and
40 CFR 265.316(f). You refer specifically to perceived
contradictions between the first and second sentences of these
paragraphs; however, it is assumed that you are actually
concerned with the language of the second and third sentences
which specifies that “(p]ersons who incinerate lab packs
according to the requirements in 40 CFR 268.42(c) (1) may use
fiber drums in place of metal outer containers. Such fiber drums
must meet the DOT specifications in 49 CFR 173.12 and be
overpacked according to the requirements in paragraph (b) of this
section.” In particular, you request clarification of whether
this language requires fiber drums to be overpacked in metal
drums. It is assumed that your confusion stems either from the
DOT specifications in 49 CFR 173.12, or the overpacking
requirements in 40 CFR 264.316(b) and 40 CFR 265.316(b). The
language of the DOT specifications and the § 264.316(b) and
265.316(b) overpacking requirements will be examined below.
The language specifying that fiber drums must meet the DOT
specifications in 49 CTh 173.12 does not require fiber drums to
be overpacked in metal drums. In fact, paragraph (b) of 49 CFR
173.12 states: “The outside packaging must be a DOT
specification metal fiber drum” (emphasis added).
Moreover, the language specifying that fiber drums must be
overpacked according to the requirements in § 264.316(b) and
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265.316(b) does not require. overpac]cing of fiber drums in metal
drums. The first sentence of H 264.316(b) and 265.316(b)
(“(t]he inside containers must be overpacked in an open head DOT-
specification metal shipping container”) does not apply because
H 264.316(f) and 265.31.6(f) clearly state that “(p]ersons who
incinerate lab packs according to the requirements in 40 CFR
268.42(c) (1) may use fiber drums in place of metal outer
containers.” The H 264.316(b) and 265.316(b) language that does
apply, however, is the requirement to pack a sufficient quantity
of absorbent material around the inner containers to completely
absorb all of the liquid contents of the inside containers,
making the outer container full after packing.
As you mention in your letter, the preamble language on page
22631 of the Third Third final rule explains the Agency’s
decision to allow fiber drums to be used as outer containers for
lab packs being incinerated according to the requirements in
40 CFR 268.42(c) (1). The language of §5 264.316(f) and 265.316(f)
does not eliminate this decision by otherwise requiring the fiber
drums to be overpacked in metal drums.
2. Containers
You request clarification of why containers are included in
the “inorganic solid debris” definition. You also ask when an
empty container would be judged to carry a characteristic of
hazardous waste.
By way of background, inorganic solid debris is defined in
40 CFR 268.2(g) as nonfriable inorganic solids contaminated with
D004 - DOll hazardous wastes that are incapable of passing
through a 9.5 mm standard sieve; and that require cutting, or
crushing and grinding in mechanical sizing equipment prior to
stabilization; and, are limited to certain types of debris
specified in subsequent paragraphs. Paragraph (g) (6) of
§ 268.2 includes metal cans, containers , drums, or tanks in the
definition of inorganic solid debris.
As a further point of background, the answers to your
questions are impacted by whether the container being discussed
is empty as defined at 40 CFR 261.7(b). Under the § 261.7(b)
provisions, a container that has held hazardous waste (other than
a compressed gas or an acute hazardous waste) is “empty” if it
meets certain criteria. All wastes must have been removed that
can be removed using the practices commonly employed to remove
materials from that type of container. To assure that all waste
has been removed, there may be no more than 2.5 centimeters (one
inch) of residue remaining on the bottom of the container or
inner liner; or no more than 3 percent by weight of the total
capacity of the container remaining in the container or inner
- liner if the container is less than or equal to 110 gallons in
size, or no more than 0.3 percent by weight of the total capacity
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of the container remaining in the container or inner liner if the
container is greater than 110 gallons in size.
In response to your first question, containers are included
in the definition of inorganic solid debris to cover the possible
scenario of a container that has been discarded by means of land
disposal (as defined in § 268.2), that does not meet the
§ 261.7(b) definition of empty, and that is contaminated with a
characteristic metal waste. This scenario could occur, for
instance, during an excavation at a corrective action site. A
container might be uncovered that is damaged (e.g., crushed) so
that the hazardous waste within it cannot be removed sufficiently
to meet the § 261.7(b) definition of empty. Such a container
(i.e., including its contents) is a hazardous waste subject to
the land disposal restrictions if it is subsequently land
disposed. Furthermore, it is likely that the disposed container
would be considered contaminated debris (such a determination may
depend upon site-specific conditions best made by an authorized
State or EPA Regional representative). If the waste
contaminating this disposed container is a characteristic metal
waste (D004 - Doll), the container would likely meet the
§ 268.2(g) (6) criteria of inorganic solid debris, and would thus
be subject to a national capacity variance until May 8, 1992 (see
S 268.35(b)).
In response to your second question, a container meeting the
§ 261.7(b) definition of empty may be judged to be a
characteristic metal waste under two scenarios. In the first
scenario, a container that has never held any hazardous waste may
be a characteristic waste if: (1) it is being discarded; and, (2)
if the container is in itself a characteristic waste.
In the second scenario, an em tv container (as defined in
§ 261.7(b)) may be a characteristic waste if: (1) it is being
discarded; and, (2) if the container is in itself a
characteristic waste. It should be noted, however, that any
residue remaining in the container is exempt from regulation
under the provisions of § 261.7(a) that states that “(a]ny
hazardous waste remaining in either Ci) an empty container or
(ii) an inner liner removed from an empty container, as defined
in paragraph (b) of this section, is not subject to regulation
under Parts 261 through 265, and Parts 268...”
3. Certifications
You request clarification of the record keeping requirements
for a particular scenario: A waste that the generator determines
(based on process knowledge) not meet the treatment standard
is sent to a treatment facility. The treatment facility
determines the waste does meet the treatment standard. You did
not suggest how such a determination was made. Your question is,
how would the record keeping requirements be affected?
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In this particular scenario, the treatment facility should
analyze the waste in order to determine that the waste meets the
treatment standard according to the provisions of their waste
analysis plan. It should be noted, however, that there is no
requirement that treatment facilities analyze each shipment of
waste received, except as specified in their waste analysis plan
(see § 268.7(b). In this particular scenario, however, the
generator has made the determination that the waste must be
treated based on his knowledge of the waste. The treatment
facility is countering the generator’s determination with a
determination that the waste meets the treatment standard as
generated; therefore, the Agency believes that it is appropriate
to ask the treatment facility to support their determination with
analytical data. The treatment facility also must complete a
certification that the waste met applicable treatment standards
as generated (see § 268.7(a) (2) (ii), supported by the general
principle expressed in § 268.7(b) (6) requiring treatment
facilities to comply with notice and certification requirements
applicable to generators).
The treatment facility must send the waste analysis data
(see § 268.7(b) (4) (iv)), the certification, and a notification
(either the generator’s notification may be sent, or the facility
may create a new notification) to the disposal facility. Copies
of the waste analysis data, the generator’s notification (as well
as the treatment facility’s notification if a new notification
was created), and the certification must be kept as records in
the treatment facility’s files.
4. Notification/Certification
A scenario was presented of a TSD company that has a sister
company on adjacent property that recycles “side-stream” and
“off-spec” chemicals and other wastes containing recoverable
amounts of organics by means of a custom distillation process.
This process generates still bottoms and wash waters that are
subject to the land disposal restrictions. These restricted
wastes are piped directly back to tanks at the TSD facility,
sometimes on an intermittent basis, sometimes continuously. The
question is asked: Nov must these piped transfers of hazardous
wastes from the recycler to the TSD be handled from the
perspective of notification/certification compliance?
Even though the recycling facility and the TSD facility are
sister companies on adjacent property, they would have been
assigned different EPA identification numbers and are thus
considered separate facilities. Therefore, the waste that is
piped to the TSD facility (regardless of whether it is on a
continuous or an intermittent basis) is subject to the record
keeping requirements of § 268.7.
The recycling facility would be subject to the generator
requirements of § 268.7(a), which specify that a notification
must be sent with each shipment of waste (in this case, from the
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recycling facility to.the TSD facility). The TSD facility must
comply with the requirements of § 268.7(b). Questions on how
frequently the required paperwork should be sent from the
recycling facility to the TSD (i.e., what constitutes a
“shipment”) should be directed to the EPA Regional land disposal
restrictions contact.
5. DOOl
The question is whether 40 CFR 264.312 allows for the land
disposal of a DOOl waste. Until promulgation of the Third Third
final rule on May 8, 1990, 40 CFR 264.312 (and § 265.312) set out
special management requirements for ignitable or reactive wastes
that were disposed in a surface impoundment, waste pile, land
treatment unit, or landfill. On page 22553 of the final rule,
however, the Agency explained that these management requirements
are superseded by the treatment standards promulgated in the
Third Third final rule. This means that “(f]acilities handling
ignitable and reactive wastes will have to comply with the
promulgated treatment standards for these wastes in order to land
dispose them.” The Agency made changes to the regulatory
language of § 264.312 and 265.312 in the Third Third final rule,
to incorporate the requirement that the treatment standards for
ignitable and reactive wastes must be met prior to land disposal.
Furthermore, the Agency’s intent is clearly expressed in the
preamble (55 FR 22553).
Therefore, land disposal is allowed only for those DOOl
wastes that meet the treatment standard. (The treatment standard
for DOOl wastes containing less than 10% total organic carbon
(TOC): deactivation; for DOOl containing greater than 10% TOC:
incineration or fuel substitution; see 40 CFR 268.42, Table 2.)
I hope you find these answers to be helpful. If you have
any further questions, please feel free to contact
Matthew A. Straus at (703) 308-8414.
Director
Office of Solid Waste
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
955 1.1991(14)
MAY 11991
Mr. David R. Saad
Environmental Coordinator
Illinois Refining Division
Marathon Petroleum Company
Robinson, IL 62454
Re: No Migration Petition for the Robinson, Illinois Land
Treatment Facility and Storage Surface Impoundments
(F-9 l—NNPP-FFFFF)
Dear Mr. Saad:
I understand from Jim Michael and Dave Eberly that the EPA -
Marathon meeting on April 30 was very productive. Your interest
in discussing the proposed response to the Notice of Deficiency
for Robinson’s No-Migration petition was welcomed by us. One
procedural question hanging over from that meeting concerns the
best approach for revising Marathon’s petition to cover only the
East land treatment unit.
In our judgment, the most efficient approach would be for
you to withdraw your petition for the three surface impoundments
and the two land treatment units and to submit a new petition
limited to the East land treatment unit. That approach would
‘simplify four related tasks for Marathon and EPA. First, it
would close out the administrative record on your current
petition. Our recommendation for denial is still on the record,
and your withdrawal would eliminate any need to publish a
decision or to maintain a docket. Second, Marathon would not
have to respond to our Notice of Deficiency, but could instead
use it as a guide in preparing a new petition for the East unit.
Third, a new petition would be easier to prepare than a revision
to the existing petition which would involve excising or editing
discussion of all areas except as they pertain to the East unit.
Finally, a new petition for the East unit would, we believe, be
consistent with any required permit modifications.
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We, therefore, recommend a letter of withdrawal for the
existing petition in response to our letter of November 6, 1990
and submission of a new petition for the East unit as soon as
possible. As we stated at our meeting on April 30, we will focus
our review of the new petition on those technical concerns in the
November 6 letter related to the East unit.
Please be assured that Marathon’s withdrawal of its original
petition and subsequent submission of the new petition would not
affect Marathon’s position in the queue for review and decision-
making by EPA.
If you have any questions on implementing this approach,
please call Dave Eberly on 202—382—4691.
Sincerely,
Elizabeth Cotsworth, Chief
Assistance Branch (OS—343)
cc: Ronald Andes, Marathon
Jim Michael, AB, PSPD, OSW
Dave Eberly, AD, PSPD, OSW
Gail Hruska, EPA Region V
David Deisher, IEPA
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UNITED STATES ENVIRONMENTAL. PROTECTION AGENCY
WASHINGTON. D.C. 20460
Jft t4 7 1991 9551.1991(15)
OFFICE OF
SOLIO WASTE ANO EMERGENCY RESPONSE
Richard G. Stoll
Freedman, Levy, Kroll & Simonds
1050 Connecticut Ave. N.W.
Washington, D.C. 20036—5366
Dear Mr. Stoll,
This letter is in response to your inquiry dated August 22,
1990 concerning the applicability of EPA’s “Superfund LDR
Guides.” As you asserted, those interpretations of RCRA were
found in the 1990 NC? and other CERCLA documents, but you asked
whether those interpretations apply at all sites, regardless of
whether the cleanup activity is being conducted under federal
CERCLA authorities.
The preamble to the 1990 NC? represents an official Agency-
wide position concerning the int.erpretatjon of RCRA and other
statutes relevant to federally—mandated CERCLA cleanups (see 53
FR 51394, 51443—45 (December 21,1988) and 55 8666, 8758—62
(March 8,1990)). The LDR Guides implement these interpretations
in more detail. These interpretations of RCRA would apply at
Superfund sites and at non—Superfund sites. Therefore, in
general, the answer to your question about the applicability of
the LDR Guides and NC? interpretations is that they apply
wherever the cleanup involves a RCRA waste. However, it is
conceivable that some of the interpretations of RCRA developed to
apply to federal CERCLA sites may not exactly match non—CERCLA
circumstances because of different statutory constraints or
authorities. With that caveat, let me address the specific
issues and questions raised in your letter.
First, your comments focus on the interpretations of Area of
Contamination (AOC), “placement,” and the presumption of
entitlement to treatabi].ity variances for contaminated soil and
debris. Your principal concern focused on whether the
interpretations offered of these issues in the NC? and LDR Guides
apply at all sites. The answer is yes.
Second, you also questioned whether the NC? interpretations
and the LDR Guides noted above apply equally where “a party may
want to move or treat contaminated soil and debris as part of a
Pruiud R.qcl.d Pap.i-
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RCRP4 corrective action, as part of a cleanup carried Out under
State..law, and/or as part of a roluntary cleanup..” The answer is
yes.
Third, you asked whether situ treatment that is not
“placemeflt ” at.. a CERCLA site is also not placement :at a non—
CERC I?J site ( ite A in your letter). The answer is yes.
o ir;h,. you question whether excavation and movement of
coneai ia t .ed soil, within a certain area would be “placement” at a
non— ERC A fiit (site B), since you interpret it not to be
placierneflt;at a CERCLAsite. The limited facts given in that
ques On. O not .allow us to unanthig ously state whether there is
“placemeflt” at: either site, although as a general rule the AOC
-co t is operable at RCRA corrective -action-sites. It should
b! edb’b w ver, that designation of n AOC is a function
pe rf’ormèd by t ie regulating agency.
Fifth, you asked whether the presumption in favor of
treata ilJ .cty •variarices and definition of appropriate alternative
treati ènt would be the same for a non—CERCLA site (site C). The
answer isthat any presumption in favor of a treatability
variance wou’d be the same whether the site is a RCRA site or a
federal, or private party CERCLA site.
I hope that this response meets your needs. If you need
additional inforrñatiort or clarification, please contact Steve
Golian at (703) . .308—93&O.
Sincere
Don R.
Assistant Administrator
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