United States Solid Waste and EPN53O-R-98-012J V
Environmental Protection Emergency Response July 1998
Agency (OS-343) -
RCRA Permit Policy
.EPA
Compendium
Volume 10
9500.1980 - 9522.1996
Permitting Policies
• Priorities
• Corrective Action
• Special Permitting
• Compliance & Enforcement
• Public Participation
Permitting Procedures (Parts 124 & 270)
• General
TechLaw 1/5949/Coversl Ii
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DISCLAIMER
The compilation of documents in this Compendium, as well
as the policies, procedures and interpretations outlined
in the documents themselves, is intended solely for the
guidance of employees of the U.S. Environmental
Protection Agency. This compilation may not include all
documents discussing Agency views on particular subjects.
In addition, these documents are not intended and cannot
be relied upon to create any rights, substantive or
procedural, enforceable by any party in litigation with
the United States. The views expressed in these
documents do not necessarily reflect the current position
of the Agency, and EPA reserves the right to act at
variance with these views or to change them at any time
without public notice.
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Permitting Policies
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9501 - PERMITTING
PR! ORITIES
ATK Ill 104/52 kp
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9501.1982(01)
JUL. 9.
Guidance for Permitting of Uazardous Waste Incinerators
John Skinner, Director
State PrograT and Resource Recovery Division
Region&L Mazardoue Wae e Division Directors
As you are aware, the a tend nt for hazardous waste inciner-
ators was published in the Federal Register on June 24. and was
acc npanied by a notice announcing that the suapens ion on calling
Part B s for incinerator, has been lifted. The infori’ ation burden’
clearance frau 0ft13 was also received recently (clearance 2O5O-OOO2).
The Aaency is thus in a position to begin the permitting process for
these facilities. Thi. m.i randum is intended to provide guidance
as to the priorities which should be followed in fornulating
regional plans for permitting incinerators.
In Rita Lavello’. and a of June 18 to the Regional Admin-
istrators variou, targets were set for the numbers of incinerator
permits to be issued in FY 83 and th. numbers to be ceJJ .ed in FT 83
for issuance in FT 84. These targets were set for each region on
the basis of th. permitting resource. projected to be avaiLable.
Asaw iiq rauzghly a year 5 tim , fran the tin, a permit is Cal Led to
when it is issued, adherenc, to th. targets vii i. necessitate ca.Lling
a substantial Dui ber of incinerator Part B’s during th. remainder
of thi. fiscaL year. end during th. first quarter of FT 83. Inciner-
ators must he considered to be the first priority of the RCRA
permitting pro am in th. coming months.
In establishing priorities for permitting of hazardous waste
incinerator, vs expect to use the sani general approach we have
been using for storags facilities • That is. new facilities will
be ass igned th. highest priority for permit issuance, and existing
facilitie, should he prioritized according to their potential for
causing environmental harm. Th, following er. factors which
should be considerâd in ranking existing incinerators for calling
Part B applicationst
o Age of th. facility
o Size
o ProziMty to population center
o Complexity of the waste mixtures incineratad
o Toxicity of the wastes incinerated
o Prior history of poor operation or air pollution
vie iations
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It sbouLd be expected that most incir erator faciLities WiLL
also have some type of storage capabiLity at the site. In such
cases the Part B shouLd be called for both the incinerator an4 the
storage facilities. These storage facilities can be counted against
the i rr itting targets in Attachment 1 of Rita Lavelie ‘S June 13
i srcraz dur . according to th. specified substitution ratios.
If there are any questions regarding the incinerator perrnitting
prograr’. please contact Randy Chriai n of my staff at 382—4535.
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9501 .1932 C 02]
29 DEC 82
MEMORANDUM
SUBJECT: RCRA Land Disposal Permit Strategy
FROM: John H. Skinner, Acting Director
Office of Solid Waste
TO: Regional Hazardous Waste Division Directors
On January 26, 1983, the new Part 264 hazardous waste land
disposal regulations will become effective, and EPA will begin
the process of requesting Part B applications for selected land
disposal facilities. This memorandum is intended to provide
guidance on selecting facilities for priority attention in this
initial phase of the land disposal permit program.
The decisions as to which land disposal facilities will be
permitted first, and why, must be made carefully. Each of these
permit actions will require a considerable investment of the
Agency’s permitting resources, and they must therefore be targeted
to achieve maximum environmental benefits. In addition, this
permit program will be highly visible and subject to intense
scrutiny by the public and the regulated conununity. To assist in
making the initial call—in decisions, we strongly urge that the
states be consulted and actively involved in the selection process.
Some states may already have developed their own land disposal
permit strategies, and these should be accommodated by the
regions to the extent that they do not conflict with EPA’s
ob3ectives
The primary objective of the RCRA land disposal permit
program must be to maximize the benefits to public health and
the environment. This is consistent with our previous policies
for permitting hazardous waste storage facilities and incinerators.
The following priorities should be assigned by the regions in
assessing Part B call—ins for land disposal facilities:
——Facilities which are known to be sources of groundwater or
surface water contamination. Highest priority should be
given to cases where sole source aquifers and other drinking
water supplies are being endangered. Information regarding
groundwater contamination should be solicited from the
states, and may also be available from interim status
quarterly reports and other sources.
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——Facilities which may be causing environmental damage. This
could include facilities which have histories of poor
operating practices, prior enforcement actions, inadequate
liner systems (where applicable), or inspection reports
indicating improper facility designs or unsafe management
practices. Facilities which have yet to report groundwater
monitoring data, or for which data is questionable should
be examined closely for permit action. Again, primary
emphasis should be on protection of valuable aquifers and
other water supplies.
——Facilities which pose potentially significant environmental
risks. Assessment of environmental risks could include
the proximity of the facility to population centers, aquifers
and surface waters, facility size, nature of the wastes
being disposed of, and other environmental factors.
In addition to these primary environmental considerations,
several other factors should be taken into account:
New Submissions . Permit application for new facilities
should continue to receive high priority on the region’s permit-
ting resources.
Multi—Process Facilities . It has been the Agency’s policy
that facilities which contain more than one type of process
should be covered by one compreprehensive permit. As a result,
some high priority incineration facilities have not yet been
called since they are located with land disposal operations.
The regions may wish to target these facilities for the first
round of call—ins.
Monof ills and Neutralization Surface Impoundments . As
explained in the preamble to the new Part 264 land disposal
regulations, EPA currently plans to propose adjustments to its
regulatory approach for monof ills and neutralization surface
impoundments. Part B’s for these two types of facilities should
therefore be given lower priority for call—in unless there is
evidence that such a facility is causing environmental damage.
Effects on Competition . It is possible that permitting of
a facility or facilities could have some effect on business
competition. This is most likely in a case where a commercial
land disposal facility is required to obtain a RCRA permit while
a nearby competitor is allowed to remain under interim status.
Regions should consider effects on competition in formulating
their overall call—in strategies (for example, calling all
commercial landfills in an area at the same time).
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Although the Agency has not yet received 0MB approval to call
Part B’s for existing land disposal facilities, we expect to
receive approval by January 26.
The importance of this permitting effort demands that EPA
begin its implementation as soon as it is legal and practical to
do so. I therefore request that the initial round of call—in
letters be prepared in advance by each region so that they can
be mailed immediately after the regulations become effective.
Subsequent call—ins to fulfill regional target commitments
should be timed so as to balance workload demands.
If there are any questions or comments concerning strategies
for calling land disposal facilities, please contact Steve Levy
at 382—4740.
cc: Regional Hazardous Waste Branch Chiefs
S. Napolitano
B. Weddle
S. Levy
J. Lehman
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9 501.1984(01)
NOV — 9 I9 4
M MOPA ”DOM
sun cc’r RC”A Reauthorization statutory tnterpretation 01:
Immediate Permit Requirements
FROM: toe M. Thomas
Assistant Administrator
Mdressees
On November 9, Pçesident Reagan signed The Hazardous and
Solid waste Ajendments of 1984. These amendments to the
Resource Conaerv tion and Recovery Act (RCRA) will have a
profound effect on almost every aspect of th• management of
hazardous waste in this country. Provisions are effective
in both authorized and unauthorized States. EPA is responsible
for im l.montation until a State is authorized for the new
provisions.
This memorandum alerts EPA Regions and States to those new
provisions of the Act immediately applicable to RCRA permits
issued as of the date of enactment (DOE), November 9, 1984.
Permits in process, including draft permits, must address the
newly effective requirements before issuance. It is important
to note that in authorized States, £PA is responsible for
incorporating the new provisions into th. permit. Therefore,
issuance of a valid RCRA permit in authorized States must be
accomplished through joint permit processing with EPA until
States are authorized for the new provisions.
To assist in identifying the eztent to which draft permits
and permits under development, as veil as permit applications,
must now be revised, th. attached tabl. briefly describes, by
facility type, t s new requirements which ar. to be immediately
reflected in final permit conditions. Ths attachment does not
include provisions that affect the permit program at later datci,
nor does it cover early enactment provisions beyond permitting.
Subsequent memerand.a will describe the full range of pew RCRA
provisions that af ect hazardous waste management programs at
the Federal and State level, including joint permit processing,
and will include a schedule of implementation guidance.
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While new requirements for pet it applications already
in proco s rtay delay the issuitnce of sorte permits, other permit
processing activities will not be substantially affected.
Activities that should continue inc1ude
‘ Requesting land disposal perrnit applications. I!owevar,
under the new legislation, within one year ofenactment
all existing interim status land disposal facilities
must submit their Part B permit application, as well as a
certification of compliance with applicable ground—water
and financial responsibility requirements, in order to
retain interim status. Because of the new statutory
requirement, the timeframe provided in the National Permits
Strategy for requesting remaining land disposal permit
application., including the one year extension into Fy 1986,
is eliminated. Current schedules for calling in land
disposal facilities should be reevaluated and new schedules
should be developed which will conclude all. Part B requests
for existing interim status land disposal facilities within
the first six months of enactmentj
• Requesting remaining incinerator applications, as
scheduled;
• Processing interi i status closures. However, owners
and operators of land disposal facilities that received
waste after July 26, 1982, and closed between that date
and January 26, 1983, should be advised in writing that
the new RCM amendments extend the Part 264 ground—water
monitoring and response requirLitents to them.
• Joint inspection and permit writer visits within ninety
days of the permit application request should continue.
These visits should be used to assist facilities in under-
standing new requirements, as well as to offer them
advice on application requirements that have not changad
• Continuing technical evaluations of those parts of the
permit applications that are not affected t y the RCP.A
amendments;
• Preparing public participation plans for the environmentally
significant facilities whose persnit applictions are in
process or ill be requested in FT 1985.
For your information, we are currently in the midst of a
process to identify and analyze the issues that reauthorization
poses for near—term implementation of the RCRA program. Our aim
is to prepare the policies and guidance that the Regions and.
States need on specific reauthorization issues according to their
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signtfic3nce and immediacy. Additional RCRA Reauthorization
St•atutory !nterpretations viii. be issued periodically to alert
Regions, Status and other affected or interest.d organizations
to the interpretations of various provisions such as those
described in the attachment, as wall as to key changes in program
directions and poltcies.necessitated by th. latest RCRA amendments,
Until guidance is provided on the new permit rsquirementa
hiqhlighted in the attachment, I encourage you to call.
Peter Guerrero, Chief, Permits Branch (rrs-382—4740) to discuss
their scope, policy interpretations and implementation procedures.
Attachment
Addressees $
Regional ?idrninistrstórs, Regions I—X
Regional Waste 1 anageaent Di tsLon Directors, Regions I—X
Hazardous Waste Branch Chiefs, Regions !—X
Regional Counsels, Regions t—X
State Hazardous Waste Program Directors
Assistant Administrator for Enforcement and Compliance P onitoring
Associate General Counsel for Solid Watt. and Emergency Response
OSWER Of iic. Directors
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9501.1985(01)
OCT
6U3J£C7i Application of uovember 19C3 Deadline to
^ta&^UoSSS fost-CLcsure FerTita
Is'G."! J. Winston Porter «
Assistant Administrator
TOi Ilarrj "erayJ.arian, Director
Toxics and 'Vaate ;.anacer.ent Livision
In your merr.orandura of August 30, you requested cur
interpretation regarding application of the I.ovenber 19S8 dead-
line to vasts piles and post-closure permits. We agree with
your conclusion that all vast* piles are subject to $213(c) of
liSWA requiring issuance or denial of all land disposal pernit
applications by November 1988. This interpretation is consistent
with }201(k) of HSWA which includes vasts piles in the definition
of land disposal.
Kith rsgard to the priority of post-clooure permits, ve
recognise the difficulty in making final dsteruinations on all
land disposal applications by November 1988. We must* however,
continue to strive to meet that goal. Therefore, in order to
achieve the greatest environmental benefits from available re-
sources, high priority should be placed on the processing of
operating land disposal unit applications and Part 265 closures.
For those land disposal units where releases are likely or have
already been identified, either }3008(h) orders or 53004(u)
authority through post-closurs permits should be used. The
selection of the appopriate aschanism for addressing these
releases should be set through the facility management planning
process • The issuance/ of post-closurs permits for the remaining
land disposal units a lowsr priority.
Zf yen BATS any further questions* please contact Peter
Guerrero* Chief* Permits Branch at 382*2210.
cei RCBA Branch Chiefs
RCJtA Permit Section Chiefs
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UNITED STATES ENVIRONMENTAL PROTECtiON AGENCY
9 501 • 1986 ( 01)
Mr. Kenneth L. Vaesche
Director
Waste Management Division
Colorado Department of Hulth
4210 East 11th Avenue
Denver, Colorado 80220
Dear Mr. Waeache:
ThanK you for your letter of July 25 1986, in which you
idencitied potential issues associated with the permit application
for destruction of nerve agents at the Pueblo Army Depot. Because
Congress mandactd , under P.L.99-14f, that the Army destroy the
U.S. stockpile of nerve asents by September 30, 1994, EPA considers
the permitting o incinerators to destroy the nerve agent stocks
a high priority. We set January 1 1988, as the target date for
tinal issuance of the RCRA permits because we anticipate it will
take at least several years to construct these incinerators once
the RCRA permits are issued. The high permitting priority tor
the nerve agent projects is rerlect.d in f PA’s F? - 1987 RCRA
Impi omenrat ion Plan.
We recognise that Colorado has other high priority work
invo1vu g land disposal facilities. However, Colorado and EPA
Region VI II must factor the Pueblo permit application into the
State grant workplan negotiation process to ensure that it receives
priority attention in PY-l981. If you believe the State does not
have adequate resources to process this application, you should
conaider allowing EPA to assume the lead for proceeain, it,
though Colorado would be responsible tar issuing the permit.
EPA has stressed to the Army that they are subject to State
requirt .nts, bosh technical and administrative, which nay be
nor. stringent *nd also nor. .ztensive (i.e. siting approvals)
than the Federal requirements. and chat the Army needs to work
with the States vbr. their facilities will be located to ensure
that aLl Stat. requirements are net in a t ne1y manner. EPA (1 (Q)
is heaviLy involved in thi. project to provide technical guidance
and assure coordination between the Army, EPA Regional Offices,
and the States. This involvement was supported by the State.,
Region., and the Army, at the May 15- 16, 1986, EPA-State-Army
meeting. Chip Stewart of the Colorado Department of Health
represented Colorado at that meeting.
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The permitting timeframe that we have established for the
Army to meet the Congressionally mandated deadline of 1994 5,
admittedly, ambitious. There are many aspects of this project,
such as Part I application deficienctes and siting ditticuities,
chat may aff.ct the ability to meet the mandated deadline. The
Army is veil aware of th. problems and is rktng with the States
and aegions to resolve these issues early in the process. The
EPA-State-Army workMroups which hag. been active this st mer La
one attempt to ensure chit the Army’ $ applications are compLete
and thereby minimis, th. need tot multiple and tIme-consuming
Notices of Deficiency (NOD.). (Chip Stewart has been a workgroup
participant and we appreciate his input.)
With regard to the siting issues, the Atmy has launched an
expanded pubLic intormatton program in an attempt to make the
public more receptive to the new facilities. The Army has held
two public meetings on their Enviro, enta1 Impact Statement (EIS)
tot thi, project in Pueblo, Colorado, on April 28, and August 21,
1986. Similar public meetings were heLd tor the other proposed
sites, which are located throughout the U.S. The purpose of the
meetLngs on the EIS La to intorm the public about the strategy
and the risks posed by the nerve agent disposal program, and to
solicit comments regarding the LIS. The deadline for public
comment on the EIS ii September 2.3, 1986. It is my understanling
that the Army plans to have an expanded public intormation program
during Fl 1987 for aU t .ir permit applications.
I appreciate your concern regarding the difficulties which
may be encountered in processing the permit application for the
Pueblo Army Depot and your raising them to me at this time. I
urge you to rats. the permitting priority issue and other resource
concerns during the annual. grant negotiation proces. with the EPA
Region VIII Office, which I believe is underway now.
Please ted tree to contact me it you have additional questions
or concerns.
Simcer.ly,
Arthur Glazer
Chiaf. PAT Incinerator Section
CC: Bruce Weddle Larry Wapenaky
Liz Cot.worth Denise 4awktns
Ken Shuster lob Deprey
Robin Anderson Jon Teag icy
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9501.1987(01 )
c;: 7
MEMO1 A JN
&U JtCTz L and Disposal Facilities Not on a Permitting or
Closure bch.dul.
F1O 1s Marcia E. Wil1iam . Director
Office of bolid vaats
Har ioua baste Division Directors. Legions 1—lU
In bov. ber 1986. 0S . began tracking proçjr.aa toward the
November 1988 permitting deadline in the RCRA Permit Activities
honthly (eport. ‘this report includes a number ot facilities
that are not on a multi—year strategy tar p.rwitting or
closure. These tacil1tis s lack a multi—year strateyy for a
number of reasons. In some cases, the facility no lonjer
functions as a CRA site ( e.g the facility is bankrupt or
under Suporfund’s jurisdiction), or is not considered to be
a land dia!csal facility but has not been removed fror. the
land di. cs 1 universe. owever, in most cases thc facility’s
1 C J regulatory status is unresolved.
All facilities that are RCRA—r.gulated facilities are
subject to the peu4ttirtg deadline. Delays in determining
their r.yulatory status could lead to missing the permitting
deadline at these facilities. As a result, vs should resolve
the regulatory status of these facilities a. soon as possible.
Attached tO this memorandum La a list øf these faciLitIes
in your K .ç 1 ion (this list is found in 05W’. RPIS. ’ U in the
Piulti—lear Strategy section under the title. L.ist of Facilities
Uct on the Disposal Multi—Year Strategy with C305—D in H DMS.
ALl keyions have access to the RASItENU.). Please resolve the
regulatory status of thsse facilities by liove.bsr 1. l o7, in
the following tasnion.
I). Snd a permitting or closure multi—year strategy
for the land disposal facilities on this list that
are sub •ct to RCRA r.gulation to George Garland,
Chief of the State Progra is Jiranch. ObW’s
Information Management Staff (IhS) will then assign
tn. a?propriat. multi—year strategy desi9naticrn to
these facilities.
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2). R.placa the C305•D c.signatiori in HWDMS with the
correct C305 designation for any facilities that
are no longer subject to KCRA regulation ( e.g. , if
a facility is actually only a RCRA storage facility,
it should become C305s5, it it is not a RCRA—
regulated facility, C305 should be blank).
3). Keep the C305 D designation for all bankrupt
facilities or facilities now subject to Superfund.
OSWER is curr.utly creating a new designator in
HWL 4S that will identify these facilities.
In a number of cases, Regions have discovered operating
land disposal facilities that do not have •ither interim
status or a permit opirrcuL.iwj s& land dt.pesa]. laeilitiee. .
When these facilities are discovered, they are entered into
L WDZ’1S as C305.D facilities. They automatically appear in
the not on a permit or closure track category. IhS moves
these facilities into the closure track after consulting
with the Region involved. We will continue this practice
for all newly discovered illegal facilities.
If you hay, any questions, please contact chat Miller of
the Information Management Staff on (TTS) 352-2220.
Attachment
ccs Jack McGraw (without attachment)
RCRA Permit Section Chiefs, Regions 1-10
kiWfltiS RPOs. Regions 3-10
Kate flouvs (without attachment)
Pruc. Weddl.s (without attachment)
Ken Schuster (without attacha.nt)
WH—563:CM:cm:382—2220:9/ll/87C14’s disk7doc99
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UNITED STATES ENVIRONMENTAL PJOTECTIONENCY 950].1987( 02)
UE C I igBl
MEMORANDU N
SUBJECT: RCRA Program Directions f or PT 1989
PROM: J. Winston Porter
Assistant Administrator
TO: Regional Administrators
Region I—X
During the development of the FY 1988 RCRA Implementation
Plan, several Regions expressed a desire to take a more
Integrated approach to addressing environmentally—significant
facilities and activities. I agree that as we move beyond
the 4ovember 1988 land disposal permitting deadline, we need to
focus even more of our resources on corrective action and closure
at the entire universe of environmentally—significant facilities.
To direct our resources toward these goals, we vii ]. need
effective ways to identify the most significant facilities.
With the development over the last few years of facility
management plans and multi—year strategies, we began a process
to establish •riorities based on the environmental significance
of facilities.
In an effort to refine and apply this process more broadly,
some Regions have established system. to rank all facilities and
activities based on potential threats to human health and environ-
mental significance. As incorporate an even greater emphasis
on health and environmental benefits in our decision making and
priority setting, it becomes increasingly Important for RCRA
program managers to continue to refine and apply their screening
and ranking systems to identify those facilities posing the
greatest health and •nvironmental risks.
In FT 1989, efforts to establish priorities should be
expanded to .ncompass th. entire universe of facilities, including
all. treatment, storage, and disposal facilities, whether operating
or closing. We do not envision this to be a highly resource—
intensive effort but rather anticipate that existing data sources
and Regional and State knowledge of site conditions can, to a
large extent, be used to establish priorities. In addition,
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tITED S S ENYIR ENTAL PRSII€CTION AGENCY
—2—
since a number of these priority facilities may ultimately be
eligible for management under Superfund, Superfund resources
also will be availabl, to assist in the initial screening and
ranking through the Ph/St process. This preliminary establish-
ment of priorities is an integral part of the Environmental
Priorities Initiative (EPI).
Once environmentally significant facilities have been
identified, high priority should be placed in FT 1989 and beyond
on addressing corrective action and permitting or closure/post-
closure at the most significant facilities, regardless of RCRA
and CERCLA authorities to address these facilities. Although
the 1989 incinerator deadline will continue to he an important
goal, some reallocation of resources from incinerator permitting
to other environmentally—significant facilities and activities
may by justified on a case—specific basis. As part of this effort
to increase our focus on the moat environmentally-significant
facilities, the Office of Solid Waste is examining revision of
the SPMS system to better reflect the level of effort and
environmental benefits associated with the various targetted
activities.
This memorandum is intended to help focus your initial
planning activities for FT 1989. Additional guidance will be
provided in the F! 1989 RCRA Implementation Plan, the FT 1989
Agency operating Year Guidance, and through the EPI Task Force.
Also, to help support these planning efforts, OSWER will be
issuing guidance on the use of Section 3808(h) orders, RCRA
National Priorities tist listing policy, and post—closure
permits as tools for instituting corrective action. Finally,
as part of the EPI, Sup.rfund r•sources will he used to conduct
approximately 1,008 mew preliminary assessments (P As) on the
highest priority sites and you wi]l have available for priority
setting purposes information on RCRA sites that are now in CERCLIIS
and that have received PA. and Ste. Guidance on thi . effort
also will be provided.
As ws plan for th. challenges of F! 1989, 1 look forward to
working with you to ensure the greatest level of environmental
benefits are achieved.
cc: Deputy Administrator
Regional Division Directors
Regional RCRA Branch Chiefs
Regional Enforcement Branch Chiefs
Regional Superfund Branch Chiefs
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9501 • 1987 (03)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. 0 C 20460
OFFICE 0
SOLIO WASTE A ’ O EMERGZ?. 1CV V1ESI ‘ r
MEMORANDUM
SU8 ECT: Impact of Proposed Rules on Permit Deadlines
FROM: Marcia E. Williams, Director
Office of Solid Waste (WH—563)
TO: Allyn M. Davis, Director
Hazardous Waste Management Division (6H)
Region VI
Your memo of November 30 indicated concern that the timing
of the proposed location standards and incinerator rules may
jeopardize your ability to meet the 1988 and 1989 permit deadiLnes.
The draft location and incinerator standards were developed
partly in response to public concerns about shortcomings in t’ e
current regulations. I do not believe that delay of these in c rtant
regulations until after the 1988 and 1989 statutory permitting
deadlines would be an environmentally sound derision in light o:
their importance.
We do recognizer however, that proposing new regulations in
the midst of the permitting process has the potential to delay
certain permit activities where the public is concerned about
EPA and/or the State issuing a permit that does not incorporate
the new requirements. In order to minimize any disruption of
the permit process, we will continue to share drafts of these
.rules with the Regions prior to proposal. Where you conclude
that the draft rule contains a requirement applicable to a
permit you are drafting and that such a requirement is needed
to protect human health or the environment, you can use the
omnibus provision to add that requirement to-the draft permit.
When we propose the new incinerator requirements in the spring,
the preamble will explain that we have provided guidance documents
to the permit writers to help them implement the proposed coni.rols
immediately under the omnibus authority codified at 5270.32(b) •%)•
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2
While we currently do not plan to include a similar discuasion
in the proposed location standards rule, you may also use the
omnibus provision to apply a proposed location requirement to a
particular facility. The Permit Assistance Teams are avatlable
to assist you .n resolving any permit specific issues that arise.
In conclusion, I believe that if we work together we can
minimize any permit delays these new regulations may cause.
Should the regulations legitimately cause you to miss a SPMS
commitment, we will be able to renegotiate these on a case—by-
case basis. I would expect, however, that we can jointly keep
delays to a minimum through regular communication on the
direction of the rules and on their impact on particular permits.
cc: Regional Hazardous waste Division Directors
mad Juszczak
Bruce Weddle
Joe Carra
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9501.1990(01)
RCRA/SUPEP.FUND HOTLINE SUMMARY
JULY 1990
2. Toxicity Characteristic Waste Part B Permit Application Deadlines
An existing, previously unregulated facility may become subject to RCRA
regulations (and begin to operate under interim status, 40 CFR Part 265
regulations) because it is handling a waste newly regulated due to the
Toxicity Characteristic (TC). According to the March 25, 1990 Federal
Register (55 FR 11798), the facility must submit a Part A Permit application
six months from the date of publication in the Federal Register (55
11846) by September 25, 1990. When must the facility submit the Part B
portion of the permit application?
The date on which the facility must submit its Part B permit
application depends on the type of unit. If the permit is for a facility
other than a land disposal facility,” then the TSDF must submit its
Part B application when EPA requests it, with a date established that
provides the facility at least six months notice. (40 CFR 270.1(b)) If the
facility meets the definition of a land disposal facility, then the Part B
must be submitted no later than 12 months after the date on which
the facility first becomes subject to the permit requirement (40 CFR
270.73(d)(1)), in this situation, by September 25, 1991. The definition
of land disposal facility is not codified in 40 CFR, but a statutory
interpretation can be found in the September 25, 1985 Federal
Register . (50 E 1 38946) The Agency interprets the term to encompass
the following facilities: “landfills; land treatment units; surface
impoundments for disposal, treatment, or storage; waste piles; and
Class I hazardous waste undergTound injection wells”. (50 , 38947)
Source: Wayne Roepe, 05W (202) 475-7245
Research: Cynthia Hess.
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9502 - CORRECTIVE
ACTION
ATK1111134153 kp
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UNITED STATES ENV RONMEN7AL PROTECTION AGENC
/ WASMINGTOPI. D.C. 20410
APR 8 ej
o’ricu 0
SCUO WA$? AND EMt QtNCV tSPQ
‘!MORA .IDL T M OSWER POLICY DIRECTIVE *9502.00—2
SUBJECT: PCRA,Correcti e Action at Federal, Facilities
FROM: 3. 7instor Porte:
AssLst3nt Adrnifllst:ator
TO: Peqiona]. Administrators. Regions I — X
On March 5, 1986, we oub].ished two notices in the Federal
Recister (copies attached) about corrective action at F e:al
facilities. E am writiriq to clarify some possible misconcep-
tions over the two March 5 notices.
The first notice states: (1) 53004(u) aoplies to Federal
facilities; (2) Federal aqencies are subject to the same
“Drope:tywide” definition of facility as other owner/opera-
tors; and (3) the term “owner’ aoplies to individual Federal
deoarti ents, agencies, and instrumentalities rather than the
FJ• • covernment. The second notice announces EPA ’s intent
to promulcate rules to further clarify Federal ownershio and
to establish a scheme of oriorities for corrective action at
Federal facilities.
Our office has heard conflicting statements on the effect
of EPA’S intent to promulgate a rule on national priorities.
Some Federal agencies may incorrectly believe that corrective
action has been ‘put on hold’ until EPA issues a final
regulation. This is riot true . Until EPA issues a final rule
on priorities for corrective action at Federal facilities, the
Regions .ust continue to process arid issue permits, including
negotiating corrective action schedules of compliance under
53004(u). Current permitting negotiations on corrective action
between EPA and Fede:al.agencies must not be affected by the
two Federal Register notices. EPA shall continue to require
corrective action at Federal facilities and EPA shall
continue to require schedules of compliance in th. permits of
Federal facilities. Where appropriate, administrative orders
under 53008(h) should also be issued to direct Federal agencies
to conduct corrective action activities prior to issuance of
the permit.
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—2 —
In negotiating Schedules of compliance the Fèdera],
agencies may legitimately raise the issue of the relative
priority of the facility in question. Where EPA, the State
and the Federal agency acree that the Eacilit j is of lesse
importance. the timeframes for conducting corrective action
activities in the schedule of compliance should reflect this.
Where the three parties are unable to agree on the Schedule
for conducting corrective action activities, these disputes
should be referred to Bruce Weddle, Director, Permits and.
State Programs Division, OSU, or Lloyd Guerci, Director,
RCRA Enfo:cement Division, OWDE, to :esolve per ittinq or
enforcement issues, respectively. We s .c prepared to wo
with the Federal agency Meariquarters to obtain resoLution of
these p:oblems.
t have l:eac1y written to the major Federal agencies
(Departments of Energy. Defense and the Interior) to explain
our intent to continue the permit process and to negotiate
schedules of com liance for Corrective action. I urged each
of them to beam considering their own priorities to facili—
tate the negotiation process, and I will. aeet with each
agency to discuss its plans.
‘Jhile negotiation of corLective action schedules of
compliance may be handled on a case—by-case basis urtti]. the
final rule is ,romuliated, there is one area discussed in
the Federal Register notice which we cannot address without
a regulation. The notice states that in some situations
where a private party has oartial property interests such
as leases or mineral extraction ri ihts, it ay be aporooriate
to define the facility boundary in terms of the private
arty’s property interest rather than the Federal agency’s
property interest. In these limited situations the private
party would be responsibl, for taking corrective action
rather than the Federal government. In all such cases
prior to issuance of the final rule, the Federal agency
will be considered the owner of such Property and will be
held resDonsibl. for releases from such operations and for
releases on its contiguous Federal lands.
I hop this vtll help to clarify corrective action at
Federal facilities. Questions on this subject tsay be
addreussd to Paul Connor, Federal Facility Coordinator in
OSW (PTS 475—7066) for p.r itting issues or to Tony Baney,
Federal Faclitty Coordinator in OWPE (FIS 382—4460) for
enforcement issues.
Attachrnents
cc: Dtr4etor, Razardous- W1 te Divt 1 ,
Regions I-X
Chief, Hazardous Waste Branch,
Regions t-X
Allan Hirsch, OFk
Regional Federal Facility Coordinators,
Regions I-X
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9502.00—3
August 4, 1986
MEMORANDUM
SUBJECT: Implementation of UIC Corrective Action Requirements
FROM: Michael B. Cook, Director
Office of Drinking Water
Marcia Williams, Director
Office of Solid Waste
TO: Charles H. Sutf in, Director
Water Division, Region V
Basil G. Constantelos, Director
Waste Management Division, Region V
Several issues have recently been raised by Region V
regarding how RCRA corrective action requirements under §3004(u)
should be addressed when issuing permits to hazardous waste
injection wells under the Safe Drinking Water Act. This
memorandum is intended to clarify several points of guidance
contained in Underground Injection Control Guidance #45, issued
on April 9, 1986.
As outlined in the above guidance, a UIC permit may be
issued to a hazardous waste injection well at a RCRA interim
status facility, without addressing the requirements of RCRA
§3004(u). In such case, the well retains RCRA interim status
until such time as the entire facility is addressed for the
purposes of corrective action. When the §3004(u) requirements
have been addressed for the entire facility, the well obtains a
RCRA permit by rule. The §3004(u) requirement cannot be
implemented selectively at the well only.
For a UIC permit which is issued at an interim status
facility for which the §3004(u) requirement is not addressed, a
corrective action program for the injection well (as outlined in
Section VIII of Guidance #45) should be followed. Such
This has been retyped from the original document.
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—2—
corrective action programs will be implemented under SDWA
authorities, and need not invoke RCRA §3004(u).
To the extent that existing SPMS accounting measures specify
that UIC permits for hazardous waste injection wells must also be
RCRA permits by rule, we will work to adjust those measures to
reflect the guidance in this memorandum.
We appreciate the complexity of these issues, and the
difficulties inherent in effectively coordinating and
implementing these new requirements. If you have any questions
or further problems, please contact Ellen Berick in the Office of
Drinking Water (382—5547), or Dave Fagari in the Office of Solid
Waste (382—4740).
cc: Hazardous Waste Division Directors, Regions I—X
RCRA Branch Chiefs, Regions I—X
Water Division Directors, Regions I—X
Drinking Water Branch Chiefs, Regions I—X
B. Weddle
P. Baltay
This has been retyped from the original document.
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UNITED STATES ENVIRONMENTAL PROTECTION AGE t t POL1C D%REC1 NO.
WASHINGTON, D.C. 20460
95O2.O0 4
NJGZI OB
OFFICE O
SOUO WASTE AND EMERGENCY RESPON
MEMORANDUM
SUBJECT: Imple entati .. RCRA Facility Assesmuenta
FROM: .7. fl Assistant Administrator
Office of Solid Waste and Emergenc ? Response
TO: HazardOus Waste Division Directors, Regions I .-X
The purpose of this memorandum is to clarify existing
policy and to provide further guidance on implenentation of
RCRA Facility Assessments (RFAs) in the RCRA permit and the
RCRA eriforcenent prograne in the Regions.
As Outlined in previous guidance., as well as iri the
FY 86 and FY 87 RIPs, the RCRA Facility Assessnent (fornerly
referred to as PA/SI) is designed to be the first st in
the process of implenenting the RCRA corrective action process.
The general function of the RPA is to provide the basis for
the Agency to make preliminary determinations as to thether
or not there are, or are likely to be, releases of concern
at a facility. The P7k also assists in determining hether
or not, and what types of, further investigations or interim
neasures should be required of the owner/operator.
It is in the Agency’s interest, and the pttlic’a interest,
to have made an overall assesenent of actual arid potential
envirozinental probl ns fran all sources at a facility, and to
have determined, before issuing a permit, that investi tions
must be initiated at th. facility to characteriz, the nature
and extent of the contamination. Each of the Regions has
begun to initiate some riamber of RIM • It is air understanding,
however, that the P7k. being conducted by the Regions and
State. vary significantly in terms of their t.dinical approach
and canpisteness. In particular, sampling and analysis,
which will often be n.c.ssary in making determinations in an
RPA. is in soma cases not being dons befor, the permit is
issued. In other cases, RIM have not been conducted at all
prior to issuing permits.
An P1k should be canpletsd befor, issuance of a RCRA
permit. A canplete P1k will typically include a site visit
as well as any senpling and analysis required to make the
necessary determinations in the P7k. It should be understood
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O$wE uU ui ti.i’ c te
-2- 9502.004
that, for the purposes of SPMS tracking, only c mp1ete RPM
will be counted as accauplis}unents.
If properly planned and executed, an RPA can be completed
within a relatively short time frame (three rronths or less).
Since RFAs can be conducted concurrently with other permit review
activities, we believe that doing RPM prior to permitting should
have little impact on permit issuance schedules. There may be
some facilities, however, which are scheduled to receive draft
permits in the next several iicnths (i.e., this calendar year),
but for which an RPA has not been initiated. If completing an
RFA for such facilities is likely to substantially delay issuance
of the final permit, Regions may consider having the necessary
sampling and analysis portion of the RFA donç after permit
issuance, under a schedule of compliance. In such cases, however,
the Preliminary Review and Visual Site Inspection portions of the
RFA should be completed before the permit is issued.
It may also be appropriate to conduct an RFA before taking
action under RCRA Section 3008(h), the Interim Status Corrective
Action Authority. Infornation from the RPA can provide evidence
necessary to meet §3008(h) criteria where it is not otherwise
available, and can provide infornation necessary to properly
scope an order. We recognize, however, that it may not be
possible to conduct an RPA prior to issuing an order in cases
where there is a need to initiate such an action quickly or
when a facility ii not a current RPA priority. RFA priorities
for F? 1987 are all operating land disposal facilities scheduled
for permit issuance by November 1988, and 30 percent of the
closing land disposal facilities.
Previous guidance has expressed a preference for requiring
owner/operators to perform sampling and analysis which may be
required to complete an RFA. It should be understood that while
owner/operator support, if it can be secured on a timely basis,
is encouraged, owner/operator support should not be sought if it
cannot be expected to be timely or reliable. Regions have been
provided substantial extramural fw ds to perform RPM • These
funds should be used as necessary to assure timely completion
of comprehensive RPM.
We recognize that completing RPM prior to issuance of
permits may have some implications in terme of timing and
resources r certain facilities. We ask that Regions communicate
any concerns regarding this policy to Dave Fagan (0 5W) at FTS
382—4692.
cci Regional Hazardous Waste Branth Chiefs
Regional RCRA Permit Section Chiefs
Regional RCRA Enforcenent Section Chiefs
N. Williams
G. Lucero
B. Waddle
L. Guerci
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9502.00—6
UNITED STATES ENViRONMENTAL PROT...
. . WASHINGTON. D C. 20460
t
C FCE
S L’O 4Sr £.‘. EVER E’. .
M EM OP A ‘ DL- ’
5 SJ CT: efinition of Solid Waste anagement Unit for che
purpose of Corrective Action Under Section 3004(j)
rcia ‘. :i1lia s, Director
Cffice of Solia ‘aste r
TO: !azardous :aste Division Directors, Regions I—X
The purpose of this memorandum is to provide clarification
regarding one a5pect of the definition of solid asce managenent
unit as related to RCRA corrective action under Section 3004(u).
The concept of a solid waste management unit haE been explained
in various guidances since the passage of the 1984 Hazardous
and Solid !aste mendents (H& A).
As explained in the July 15, 1985 HSAA Codification Rule,
a solid waste management unit is ... any unit at a facility
from which hazarious constituents night migrate, irrespective of
whether the units were intended for the managernent of solid an J
or hazardous wastes.” This definition was intended to inciuie
those types of units which have traditionally been subject to
regulatory control under RCRA; container storage areas, tanks,
surface impoundments, waste piles, land treatment units, landfills,
incinerators, underground injection wells and other ;hysic3l,
chemical and biological treatment unit5.
A mei oranJum from John Skinner to the Hazardous asta
Division Directors (June 14, 1985) further interpreted the ter r
solid waste management unit to include areas at facilities whicn
have become contaminated by routine, systematic and deliberate
releases of hazardous waste or hazardous constituents. An
example of this type of solid waste management u nit is a wood
preservative kickbacks area, where drippage of preservative
fluids onto soils from pressure—treated wood is allowed to occur
over time. This interpretation was reiterated in the final
RCRA Facility Assessment Guidance and the t ationa1 RCRA
Corrective Action Strategy of October 14, 1986.
-------
Recently, however, several Regions have in;uira wi1e er t ie
term de1iberate meant that the owner/operator had actually
intended to create the release of hazardous wastes or hazardous
constituents. We wish to clarify that the term deliberate M in
this context was not meant to require a showing that the owr er/
operator knowingly caused a release of hazardous wastes or hazard-
ous constituents. Rather, the term “deitherate” was included to
indicate the Agency’s intention not to exercise its Section 3 0 04(u)
authority to oroceed against one—time, accidental spills wriich
cannot be linked to a discernible solid waste management unit.
An example of this type of release would be an ,accident l spill
from a truck at a RCUi facility. Routine and systematic releases
constitute, in effect, manacement of wastes; the arsa at which
this activity has taken place can thus reasona ily be considered
a solid waste management unit. Therefore, in implementing correc-
tive action under Section 3004(u), Regions and states shoul3
consider areas which have become contaminated through routine
and syste natic releases of hazardous wastes or hazardous constit-
uents to Ce solii waste mana emer t units. It is not necessarj
to establish that such releases were deliberate in nature.
This conceot, and other issues relating to the definition of
solid waste manager ent unit, will be addressed in the proposei
rulerrakirtç being developed for corrective action under Section
300 4(u .
If you have any questions regarding this interpretation of
of solid waste manaaement unit, please contact David Fagan at
PTS 382—4497.
cc: Regional RCRA Branch Chiefs
Regional RCRA Permit Section hiefs
Gene Lucero
Bruce “ieddle
Joe Carra
iark Greenwood
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OSWER DLrec . o• 9502.00—7
tO
% TI UNITED STATES ENVIRONMENTAL PRO 9502 00-7
WASHINGTON. D.C. 20410
v 8 t’?55
O ’CE 3F
SOLID WASTE ANO EME GE CY
Mfl4OPA M
SUBJECT: J. se of 53008(h) Orders or Post-Closure Permits t
( 1.osing ,f ci4ities ’
, J/7/2,Ld .’ C
FROM: . Wins ’on PoY ëti ssistant Mministrator
1/V- /
TO: JRegional Administrators, Regions I - K
SU? RY
The purpose of this memorandum is to clarify the use of
53008(h) orders and post-closure permits to address corrective
action at closing interim status facilities. The first part of
this memo briefly reviews the authorities and their
applicability. The second part of this memo presents
considerations that may be used in making your decision on
whether to use a 53008(h) order or a post-closure permit with
53004(u) and 53004(v) conditions.
I. B CKGROUND
Many closing RCRA facilities require corrective action to
mitigate potential threats to human health and the
environment. Corrective action at environmentally significant
closing facilities should be completed as expeditiously as
possible.* Two principal authorities can be used to compel
corrective action at these facilities: 53008(h) orders and
post-closure permits.** Questions have arisen regarding which
authority to use. In particular, advice has been sought on
when to use a post-closure permit instead of S3O08(h) order to
compel corrective action at interim status facilities or
facilities that have lost interim status.
aTh. &vironmental Priorities Initiative (EPI) provides a
priority—setting mechanism for identifying and evaluating
environmentally significant facilities.
**pIJo other RCRA corrective action authorities, 53013 and
s7003, may also be available. Additionally, Superfund
authorities may also be applicable. Furthermore, these
authorities may be used in combination.
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—2—
A. Section 3OO8(h 1
Section 30Q8(h) authorizes EPA to issue corrective action
administrative orders and to initiate civil actions for
facilities currently under interim status, facilities that once
had interim status, or facilities that Should have had interim
status. A S3008(h) order may be issued whether the facility is
operating (prior to receiving a permit), is closing, or is
closed.
Section 3008(h) orders may address releases or potential
releases to all medta. EPA may use these orders to require
study or cleanup actions where the Agency has made the
determination that there is or has been a release of hazardous
waste or hazardous constituents into the environment from a
facility. (Guidance on the interpretation of 53008(h is
provided in a December 16, 1985 memorandum from J. Winston
Porter.)
B. Section 3O04 u )
Section 3004(u) requires every treatment, storage or
disposal facility that is seeking a RCRA permit after November
8, 1984 to undertake corrective action for releases of
hazardous waste or hazardous constituents from solid waste
management units (SWMUs), regardless of when the waste was
placed in the unit involved. Section 3004(u) allows the use of
schedules of compliance in the permit to accomplish corrective
action.
C. Post-Closure Permits
Post-closure permits are required for any landfill, waste
pile, surface impoundment, or land treatment unit which
received waste after July 26, 1982, or which ceased the receipt
of wastes prior to July 26, 1982 but did not certify closure
until after January 26, 1983. However, a post-closure permit
is not required if the unit closes by removal under standards
equivalent to S264 standards.* Post-closure permits are also
not required for treatment and storage units, although under
the new tank regulations (51. FR 25422), post-closure permits
may be required. For treatment and storage units, we
*Interia status units that closed by removal after January 26,
1983 under Part 265 standards are subject to post-closure
responsibilities unless such units demonstrate that the
facility meets the closure by removal standards of Part 264.
December 1, 1987, 52 FR 45788 amending 40 C.F.R.
S270.l(C)).
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—3—
recommend that a RCRA Facility Assessment (RFA) be completed
and a53008 ’h) order be issued, if necessary, before the
operating ermit is denied.
Under current regulations post-closure permits are
required even where a facility has closed under interim status
and a §3008(h) order has been issued to address corrective
action. The terms of any 53008(h) order may, of course, be
made part of the post-closure permit, as appropriate.
II. Considerations in Selecting 30O8(h) Orders or
Post-Closure Permits
As discussed above, there are situations in which only one
authority is applicable. For example, for units not subject
to post-closure care (e.g., interim status treatment and
storage facilities or facilities with surface impoundments that
have clean closed according to Part 264 standards), S3008th
orders are the appropriate corrective action authority. In
many cases, however, either authority may be used; e.g.,
interim status land disposal facilities subject to the
post-closure care requirements.
Since §3008(h) and §3004(u) provide overlapping authority
in terms of the scope and type of cleanup actions which may be
required of interim status facility owner/operators, when a
choice is available we leave the decision to the Regions to
determine whether to use a-3008(h) order or §3004(u) conditLons
in an operating or post-closure petinit. The following
considerations are offered to assist you in deciding, on a
case-by-case basis, how to proceed.
o A post-closure permit may be an easier approach than a
S3008(h) order in the case of a willing owner/operator. A
53008(h) order/judicial action may be the preferable first step
where the owner/operator is uncooperative, or where there is
disagreement with the Agency or uncertainty over the scope of
activities to be conducted. (Some regions have found that the
owner/operator may prefer a post-closure permit instead of a
§3008(h) order because of the perceived stigma attached to an
enforcement order.)
o In situations which will require long—term oversight,
it may be re appropriate to determine at the outset to use a
post-closure permit instead o’f issuing a §3008(h) order.
Permits are designed to address long-term activities.
Enforcement authorities, which may involve judicial action and
approvals, are less well-suited for activities requiring
long-term oversight. (Of course, as noted above the
cooperativeness of the owner/operator will influence this
decision).
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—4—
0 A S3008(h) order may be more appropriate where a prompt
action is n çessary and where a post-closure permit is not soon
scheduled t,p be issued.* This is because 53008(h) orders allow
more flexibility in both timing and scope than permits. For
example, a 53008(h) order could focus only on the Specific
cleanup requiring immediate attention without having to address
post-closure care or corrective action elsewhere on the
facility. Conversely, a post-closure permit must address, to
the extent necessary, releases from all. SWMUs as well as
post-closure care activities.
o A S3008(h) order may be more appropriate than a
post-closure permit where there is concern that releases are
coming from sources other than SWMU5. The language of section
3008(h) refers to releases from facilities. This may be
broader language than that in section 3004(u) which refers to
releases from SWMUs.
CONCLUSION
These considerations should be evaluated and weighed in
any decision on which corrective action authority should be
used. The Agency’s objective for closing facilities is to
minimize the post-closure release of hazardous wastes and
hazardous constituents into the environment and to address
corrective action for existing or potential releases at the
time of closure. The post-closure permit provides a
coordinated one—step mechanism for addressing corrective action
at the entire facility together with post-closure care for
regulated units. In the long-run, therefore, we anticipate
that post-closure permits should serve as the routine mechanism
for the majority of corrective actions at closing land disposal
facilties. Under current regulations, use of 53008(h) will not
obviate the need to issue a post-closure permit, unless closure
by removal takes place and satisfies Part 264 standards as
required under the new rules promulgated at 52 FR 45788.
Hence, complementary use of both a 53008(h) order and a
post—closure permit (with or without additional 53004(u)
conditions added) remains an important option.
an imminent and substantial endangerment to health or
the environment exists, a 57003 order may be appropriate.
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9502 • 1984(01)
December 7, 1984
MEMORANDUM
SUBJECT: Region VIII Policy
Oily Wastewater Treatment Ponds
FROM: John H. Skinner, Director
Office of Solid Waste (WH—562)
TO: Robert L. Duprey, Director
Region 8
Air and Waste Management Division (8AW-WM)
We have reviewed the proposed Region VIII position discussed
in your memos dated May 1 and October 12, 1984 that define
permitting coverage of refinery wastewater treatment ponds. As
your staff may have informed you, there have been several
meetings between my staff and yours to discuss this problem. We
have also met with Chevron, Phillips, Tosco and API and,
separately, with Region IX to discuss the issue. We share your
concern about the threat posed to ground and surface waters by
some of the unlined wastewater ponds that treat or store oily
wastewaters. However, we believe that the similarity of
downstream unit sludges (in terms of lead and chromium levels) to
those found in the API Separator are not a sufficient basis for
defining the material in the downstream units as API Separator
Sludge. In fact, the similarity of these sludges was a
significant factor in our decision to move forward on an expanded
listing to regulate these pond sludges.
Specifically, we are planning in a forthcoming listing to
regulate oil/water/solids separation sludges generated in the
wastewater treatment system prior to biological treatment. This
listing was originally proposed in November of 1980. We expect
to issue a notice identifying all of the available data in
support of the listing and to provide some clarifications in
response to previous comments. Current plans are to promulgate
that listing by late summer.
While the listing revision should cover most sludges
generated in these ponds, we realize that does not address your
This has been retyped from the original document.
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—2—
short term problem. We do have some suggestions in this regard.
Section 206 of the Hazardous and Solid Waste Amendments of 1984
provides that persons obtaining RCRA permits must undertake
corrective action for all releases of hazardous constituents from
any solid waste management unit as a condition of obtaining the
RCRA permit. Thus, if a refinery pond is releasing hazardous
constituents and the refinery seeks a RCRA permit for any unit at
the facility, the refinery would have to undertake corrective
action for the releases from the pond. (This could be done
either through the permit, or pursuant to an interim status
compliance order.) This principle applies even if the pond is
not considered to hold a hazardous waste, since Section 206
applies to releases of hazardous constituents from solid waste
management units.
A second option for addressing these pond sludges is to
regulate the wastes as hazardous based on their exhibiting one or
more of the characteristics of hazardous waste (see 40 CFR
§261.21-24). You mentioned this option in your recent letter
with respect to EP Toxicity. However, your staff seems to have
overlooked corrosivity (high pH has been found in some COD ponds)
and reactivity (S261.23(a)(5)). It is likely that some refinery
pond sludges will contain excessive levels of reactive suif ides.
The final option that could be used to deal with downstream
impoundments and basins is applicability of the mixture rule. It
is imperative, however, that your staff understand the proper
framework for the application of the mixture rule. To maintain
that a pond is regulated because an API Separator is an
inherently inefficient unit and allows sludge to be carried
through to a pond, is inaccurate. Likewise, downstream oxidation
ponds are not regulated simply because they sometimes receive
flow that has bypassed the API Separator. In both cases, the
listed API Separator Sludge has not yet been generated. Rather,
API Separator Sludge is generated when it is deposited in the
bottom of an API Separator. The mixture rule is relevant only in
those cases where previously deposited sludge is scoured,
resuspended, and then carried out of the unit with the
wastewater. If the Region can make a case for scouring from a
separator, the mixture rule is applicable and the wastewater
becomes a hazardous waste until delisted or discharged to a
stream subject to regulation under the Clean Water Act.
The burden of proof in the demonstration of scouring is upon
the Agency. Such an argument, although technically complex, can
be made based on well established hydrodynamic principles.
Realizing that there are limited resources and capability for
developing such an argument by the Regions, we have (at the
This has been retyped from the original document.
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—3—
request of your staff) taken an active role in the development of
guidance for the application of this argument. Attached to this
memo is a preliminary list of factors that may be required to
establish the occurrence of scouring from a given separator.
These points are being provided at this time to facilitate the
initiation of information gathering in the more serious cases.
We have also requested that the Office of Waste Programs
Enforcement (OWPE) develop more thorough guidance. That effort
is being conducted by their contractor (Metcalf & Eddy). We
anticipate that your staff will be contacted by them in the near
future. The contractor should be able to provide some direct
assistance to your staff in some specific cases, thereby serving
the dual purpose of training and resolution of specific factors
of concern. Mike Barclay (FTS: 475-8727) of OWPE is the
Headquarters lead on that project and should be contacted for any
further information. Ben Smith of my staff (FTS: 475-8551) is
our technical expert in this matter and the lead on our study of
petroleum refineries and their wastes. Do not hesitate to
contact him if additional questions arise pertaining to this or
other matters.
cc: RA’s Region I—X
Mike Barclay (OWPE)
Steve Siverman (OGC)
Susan Mariganello (ORC, Region VIII)
Attachment
This has been retyped from the original document.
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ractors To B. evaluated Tn Deternining The Potential For
Separator Sluci’]e Scouring
Sludge Accumulation Practice. — Continuous siucge removal,
f roe tho separator rules out the occurrence of scouring.
At the ether end of the spectr . are facilities that allow
sludge to accumulat. to considerable depth. Acc ulation
to a depth grcat.r than 50% of the flow depth makes scouri
probable. Intermediat, ranges of acci ul.ation will prob-
ably depend mor. heavily on ‘ther factors.
!low variability Unless overloaded, units with mizimum. .
to—minimum, flow ratios at th. separator effluent of less
than 2 and mist flow ratios of less than 4 ar, probably
not experiencing much resuspension of sludge.
Poor Separator Design or Operation — Pactors contributing
to scour conditions include. .xcessiv., inlet or outlet
son. turbulence, nominal horisontal velocities greater
than 30 feet per.ainutes nominal overflow rates (f l ev/
surfac. area) griater.than 10.000 gallons p . r day/square
foot ef basin; basins lea . than 30 feet in lengths opera-
tion under pressure (e.g., with a backwater at the inlet
of a separator with a -fros.n surface). settling zone
turbulence (sometimes seen a. bubbling with solids
•ntrairu .nt).
Separator effluent Character ist ics — !xcessivo weir load ingi
(e.g.. operation with a suppressed veir, flow depth greater
than a foot) facilitate carryover of resuspended parttcles
VLsIDI., large (d iam.ter greater than 1/4 inch) sludge
particles in the separator effluent are strong evidence
of scouring associated with licrebtal degradation of
deposited sludge.
sludge Characteristics Partial. sii.distributton ai
Measured by wot si.,. and hydras.ter analyses is necessary
information to define scour conditions. Th presence of
coke fines in the waatevstsr tnflusnt is also important
because that siz . of particle (<.1) is non—cohesive
and highly susceptible to rosu .pension
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950 2.1985(01)
!P s
UNITED STATES ENVIRONMENTAL. PROTECTION AGENCY
_____ WASHINGTON. D C 20460
FE
O ’’CE 3
SOLID WAStE AND E IAERCENCV eESPONSE
MEMORANDUM
SUBJECT: RCRA Reauthorization Statutory Interpretation *3:
Lrnmediate Implementation of New Corrective Action
Requ irem ts
,
FROM: J’ack W.’McGraw
Acting Assistant Administrator
TO: Addressees
BACKGROUND
One of the most important early—enactment provisions of the
RCRA reauthorization is the new authority for corrective action
for continuing releases (Section 3 004 (u)]. As you know, this pro-.
vision is applicable to all permits issued after November 8, 1984.
This memorandum provides preliminary guidance on the new information
to be submitted with Part B applications to satisfy the new require-
ments. The guidance applies to those facilities whose Part B
applications have been requested, and for which final determinations
were not made prior to November 8, 1984.
The new continuing release provision in effect requires that
each facility seeking a RCRA permit must (a) identify all solid
waste management units at the facility; (b) identify releases
of hazardous wastes or constituents that have occurred from those
units; and Cc) perform corrective action for those releases. Vir-
tually all regulated facilities will, be affected by this provision,
since it applies to inactive and closed units at such facilities,
as well as to the operating units subject to permitting.
Much of the impleii ntation of the continuing release provision
is subject to interpretations which have not yet been made by the
Agency. An effort is currently underway to clarify the full impact
of this provision on the RCRA permit program.
Policy guidance on implementation of the new S3004(u) authority,
including the requirement for financial assurance for corrective
action, is expected to be issued in draft within a month. Separate
guidance is being developed on how to determine whether or not a
facility has a release that may pose a threat to human health and the
environment. Additional guidance on the technical aspects of
different types of corrective action programs, and on the use of
interim status corrective action orders, will also be issued.
-------
ACTION
Several actions can be taken to implement this new cor-
rective action requirement prior to issuance of the above mentioned
guidance packages. Specifically we recommend that a notice be
sent to each facility whose Part B has been requested and for
which a final determination was not made p:Lor to November 8, 1984.
This notice should provide a general explanation of the new cor-
rective action provision, and the fact that additional information
must be submitted to satisfy the new requirement. In general,
EPA will need to obtain the following information in order to
determine whether a facility is in compliance with section 3004(u):
(a) Identification of each unit at the facility that might
fall within the definition of solid waste management unit,
that has not already been described in the Part B appli-
cation. Although no final decision has yet been made on
the definition, a solid waste management unit may include
any landfill, surface impoundment, waste pile, land treatment
unit, injection well, incinerator, tank (including waste—
water treatment units, elementary neutralization units,
and tanks used in reuse/recovery operations), container
storage area, transfer station, or waste recycling oper-
ation at the facility. The applicant should also under-
stand that EPA views the facility as not limited to the
area where wastes are managed, hut includes the entire
contiguous property under the control of the owner or
operator. For each unit, the following information should
be supplied:
— Type of unit
— Location of each unit at the facility on a
topographic map
— General dimensions
— Whether the unit is currently operating, and if
not, when the unit closed or ceased operating
— Description of the wastes that were placed in
the unit (where available)
(5) All information available to the owner/operator on
whether or not releases have occurred from any of the
solid waste management units (including the hazardcus
waste units) at the facility. Releases to ground water,
as well as to other media (e.g., soils, surface water,
air) should be described. Such information would
include available ground or surface water nonitorirtg
data, results of soil sampling, spill reports, inspection
records, etc.
We recommend that in most cases, applicants who have already
submitted their Part B application should be given no more than
30—45 days in which to submit this information.
—2—
-------
It should be understood that there is currently no provision
in 40 CFR Part 270 which requires submission of the above info r—
mation in Part •B applications. In a sense, therefore, submittal of
the information by permit applicants is “voluntary.” However,
section 3005(c) of the Act provides that permits can be issued
to facilities only upon a determination that the facility is in
compliance with the requirements of Section 3004 of the Act.
Therefore, failure to submit information to demonstrate a facility’s
compliance with the S3004(u) requirement would be grounds for denial
of the permit.
The above information, when submitted by the permit applicants,
will allow the permit writer to make an assessment as to which
facilities are likely to require corrective action programs, and
how permitting and enforcement priorities might subsequently be
realigned.
Some States may have existing regulatory requirements analogous
to the new RCRA continuing release provision. Such States may
already have gathered substantial information on solid waste man-
agement units and releases at their facilities. In preparing the
notices to be sent to permit applicants, Regional Offices should
coordinate with their States to avoid requesting such information
that has already been collected by a State agency.
Soi ’e facilities may contain only units with a relatively
low likelihood of having caused a release (e.g., indoor container
storage areas, above—ground tanks, etc.). In such cases, the
Region/State may consider going forward with issuing the permit,
providing that:
— The owner/operator has indicated that there is no
information indicating a release from any of the units;
and
— An assessment of the facility, based on a site in-
spection and other available information, confirms that
a release that poses a threat to human health and the
environment is unlikely to have occurred.
For many facilities, the absence of a release will not be
so easily established. Further, some facilities will already have
determined that such a release(s) has occurred. For these facil-
ities further information will have to be developed to identify
and/or characterize releases. As noted earlier, guidance on these
issues will be forthcoming.
Any questions or comments on procedural aspects of imple-
menting this corrective action authority should be directed to
Dave Pagan (382—4497). For information on the guidance packages
being developed, please contact Art Day (382—4658), or George
Dixon (382—4494).
—3—
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Addressees :
Regional Administrators, Regions t—X
Regional Waste Management Division Directors, Regions I—X
Hazardous Waste Branch Chiefs, Regions I-X
Regional Counsels, Regions IX
State Hazardous Waste Program Directors
Assistant Administrator for Enforcement and Compliance Monitoring
Associate General Counsel for Solid Waste and Emergency Response
OSWER Office Directors
—4-
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9502.1985(02)
June 17, 1985
Regulation of Wood Treatment Plant Drip Areas as Solid Waste
Management Units
John Skinner, Director
Office of Solid Waste
James C. Scarbrough, Chief
Residuals Management Branch, Region IV
In your April 23, 1985, memo, you asked whether the ground
areas at a wood treatment plant that receive drippage from the
treated wood are solid waste management units and, therefore,
subject to the continuing release provisions of HSWA. We agree
with you that these areas are solid waste management units,
subject to the continuing release and interim status corrective
action order requirements of the 1984 RCRA amendments.
As we understand the process, when the pressure treated wood
is removed from the treating cylinder, excess preservative is
forced out of the wood by the internal pressure still remaining
in the wood. This is commonly referred to as kick-back drippage.
The length of time over which drippage occurs varies from about
four to twenty—four hours, depending on the type of wood treated,
the series of pressure or vacuum treating cycles employed, and
the preservative solutions used. Often, a final vacuum is drawn
on the preserved wood which then delays the onset of this
drippage by an hour or so after it is taken out of the pressure
treating cylinder.
Although some of these residuals have been found to contain
significant concentrations of carcinogenic substances (such as
chrysene and benzo(a)pyrene) they are not currently classified
as hazardous wastes under RCRA, either as discarded commercial
chemical products under Section 261.33 or otherwise as listed or
characteristic wastes. The Agency is now obtaining data to
determine whether these residuals should be listed along with
other wastes from the wood preserving industry.
These residuals, however, are definitely solid wastes.
Therefore, any specific ground area that routinely receives this
This has been retyped from the original document.
-------
—2—
kick—back drippage would be considered a “solid waste management
unit” since it is a discrete area of the facility where wastes
have been or are deliberately, routinely , and systematically
1aced or allowed to leak onto the land. The unit is thus
subject to the corrective action requirements of 3004(u),
providing that the facility is seeking a RCRA permit.
If the facility has interim status but is not seeking a
permit, enforcement authorities under Section 3008(h) and others
can be used to require necessary corrective measures.
I trust that this response is helpful to you in preparing
your case in the compliance order proceeding regarding a wood
treater’s Part B permit application.
This has been retyped from the original document.
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9502.1985(02)
Attachment
June 14, 1985
MEMORANDUM
SUBJECT: Regulatory status of wood preservative “Kickback”
emissions
FROM: John H. Skinner, Ph.D.
Director
Office of Solid Waste (WH 565)
TO: Elizabeth Maxwell
Assistant Regional Counsel
Region V
In a March 29, 1985 memo, you requested clarification of the
regulatory status of the ground area around tracks or other areas
outside of the immediate treating cylinder area where drippage
collects from newly treated wood. ./ This area (referred to as
the “kick—back drippage area”) is a solid waste management unit,
subject to the corrective action requirements of the 1984 RCRA
amendments.
As we understand the process, when the pressure treated wood
charge is removed from the treating cylinder, excess preservative
is forced out of the wood by the internal pressure still
remaining in the wood. This is commonly referred to as kick—back
drippage. Typically, a charge of newly treated wood is allowed
to rest in a specific area while still loaded on the railroad
platform car for some time during this pressure equalization
process. In some cases, this drippage may be partially collected
in troughs or sumps beneath the tracks. The length of time over
which drippage occurs varies from about four to twenty-four
hours, depending on the type of wood treated, the series of
pressure or vacuum treating cycles employed, and the preservative
j,/ While the Agency has determined the status of this area, we
are currently evaluating other parts of wood preserving plants
to determine if these areas also should be classified as land-
based units.
This has been retyped from the original document.
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—2—
solutions used. Often, a final vacuum is drawn on the preserved
wood which then delays the onset of this drippage by an hour or
so after it is taken out of the pressure treating cylinder.
At Southern Wood Piedmont’s Waverly, Ohio facility, some of
this residual is collected in troughs beside the railroad track
and periodically dredged out manually. Substantial amounts,
however, also drip onto the ground. The facility has supplied
analytical data demonstrating significant concentrations of
carcinogenic substances in these deposits ( e.g. , chrysene at 2500
ppm and benzo(a)pyrene at 730 ppm).
Although these residuals are not currently classified as
hazardous wastes under RCRA, either as discarded commercial
chemical products under Section 261.33 or otherwise as listed or
characteristic wastes, the Agency is now obtaining data to
determine whether these residuals should be listed along with
other wastes from the wood preserving industry.
These residuals, however, are solid wastes. The specific
ground area which routinely receives this kick-back drippage
would be considered a “solid waste management unit,” since it is
a discrete area of the facility where wastes have been or are
deliberately, routinely, and systematically placed or are allowed
to leak onto the land. The unit is thus subject to the
corrective action requirements of 3004 (U), providing that the
facility is seeking a RCRA permit. If the facility has interim
status but is not seeking a permit, enforcement authorities under
Section 3008(h) and others can be used to require necessary
corrective resources.
cc: Regional Administrators
Regional Branch Chiefs
This has been retyped from the original document.
-------
9502.1985(04)
RCRA/SUPER N HOTLINE MONTHLY SUMMARY
JUNE 85
az-Licti &ctiu
1. A U s t.atit facility is a 1yiri for a .ciwc. naetvstt i ar ry t
( A) 53005 ratJ.ng ps j . g facility O Wtefltly .
tir for r cl ti t. i Jar axy 4, 1985, (50 PR 614), ths .ricy dsc.lard
that . ta1, rscyc1 , is a abtitl. C ts. Ccn irrsntly, tt
sncy aII ah. .4 that it “ i u I4 T t r.gulat. s ap tal d tinsd for rcyc1in
at this t1. Be ias thi. facility L i ssskirç a 53005 sratizç .rvuiit,
t f .lity at s.s 1 at saxd ssta or titusnta fr
w .olld to i 1 cj ant imit p milnt to 53004(u) ( rr.ctiv..cti i).
Peat this f i1ity a ii ths w sçu1atad a tal maria ei.rt are. =- .
asrnizç tel?
sa U s tal d.stird for recycling is t t regi latd, it is
a eolid mt.. The, a zel.ass at a )iazar as ssta or
at tal e.r r are. (solid t. aInag nt wilt) t
ssss6 aant to 53004(u) of .
&M $ Is Fagan (202) 382—4497
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9502.1985(05)
RCRA/STJPERFUND HOTLINE MONTHLY SUMMARY
MIGUST 85
orect.ve Act CC for Co ti .I3.. Release. (53004(u) )
2. oh1ar/cr rar or of a r. ea sr t, storage or dis saL bciltty (TS )
B& Part 8 ap liaticn. V facility design Lnci. es sunpe holdiri este ter.
The .aste .ater is onsidred a listed P* rdo. sst. bsca.a it ontai .s s t
crUori..d solveCts listed i. 5261.31 ltd t1 sixt s rile of S261.3(aU2(w
açl as • *stei tar is ld in th s for less than 90 days. La th o’.nsr/
psrator rewired a r.u thase .% U in tha Part B applies tion?
the ire . of a thar teria1 atd have s4fi: e-t
str.cturai trtagrity, ehay u1d be r .&latsd as tw.ks (see i4atior
L terpr.tative tatter 0110 r.garth.rç ta ks versa surfac un .r ts
ar d 5264.191). Siction 262.34 states that haurdois mste may stored
u. sr.Ks or eontai ers for 90 days or Less wittcut a M permit provided
compliarce vith 5262.34 (a) thr01.qh (c i. this basis alone, tha su pe
fleed t e addressed Li tha Part B appli atior. C5264.1(çH3 atd
S270.1(c) 2)(i}).
bbtever, the ) rdo a d Solid st. ne e t.s of 1984 ( 1SWM :equire that
i ft ation be s itted rsga ir solid sts .s jt.s , i zl.diq
for RA psrmi ts iu ad after ve r 8, 1984. me . sw corrective action
provision for contfr. .iç releases (S3004(.i) of tha Solid st, Dts u1 . t. as
azne.’ ed) .qii:es lde tificatior. of all solid ste e t i s at t..
fac 1ity ard e eaSe5 of azar cus stei ard hazar js r.stttueets f these ‘.ar. ta .
Q da cc t.ie S 3O04( ) Ct 5Ct1 V iCtICC OVLS1CC L5 tourd t . A Paaut.’lorlzacLcc
Statutory t-t.rpreti t1on $3 ( I *3) dated February 5, L985 atd the JuLy 15. 1985.
codificaucri rule (50 FR 28111). A ‘s sit$ issued after vs er 3, 1984. m st
contair c çL. an ad lee for rrsCtiv. action and assurar. of fi .cia1 espor —
sibility for Jatirtj Jdt corr,cti’JU CtLCC per S264.10l (50 28711).
Soures: ve Fagan (202) 3824497
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j UNITED STATES ENVIRONMENTAL. PROTECTION AGENCY 9502.1985(06)
( jIZLJ WASHINGTON, D.C. 20460
O T 2 9 •35
OFFICE OF
$01. 10 WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Application of HSWA Sections to DOE’s Oak Ridge Facility
FROM: Marcia Williams
Di rector
Office of Solid Waste
TO: James H. Scarbrough
Chief, Residual. Management Branch
Waste Management Division, Region IV
Your July 25, 1985, letter asked several questions
regarding the applicability of HSWA requirement. to the DOE Y—12
facility at Oak Ridge. The first provision you asked about is
§3004(u), which is invoked only when a facility is seeking a
RCRA permit. HWDMS indicates that the Y—12 facility is seeking
a permit, which triggers the corrective action authority to
address releases from solid waste management units (SWMLJs).
However, Oak Ridge is a Federal facility. The applicability of
§3004(u) has been called into question for Federal facilities,
and EPA is involved in on-going negotiations with other Federal
agencies on this issue. Specifically, the final codification
rule states that:
The extent to which the above interpretation
applies to Federal facilities raises legal and
policy issues that the agency has not yet
resolved... • Permit applications for Federal
facilities will continue to be processed,
but recognizing that final Federal facility
permits may not be issued where these unresolved
issues exist, EPA will make its best efforts
to resolve these issues in the next 60 days.
50 28712 (July 15, 1985).
If th.-4 cility is seeking a RCRA permit and it has no SWMUs
or if it has SIfl1Us that it agrees to address, the permitting
ocess can move forward and corrective action pursuant to
§3004(u) can progress accordingly. However, if the facility is
not willing to address SWMU., th. permitting process for this
facility becomes more complex. For further information on
§3004(u), please contact Dave Fagan of the Permits Branch at
FTS 382—4751.
-------
—2—
The final codification rule does not set standards for
implementation of §3004(v) and states that in the interim
decisions to issue orders for this section shall be done on
a case-by-case basis. This section of HSWA provides that:
As promptly as practicable after the date of
enactment...the Administrator shall amend the
standards...regarding corrective action required
at facilities for the treatment 1 storage, or
disposal, of hazardous waste...to require that
corrective action be taken beyond the facility
boundary where necessary to protect human health
and the environment....
If you are interested in pursuing such an order for this
facility, you should contact Girtny Steiner of the Office of
Waste Programs Enforcement at PTS 475—9320.
We are as yet unsure what mechanism to use in applying
§3008(h) to Federal facilities due to our dispute resolution
policy for such facilities. Normally, however, if a facility
is operating under interim status, the authorities in
53008(h) can be used to deal directly with on—going environ-
mental problems. The trigger for issuing such orders and
initiating civil referrals is the existence of a releaser
However, because of the nature of the 3008(h) prevision,
it is subject to limitations. Your question is not entirely
clear, however, in terms of what unite are leaking and
their permitting status. You state that the pond is a RCRA
unit and then state that it has no ground-water monitoring
system. If the pond is operating pursuant to the interim
status requirements, it must have a ground-water monitoring
system. If you have specific question. on this process or
how it should be implemented, please call. Ginny Steiner at
the number listed above.
In addition, you have asked whether it ii significant in
determining th. applicability of RCRA corrective action that
one or more contaminants being released through the NPDES
point are not specified in the permit. This factor is not
significant in determining RCRA’s applicability to the
release. Ths key question is whether the release from an out-
fall address4 in the NPDES permits is within the exemption
for NPDES dischar cc found in §1004(27) of RCRA. We are
currently evelop ng guidance covering RCRA jurisdiction and
MPDES discharges.
You have also asked whether a release which occurred prior
to the date of the NPDES permit could be addressed by correc-
tive action measures pursuant to §3004(u). Correctiv, measures
could apply to a release which occurred prior to the issuance
of a NPDES permit. As a matter of policy EPA has decided to
-------
-3—
rely on the NPDES program to address releases, otherwise within
the scope of 30O4( a), that are addressed by that program.
See 50 Fed . ! • 28714 (July 15. 1985). In keeping with that
policy it may become necessary to dietinquish between releases
which occurred prior to the issuance of a NPDES permit and any
subsequent releases. As a practical matter this may be diff i—
cult if not impossible to do; therefore, EPA policy is that
where such a distinction cannot be made and the existence of a
preperrnitted release is clear, the entire contaminated area is
subject to clean up.
Please feel free to contact Chaz Miller, o ir Federal
Facilities Coordinator, at FTS 382—2210 if you have any further
questions on these issues; we are developing the policies for
these new statutory authorities as quickly as possible.
cc: Thomas W. Devine, Director, Waste Management Division,
Region IV
RCM Branch Chief., Regions I-X
State Programs Branch, OSW
Permits Branch 1 08W
-------
;
: UNITED STATES ENVIRONMENTAL PROTECTION AGENC Y
WASMINGION 0 C 20460
•41 4I
DEC I 6 I9 9502.1985 (09)
‘ I!MORAND
SUBJECT: Interpretation of S.etion 30.09(h) of the Solid
Wait,. Dispos ,l Act
FROM: 3. . Wtrtston Porter, Assistant Administrator
oc ice of Solid 1 1 te and Emergency Response
I ‘ —
c ’r . P 4 i /As Tstant Administrator
Office of Enforcement and Compliance Monitoring
TO: R.cjonal Administrators
Regional Counsels
Regional Waste Management Division Directors
Director, National Enforcement Investigation Center
Aspart of our effort to support cas, development activities
undertaken by United States Environmental Protection Agency
personnel, we ar. transmitting to you guidanc, on the use of
Section 3008(h), one of the corrective action authorities added
to the Solid Waste Disposal Act by the Hazardous andT Solid Waste
?.r endrtents of 1984. As you are aware, Section 3008(h) allows the
Agency tO take enforcement action to require corrective action r
any other response necessary to protect human health or the
environment when a release is identified at an interim status
hazardous waste treatment, storage or disposal facility. Eecause
the authority is broad, both with respect to the kinds of •rtv rort-
mental problems that cart be addressed and the actions that the
Agency may compel, we have produced the attached document to
provide initial guidance on the interpretation of the terms of
the provision and to describe administrative requirements. The
document will be revised as case law and Agency policy develop;
In addition, the Office of Solid Waste arid Emergency Response
intends to develop technical guidance on various types of response
measures and the circumstances in which they might be appropr ate.
tn view of the need to issue RCRA permits and to ensure that
the substantial number of interim status facilities expected to
cease operation in the near future are closed in an environmentai
sound menner. we encourage you to use the interim status corrsct
action authority as appropriate to •upp2.ment the closure and
permitting processes. Questions or comments on this document or
the use of Section 3008(h) authority in general can be addressed
Gin. A. Lucsro, Director of the Office of Wilt. Programs Enforcert ’
(FTS 382—4814, wH—527) or Fred Stiehi, Associate Enforcer’Ieflt
Counsel for Waste (?rS 382—3050, r.E—134S).
Attachment
-------
A SECTIC 3008(h)
E INTERIM SLATUS O RREC IVE cri mi Rm
D ER 16, 1985
-------
i. i acrIa
The Hazardous and Solid Waste Mnen i nts of 1984 have substantially
expanded the s e of the A hazardc*is waste inanagetent program. O e of
the st signifio nt provisions is the interim status. corrective, action..
authority, which a11 s EPA to take enforcer ent action to cu el response
measures when the Agency determines that there is or has been a release of
hazardczis waste at a A interim status facility. Prior to the 1984
Amen r ts, EPA could require re diai. action at interim status facilities
by, inter alia , (1) using A S7003 or 5106 authorities if an iurninent
and subetantial endangerment may have been presented, or (2) when significant
gr td-water contamination was detected, calling in Part B of the permit
a 1icaticn and requiring corrective action as a condition of the permit. The
ktenóents added Section 3008(h) to deal directly with enviroiiuental problems
by requiring clean-up at facilities that have q eratad or are operating subject
to interim status requirements.
The p.irpose of this docuient is to provide preliminary guidelines on the
s e of Section 3008(h) and to suimarize a ropriate procedures. The docutent
will be revised as case law and Agency policy develop. Other relevant A
guidances that may be consulted include:
• Final Revised Guidance an the Use and Issuance of Mministrative Orders
wider Section 7003 of A, Office of Enforc ent and O rp1iance Monitoring
and Office of Solid Waste and Emergency -Response - Septa er, 1984.
• Issuance of k inistratlve Orders u,der Section 3013 of A, Office of
Enforc nt and Ca liance Monitoring and Office of Solid Waste and
Emergency Response — September, 1984.
• Draft Guidance on Corrective action for Continuing Releases, Office
of Solid Waste and Emergency Response - February, 1985.
• Final A Ground-Water Monitoring C 1iance Order Guidance, Office
of Solid Waste and Emergen ’ Response — August, 1985.
-------
—2—
0 Draft A Ground-Water Monitoring Technical forc ent Q.iidarce
j cunent, Office of Solid Waste and r ency sponse - A ust, 1985.
° Draft A Preliminary Assess ent/Site Investigation Q. idance,. Office
of Solid Waste and ergency sponse - Aiqust, 1985.
II. DFLE ATIQJS OF A [ 7I’I3DRfl?
Q’ April 16, 1985, the A tinistrator signed delegations enabling the gional
?óuinistratorS, the Assistant inistrator for Solid Waste and rgency J spcnse
and the Assistant I tnistrator for for nt and C 1iance Monitoring to
exercise Section 3008(h) authority. There are three new delegations, 8-31, 3,
and 33. The first enables the gicnal inistrator or the Assistant Mministrator
for Solid Waste and D rgency sponse to determine that there is or has been a
release of hazardous waste at or frau a RC A interim status facility. The se d
and third delegate the authority to issue orders and sign consent agre tents.
The authority to refer civil judicial. actions is found in Delegation 8—10.
Because Section 3008(h) is quite broad, both with respect to the types of
envi ental prcb1 m that may be addressed and the actions that EPA may e1,
delegation of Section 3008(h) authority is subject to limitations. lb issue an
aaninistrative order or sign a ccnsent reemant. the gioris !aist obtain advance
ccncurrance fron the Director, Office of Waste Prcgr ns forcen ent, Office of
Solid Waste and fl ier ency sponse and mist notify the Associate forc nt
imsel for Waste, Office of & for en nt and t liance Pbiitoring. L) til the
Agency i s a whole gains experience in using the new autbority, this requir nt
is necessary to .nsure that sound precedent is established and national p gram
priorities are addressed. The Office of Waste Progr iforc nt intends to
waive advance ncurrerice, l ver, for thcee gions that da cnstrate sufficient
experience in using Section 3008(h) as indicated b j the ntrber and quality of
S3008 (hi orders su titted for re ’iew in the next six r nths. Civil judicial
actions will be handled in accordance with existing procedures for referrals.
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Tb e edite 53008(h) actions, the aions should establish procedures for
drafting and reviewing orders and referrals and clearly delineate the roles
an responsibi1ities of -. HegionaL R A-enfo e nt- and--progr n- personnel- (inciudingr
a personnel as necessary) and the Office of gicnal C .insel in those
pro Sses. Draft orders should be sent to the Chief, ipliance and In le entatjon
Branch, A Enfo ‘ nt Division, Office of Waste Prngr ns Enfor nt.
Headquarters is ca tn.itted to oonducting t ly review of S3008(h) orders.
To avoid the delays associated with discussion and review of rough drafts, we
ask that orders be in near final form when they are suF v itted. Generally,
the orders vii ]. be ex nined to deterzn ne whether (1) the eleierats of proof are
adequately defined and docunented, (2) the response to be c i elled is practi ble
and envircar entaliy sound, and (3) the action s ports national A progran 1 s.
Written ©u iuents or ooncurrence will be provided to the gicns within ten rIcing
days of receipt.
III. SCOW CF SECIIQ 3008(h)
Section 3008(b) provides:
(1) Whenever on the basis of any information the P ministrator
determines that there is or has been a release of hazardous
waste into the envi ignt fr a facility authorized to
cçerate under Section 3005(e) of this subtitle, the ninistrator
may issue an order requiring oorrective action or such other
response maa re as he de necessary to protect hui an health
or the envi .ai ant, or the óninistrator may eutmance a civil
action in the United States district irt in the district in
whid the facility is located for appr riate relief, including
a te”porary or permanent injunction.
(2) Any order issued under this subsection ay include a suspension
or revocation of authorization to q*rate under Section 3005(e)
of this subtitle, shall state with reasonable specificity the
nature of the required oorrective action or other response
maasure, and shall specify a tima for c piiance. If any-
person r. ned in an order fails to ly with the order, the
A ninistrator may assess, and such a person shall be liable to
the United States for, a civil penalty in an Tcunt not to exceed
$25,000 for each day of nonca liance with the order.
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o exercise the interim status corrective action authority, the Pçency’
zmmst first have it formation that there is or has been a release of hazardous
waste to the S Vti unt at or fron an interim status facility. Second, the
corrective action or other response xieasure, in the ju ient of the ger cy,
st be necessary to protect hui an health or the ertviroc7rent. Key ter are
discussed bel in greater detail.
enever on the basis of any information the Póninistrator determines .. . a
ening clause of Section 3008(h) authorizes the ency to make the
determination that there is or has been a release of hazardcias waste into the
envir ’z nt on the basis of ‘any information’. Appzx priate information can be
obtained froni a variety of s mr s, including data frau laboratory analyses of
soil, air, surface water or gr md water s ples, observations recorded duringç
inspections, photcçraphs • and facts obtained fron facility records.
1 reference to a determination by the óninistrator should be considered
in the text of the term ‘any information’ • ‘10 satisfy any require tent
is csed by the statute, an order should contain a specific determination. A
civil referral should also be based on a written determination that there is
or has been a release.
• ...that there is or has been a release...lnto the envii .ent...
‘1 e trigger for issuing S3008(h) orders and initiating civil referrals
is the existence of information that there is or has been a release, which is
a icier threshold than the s) ting of ‘substantial ) ,2,d’ w der A Section
3013 or ‘ 4 u tinent and substantiAl endangect nt’ under R A Section 7003 or C A
Section 106. 1 !iile the statute does not define the term ‘release’, the ?qency
believes that, given the broad iewedial pxpcse of Section 3008(h), the term
should eno ass at least as such as the definition of release wder CE1 LA.
See 42 U.S.C. 59601(22) • Therefore a release is any spilling, leaking,
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pouring, .itting, extptying, discharging, injecting, escaping, leaching, dt.n ir g
or disposing into the enviroIm nt. The exeiçtions described itt the CE T.A definiti
nsjdered Inapplicable or inappropriate for A parposes, ver, and are not
j]uded in the A definition.
The term ‘erwir ciiient ’ is also broad. The legislative history for
Section 3008 (h), which discusses use of the authority to respond to releases
to various envixum nta1 iTedia, makes it clear that Section 3008(h) is not
limited to a particular uedi n. H. p. No. 1133, 98th Oxig., 2d Sess. 111—112
(1984). The qency will use Section 3008(h) to address releases to surface
waters, groundwater, land surface or subsurface strata and air.
It is not necessary to have actual sar pling data to st i a release. An
inspector may find other evidence that a release has occurred, such as a broken.
dike at a surface npoun nt. Less obvious indications of release might also
be adequate to make the determination. For exanpie, the ?gency could have
sufficient information on the contents of a land disposal unit, the design and
operating characteristics of the unit, and the hydrogeology of the area in
which the unit is located to conclude that there has been a release to groundwater.
In addition to on—site information gathering undertaken specifically to
support a S3008(h) action, other sources that may provide information on
xe1e ses thc1u e:
• Inspection Reports.
• A Part A and Part B permit applications.
• sponses to A 53007 information requests.
• Infom ation obtained through ._. 53013 orders.
• Notifications required by .A 5103.
• Information-gathering activities conducted under C A 5104 .
• Informants’ tips or citizens’ ccmplaints corroborated by supporting
information.
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A determ nation that there is or has been a release does not require that
specific Unts of haZardouS waste or 1iazardcus constituents be found in
the enviwsit ent. O.iantities or centrations of hazardous wastes or hazardous
stituents should be considered when ordering interim or citçlete rrective
actions, t ever, because response actions ii el1ed by the Agency niist be
necessazy to protect bunan health or the eTwirck,. nt.
‘ ...of hazardous vaste.. .
In contrast to many subtitle C provisions, the language of Section 3008(h)
• refers to waste’ rather than hazardcus waste identified or listed
under Subtitle C.. The Agency believes that the anission of a referenos to
wastes listed or identified at 40 CFR Part 261 was deliberate, and Congress
did not intend to limit Section 3008(h) only to materials eting the regulatthry
definLtion of hazardous waste. The Conference ! port specifically endorses the
use of corrective action orders to respc 1 to releases of hazardous constituents.
H. p. No. 1133, 98th Cong., 2d Sess. 111. (1984). The legislative history also
indicates that the new authority slxuld be at least as broad as the corrective
action authority in the federal A permit program . Id. at 111-112. 11 se
regulations address both hazardous waste and hazardous constituents. Moreover,
Section 3004(u), the ‘ tinuing ! leases’ provision requiring clean-up of
releases fran any solid waste manag nt w it at a trea nt, storage or
disposal facility seeking a RA pet nit, applies to releases of hazardous
constituents as wall as releases of listed and characteristic wastes. if. p.
edo. 198, 98th Cong., 1st Sess. 60 (1983). Therefore, Section 300 8 (h) ay also
be used to c iiçel response x asures for releases of hazardcus constituents
fran hazardous or solid waste.
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“aazardous o nstituents” are the substances listed in Appendix VIII to
40 c part 261. H. 1 p. ?b. 198, 98th Cong., 1st Sess. 60—61 (1983).
o the legislative history for Section 3004(u), which is read in n-
junction vith ’Section 3008(h), the term also includes J 4 ppendix VIII hazardous
conjtjtuents released fran solid waste and hazardous tstituents that are reaction
by-proóacts. S. p. NO. 284, 8th Cong., let Sees. 32 (1983). It should be
noted that the legislative history for the new underground storage tan]’. provisions
states that Section 3008 is not applicable to erground stor e tanks regulated
under Subtitle I • Such releases may be addressed by Section 7002 and Section
700:3 authorities, hc riever. H. 1 p. No. 1133, 98th Cong., 2d Sess. 127 (1984).
Section 3008 (h) r ains applicable to releases fran underground tanks containing
hazardous or solid waste subject to Subtitle C provisions.
‘ ...fran a facility..’. ’
For interim status corrective action purposes, EPA intends to e p1oy the
definition of ‘facility’ ad ted by the ency in the corrective action
pL r n for releases fran permitted facilities. The pze nble to the permitting
requirw nts for land disposal facilities indicates that the term ‘facility t
refers to .. .the brr d,st extent of EPA’s area jurisdiction under Section
3004 of A... (neaning] the entire site that is under the control of the
ner or erator engaged in hazardous waste managetent. 47 FR 32288-89
(July 26, 1982). See also the Final Codification Th.zle. 50 FR 28 12 (July 15,
1985). Therefore, the definition of facility en Tpasses all contiguous property
under the amer or erator’s control.
‘Ihe permit progrin, as nded by Section 3004(u), requires corrective action
for releases of hazardous waste and hazardous constituents fran solid waste
managa t units at a facility. EPA interprets ‘solid waste manag ent unit’
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to inClUde any discernable unit used for waste manage nt. See 50 FR 28712
(July 15, 1985) • Since the legislative history describes the thter m status
corrective action authority as a sup1 t nt to perTnitting authority and
jrx jcates that the interim status authority should beat least as broad as•
t e permit authority, Section 3008(h) clearly authorizes A to require corrective
action for any release of hazardous waste fran disoernable waste anage nt
units. The ency’s authority to use Section 3008(h) to eddress releases fran
solid waste Inanage nt units as well as hazardous waste manage nt units is
dismissed in the Final Codification Rile. 50 FR 28716 (July 15, 1985).
The language of Section 3008(h), h #ever, suggests that Congress did not
intend to limit WA’s authority to releases fran discernable units. Unlike
Section 3004(u), Section 3008(h) broadly authorizes corrective action for
any release fran a facility. It does not require the ency to find that
a release originated in a discernable waste Inanag iErlt unit.
‘Ihe legislative history supports this interpretation. Prior to enactment
of Section 3008(h), the A regulations required corrective action for releases
to groundwater fran permitted ‘regulated units’ (surface isç cund ents, waste
piles, landfills and land treatnent areas that received Subtitle C hazardous
waste after a specified date). 40 CFR 264.100 and 40 CFR 264.90. Congress
criticized -this approach as too sl and too limited, ver, and created
the interim status corrective action authority to deal directly with an
ongoing enviWlllantal problen at interim status facilities. H. p. !b. 1133,
98th Cong., 2d Sess. 110—112 (1984). Pbreover, Congress clearly did not intend
the authority to be limited to the s e of the existing permit progr . P r
instance, the legislative history lists several exa ç1es of releases outside
the regulatory proqr for which a 53008(h) action is appropriate, including
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releases fr waste manag ient units not required to undertake corrective
action otherwise exenpt fran RC A regulations and releases, such as air
enissions, to vi . ntal i dja other than grcund iater. Id. at 112..
The text of the statute, the broad r dial purpose, and the clear intent
to authorize action beyond the sc e of the permit regulations s rt the
position that Section 3008(h) authorizes EPA to address all types of releases
of hazardous waste within a facility. As discussed previously, the term
• hazardous waste’ en asses ‘hazardous constituents’ fran both hazardous and
solid waste.
Section 3008(h) will also be used to address releases that have migrated
frdn the facility. New Section 3004(v), which provides that EPA may issue-
orders requiring corrective action for releases that have crossed the facility
b r daxy if the permission of the amer of the affected pr erty can be obtaii ,
su rts the Agency’s interpretation that such releases are subject to action
under section 3008(h). See also the Final Codification Rule. 50 FR 28716
(July 15, 1985).
In a S3008(h) order or judicial referral, Agency personnel should describe
hazardous and solid waste managa1 nt units within the boundary of the facility
and hazardous and solid wastes (and associated hazardous stituents) managed by
the facility in addition to information indicating that a release has occurred.
Since Section 3008(h) unequivocally authorizes EPA to address releases fran
units, the order or i 1aint should establish sate link betweer? the hazardous
constituents in a release and the hazardous or solid wastes in waste managemant
units where possible. For exaz 1e, the findings of fact might state that the
facility treats, stores or disposes of certain listed Subtitle C wastes, that
those wastes were listed because..they contain the hazardous stituents cited
in Appendix VII to 40 CFR Part 261 and that sate or all of those constituents
have been found in the enviiurrii nt, thereby indicating a release.
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‘ authOriz i to operate under Section 3005(e)... ’
This clause en asses several classes of hazardous waste treatnent,
storage and disposal facilities. First, facilities that have i t each
uiz nt for obtaining interim status in a t 1y manner are subject to
Section 3008(h). With respect to those tacilities brought into the hazardous
waste managa nt SySten when the Phase I RA niles went into effect, to establish
interim status D’A m.ist d nstrate that: (1) the facility was in existence on
Nove er 19, 1980, and; (2) the iner or erator cu lied with the requi e nts
of Section 3010(a), regarding notification of hazardous waste activity, and;
(3) the ner or operator subnitted a Part A application in accordance with 4t)
CPR 270.10. M to those facilities in existence on the date of regulatory or
statutory changes that render the facility subject to the require nt to cbtair
a permit under Section 3005, to establish interim status the ency mist d icn$rate
(1) that the facility was in existence on the appr riate date and (2) su nitted
a Part A permit application in accordance with the require nts of 40 CFR 270.10.
!f a statutory or regulatory change requires notification under Section 3010,
EPA mist also establish that the facility subnitted the notification.
Second, Section 3008(h) applies to facilities that treat, store, or dispose
of hazardous waste, t have not actually obtained interim status because the
ner or cperator did not fully o ly with the requirei nts to subnit a Secticn
3010 notification and/or a Part A. Such facilities have been a1i d to rate
in accordance with a formal enforcs nt action or an Interim Status C tp1iance
Letter requiring ‘ xr liance with Part 265 standards. Further re, the a ners
or erators are not relieved of the duty to apply tar and obtain a final RCRA
permit. See e.g., the notice of iiipl nentatia and enforc ent policy for loss
of interim status under SectIon 3005(e), 50 FR 38947—48 (Septe er 25, 1985).
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The gency believes that Congress intended the interim status rrective action
authoritY to a ly to such facilities. The legislative history for Section
3008 ( b) supportS this position by making it clear that the authority can be
used to address releases fran units that do not have-interim status, such as
wa.stewater trea nt tanks. II. p. No. 1133, 98th Cong., 2d Sess. 112 (1984).
Third, EPA nsiders Section 3008(h) to be a 1icable not only to .‘ners
or operators of facilities in the above t categories bit also to units or
facilities at which active operations have osased and interim status has beei
terminated pirsuant to 40 CFR Part 124 or Sections 3005(c) and 3005(e) (2) of
R A. Section 3008(h) specifically provides that the interim status zTective
action orders may include a suspension or revocation of the authority to operate
under interim status, as wall as any other response zecassary to protect huna
health or the envi&it nt. Consequently, a ocrrective asures pro u can
be mpcsed under Section 3008(h), even if a facility’s interim status has been
taken away as a result of an interim status rrective action order. The
ency also believes that Section 3008(h) can be used to it el responses to
releases at facilities that lost interim status prior to a 53008(h) action.
This approach is nsistent with Congressional intent to assure that
sjgi ficant envi ntal prthLe are addressed at facilities that treat, -
store or dispose of hazard is waste but do not have a final RC A operating or
post-closure permit. B. p.No. 1133, 98th Cong., 2d Sess. 11.0—112 (1984).
Mere a State is authorized to a ninister the the require-
mants for obtaining the State’s equivalent to interim status may differ fran
those of the federal praran. In authorized States that do not duplicate the
federal proosdures , hazardous waste treat nt, storage and disposal facilities
that have not been granted or d nied a final BCRA permit are generally ocnsidered
interim status facilities. Land disposal facilities that ware Issued State per itS
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after bv ber 8, 1984 but have not yet received the federal portion of the
permit ,p1icable to ntinuing releases under Section 3004(u) are treated for
of this guidance in the s manner as interim status facilities.
i.milarly, hazardous waste underground injection welTIs that did not receive a
tiic permit prior to that date will also be treated in the sxrc i nner as interim
status facilities. See the notice of izz l tentation and enforce nt policy for
loss of interim status under Section 3005(e). 50 FR 38947 (Sept ber 25, 1985).
‘ .. . Corrective action or . such other response neasure as he deen necessary
to protect ?n.rnan health or the envin cnient ... ‘
Prior to the Hazardous and Solid Waste Anen eiits of 1984, the term
cxrrective action’, in the regulatory ntext, referred to z wal or
treat nt in place of Appendix VIII hazardous nstituents in gr vater.
40 CFR 264.100. Section 3008(h) is not restricted to re edial action for
ground-water contanination, hc ever. The statutory language and the legislative
history indicate that a wide range of responses to releases to all nedia fran
waste manag nt activities may be . elled. Financial assurance for any
response neasure may also be required.
The authority can be used to require bplenentation of one or n re stages
of a clean-up program, such as:
• Contairi ent, stabilization or r val of the source of nta .inaticn,
• Studies to characterize the nature and extent of ntanination and to
assess cpoeure and health and envirii ntal effects,
• Identification and evaluation of r !edies,
• Design and ‘ 1 structicn of the chosen
• Inpleentation of the renedy , and
• Monitoring to determine the effectiveness of the r dy.
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FOr exaxtple, a S3008(h) order might require that the amer or operator
nduct a stixiy to characterize the nature and e.. tent of nta ination, then
select a re dy and su it a rrective action plan to EPA. The ) ency and the
ner or operator .ald then nfer on the plan and nd the order to reflect any
djficatiOflS. H. p. No. 1133, 98th Cong., 2d Seas., 111 (1984). Because a
st. dy on the nature and extent of nt ninaticn and the selection and design of
a reedy may require a significant int of tfre, Section 3008(h) should be
etployed to require inter in neasures as necessary to protect hunan health and
the envir nt prior to o zrpletion of the study and selection of a retEdy.
c& 1es of interim r edies that could be xrt el1ed include ret val of the
waste or contairi nt of the source of the contanination ‘ lining a unit or
erecting dikes. In S instances, pr liminazy znping and treating of affected
gr mdwater may be a ropriate.
While the information needed to make a determination that there is or has
been a release is wiriimal, re information may be needed to justify a specific
interim or full r te&)r. The inistrator can require corrective action or
such other response measures as he deen necessary to protect hunan health or
the envi nt. To s that a response may be necessary to protect h .znan
health or the envL izient, the present or potential threat posed by the release
sh xa1d be described. The ency may nsider a variety of factors, including
the quantity of hazar zs waste; the nature and concentration of hazardous
ccnstit ants or other hazardous properties exhibited by the waste; the facility’s
waste manag nt practices; potential exposure pathways; transport and envir enta1
fate of hazardous constituents; hu ans or envi .. ntal receptors that might be
exp ed; the effects of exposure, and; any other a ropriate factors. To
corrective action investigations or studies, only a general threat to - hunan
health or the envir xm ent needs to be identified.
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. AD1INIS’rRATIVE ACflCI4S
under Section 3008(h), the ency can issue a ninjstrative orders or
. nce a civil judicial action. The decision to pUrsue an adeinistrative
or judicial ranedy m.ist be made on a CaS&.brcaSe basis since each a roach
has advantages and disadvantages. An a inistrative order, for instance, can
usually be issued quickly, while preparation for a judicial action y be re
time-consu drig and mist be referred to the par nt of 3ustice. O the
other hand, a judicial order or consent decree can be enforced readily since
the rt already has jurisdiction of the matter.
EPA may issue a 53008(h) a ninistrative order to require corrective
action or any response r cessary to protect huDan health or the envi nt.
The order may include a suspension or revocation of authorization to erate.
If any person n red in the order fails to z ply with the order, the çency
may ixt ,ose a civil penalty not to exceed S25,000 for each day of non rpliance.
Notice to States
Section 3008(h) does not require that States be given notice of an inpending
action. lb ensure that the ency is fully infom d of relevant facts and, in
view of the Federal/State relationship, consultation with the State should
usually precede an EPA action. lb avoid misunderstandings, reasonable notice
sr uld be given to the State when an action is taken. The noti e et ald include
the location and a description of the facility, the n s and addresses of the
ners and erators, the conditions requiring a response and a description of
the action that EPA will require.
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El neflt5 of Orders
because it is the focal point in a].]. proceedings su equent .to its issuance,
,.nitial order i is be as xrtplete as sible. Failure to develop an
aciequate doc. t ent may have wiverse consequences if the ency seeks judicial
enfo a’ nt. ) ll S3OO8(h orders should contain the foLlø ’ing general ele nts:
A etat nt of the statutory basis for the order.
° Factual allegations sh ing that there is or has been (1) a release (2)
of hazardous waste or hazardous constituents (3) into the eni nt
(4) at or fran an interim status facility. Facts indicating that the
response is necessary to protect h an health or the envir went should
also be presented.
• A determination, based •cn the factual allegations, that there is or
has been a release of hazardous waste or hazardous constituents to
the envii .uent fra an interim status facility.
° An order that clearly identifies the tasks to be perforv d, and a schedule
of z liance accci anied by aprcpriate reporting and a roval requi i nt.s.
• A stat nt informing the respondent that he has a right to request.
a hearing within 30 days of issuance concerning any material fact in
the order or the terT of the order.
• A notice of opportunity for an informal settl nt conference. It
is the agency’s policy to encourage settl nt of 53008(h) actions
thr h informal discussions. The respondent should be cautioned, ver,
that a request for a conference does not affect the 30 day period for
requesting a hearing.
• A stat nent that EPA may assess penalties not to exceed $25,000 per
day of ncn- ipliance with the order.
It may be açr riate to include a pro rision for stipulated penalties in
orders on sent. Such a provision, h ever, eh ild be drafted to make it
clear that the etip ilated penalty is not EPA’s sole r dy and that k ency has
not waived its statutory authority to assess penalties under Section 3008(h) (2).
It is re . nded that the 1 gicns pursue judicial referrals to lxçcee penalties
for non i liance with a 53008(h) a inistratlve order rather than issuing
a subsequent order for penalties.
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I leases fr liability and covenants not to sue may be sought by parties
negotiatir 53008(h) orders. These provisions terminate or seriously iz air
the Federal GOvez nt’s right of action against a party. In general, the
interim C LA Sett1e ent Policy ( c ber 5, 1984) ay be foll d. leases
generally will not be appropriate, t ver, where the extent of t nination,
the reliability of the rudy or long-term operation and maintenance requir nts
are Lmcertan. If provided, they should be narr ”ly drawn. In addition, EPA
personnel should exercise partioular care in drafting such provisions to ensure
that they do not restrict the operation and enfor s nt of the on-going A
regulatory. progran. ?breover, the order should also contain a provision reserving
the ency’s right to take additional action wider A and other laws. FOr
exa ple , EPA should reserve the right to expend and recover funds w er C A:
to bring liiininent and substantial endangerment actions under RA 57003 and
C A 5106; to assess penalties for violations of and require x liance with
RA requi nts under 53008 (a); to address releases other than those identified
in the order; to require further action as necessary to respond to the releases
addressed in the order, and; to take action against nonparties if appropriate.
Hearinq cui irit
Th issue a Unilateral 53008(h) order, EPA .2St ccx çly with the re irements
of Section 3008(b) with respect to an d ortunity for a hearing. 130 O ig. c.
S9175 (daily ad. JuLy 25, 1984). Althauh procedures for S3008( ) a ninistrative
actions have been established by regulation (See 40 CFR Part 22), those regulations
are not legally applicable to S3008(h) actions. searing pr edures for 53008(h)
actions are under deve1o zzient. Until founal guidan is available, a i gicn
that intends to issue a unilateral order should contact the Office of Waste
Prngrins D for iient, Office of Solid Waste and ergency sp nse.
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i vel er t and Preservation of the Aóninistrative Racord
- 53008(h) orders might be ‘reviewed in aàninistrative or judicial proceedings.
erefore, it is essential that information required by the statute and all.
other relevant information or doc nents obtained by the Agency be xit iled in
n administrative record, preserved and readily retrievable. The EPA official
initiating the action should maintain a file that contains the foll thg:
• EPA investigative records, such as inspection reports • s ling and
analytical data, copies of siness records, photographs, etc.;
• ports and internal Agency doc nts used in generating or supporting
the enforcement action, including expert witness stateTcnts;
• Copies of all. docu nts filed with the I gicnal aring Clerk or the
Presiding Officer;
• Copies of all relevant correspondence bet en EPA and the respondent;
• Written records of conferences and telephone conversations bet en
A and the respondents, and;
• Copies of all correspondence bet en EPA and State or other federal
agencies pertaining to the enfor ent action.
V. CISTfl. JUDICIAL AC IQ S
Under Section 3008(h), EPA may initiate civil judicial action to c z el
appropriate relief, including a ta orary or permanent injunction, or to
enforce a 53008(h) ac ninistrative order. As noted previously, the decision
to pirsue inistrative or judicial z dies will be made on a case-by—
case basis. Generally, t iever, a civil judicial action may be preferable
to issuance of an administrative order in the foll ing types f situations:
Aperscn S not likely to czj?lY with an order or has failed to
ly with a 53008(h) order.
• A person’ a conduct mast be st ped ii u diately to prevent irreparable
injury, ices or d age to hunan health or the envL iiiient.
• Long-term, c lex and costly response i asures will be required.
(Because jt liance pccbl are n re likely to arise during
inpl ntat ion of these actions than while carrying out a siuple,
short—term action, it u ay be better to have the matter already
before the irt for ease of enforcetent.)
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Other factors that could be considered include the value of a favorable decision
as precedent and the need to deter nonc npliance by other potential targets for
PPA enforC flt action under Section 3008(h).
A request to file a civil judicial action r ist referred by the Assistant
jnistrator for iforc nt and pliance nitoring to the art TEnt of
of Justice. The procedures that Agency personnel siculd foll to develop a
referral and Support litigation are described in the VC A Case Mana nent
Randbo k (August, 1984) and the A liance7 iforoe nt Guidance Manual
(Septe er, 1984).
V I. USE OF SECTI 3008(h) IN PELATI TO PE 4I1TING C. URE AND CIHEP. ALYfliORITIES
A Pe nits
The pre- S regulations applicable to corrective action at permitted facL3.ities
deal only with a dial pr rasn for treat nt in place or r val of groundw izer
contaninated by a release fran a ‘regulated unit’. (Prior to R3 , the term
‘regulated unit’ ant a surface inpam nt, landfill, land trea nt unit or
waste pile that operated after January 26, 1983. actnent of new Section 3005(i),
which provides that the Part 264 groun iater monitoring, unsaturated zone i nitoring
and corrective action require nts are applicable at the t of permitting to
landfills, surface in nts, waste piles and land treat nt units that received
Subtitle C hazardous wastes after July 26, 1982, necessitated a corresponding change
in the definition of regulated unit) • D acb nt of Section 3004(u) enlarged the
universe of units subject to corrective action at A facilities by requiring
that a facility seekir a & permit address all releases of hazardous waste
and hazardous constituents at any hazardous or solid waste xn nt unit.
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—19—
m ition to increasing the n ber and kinds of units subject to corrective
action, EPA will use the Section 3004(u) authority to address releases to air,
ar surface waters as well as to groundwater. Further re, Section. 3004(v)
all ’s EPA tO require corrective action beyond the facility bc .mdary where
necessary to protect hu ian health and the envi nt unless the facility
amer or operator is unable to obtain permission fr is the ner of the affected
property.
Permitting can be a lengthy process. Therefore, the interim status
corrective action authority should be used to address significant environ-
mental probl prior to issuance of the permit. With respect to ‘regulated
units’, which cannot be permitted until the facility is in liance with
Part 270 requiz nts to assess ground-water ocnta ination and develop a
corrective action plan if necessary, Section 3008(h) may be particularly usef Il
for i elling activities not addressed by the Part 265 and Part 270 regulations.
For instance. inter im corrective action measures mild be recuired prior to
permit issuance. For releases fran solid waste manage nt units and hazardous
waste nianage ent units other than ‘regulated units’, Section 3008(h) may be
used to c el interim measures, sti.dies to characterize the nature and extent
of cont nination and the threat posed by the release, selection of r edy and
design, construction and i l ntaticn of the z i dy .
If an interim status facility is seeking an operating permit or viii be
required to obtain a post-closure permit, any S3008(h) action at that facility
should be designed to meet the needs of the permitting process to the extent
possible. If all necessary steps in a corrective asuxes pr r viii not be
.-rp1eted prior to issuance of a permit, car liance schedules in the order
should be developed so that they can be readily incorporated in the permit.
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A C].osU
EPA believes that the interim status corrective action authority wi]].
be useful. in assuring envir a ntally sound closures of RA hazardous waste
mana nt units. Section 3008(h) ay be used to si plei nt the interim status
closure regulations. Approval of a closure plan doss not limit the ency’s
ability to use Section 3008(h), as well as other applicable corrective action
authorities, to deal with releases of hazardous waste or hazardous constituents.
In view of the nusber of interim status closures anticipated as a result of
new statutory and regulatory require nts, the I gions are encouraged to
etploy t he interim status corrective action authority to assure that A
hazardc’as waste mar1ag ient units are closed in a manjier that properly protects
h an health and the envi uent.
Other Enfor i ent Authorities
Because of the broad scope of Section 3008(h) and the variety of activities
that can be ca el1ed, the interim status corrective action authority may be
loyed in conjunction with other enfo ent aut rities, although it may be
appropriate to issue separate, current orders due to differing hearing
requiL nts. F r exanple, where a violation is associated with a release of
hazardous waste or hazardous constituents, a Section 3008(a) action should be
used to require e vr liance with the regulation and assess penalties while a
Section 3008(h) action wild be ployed to c 1 ,el response act ons that go
bey regulatory requirei nts. Section 3013, which all s the agency to
. XE(.el mers or coerators of tzeat nt, storage or disposal facilities to
conduct certain types of studies, may be used when the presence of hazardous
waste may present a substantiaL threat t EPA does not have sufficient
information to make a determination that there is or has been a release.
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—21—
With regard to im inent and substantial endar er ent actions, the legis-
lative history makes it clear that enacti nt of Section 3008(h) does not
alter the hency’s interpretation of Section 7003. if. p. No. 1133, 98th Conç.,
‘2d Sess. 11]. (1984). RC A S7003 or 5106 actions are a r riate jf
nditions at an inter in stat .is facility may present an ninent and substantial
endangern nt and the ?gency needs to i ve quickly to address the prcble i. The
‘fp tiinent hazard’ provisions of A and may be especially helpful if
the Agency wishes to take action against rEsponsible parties other than or in
addition to the current iner or q rator.
VII. SEI 7A1’IQ
The policies and procedures set forth herein and the internal office
procedures adopted pursuant hereto are intended solely for the guidance
of United States Envi ntal Protection Aqency personnel. These policies and
procedures axe not intended to, do not, and may not be relied upon to create a
right or benefit, substantive or procedural, enforceable at law by a party to
litigation with the United States. The Agency reserves the right to take any
action alleged to be at variance with these policies and proced ires or that is
not in i liance with internal office procedures that ray be adopted pursuant
to these materials.
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This Page Intentionally Left Blank
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,1ø
j UNITED STATES ENVIRONMENTAL PROTE
WASHINGTON D.C. 20460 9502.1986(01)
4 V
JAN 8 g
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORAN DUN
SUBJECT: RCRA Correctiv ction at Federal. Facilities
FROM: P1
Assistant Administrator
TO: Regional Administrators, Regions I - X
On November 19, 1985, I sent you a memorandum describing a
Federal Register notice we intended to publish addressing
RCRA corrective action activities at Federal facilities. In
that memorandum, I requested that you contact each of the
environmental commissioners in your Region to inform them of
the notice and explain to them the issues involved.
Shortly after that I sent another memorandum requesting
that contact with the State environmental commissioners be
delayed while we considered some issues surrounding the notice.
Those issues have now been resolved and I am, once again,
requesting that you personally contact your environmental
commissioners to explain the notice. Lee Thomas and I are
meeting with the fifteen State environmental commissioners on
the State/EPA Committee on January 16. Since I intend to bring
this issue up at the meeting, I would appreciate your making
these contacts before the meeting.
I am attaching a copy of my November 19 memorandum 1 the
Federal notice and talking points which may be
useful when you telephone the environmental commissioners.
As before, subsequent to your contacts with the environmental
commissionórs, I recommend that your RCRA Division Directors
and Branch Chiefs also contact their State counterparts in
order to inform them.
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—2—
ThedEvelopinent of regulations addressing corrective action
at Federal facilities will take some tune. However, I want to
stress that we should proceed, in close cooperation with the States,
to process Federal facility permit applications, including correc-
tive action where required.
Attachments
cc: Hazardous Waste Division Directors,
Regions I — X
Hazardous Waste Branch Chiefs,
Regions I — X
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UNITED STATES ENVIRONMENTAL PRO 9502.1986(01)
WASHINGTON, D.C. 204 Attachment
110V19 1985
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: RCRA corre : Action at Federal Facilities
FROM: J. Winston Porter
Assistant Administrator
TO: Regional Administrators, Regions I — x
On July 15, 1985. EPA codified the requirements of the
Hazardous and Solid Waste Amendments of 1984 (HSWA) in the Federal
Register . The preamble to the Codification Rule (50 FR 28712)
explained that Federal agencies had several concerns iEout the
corrective action provision in S3004(u) of HSWA. The preamble
stated that EPA would attempt to resolve the legal and policy
issues raised by the other agencies subsequent to promulgation
of the Codification Rule.
Following extensive negotiation, EPA and the Federal agencies
have agreed that Federal facilities are subject to corrective action
requirements to the same extent as any other facility. This decision
will be announced in the Federal Register (see attached draft notice,
an advance copy of which was E—mailed to you on Friday, November 15).
The announcement will also explain that the Federal agencies have
identified several issues which EPA believes merit further considera-
tion through future rulemaking.
By this memorandum, I will explain those issues and how EPA
intends to address them. I am also requesting that you personally
contact each of the State environmental commissioners in your
Region to inform them of the soon—to—be published Federal Register
notice and explain to them the issues involved.
Below is a full discussion of each of the issues raised by
the Federal agencies and how EPA intends to address them. I
have also attached talking points which may be useful when you
telephone the environmental commissioners. I ask that you make
all of the telephone calls by November 27. Subsequent to your
contacts with the environmental commissioners, I recommend
that your RCRA Division Directors and Branch Chiefs also contact
their State counterparts in order to inform them.
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—3—
As stated earlier, EPA intends to fully involve the States
in the dbvelopment of the rules described here. We also intend
to involve Federal agencies and environn erttal groups, in order
to obtain the broadest possible perspective in developing the
regulations. Please solicit, from your States, their views on
how we might best obtain State input; i.e., the appropriate
State organizations or individuals in State government who should
be involved in our negotiations.
We have infortued the Regional RCPA Division Directors and
Branch Chiefs of a conference call on this issue. The call will
be conducted on November 21 from 2:00 to 3:00 pm, Eastern Standard
Time, and will be sponsored by staff of the Office of General
Counsel and the Office of Solid Waste. To participate in the
call, Regional personnel should dial FTS—475—8347.
Attachments
cc: Hazardous Waste Division Directors,
Regions I — X
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January 23, 1986 9502.1986(Ola)
MEMORANDUM
SUBJECT: Information on Solid Waste Management Units
FROM: Marcia Williams, Director
Office of Solid Waste
TO: Regional Hazardous Waste Division Directors
As you know, §3004(u) requires corrective action for all
releases of hazardous waste or constituents from previously
unregulated solid waste management units (SWNUs). The
implementation of this provision has broad resource implications
for the RCRA program. In order to properly plan for and request
the needed level of resources, we are undertaking a project to
characterize the SWMU universe nationally.
This exercise will take place in conjunction with the Regional
Implementation Reviews and will be performed by Headquarters review
team members. Based on the responses received from the SWMU
letters sent by your offices in January 1985, and any other SWMU
information summaries you may have already completed in-house,
information will be compiled on: (1) the number of unregulated
SWMUS by facility type (i.e., storage/treatment, incinerator,
disposal), and (2) information on the type of SWMUS if such
information is available. Although your existing SWMU information
should be available at the time of the facility review portion of
your scheduled Implementation Review, this exercise will not
require you to further analyze or summarize that information. A
review team member will contact your staff prior to the facility
review.
If you have any further questions concerning this project,
please contact Peter Guerrero, Chief Permits Branch, at 382-4740.
This has been retyped from the original document.
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9502. 1.986(02 )
Mr. Richard C. Fortuna
Hazardous Waste Treatmez t Council
1919 Pennsylvania Avenue, J.W.
Washington. D.C. 20006
Dear Mr. Fortuna:
I am pleased to respond to your letter of December 30, 1985,
in which you posed several questions regarding the Environmental
?rotection Agency’s current policy approach to implen enting the
new RCRA corrective action authorities provided by the Hazardous
and Solid Waste Amendments of 3.984 (HSWA). The following are
our responses to the specific questions which you raised in your
letter.
Q: Can a facility terminate interim status simply by
withdrawing its Part A appLication?
A: A facility cannot simply withdraw its Part A application
with the intention of terminating interim status and
thereby absolve itself of any future RCRA responsibil-
ities. As provided by 40 CFR 270.73, interim statue
is terminated when (a) final administrative disposition
of a permit application is made: or (b) interim
status is terminated as provided in 27O.l0(e)(5).
Termination of interim status must take place according
to the procedures specified in 40 CFR Part 124..
Thus, a facility such as the one mentioned in your
letter cannot terminate its interim status by simply
withdrawing its Part A application. Interim status
will additionally be terminated if a facility failed
to certify under the Loss of Interim Status provisions
of H 1A, and may be terminated pursuant to an enforc nent
ord.r. In any case, however, the termination of interim
status does not terminat, th. facility’s obligation to
cci ply with interim status requirements, including
groundwater nitoring and closure, permitting
requir.menta or corrective action requirements.
Q; Are all land disposal units that received hazardous
wastes after July 26, 1982, subject to the 30O4 cor-
rective action requirements. even if such a unit is
closing? What if such units did riot take hazardous
w ste , but ar. releasing hazardou. constituents?
As Yes, all land disposal units that accepted hazardous
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—2—
waste after July 26, 1982, are potentially sub)ect to
RCRA corrective action authorities. First, EPA would
consider all such unitS to fall within the scope of
its authority to issue corrective action orders to
interim status facilities under Section 3008(h). EPA
believes that Section 3008(h) applies not only to
facilities operating under interim status, but also to
all, facilities that terminate interim status and
faci].ities that accepted hazardous waste after November
1980, but never formally qualified for interim status.
In addition, 40 CFP. §270.1(c) currently requires units
that receive hazardous waste after January 26, 1983,
to obtain either operating permits or post—closure
permits These permits will require corrective action
under 40 CFR 264.100 and Section 3004(u). Also, new
Section 3005(i) requires all units receiving hazardous
waste after July 26, 1982, to meet the requirements
of Subpart F to 40 CFR Part 264. This includes
requirements for corrective action for releases to
groundwater under 40 CFR §264.100. To implement
this requirement, EPA is in the process of amending
§270.1(c) to extend permit applicability to units
that received hazardous waste after July 26. 1982.
These permits will also require corrective action under
40 CFR 264.100 and Section 3004(u). A land-based unit
that does not receive hazardous waste, but releases
hazardous constituents may fall under these corrective
action requirements. We will, assume for the purposes
of answering your question that the unit accepted solid
waste and is a solid waste management unit. All, releases
of hazardous constituents from solid waste units located
within the boundaries of a facility that contains any
hazardous waste unit subject to the Section 3008(h)
interim status order authority or subject to permit
requirements will fall within the scope of the new
corrective action requirements. Section 3008(h) allo is
EPA to order cleanup of releases from solid waste units
at facilities within the scop. of the interim status
corrective action authority: Section 3004(u) requires
cleanup at facilities that obtain permits.
Q: When is a facility or unit that undertakes closure
subject to corrective action for continuing releases,
and under which authoritiesi §3005(c) post—closure
permits, §3004(u), §3008(h), or §3005(i)? Under what
circumstances would different or dual authorities be
used at th. same facility? Which units would be subject
t post-closure permits, and which units subject to
other correct i vs action mechanism.?
A: As explained above, if a closing unit has caused a
release requiring corrective action, that corrective
action can be required through either a post-closure
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—3—
permit (using the authority of §264.1.00 or §264.101.,
depending on the type of unit and the type of corrective
action required), or through an enforcement order. (We
are assuming that, by referring to closure, you are
describing a facility that has at Least one unit that
accepted hazardous waste.) Section 3005(i) of RCRA
does not of itself provide a separate mechanism for
corrective action: rather, it simpLy establishes the
applicability of Part 264 standards to regulated units.
The exact mechanism(s) which will, be used to
require corrective action will, depend on the specifics
of the situation at the facility. The scope of the
corrective action authorities under 43008(h) and §3004(u)
are similar. Regions and States are in the process of
preparing plans for environmentally significant
facilities to determine which authority, or combination
of permitting and enforcement authorities, may be
appropriate and yield most effective environmental
results. An example of a situation where a mix of
authorities might be used to implement corrective
action could be a facility where a serious release
situation is known to exist, but where a permit for the
operating units at the facility vi i ]. not be issued for
a substantial period of time. A §3008(h) enforcement
order could be issued to c pel the owner/operator to
begin the necessary investigations and/or implement
required corrective actions, While the permit is being
prepared. When the permit is issued, the remaining
corrective action activities would be conducted under
the permit.
As explained in the previous response, the facilities
currently subject to post-closure permits include all
of those facilities that had an cperational . land disposal
unit as of January 26, 1983. If a facility is subject to
a post-closur, permit, all solid waste management units
at that facility are covered by that permit.
Q: What n nitoring requirements are or will be imposed
at such facilities to determine the nature nd scope
of the required corrective action?
Ai Regulated units which close under interim status
are subject to the applicable ground water n nitoring
requirements of Subpart F of Part 265. The adequacy
of existing ground water nonitoring systems will be
evaluated as part of the closur, process, and if
necessary, will b required to be upgraded. If ground-
water contamination is detected, the owner/operator
is required under §265.93 to maki an assessment of the
-nature and extent of contamination. In addition, the
units are Subj•ct to other authorities, including post
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—4—
closure permits and orders under Sections 3013 and 3008.
Upon issuance of a post-closure permit, the applicable
requirements for ground water rronitoring, including
compliance monitoring and corrective action, must be
Complied with. As indicated by the preamble of the
final codification rule, the Agency will generally
look to the protection standards of Subpart F for
clean up levels for releases to ground water at solid
waste management units. EPA is developing technical
guidances for investigations at solid waste managei nt
units.
Q: Would units that stored or managed fuels deemed to be
hazardous under State law also be considered solid waste
management units? Under what Circumstances, if any,
would such units not be solid waste management units?
A: The question of whether or not a unit which stores
or manages a fuel would be classified as a solid
waste management unit depends. in part, on whether or
not that fuel is considered to be a solid waste under
Part 26] RCRA regulations. If the fuel is a solid
waste, the unit would be a solid waste managen*nt
unit.
Q: How does EPA Headquarters plan to interact with the
States and EPA Regional Offices to ensure that closures
of interim status facilities address the corrective
action requirement?
A: The Office of Solid Waste and Emergency Response
currently is examining a number of issues relating to
closing RCRA facilities and integration of corrective
action at thos. facilities. We expect to be issuing
guidance to the Regions and States addressing the
specific issues which you have raised, and others,
in the future.
Please let me know if you have any questions.
7. Winston Porter
Assistant Mministrator
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950 2. 1996( 03)
RCRA/SUPERFUND HOTLINE MONThLY SU)O(ARY
JANUARY 86
5. Corrective Action
The Hazardous and lid Waste Aner sents of 1984 (K ) set forth requ3 r ients
for corrective action for continuing releases under 53004(u). This provision
is applicable to any facL lity that is seeking a M permit.
A facility currently has a RA permit and is seeking a major n ificatLon
to that permit under S270.41. Ii u1d this facility be sub)ect to the corrective
action requirsserits of 53004(u) when going through a major permit n dification?
section 3004(u) states that corrective action for a facility shall be
required as a oi 1ttion of each permit issued after vei r 8, 1984.
Bscas a permit n dificatiofl is not equivalent under 5270.41 to the
jgauar of a permit, a facility that is Seeking a major ucQtficat on
to a A permit issued prior to tbv er 8, 1984, is not required to
drese the corrective action requirat nts of 53004(u). A facLlity
permit being revia d for reissuar e, P vet, is subject tO the 53004(u)
corrective action provisions.
Source: Carrie Wahling (202) 475—8067
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9502.1986(04)
UNITED STATES ENVIRONMENTAl. PROTECTION AGENCY
W r oN, D.c. 20460
FEB i 3
QrcICE O
SOI. D WA$1E APIC EME E Cv RESPONS
ME MORMID(JM
SUBJECT: &CRA Corrective Action at Federal Facilities
- . j’ L
FROM: ! uce R. i’Yèddle, irector
Permits and State Programs Division
TO: Allyn M Davis, Director
Hazardous waste Management Division (6M)
Region Vt
This responds to your memorandum of January 15, 1986, in
which you pose several auastions about corrective action at
Federal facilities. I hope this clarifies the relation between
the national priorities and corrective action.
You asked how national priorities for Federal facilities
will be coordinated. We do not expect to have a final rule
published in the Federal Register before eighteen months fro’ t
now. In the interim, the Regions and States must continue to
process and issue permits to Federal facilities. Priorities
will be reflected in the ccmpltance schedules of the permits
for individual Federal facilities. Compliance schedules should
be negotiated on a case—by—case basis with each facility, with
one of the factors considered being the parent agency’s nation-
wide corrective action responsibilities.
There are many ways we could address national priorities in
the proposed rule. On. method would be to establish a national
ranking for each ftderal facility. Mother method would be to
develop a process for negotiating compliance schedules for
corrective action at Federal facilities. At the moment we are
considering the latter approach. Under this method, corrective
action would continu, to be addressed a. described above.
You also expressed concern about lack of funding for Federal
facilities. EPA can influence the parent agency’s funding deci-
sions through the A—lOG budgeting process. You should aggres-
sively use the A—lOS process to ensure that funding is available
to undertake the activities in permit or enforcement compliance
schedules in the timeframes provided.
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—2—
You also asked if 53008(h) orders could be issued to
Federal facilities. You should continue to issue 53008(h)
orders when appropriate. Although we cannot assess penal-
ties to other Federal agencies, we can use the authority
of S3008(h) to compel investigation and cleanup activity.
Finally, your memo stated that in accordance with
Winston Porter’s November 21, 1985, memo, you would not
contact State Environmental Directors about corrective
action at Federal facilities. That memo explained that
the States should not be contacted until issues raised by
the Department of Energy were resolved. These ssues
have now been resolved. This was explained in a January 8,
1986, memo from Winston Porter requesting the Regions to
contact the States. Please begin contacting State
Environmental Directors if you have not already done so.
If you have further questions about corrective action at
Federal facilities, contact Paul Conner of my staff at
(FTS) 382—2210.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9502. 19B6(05
MAR 2 4 1986
•lr. Philip X. Maacianconio
!.nited States Steel Corporation
ne Tec t Center Drive
: onroevjl1., PA 15146
Lear Mr. tascjantoniot
L am pleased to respond to your letter of February 19, 1986,
recarding the applicability of 1 CRA corrective action raaufrements
to tacilitiel for which Part A applications were filed, but at
which hazardous wastes were never actually stored, treated or
aispoged.
If, as you stated in your letter, your facility never did
treat, store or dispose of hazardous waste (as defined in 40 CFR
Part 261). e * doCs not consider that facility to have attainec
interim status, even though a Part A application was suh,itted
(i.e., a prot.ctive tilinq) This interpretation is oue1ine i
in a Fed.ral notice published on Septez b.r 25, 1905
(50 Fi 1TT ).
acilittes which bav• never engaged in treatment, storaas or
disposal of hazardous west• are not sub j.ct to the corrective
action provisions of CPA 53004(u) or 53008(h). It should be
noted, however, that authorities under CERCLA or other statutes
a ay be available to the Agency to address •nvtror ,i.ntal concerns
at such f ctlities. r.gard].sss of their status under RCRA.
I hop. this ha. .d.quately addressed your conc .ri . Please
let me know if I can be of further assistance.
Sincerely,
1, Wjnston rter
Psajstant AdministratOr
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j UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9502.19 86C 06)
WASHINGTON, D.C. 20400
R I5l
e•,uct o.
101.10 WAStI AND IM! Q NCy ISPONsE
Honorable Mary L. Walker
Assistant Secretary for
Environment, Safety and Health
Department of Energy
1000 Independence Avenue, S.W.
Washington, D.C. 20585
Dar Mary 2
Section 3004(u) of the R.source Conservation and Recovery
Act (RCRA) requires hazardous waste facility owner/operators
seeking permits to undertake corrective action for environmental
releases at solid waste management units within their facilities.
On March 5, 1986, EPA published in the Federal Register a notice
(copy enclosed) announcing EPA’s intent to promulgate rules
implementing these corrective action provisions at federal
facilities
Among other things, the March 5 notice indicated that
‘EPA intends to develop rules that would allow Federal agencies,
subject to EPA approval after consultation with the States, to
set priorities for correcting releases from solid waste manage—
mont units at facilities that they own or operate.’
The notice also indicates that, in the int.rim before
these rules are finalized, EPA and the Static viii review and
issue RCRA permits, with EPA implementing corrective action
requirements at fideral faciiiti.s until the State is authorized.
EPA will address issues not yet resolved by rulemaking on a
case—by-case basis.
I want to encourage you to begin developing plans to
establish corrective action priorities within your agency.
Having such internal priorities viii facilitate the ongoing
negotiation process for permitting during this interim period.
I would liki to meet with you within th. next two to three
months to discuss your preliminary prioritization planning.
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I look forward to working
corrective action provisions.
please contact im Cruickahank
Thanks vary much for your
with you to implement the
If you have any questions,
of my staff, at 382—4431.
cooperation and assistance.
Sincerely,
Eric losure
7, Winston Porter
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95O2.1986 O7)
RCRA/SUPERFUND HOTLINE MONTHLY SUIOCARY
APRIL 86
7. Corrective Action for UIC Walls
The owner of a hazardous waste underground injection well is
app1yir to his State for a UIC errnit after bv nber 8, 1985.
Section 3004(u), as amended by the Hazardous and Solid Waste
Amer ients of 1984, stipulates that a RCRA permit issued after
! ovenber 8, 1984 must require corrective action for all releases
of hazardous waste or constituents fran arty solid waste man ement
unit at a treatment, storage, or disr osa1 facility. Must corrective
action be addressed in the iJIC permit?
Section 270.60(b), regardir permit—by—rule regulations for
UIC wells was iended in the final calification rule (50 FR
28752) to require ca liance with corrective action regulations
under S264.l01. The pr sed ax1ification rule of March 28,
1986 restates that a UIC permit issued after Nov nber 8, 1984
is not a permit-by—rule until corrective action recuirenents
have been net for all solid waste management units at the
facility (51 FR 10714). A menorandun dated April 9, 1986,
fran Michael Ccok (Office of 1 inkir Water) to the Regions
further clarifies this point by statir that a LJIC permit is a
RA permit—by—rule en corrective action has been addressed
for the entire facility.
Corrective action for the well only will be addressed In the
UIC permit. If there are other I RA units at the facility,
corrective action for those units will be addressed in a RCRA
permit, when it is Issued. If there are no other 1CM units
requirirq a permit, then corrective action for any other
solid waste management units will be addressed In the UIC
permit.
Source: ve Pagan (202) 382—4740
Thesearch: lm Cotwals
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9502.1986( 07a)
RCRA/SUPERFUND MOTLINE MONTHLY SUMMARY
APRIL 86
1. Corrective Action Orders Jnder S3008(h )
The owner/operator of a surface I oun rtt has rnan ed hazardous wastes
in the Urpoun erit without interim status or a RCRA permit. A release
of hazardous wastes fran the impoundnent has contaminated surrounding
soil arid groundwater. Upon discovery of this improper man enent and
resultant contamination, the EPA intends to issue a corrective action
order under Section 3008(h) of RCRA. Given that the owner/operator
never an interim status, can the corrective action order be issued?
Section 3008(h) authorizes the EPA A iiinistrator to issue
corrective action orders to address releases of hazardous
wastes into the envirorinent f ran facilities authorized to
operate under Section 3005(e). This authority extends to
include those facilities that should have h interim status,
but failed to notify EPA under Section 3010 of RCRPi or failed
to su nit a Part A application. Pecordir ].y, the corrective
action order can and should be issued to er ure pra t and
thorough clean-up of the site. (Please see the Dec nber 16,
1985 ri iorand in fran 3. Winston Porter, Assistant óninistrator,
Office of Solid Waste and F rergency Response, entitled
tnterpretation of Section 3008(h) of the Solid Waste Disposal
Act ).
Source: Vlr irtLa Steiner (202) 475—9329
Research: Jim Ginley
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9502.1986 (091
NLMORAqjDUM
SUBJECTs Persit Issues Related to U.S. Arsy
Aberdeen Proving Grounds
Bruce Weddle, Director
Permits and Stati Programs Division
TOs Robert Allen, Q L.f
Waste PIanag. nt Branch
In your sorar.dua at January 24, you r.qusst.d O. r response
to several issues surrounding the issuance of the corr•ctiv.
action portion of the psrait for Aberdeen Proving Gr ands. Our
r.spons. to each issu, is discussed separately below. This
information has also been discussed with Jack Potosnak of your
staff.
1. Definition of f.cility as it applies to Federal facilities.
tlotic• was published March 5 (51 Federal B. later 7722)
which resolvu three issues aitlined in the Pin Cod fication
Bule, r.garding the definition of facility for purposes of
correctiv, action at ?sd•ral tacilitiess
1. will establish that 53004(u) is applicabl, to Federal
taci liti.si
2. Recant Irma tM definition of taciltty as the
satire sits under control of th• owner/operator:
3. UtabMehes that the n•r of Federal lands is Uii
iadiv idval Pideral depsrtnt or agency, rather
than the versent.
A second notic. wa, also published which aflflQancsS air int.rit
to develop regulations to addres, additional issues raised by
Federal agencies including national priorities for oorr•ctiv.
action.
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—2—
2. Unexploded Ordinancss
You inquired as to whether range/impact areas containing
unexploded ordinances at Aberdeen quality a. solid waste management
unit.. We believe such arias do not qualify because there is a
strong argument that unexploded ordinances fir.d during target
practice are not discarded terials within the regulatory definition
of solid wasts. Ordinances that do not explode would be expected
to land on the ground. Hence the ordinary us. of ordinances
includes placement on land. I4or.ovr, it is possible that ths
parmitt.. has not abandoned or discarded the ordinance, but rather
intends to reus. or recycl, th•a at some point in th. future.
Also, the U.S. District Court for the District of Pu•rto Rico
held that the military target practice activities do not generate
solid waste because the statutory definition do.. not incl ude
materials resulting from military oprations. Barcelo v. Brown ,
47 F. Supp. 646, 668—b69 (D. Puerto Rico 1979) (copy of relevant
portions attached). The Court qualified this position, however,
by suggesting that when the military •nqag•s in activities that
resemble industrial, co’ mrcial or mining operations, or community
activties, materials resulting from such cp.rations are wastes
and are subject to regulation under RCRA. R•nce, we think the
Court’s opinion suggests that material, resulting from uniquely
military activities engaged in by no other parties fall, outside
the definition of solid waste.
3. White Phosphorus Burial Zone
As relayed in your memorandum, white phosphorus munitions
were dumped in a shallow water area and covered with fill. The
area is part of the Chesapeake Bay, but it is within the boundary
of Aberdeen Proving Ground. You asked whether the the fact of
being underwater restricts applicability of *CRA/ H 1A authorities,
and whither a multi-year monitoring program can be prsscrib.d at
the location.
As described in ths Jai iary 30, 1955, draft guidance on
corrective action for continuing releases under 53004(u), the
term solid vests minag•ment mit applies to active and inactive
units containing hosardous wastes or solid wastes at th. facility.
Further, the t facility i. defined as incl ading all contiguous
property under the control of the owner or operator at which the
units sub j.ct to permitting are located. In the case of the
white phosphorus burial some, since whit, phosphorus is a basardous
vast, and the unit is located within the facility boandary, the
tact of being underwater would have no attest on its designation
as a scUd waste management mit. Wurther, since the unit would
be sub ject to 53004(u), a water quality monitoring program would
appear to be an appropriate response to detarmine evidence of
any releases from the unit.
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4. Radioactive $at.rial
You inquired as to whither several tt s listed in your
mssorar*dua fill under the source special nuclear, by—product
aat.rial .*. ption undr 26].(a)(4). The it .s would not be
•uspt to the •ztent they are mixed with or contain hazardous
vast.. However, no RCMA regulations have been d.v.lcped to cower
such sized radioactive wastes.
5. Drum Cleanup
Your last issi. centered on the appropriates, of a permit
condition requiring a facility-wide •t tort to locate and recover
abandoned 55 gallon drums found on th. site. Drums with oont•nts
would be tested and removed to the container storage area if
found to be hazardous.
We do not believe existing authorities would allow recowery
of these drums unless there was evidsnc• of a release. Under the
authority of Section 30Q4(u), it EPA ’s preliminary asses ent
shoved that there wa, a reasonable likelihood of releases of
hazardous constituents tr any of these drums, EPA or the facility
could test the material in the drums to determine if the remaining
wast, is hazardous and to determine it any releases have ocairred.
If releases had occurred, th. appropriate correctiv, action measures
could be required.
If you have any turth.r questions, pleas. contact George Faison
at 382—44 2.
Attachment
cc: MC&A Branch Chiefs (w/o Attachment)
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9502.1986(10)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
MAY 86
4. Corrective Action
The Flazardous and Solid Waste Pgt r& nts of 1984 contain several
corrective action provisions. Section 30 0 4(u) requires that rTnits
contain provisions for corrective action and financial responsibility
for implenenting such corrective action. Mended Section 3004(a)
of the Solid Waste Disposal Act (SWt ) authorizes regulations on
financial assurance for corrective action. Does this financial
responsibility requirenient extend to atended Section 3004(v),
corrective action beyond the facility boundary?
Yes, the proposed codification rule dated March 28, 1986 (51 R
10714) explains that the financial responsibility requirensrtt
extends to corrective action beyond the facility boundary.
Proposed Section 264.101(c) codifies this require ent. The
final closure rule, issued on May 2, 1986 (51 FR 16422),
contains saie financial responsibility provisions, t t does
not contain specific provisions for corrective act ion. The
Agency will idress the specific requir ients for financial
responsibility for corrective action in a separate proposal
due out in Saptenter 198g.
Source: Debbie P* lpe (202) 382—7729
I search: Kim B. twals
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9502.1986(11)
r. rrv C. Ccnv,er
Presir ertt anil CEO
ste—Tech Services, Tr c.
13400 West lOtt, Avenue
Gcñden, Colorado 90401
Dear 4r. Conqer:
.1.11 1 6
Thank you for your May 21, 1996, letter concerning the
recuirements needed to Neet the land disposal ban of the Hazardous
and Solid Waste Artendr*nts of 1984 ( SWA). You expressed concern
that the neri’ ittinq process and the corrective action program pose
an i’n ediment in meetino the July 1987 land disoosal ban deadline
for haloqenated oroanics and similar deadline.. We aoprecjate
your thoughtful comments and sugoestad guidanc. to the Regions
and States.
while the Conaress and the Envtrorniuental Protection Agency
(EPA) believe it Is important to implement th, land disposal ban,
Congress did not indicate a willingness to forego other important
activities, such as corrective action and permittina, to accomplish
this. EPA is trying to implement corrective action and nermittin’,
in a manner that has the least disruptive impact on implementation
of the land disposal ban.
As to your suggestion for a waiver of the nr—construction
ban, Section 3005(a) of the Resource Conservation and Recovery
Act (RCRA) oreclud.s construction of new facilities until a permit-
is issued. EPA does not have discretion to waive this it would
require a statutory change.
You also ‘iiads o • specific suggestions about corrective
action. lie have issud cs tdance which addressee many of your
concerns a ce y of which is enclosed. The guidance states that
an inciriera r/treatmen unit can be permitted separately. That
permit must address all releases to media other than ground
water from requlat.d units--i.e., land disposal units that received
waste after July 24, l982 —and all releases from nori regulated
units. A nermjt issued separately to regulated units would
address any needed ground water corrective action in accordance
with Subpart F of 40 CFR Part 264. Corrective action for media
other than ground water norisially takes place after issuance of
the permit through permit schedules of compliance. For around
‘ —— i. JZ J. 1 I
._U*U RI E J
— -——- - —- — I —
-‘ .r —i i-t c*nd -d yre’r iv, rtaiuui t . develapti
‘ °‘ lefore ts u nce pf I tP4 b rmKt.
-------
Finally, arnund water releases frrt renutatq units can °
addressed in seoaratelv issued ner its. This is usuaflv the
ost time and resource intensive nart of rorrective action, cn
it should greatly reduce permit devel’,nnent and nrocessinn tir’e
for incinerator/treatment units.
Again, thank you for your thouahtful letter. The Mencv
identifies new treatment canacity as a hinh Dermittinri Priority
and will continue to do everythinri that it can to i rnlement Phe
‘ ost efficient reepulatorv nroriram within the new provisjnnq of
the law.
Sincerely,
ø / Tack N , l’cGra’
3. Winston Porter
Assistant Administrator
WH—562/D.ZEITLIN/sIdJ6—9—86/Control No. AX6OO861/flue Date:6—lO—86
382—4651
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9502.1986(13)
August 22, 1986
MEMORANDUM
SUBJECT: Applicability of Regulations on Financial Assurance for
Corrective Action
FROM: Deborah L. Wolpe
TO: Gary Gosbee, Region I
You have asked for an interpretation of the applicability of
the financial assurance for corrective action requirement to both
regulated units and other solid waste management units. The July
15, 1985, final codification rule contained two references to the
financial assurance for corrective action. Section 264.101
entitled “Corrective Action for solid waste management units”
states that permits shall contain “...assurance of financial
responsibility for completing such corrective action.” Section
264.90(a) (2) entitled “Applicability”, states that “...The
financial responsibility requirements of §264.101 apply to
regulated units.” Your question appears to be whether
§264.90(a) (2) supersedes §264.101(b), so that financial assurance
only applies to regulated units.
As you know, regulated units are a subset of solid waste
management units (see 50 g. 28702, 28714, July 15, 1985).
Our interpretation is that the statement on financial assurance
in §264.90(a) (2) is not necessary, but is there as a reminder
that regulated units are subject to the requirement in §264.101.
Ordinarily, an owner or operator of a facility with only
regulated units complies with the requirements of §264.100, not
264.101, and therefore might miss the financial assurance
requirement, which is only in §264.101. Financial assurance
applies to all solid waste management units, including regulated
units.
This has been retyped from the original document.
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UNITED S fAThS $YIRONMENTAL PR0TECT ON AGENCY 9502. 1986(14)
LJG 22 (986
Mr. Car]. Schaf.r. Jr.
Deputy Assistant Secretary
of Defense, ( ivtronaent)
Department of Defense
The Pentagon, Room 3D133
Washington. D.C. 20301
Dear Mr. Schafer
1 would like to bring to your attention an issue that may
frustrate our mutual effort. to clean up hazardous vasce contamina-
tion. On November 8, 1985. the Cvmon Air Force Base submitted a
Part B permit application to Region VI. The application addressed
one surface impoundment, one container storage area, one landfill.
and one open-burning treatment area. The Part B application
contained no information on the (.1 sites addressed by the CAfl
Installation Restoration Program. On April 30. 1986, Region VI
requested information on the solid waste management mits that
were not identified in the Part B application. CAfl responded to
EPA’. request with the following language:
We have omitted these sites and units with the
understanding that the Ynvtro ental Protection
Agency agreed at the Washington 1ev .]. that the
IR? vii.]. continue to function u a DOD program
that is not regulated wider RCRA and the 1984
Amendments. We understood this agreement was
based on recognition that clean up of DOD sites
should be based on nattonat priorities rather
than regional or local ones. If the IR? is
subject to regulation by the EPA regions,
national priorities will be lost. We hay, not
bun notified by Air Fore, authorities of any
change in this understanding. Therefore, w did
not include in our Part B application any sit. or
unit addressed in th. ZR?.
CA7B states that R A and the 1984 Mnd.ents do not apply
to DOD’s IL ?. V. ar. concerned that CAfl’s position represents
the official position of the Air Fore.. For ansaple, Offutt AFB
has informed another EPA Regional Offic. that the Ms. is not
required to sign a schedul. of compliance under Section 3004(u)
of RCRA until EPA issues a final rut, on national priorities for
corrective action.
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-2-
It appear, that the Air Force has •Lathterpr.t.d our
rulemaking efforts on corr.ctiv. action at Federal. facilities.
It is EPA’ S position chat Section 3004(u) applies to Federal
fa ilLties. Furthermore, we shall continue to ca]l. for permit
application. and to issue idA permits to Federal facilities.
Our p.r.Ltting progran is not d.lay.d or postpon.d pending our
rutaking em priorities for correctiv, action at P.d.ral faci-
lities. We reiterated our position on this issue in a March 5,
1986, Rott s pu ltshed in the Federal 1 tster, which clearly
stated that, In th. interim (while r lng to r•solv. national
priority and principal. o 1er Ls.u..1 EPA and the states vil.l
proceed to review and issue IdEA permits, and EPA vii ]. Implement
3004(u) requirements at federal facilLti...N
Because our permitting progrem cannot wait for a final rule
on national priorities, me encourage you to begin setting priorities
for corrective action under Section 3004(u) of RCRA. Your priorities
can be used as a factor during permit negotiations, and •chedules of
compliance under Section 3004(u) can reflect the relative priority
of your facilities.
If the Air Force has misinterpreted our position on Section
3004(u), 1 mould appreciate your clarifying to them ct*.irobli-
gations under idEA. I a confident that our offices can avoid
misunderstandings during futur. permit negotiations if we maintain
a common und.rstanding of IdEA. Please let me ov the outcome
of any discussion. on this matter you may have with the Air Force.
Sincerely yours,
/1/ Ja g V. UaG,
Winston Porter
Assistant Administrator
CC: Warren )iull.
Michael Hub
Jim Criaisk.hk
bcc: Eazardoss Waste Division Directors & Branch Chiefs,
Regions -1-X
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9502.1986 (15 )
I - —-
I — .
—
r r oPnj Di”
FUBJtCT: ?egulatorj Status of NoocI Treatient Cylinder
Creosote Suns
rarci.t tilUams, Director
Officc of Solid ‘tste
TC: Patrick . Thbin, Director
Waste ‘anageuent tiivision, Fegion IV
Your memorandum of July 9 requests a ‘Jetetmination of
the PCPA re’iulatory status of underground sunps “4iith collect
waste creosote frr production pi?elines and treaunent cylin-
‘ 1 ers at wood treatrrt facilities. Sased on tx understanciir;
of the case presented, and after discussions 4th kour stat 1.
we offer the following guidance.
As we understand t a strtp described in ,‘our tno, it is
routinely used to collect drippage, leakage, or other s ill e
of creosote frr ‘400d treathent cylinders onC associated
nipina, and the caterial is not collected for rec c1ing. The
creosote appears to qualify as a solid waste is .acfaned in sec-
tion 261.2(a)(2) as. aztng other things, any ratersal which
is Aiscarded cy being abandoned. Section 26l.a(u)(3) deiiae s
abandoned ateriat as that being accumulated, stored, or
treatel (but not recycled) before or in lieu of besxa disysti
of. burned or incinerated. Since the creosote is not
a hazardaas ‘este, the strip culd not be a uziit requsriag
interim status or a p.rrdt.
Fron the description provided in your renorandun, it
av ears that the su”p in question is a discernible uiit
( resw’iably a tarñc) in wttid solid wastes have been r’anaged.
As such, the surp would be considered a solid saste renaqererit
unit (S MU) for purçoses of fr plenentirq corrective action
under RCRJII ¶3O ”4(u) or 3008(h). (See the disaission of S;:.Us
at Sfl FR 29712, July 15, 1985.)
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—2-
Pleas. be aware, if you are not already, that th. Agency is
currently diveloping a proposed regulation (exp.ct.d to be
published iii the Federal in the spring of 19$7) which
say list as tasardous vastss c.rtain wood prea.rvation and
treatssnt wastes. Such a listing say affect the regulatory
status of the susp in question. (For additional inforaation
contact Dr. Cat. Jenkins at ?T8 3S2 —47S .) In addition, you say
also wish to review a draft assorandus entitled ‘R BA Regulatory
Interpr.tatioit Assistance Requ.st Cleanup of Residues of
Ccsrcial Cheuical Products Within a Warehouse $terag• Area,’
which was circulated to the legions for review on June 3, and
which deals with issues related to those posed in your esuorandus.
Th. recent decision by Judge Yost in In re Ir 1 d
Preservin Co. Inc. (lClA-S4-l -R) doss not rsguir. EPA to
pu a $ ss.orandus. That decision takes th. position
that the inistrati,e Procedure Act requires the Agency to
publish policy as randa and int.rprstiv. statesents that •st
out new rules or substantially aodify •zistinq rules. This
moraridua sexily offers an opinion as to whether the facts you
have outlined for this facility fit the existing definition. of
‘solid waste’ ‘hazardous waste,’ and ‘solid waste sanagesent
units.’ It doss not establish a general policy of treating all
process suaps at wood preserving facilities as solid vast.
eanagesent units.’ Nor doss it create or change any other
rul. or policy.
I appreciat. that we need to be careful to go through
notice and ccsnt on decisions that sight be interpreted as
expanding regulatory controls beyond what is evident frc.
•zistinq rules or statutory language. For .zasple, if we list
certain wood preservation wastes vs say want to discuss in the
Federal istr the regulatory status of areas in which on-
vironsonta re eases frc. treated wood are routin, arid expected.
B ver, publishing statesents of general policy would
not solve the entire probles preaented in the Brown case • The
legions also need to ensure that the facts of i rcu. show a
violation of the statute or regulations. Casplicated scientific
or technical issues nay require you to use experts to present or
explain the evidence.
Applying thes. ideas to the facility described in your u.o—
randun, to regulate the suap as a S D you would have to collect
facts d.nsnstrating, for ezasple, that the creosote in the cusps
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—3—
was j fact wdiscarded. and that the SUZT is a udiecreten unit.
This er torandum cannot s bstitute for fir i factual denc
concerning the specific facility at issue.
If you have adjjtionai. 4uestions, please contact
uic1 ele Anders at rr 3ã2-4534.
cc: r,ene Lucero, C;JP!
Attach nt
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UNITED STAT ES ENVIROWMEP4TAt. PROTECTION AGENC’
9502.1986(16)
MEMORANDUM
SUBJECT: Open Burning/Open Detonation at DOD Facilities
FROM: Bruce R. Weddle, Director
Permits and State Programs Branch (WH—563)
Office of Solid Waste
TO: Gary B. Goabee, Chief
MA Waste Regulation Section
EPA Region I
This memo responds to your September 8 1986 memo about
EPA’S definition of SWMU’s at DOD facilities. Your memo outlined
EPA ’s regulation of open burning/open detonation (ob/od) areas,
and you explained how this applies to the Fort Devens facility.
I agree with your interpretation of the ob/od issue, and
it appears from your description of the units at Fort Devens
that your interpretation of SWMU’s is consistent with our under-
standing of the ob/od issue. RCRA applies to discreet areas
where DOD performs ob/od for disposal purposes. RCRA doe. not
apply to Ntraining areasN or ijnpact ranges as long as these
areas are not used for disposal purposes. If however, DOD used
a training area or impact range for disposal purposes, then
these areas might be subject to RCRA.
In the near future EPA will propose new r.gulations under
Subpart X of 40 CFR Part 264. The proposed regulations in
Subpart X addr.ss the ob/od issue. Because you have practical
experience in this area I encourage you to co ent on the new
regulations vbn they are proposed in the Federal Register.
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—2—
Paul Connor (ETS 475—7066) is the contact on this issue in my
Diviejon and ossi Meyn (FTS 382—4654) is the point of contact
on the new Subpart X regulations. Thank you for keeping me
informed on this issue.
CC: Dave Fagan
Ossi Meyn
George Garland
Jim Michael
Andrea O’brien
Gwen Ruta
Craig Johnston
Tina Kaneen
Lee Herwig
Warren Hull
Matt Hale
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9502.1986(17)
September 29, 1986
Captain Michael Carricato
Deputy Assistant Secretary
of Defense (Environment)
Room 3D833
The Pentagon
Washington, D.C. 20301—8000
Subject: Summary of the September 17, 1986 Meeting
Dear Captain Carricato:
Thank you for coming here to discuss the applicability of
RCRA to DOD’s installations. I was encouraged by our meeting,
and I was pleased with our progress in identifying RCRA issues
that arise at your facilities. This letter summarizes my
understanding of the issues we discussed at the September 17
meeting. Please contact me if your understanding of our meeting
differs from the following.
We discussed three issues that often arise when EPA is
preparing a RCRA permit for a DOD facility. These issues arose
recently in two letters from DOD to EPA Region III. The letters
addressed RCRA permits at DGSC in Richmond, and Aberdeen Proving
Ground. We are anxious to resolve these issues and I hope that
our recent discussions more accurately reflect DOD policy than do
the two letters. The three issues are:
1. Will EPA ’s RCRA permits incorporate the IRP cleanup
schedule for “IRP units”?
2. Does EPA’s RCRA program have oversight over the IRP?
3. Does RCRA apply to “non-IRP units”?
We agreed that EPA’S schedule of compliance under S3004(u)
could incorporate, to the extent practicable, the IRP cleanup
schedule. We further agreed that EPA’s RCRA program included
oversight over the IRP cleanup when included in the permit.
Finally, we agreed to further discuss the applicability of RCRA
to “non—IRP units.”
This has been retyped from the original document.
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—2—
We discussed EPA’S definition of “facility.’ I reiterated
EPA’S position that is discussed in the March 5, 1986 Notice.
We agreed that if DOD wishes to pursue this issue, you will
discuss this with me, and I will schedule a meeting with Marcia
Williams, if necessary.
We agreed on the need for policy development between our
offices and for dispute resolution procedures. I suggested two
possible mechanisms:
• a headquarters-level task force that would meet
regularly to discuss issues and resolve policy questions for DOD
facilities;
• a process for resolving disputes between DOD and
authorized States or EPA Regional offices. We agreed to address
these proposals in more detail during subsequent meetings between
our two offices.
I mentioned a meeting between our two Offices of General
Counsel on the issue of DLA ownership. You agreed to look into
ways of expediting the transfer of information to us about DLA’s
property management authority. This information will assist our
General Counsel’s office in resolving this issue.
We will contact you shortly to set up another meeting.
Please let me know if you have anything to add to this summary.
Sincerely yours,
Bruce R. Weddle, Director
Permits and State Programs Division
Office of Solid Waste
cc: Paul Connor
Mike Heeb
Warren Hull
Marcia Williams
This has been retyped from the original document.
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RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
SEPTU4BER 86
5. A Enforc nt
When can the 93008 (h) authority be used? H cart a S3013 order
supj rt the 93008(h) action?
The Hazardous and Solid Waste Aaench ents of 1984 (HS added S3008(h),
one of the corrective action authorities, to the Solid Waste Djs sal
Act. Section 3008(h) aUc ”s the Agency to require corrective action or
any other res cnse necessary to potect htm an health or the erivirorment
when a release of hazardc s waste is identified at an interi i Status
hazardous waste trea ent, storage or dis sa1 facility.
Section 3008(h) iides: 1 enever on the basis of any information
the Aóninistrator determines that there is or has been a release of
hazardtxis waste into the envircrmient. ,.. Ap rop iate information can
be obtained frui a variety of sources, includirç data frrm laboratory
analyses of soil, air surface water or ground water sanples, observa-
tions recorded durir ins ecticns, Ø tcgra rha, and facts obtained &
facility records .
Actual sa pting data is not necessary to s ’ a release. Other evidence
that a release has Øc ed might be a broken dike at a surface imp und—
u nt discovered by an ins ector. Less obvious indications of a release
might also be equate to make the determination. For exai ie, the
Agency could have sufficient information on the contents of a Land
dia ea1 unit, the design and o ratir.g characteristics of the unit,and
the hydr eolcgy of the area in which the unit is Located to conclude
that there has probably been a release to groundwater. 1 Agency
could then order the ner or o srator to [ erfouhl an investigation to
confirm the esenoe of ccntN!dnatjcn, and, after ifirznat ion, to
undertake corrective action.
H ver, to exercise the interim status Co!Thctive action authority,
the Agency at first have information that there is or has been a
release at th. ficility. Mditicnal s .irres that may avide infor-
aetion on rel.ase inclx e: 1na ection rep,rts, ._ Part A and Part B
*r it applications, respnees to M 93007 information requests,
info ticn obtained through 53013 orders, notifications required
by A S103, infoa aticrt gatherir activities oci icted under CE LA
5104, and informants’ ti or citizens’ a tiiiaints corroborated by
sup rtir info tion.
A 53013 order may be used in v instances in which A does not have
adequate information that there is or has been a release. Section 3013
avides that the Agency may can e1 ucnitorir , testir and analysis if
the ,esence of hazardous waste at a facility c c site at which hazardous
waste has been treated, stored or dis reed of may esent a substantial
hazard to health or the envirors nt.
Source: Ginny Steiner (202) 475—9329
search Caroline nek
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9502.1986(19)
SCBJECTz Headquarters Support toe Corrective Action
Technology
Bruce B. W.ddle, Director
Permit. and State Programs Division
TO; RCRA Branch Chiefs, Region. !-X
The correctly, action authoritie, of RCRA provide one of
the Aa.ncy’s most effective tools for assuring th. clean—up of
releases at hazardous waste menagea.nt facilities. Because of
this, we are co.aitt.d to providing you with continuing technical
assistance on corrective action. This svsr the Land Disposal
Permit Aasiatanc Team (PA?) had a PhD candidate in geology
working full tim. investigating case studies of corrective action
technologies. Re focused on the clean-up of ground water, soil,
and surface water. The results of his efforts were, (1) the
creation of a corrective action computer database; (2) biweekly
technical sessions for OSWU staff: (3) a s.r inar for non. .t.chnical
manag...nt and staff; and (4) a list of •uggi st.d publication.
for a base library on corrective action.
Som. of the results of the .. efforts ar. available for your
us. right now, while other projects are in th. planning stace.
The computer database ia n available to help your staff analyse
corrective action proposals which are submitted by owner/operators.
It contains over 200 entries, which are suarles of journal
articles and tP& publications en corrective action technologies
which have been demonstrated in th. field or in bench scale
projects. The cysts. is designed around a list of key words,
which is attached (along with an .xasple of a data output). We
direct the essputsr to search for and locate entries that contain
key words La stitch you are interested. Per example, you may
be interested in cleanup experience with specific chemicals
(e.g., PCI, TCI), or using specific technologies (i.e.. air
stripping, in situ biological treatment). When the computer
finds entries which contain thos. key words, it viii print out a
citation and abstract of the appropriate article(s). If the
abstract see relevant, the entir. article can then be examined
in your library.
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More details will be given to your staff vh.a they call in
with a raqvst. At the present the data bass Is accessed by
calling Jan•tts Nansen (FTS 3$2-4754) or Dave !bsrly (PTS 3S2-4691)
with your rsqneets. Rfter We get a Computer with a modem, you
will be able to directly access the databas. with a le aional PC
through a modem. We will e.nd OUt detailed instructions on how
to do this when the ayst.m Is a.t up. The database viii b
updated on a regular basis.
This sumeer’s seminar on corrective action technologies was
well received. I hay, attached a copy of the handout from the
seminar, which I believe viii be useful to you, even without
having attended th. seminar.
As was mentioned above, a list of suggested references on
corrective action was compiled during th. creation of th. database.
I have attached that list in hopes that your office viii be able
to provide your staff with copies of •ach publication. The sources
of thi publications ar. also attached.
In the future, va plan to set up a correctiv, action computer
bulletin board for staff to communicate between Regions. For
.xai l., if a staff member in on. l.qion would lik, to know if
anyone else has encountered a situation similar to one which
they have met, they can put up a not.’ on the bulletin board.
Staff fro. other Regions can view th. bulletin board and contact
the person who had the question. This can heLp to i ros.
cQmmunication between the Regions on issues o com n interest.
We will also consider the ‘teed for other information sharing
mechanisms (e.g.. conference calls, workshops) as we all develop
experience In this area.
Finally, we hop. that you viii help us to share interestino
correctiv, action proposals throughout the Regions am! States.
Wh•n you receive a proposal which could be of some interest to
others, pleas. contact Dave therly or Janotte Ranseri (numbers
listed above). They will work with you to decide the best way
to disseminate the information. if you think of other ways
in which we can help, pleas. contact Terry Grogan of the Land
Disposal PA? (PTS 3 12—4740).
Attachments
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cc: Wtnetoe Porter
1 *rcL. Wi111
Gene Luc.rO
ifenry 0S*St
J.c &i.an
Permit Section Chiefs. Rqions t-Z
RPA Contacts, Reqiona I—Z
Sue Moreland, ASTSVMO
Ken Shustar
Mitt lale
Terry Groqari
D ii . Pa9an
Art Dsy
Don Sanninq, ORD
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9502.1986(20)
DEC 8 86
MEP’ORAP DUM
SUBJECT: The Department of Defense Installation
Restoration Program
FPOM: Marcia E. Williams, Director
Office of Solid Waste
TO: Waste Manageisnt Division Directors
Regions I — X
This m .morandum discusses RCRA permits at facilities owned
or operated by the Department of Defense (DOD). DOD ha. developed
the tnstal].atton Restoration Program (IU) to identify and clean
up hazardous waste sites. Under the LRPS DOD prepares studies
and generates data that can assist EPA in drafting RCRA permit..
The IRP is carried out in stages that are comparable to the
stages of a cleanup required by RCRA. Phase I of the IRP is
intended to identify waste sites and is comparable to a RCRA
Facility Assessment. A Phase I report should identify most, if
not all, of th. solid waste manag ent units at a DOD facility.
Phase II of the IRP characterizes th. nature and extent of con-
tamination at a site or unit. Phase LI usually provides site
characterization informatton and monitoring data and La campsr.ble
to a RCRA Facility Investigation. Phase UI of the ZR? Li an R&D
phase that is used wher. a sit. cannot be controlled with proven
technology or wher, a site is suitable for evaluating new tech-
nologies. Although the permitting proc... has no R&D stage,
hase 111 of the ZR? can be helpful in identifying aew or unique
corrective measures. Phase IV of the ZR? develops and implements
a remedial action plan. Phi.. IV ii comparable to identifying
and implementing corrective measures under RCM.
EPA ha. placed a high priority on RCRA compliance at Federal
facilities. The work performed under the Ii? wilt provide you
with such of the information you need to prepare a permit, and
I urge you to incoporat. the ZR? proces. into th. permit develop-
ment process. Thu means that you need to work with the DOD
installation In reviewing the results of •ach phase of the ZR?
process and when necessary. expand the scope of the ZR? to include
all solid waste esnsaement units at the fsetl1 v.
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Please keep in mind that we are deve]opthg a rule that kiLL
reco ize priorities for corrective actto at Federal facilities.
After we promulgate the rule we will incorporate a facility’.
priority into the schedule of compliance under *3004(u) of RCR&.
L’ntit we prepare a final rule. permits should reco&nLs. that DOD
can nor address releases from ev.ry solid vast, management unit
at every facility simultaneously.
In •uu, I tir e you to uc. the lIP process when you implement
the RCkA corrective action authorities under 13004(u). Th*nk you
for your attention to this aatt.r.
cc: RCRA Branch Chiefs
Regions I — I
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9502.1987j 01)
RCRA/SUPERFUND HOTLINE MONTHLY ST.ThOIARY
JANUARY 87
3. Corrective Action - §300 8 (h )
A container storage facility subject to interim status { RP
sectiat 3005(e)) has t’c solid waste rsnagelent units (S*TUs) on
site. If the facility as closed before reCe uing a fuLl Part 3
permit. ald EPA enforce interim status corrective action treasures
(RCM Section 3008a(h)) against the facility to clean up the S*ts?
The authority to enforce corrective action treasures at an
thteri.m status facility is it necessarily tied to closure
at hazardous waste rrwagerrent units at the facility in question.
Facilities with closed units tray retain in interim status.
Furtheritore, once a facility has ttairted interim status, it is
potentially subject to an etforcett action pxsuant to
section 3008 (b).
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON D.C. 20460
9502. 1987(02)
OFFICE OF
SaUD WASTE AND EMERGENCy RESPONSE
MEMORANDUM
SUBJECT: Region III Issues on Section 3004(u) Authority
FROM: Marcia E. Williams, Director
Office of Solid Waste
TO: Robert L. Allen, Chief
Waste Management Branch, Region III
This memorandum is intended to respond to your memorandum of
February 5, 1987, in which you raised several issues relating to
the extent and nature of the corrective action authority under
Rc RA section 3004(u).
The first issue that you raised dealt with whether or not
property that is owned and used by an owner/operator for waste
disposal, but which is not contiguous to the facility at which the
regulated hazardous waste management units are located, can be
considered to be part of that facility, for purposes of implementing
corrective action under §3004(u). As explained in the July 15,
1985 codification rule, the term “facility” is meant to extend to
all, contiguous property under the control of the owner/operator.
Since the property which you deBcribe is separated from the facility
property by land that is not under the control of the owner or
operator, it cannot be considered °contiguoua,” and therefore cannot
be addressed as part of the facility under *3004(u). Since this
property is being used for waste disposal, however, enforcement
authorities under RCRA(e.g. §7003) or other statutes may be used as
appropriate to address environmental problems that may be occurring
from that waste management operation.
The second issue which you raised involves process collection
sewers, and whether they can be considered to be solid waste
management units (SWMUS). Process collection sewers are typically
designed and operated as a system of piping into which wastes and
waste waters from production processes and other process—related
activities are introduced, and which usually flow to a wastewater
treatment system. We believe that there may be sound policy and
legal reasons for considering process collection sewers to be
SWMUs. However, we also recognize that such sewers do not per-
fectly fit the R RA program’s traditional concept of a waste
management unit. Considering the substantial potential impacts
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of defining process collection sewers to be a type of SWMTJ, it is
our intention to resolve this issue through the regulatory process.
The comprehensive §3004(u) rulemaking, which is scheduled for pro-
posal later this calendar year, will specifically address the
question of how to treat process collection sewers under the cor-
rective action program. We will therefore be able to base the
Agency’s final decision on a more thorough consideration of the
technical, legal and other implications of the issue.
The third issue in your memorandum deals with the question of
the extent to which the §3004(u) authority can be used to address
potential or future releases at a facility. It has been the Agency’s
interpretation that the §3004(u) authority does extend to addressing
releases which occur in the future; i.e., after a permit has been
issued. To the extent that releases occur or become known after a
permit is issued, corrective action for such releases can be
compelled, as necessary, under §3004(u). Further, in some situations,
it may be appropriate to use §3004(u) to require an owner/operator
to install certain monitoring devices at a unit, even though no
releases have yet occurred from the unit. Such a requirement should
be imposed, however, only where there is reasonably strong evidence
indicating that such releases are likely during the term of the
permit. The example that you cited in your memorandum involving
buried drums that are deteriorating and thus are likely to release
would seem to be a good example of the type of situation where a
type of “detection monitoring” system could be appropriate.
We do not envision, however, using the §3004(u) authority to
require owner/operators to install devices or take measures to
protect against accidental releases (such as your example of
installing steel posts around a container storage area). We do not
believe that Congress intended this provision to be used to protect
against all contingencies where releases could occur.
Your fourth question had to do with the applicability of
§3004(u) to new facilities that are to be built on property where
solid waste management units are located, and more specifically,
where only a portion of the facility is to be leased to a new
operator. As explained in the July 15, 1985 codification rule, the
facility is the entire property under the control of the owner or
operator. Therefore, in issuing a permit for the new facility,
corrective action for any SWMU at the facility——including the
unleased portion——must be addressed. The requirement to conduct
any necessary corrective action at the facility, be it on the
leased or unleased land, will be implemented through a permit
jointly issued to the owner and operator.
If you have any further questions on these issues, please
contact Dave Fagan at FTS 382—4740.
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9502.1987(03)
March 6, 1987
Gary D. Vest, Deputy
for Environment, Safety, and Occupational Health
Deputy Assistant Secretary of the Air Force
(Installations, Environment, and Safety)
Department of the Air Force
Washington, D.C. 20330—1000
Dear Mr. Vest:
Thank you for your letter of December 24, 1986 concerning
the inventory of Federal facilities compiled pursuant to Section
3016 of the Resource Conservation and Recovery Act (RCRA). We
appreciate your efforts in submitting a timely inventory to EPA
and we look forward to working with you when we prepare for the
next inventory that is due January 31, 1988.
In your letter you raised several concerns about the
inventory. One concern is the need for more time to complete the
next inventory. We agree that Federal agencies need more time to
compile their inventories, and we intend to distribute the
questionnaires for the 1988 inventory well in advance of the
January 31 deadline. Our target date for distributing the 1988
inventory questionnaires is June 1987. This date will give you
six months to complete your next inventory.
Another concern in your letter is the need for more accurate
instructions. Please be aware that we are revising both the
questionnaire and the instructions. When we have prepared drafts
of these documents we will distribute them to the Federal
agencies for comment. The drafts will be distributed through
EPA’s Federal Roundtable which meets monthly and is sponsored by
EPA’S Office of Federal Activities. Your representative on the
Federal Roundtable will receive the draft questionnaire and
instructions for comment.
Your letter also asked about the applicability of RCRA to
releases that are being investigated under CERCLA. Before Congress
amended RCRA in 1984, RCRA’s corrective action authorities applied
only to landfills, surface impoundments, waste piles, and land
treatment areas that received hazardous waste after January 26, 1983.
However, the 1984 amendments greatly expanded EPA’S authority under
RCRA to include past hazardous waste management practices at RCRA
This has been retyped from the original document.
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facilities. Section 3004(u) of RCRA states that every RCRA permit
issued after November 8, 1984 shall require “. . . corrective action
for all releases of hazardous waste or constituents from any solid
waste management unit . . . regardless of the time at which waste
was placed in such unit ” (emphasis added). Therefore, RCRA permits
must address corrective action for releases from any inactive, closed
inactive, closed or abandoned units at the facility. For those Air
Force installations that must obtain a RCRA permit it is likely that
the IRP sites at the installation qualify as solid waste management
units and must, therefore, be addressed in a RCRA permit. Under
RCRA’s corrective action authorities.
Many of your IRP sites that are subject to RCRA’s corrective
action authorities are also subject to CERCLA, as amended by the
Superfund Amendments and Reauthorization Act of 1986 (SARA). Section
120 of SARA requires EPA to ensure that a preliminary assessment (PA)
is performed before April 1988 for every site identified in the
“Federal Agency Hazardous Waste Compliance Docket.” Where the PA
indicates that the site should be evaluated under EPA’s Hazard
Ranking System (HRS), EPA has until April 1989 to finish listing the
site on the National Priorities List (NPL). Within six months after
a site is placed on the NPL the Federal owner/operator must begin a
remedial investigation/feasibility study (RI/FS). The statute
further provides that EPA and the appropriate State shall publish a
timetable for the “expeditious completion” of the RI/PS. Within 180
days of the completion of the RI/FS, EPA and the Federal owner!
operator must enter into an interagency agreement (lAG) for the
“expeditious completion” of all necessary remedial actions.
For those IRP sites that are subject to both RCRA and CERCLA,
the requirements of both programs must be satisfied in full.
However, it is possible that the work performed under one program
would satisfy the requirements of the other program. Although EPA
has not fully developed guidelines for implementing both programs at
a single facility, EPA will employ the authority or combination of
authorities that best resolve the waste management issues at your
installations.
The decision as to which program or programs will be used at
your installations should have little or no impact on the ability of
the IR program to clean up your hazardous waste sites. The cleanup
standards for RCRA and CERCLA are, except for minor exceptions, the
same. The procedures for cleaning up waste sites under RCRA are
comparable to the procedures under CERCLA. Furthermore, given the
expanded role for States under SARA, the degree of State involvement
in both programs is similar. As EPA progresses in developing rules
and guidances for the RCRA Corrective Action Program, we are striving
to assure consistency between RCRA and CERCLA.
This has been retyped from the original document.
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—3—
This letter provides only a brief summary of how RCRA and CERCLA
may be implemented at your installations. However, we are preparing
a guidance document that describes these issues in greater detail,
and we will distribute this document when completed.
The final question in your letter concerns our list of potential
RCRA violators. We compiled this list of facilities from information
submitted to us as part of the inventory. We placed a facility on
the list if the inventory indicated that it operated a RCRA unit, but
had not submitted a Part A application, a Part B Application, or a
closure plan.
As you requested, we examined your inventory responses for the
12 Air Force sites on our list of potential RCRA violators. The
following explanation accounts f or each site:
The two sites at Wright-Patterson AFB, Zone 4 and
Zone 5, are on the list because the inventory
indicated that the installation has an operating
waste pile, but had not submitted a Part A
application.
• We placed the Municipal Airport for the Arkansas
National Guard on the list because the inventory
indicated that the airport operates storage and
treatment tanks but had not submitted a Part A
application.
• The underground tank at Vance AFB is on the list
because the inventory indicated that the tank is
an operating storage tank but had not submitted a
Part A application.
• We placed three sites at Dover AFB on the list
because the inventory indicated that each site
has an operating RCRA unit, but had not submitted
a Part A application.
• Finally, there are four sites which we have
determined should not be on the list of potential
RCRA violators. The four sites are “Building 219
( 1” and “Landfill 1” at Griffiss AFB, the
“Site D-4 Landfill” at Kelly MB, and the DRMO
Storage facility at Plattsburgh AFB. The
questionnaires for these sites were filled out
correctly. However, when we entered the
information from the questionnaires into our
database, we mistakenly indicated that these
This has been retyped from the original document.
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—4—
sites had operating RCRA units which had not
submitted the required information. We will
forward this information to the appropriate EPA
Regional Office.
Again, thank you for your letter concerning the Federal
Facilities Inventory. We urge the Air Force to participate in the
process of revising the inventory questionnaire and instructions. We
hope that through our mutual efforts and cooperation we are able to
produce a thorough and accurate inventory of Federal facilities. For
more information about the inventory, please contact Paul Connor, at
475—7066.
Sincerely yours,
Marcia E. Williams
Director
Office of Solid Waste
Gene A. Lucero
Director
Office of Waste Programs Enforcement
cc: Lee Berwig, OPA
This has been retyped from the original document.
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UNt1 i*u cr’IIiJrlM NrAL PROTECTION AGEP CY
(04)
M 13 1987
L. CP’:TL .1
rtcti ‘ al rr cti .. \ct .cr -.L ’ (C 4 - )
/
‘ ECL -. il1i.ars. rLrc c r
ff .ce o! ‘ !id . .&.
Ja cs E. Sc rbrcuch, .1-jet
Pesi ua1s naieient branch, Pegion IV
In your January 20, 1987, memo to me you expressed various
concerns about the contents and us. of the CAP, including th*
application of protection standards.
I agree that we need coapreh.rtsive guidanc. to implement the
RCRA corrective action program. The Off ics of Solid Waste rec.ntly
completed the actions selection process for 3OO4Cu) correctly.
acttcn which resolved several outstanding issues n.c.s.ary tot
development of regulation.. In the n.xt •sveral months we will
be issuing guidance to impl.merit th.s. decision.. Such guidance
will address the four key issues identif 1.4 in your seaorandua
with special emphasis on setting clean—up target liv.]e for all
media. Th. CAP arid the RF! Guidance will be revised accordingly
to reflect the resolution of thes. issues and field .tpui.nc.
in using th•s. documents. The next draft of the R I! Guidance,
which will be distributed for Agency comment in April 1987, will
address these issues in a new section on RCM Health and
Environasrital As..euents.
Your meacrandum also address. . whether the RCRA guidance
should r.f.r.nc. the Superfund Public Health Evaluation Manual
(SPKV4). We have examined this document and believ, that it
contains a good deal of useful information for •valuattng impacts
to public health. W• at. using the SPH 4 in developing the M I!
Guidance section on performing RCRA Health and Eavirona.ntal
Agsusent . The SPESM will serv, a. a useful technical reference
for the RCM corrective action program. For instance, the SPE i
provides detailed guidance on hcw to assess health impacts at
known points of exposure. 9owever, the elements of the SPREM that
ieal with d.t.rminirtg the location of tential exposure points
address an issue that has not yet been u y resolved for RCRA
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—2-
corrective action. As yOU know, corrective action decisions may
be based on the presumption that potential exposure can occur
anywhere up to the waste management unit. In addition, the 5PHE2 i
directs the use of maximum Contaminant levels (MCLs) whe i determi-
ning human health impacts. The use of MCLS versus other
health-based standards (e.g.. reference doses) has not yet been
resolved in the RCRA corrective action rule development process.
You also expressed concern over the technical framework of the
CAP, including corrective measure alternative selection and labora-
tory and bench scals studies. I believe that the CAP provides the
flexibility to alleviate these concerns. The existing technical
framework of the CAP affords a flexible approach to determining the
number of corrective measure alternatives after the need for correc-
tive measures has been established. That is, the number (i.e., one
or more) of alternatives to be submitted by a KCRA facility can be
determined by the Regional Office on a facility—specific basis (see
CAP. page 4). This approach on alternative selection was clarified
on February 3, 1987, at a meeting between OSW staff and several of
your staff in Atlanta.
The CAP also affords flexibility in the application of
laboratory and bench scale studies. As stated on page 2 of the
CAP, the scopes ot work in the CAP are examples and could be
modified, enhanced, or sections deleted based on site—specific
situations. Therefore, at your discretion, laboratory and bench
scale studies may not be required for a specific facility or such
studies may be .hiT d to the Corrective Measures Study part of
the corrective action process. Overall., the CAP should serve as
a reference for Regional Offices to prepare permit and enforcement
order conditions, not as a prescription to be followed in every
case.
If you or your staff wish to discuss the above matters further.
please contact Art Day (382—4658) or George Dixon (382—4494) of the
Land Disposal Branch or Matt Hale, Chief of the Permits Branch
(3 2—474O).
cc: Gene Lucero
Joe Carra
Bob Tonetti
Matt Hale
Art Day
Dave Pagan
George Dixon
George Faison
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9502. 1987 (05)
April 2, 1987
MEMORANDUM
SUBJECT: Interpretations of RCRA Applicability to Releases of
Hazardous Waste
FROM: Marcia E. Williams, Director
Office of Solid Waste (WH—562)
Gene A. Lucero, Director
Office of Waste Programs Enforcement (WH—527)
TO: Kenneth D. Feigner, Chief
Waste Management Branch, Region X
This memorandum responds to your memoranda of December 25, 1986
and January 20, 1987, in which you raised several issues regarding
applicability of RCRA corrective action authorities, and the
implications of termination of interim status by authorized States in
regard to implementing §3004(u) corrective action.
The first general concern which you raised relates to the
applicability of RCRA to releases from less-than—90-day accumulation
units. The Hotline report that you cited and which stated that such
releases “are not generally covered by RCRA regulations,” requires
clarification. It is clearly possible to address releases from less-
than-90—day accumulation units by using the imminent and substantial
endangerment authorities of RCRA §7003 or CERCLA §106. The
alternative theory which you suggest presents a number of policy and
legal issues which we believe merit further consideration.
The other concern which you raised in your 12/29/86 memorandum
dealt with the applicability of §3004(u) to facilities which are
closing but which are not subject to post-closure permits. You
assert that §3004(u) could be applicable to closing interim status
facilities which are not subject to post-closure permits. This
interpretation is based on the fact that certification of closure
does not terminate interim status in the absence of a final
administrative disposition. You suggest that until a permit is
denied, or interim status is otherwise terminated, the facility
remains “subject” to a permit and is, therefore, subject to §3004(u).
This has been retyped from the original document.
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—2—
There are several legal limitations to this approach, and the Agency
has no plans at this time to develop requirements such as those you
have suggested.
If closure for the entire facility has been certified and is, in
fact, in compliance with 40 CFR Part 265 and no post—closure permit
is required, there should be no wastes or units at the facility which
would be subject to a RCRA permit. If the same facility later wishes
to resume operation, the Region may request a Part B, thereby
bringing the facility into the universe subject to §3004(u)
requirements. Absent such actions, however, S3004(u) does not apply.
Agency interpretation of the applicability of §3004(u) has
consistently been limited to facilities seeking a permit.
While §3004(u) could be construed to mean that corrective action
can be required either by promulgation of standards or by issuing
permits, Agency interpretation, as supported by the legislative
history, has consistently been that any standards promulgated under
this Section will be standards for facilities in the process of being
permitted. Although the corrective action standards will not be
applicable as self—implementing interim status (Part 265) standards,
we anticipate that they will generally be applied in §3008(h)
actions. As discussed at the Branch Chiefs’ meeting in January, we
intend to include language to this effect in the preamble to the
regulation to be proposed in the Fall of 1987.
As summarized in your 1/20/87 memorandum, there was some
discussion during the RCRA Branch Chiefs’ meeting of whether EPA
could act to “preserve” interim status at a facility which is denied
a permit by an authorized state. The discussion suggested that such
an action might be desirable for the purpose of implementing §3004(u)
corrective action, if necessary, at such facilities.
An authorized state’s denial of a base program permit is a final
administrative disposition of the permit application. A facility’s
authorization to operate pursuant to interim status terminates upon
such denial (see §3005(e)(1)(C)). Interim status is granted by
statute and cannot be “preserved” by EPA. It will not, therefore, be
possible to extend interim status after a permit has been denied for
the purpose of imposing corrective action requirements. The Agency
has taken the position, however, that §3008(h) will still apply since
the facility previously had interim status.
We understand that the Regions were reluctant to exercise
§3008(h) authorities in the absence of administrative hearing
procedures. Since guidance on the hearing procedures has been signed
by the Assistant Administrator for Enforcement and Compliance
Monitoring and the Assistant Administrator for Solid Waste and
This has been retyped from the original document.
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—3—
Emergency Response and has been distributed, we assume that this is
no longer an issue.
If you have questions concerning these interpretations, you may
contact Michele Anders (for corrective action and permitting issues)
at 382—4534, or Susan O’Keefe (for enforcement questions) at
475—9313.
cc: R RA Branch Chiefs, Regions I through IX
This has been retyped from the original document.
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9502. 1987 (06)
June 30, 1987
MEMORANDUM
SUBJECT: RCRA Permits with HSWA Conditions
FROM: Bruce Weddle, Director
Permits & State Programs Division (WH-563)
TO: Sam Becker, Chief
Hazardous Waste Compliance Branch
Region VI
During my recent visit you raised two questions related to the
issuance of RCRA permits with HSWA provisions. The first issue
concerned the implications of a Region issuing the HSWA provisions of
a permit before the State permit. The other question pertained to
the status of the HSWA portion of a jointly issued permit if the
State portion is appealed.
The Agency’s policy on the timing of the State and Federal
portions of the permit has been described in detail in a OSWER
memorandum to the Regions by Jack McGraw (July 1, 1985; copy
attached). EPA’S policy is that joint RCRA permits should be issued
simultaneously by EPA and the States. The memorandum describes
several exceptions to joint permitting that may occur if the State
has already issued the draft or final permit. However, no
consideration was given to the Region issuing the HSWA conditions
prior to issuance of the State permit.
Beyond the policy memo noted above, I believe it is
inappropriate to issue the HSWA portion independent of the rest of
the permit. First and foremost, a permit is not a complete RCRA
permit unless both the State and Federal portions have been issued.
Therefore, issuing only the Federal portion of the permit would have
no practical impact. Without a complete RCRA. permit, new facilities
cannot begin construction, nor can existing facilities expand beyond
the limits allowed under interim status. Furthermore, without the
State permit, it is likely that the HSWA corrective action
requirements could not be effectively enforced because §3004(u)
authorities are linked to issuance of the RCRA permit.
This has been retyped from the original document.
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—2—
For many facilities, there may also be valid technical reasons
to issue the Federal and State portions simultaneously. Certain HSWA
requirements may utilize data submitted for the baseline program
permit, e.g., HSWA corrective action conditions may require a variety
of data submitted by the facility for the State permit. For example,
any corrective action for contaminated ground water required for
regulated units under Subpart F could directly impact ground-water
investigations required for SWMUs under HSWA.
I also foresee a potential problem arising in public perception
if the Federal portion is issued before the State permit. This may
lead the public to expect that corrective action investigations and
clean-up activities will be initiated, even though such conditions
could not be properly enforced as noted above. More generally, the
public may be confused by the separation of corrective action
activities and the operating permit. Therefore, public participation
efforts would be more effective if the State and Federal portions are
issued together.
Your other question pertained to the impact on the HSWA
conditions of a complete RCRA permit if the State portion alone is
appealed. If a request for review of a RCRA permit is granted all
contested permit conditions will be stayed, including any uncontested
conditions which are not severable from the conditions in dispute.
Therefore, whether or not the HSWA conditions would be stayed depends
on whether they could be properly implemented without the contested
conditions in the State permit. In many cases, HSWA conditions will
be severable from contested portions of the State permit. Corrective
action requirements to investigate releases from SWMUs, for example,
could presumably begin while unrelated portions of the State permit
are stayed.
I hope I have answered your questions. If I can be of any
further assistance, please let me know.
Attachment
cc: Bill Honker, Region VI
Suzanne Rudzinski
Matt Hale
Bob Kaysor
Dave Fagan
Frank McAlister
Carrie Wehling
This has been retyped from the original document.
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9502. 1987 (07)
July 24, 1987
MEMORANDUM
SUBJECT: Definition of Solid Waste Management Unit for the
Purpose of Corrective Action Under Section
3004 (U)
FROM: Marcia E. Williams, Director
Office of Solid Waste
TO: Hazardous Waste Division Directors, Regions I-X
The purpose of this memorandum is to provide clarification
regarding one aspect of the definition of solid waste management unit
as related to RCRA corrective action under Section 3004(u). The
concept of a solid waste management unit has been explained in
various guidances since the passage of the 1984 Hazardous and Solid
Waste Amendments (HSWA).
As explained in the July 15, 1985 HSWA Codification Rule, a
solid waste management unit is “...any unit at a facility from which
hazardous constituents might migrate, irrespective of whether the
units were intended for the management of solid and/or hazardous
wastes.” This definition was intended to include those types of
units which have traditionally been subject to regulatory control
under RCRA: container storage areas, tanks, surface impoundments,
waste piles, land treatment units, landfills, incinerators,
underground injection wells and other physical, chemical and
biological treatment units.
A memorandum from John Skinner to the Hazardous Waste Division
Directors (June 14, 1986) further interpreted the term solid waste
management unit to include areas at facilities which have become
contaminated by routine, systematic and deliberate releases of
hazardous waste or hazardous constituents. An example of this type
of “solid waste management unit” is a wood preservative “kickback”
area, where drippage of preservative fluids onto soils from pressure—
treated wood is allowed to occur over time. This interpretation was
reiterated in the final RCRA Facility Assessment Guidance and the
National HSWA Corrective Action Strategy of October 14, 1986.
This has been retyped from the original document.
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-2—
Recently, however, several Regions have inquired whether the
term “deliberate” meant that the owner/operator had actually intended
to create the release of hazardous wastes or hazardous constituents.
We wish to clarify that the term “deliberate” in this context was not
meant to require a showing that the owner/operator knowingly caused a
release of hazardous wastes or hazardous constituents. Rather, the
term “deliberate” was included to indicate the Agency’s intention not
to exercise its Section 3004(u) authority to proceed against one-
time, accidental spills which cannot be linked to a discernible solid
waste management unit. An example of this type of release would be
an accidental spill from a truck at a RCRA facility. Routine and
systematic releases constitute, in effect, management of wastes; the
area at which this activity has taken place can thus reasonably be
considered a solid waste management unit. Therefore, in implementing
corrective action under Section 3004(u), Regions and States should
consider areas which have become contaminated through routine and
systematic releases of hazardous wastes or hazardous constituents to
be solid waste management units. It is not necessary to establish
that such releases were deliberate in nature.
This concept, and other issues relating to the definition of
solid waste management unit, will be addressed in the proposed
rulemaking being developed for corrective action under Section
3004(u).
If you have any questions regarding this interpretation of solid
waste management unit, please contact David Fagan at FTS 382-4497.
cc: Regional RCRA Branch Chiefs
Regional RCRA Permit Section Chiefs
Gene Lucero
Bruce Weddle
Joe Carra
Mark Greenwood
This has been retyped from the original document.
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9502.1987(09)
3 SEP 87
O J NDU 1
£U JECT: ‘iber Optic. for In—Situ Monitoring
FRO! s arcia Williams, Director 4’
Qifice of Solid Waste (WR—562) ‘
TO, irich Eretthauer, Director
t.nvironnental Monitoring Systems Laboratory/La. Vegas
Thank you for the report you provided recently, describing
and providing the status of fiber optic. application . for in—situ
monitoring. While we nave recently bad to make some difficult
short—term priority choices, this sub sct remains of substantive
interest to us in OSW as a mean. of field monitoring at waste
management facilities.
There are several potential applications for developing and
improvin advanced field monitoring t.chniquea. Our future
efforts in OSW are directed toward a continuum of control, based
upon waete—specific/stt..-.pecific interactions. Ash monofills (a
single, consistent waste at a site) are a cogent example, one for
which a near—term solution is nseded. In this particular
application, the contaminating constituents are, generally, lead
and cadmium. Simplified detection of releases of constituents
such as these would perhaps enable us to defin, corrective action
before significant contamination problems occur.
Another application of interest to us is in biotechnology,
where th. sensor eight be deployed to detect degradation proQucta
of the bio process or to detect toxic conditions prior to
undertaking in situ treatment. Other potential applications
include the rtib.r optic sensors for detecting air emissions
(e.g., from lend treatment areas) or serving as a monitor in
geologic repositories (e.g.. an air sniffer in a salt dome).
With our ever—increasing need for field monitoring at
harardous waste sites, fiber optic. technology does show promise.
We would like to see one (or more) of our applications become
part of your fiber optics research program.
cc; Tow Devine
l4orbert Dee
e; Kelly
John Skinner
par.vizi Wzignt
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9502. i987 (11)
OEC 2
MEMOP PIDUN
SUBJECT; Options for Voluntary Corrective Action
Parch Williams 4,, ’
Director
Office of Solid vast.
T0 Directors
Waste Nanage ent Divisions, Reaior e I—X
Many unpermitted hazardous waste generators and other
industrial property owners are likely to have solid waste
ana e ent units on their property that require some decree
of corrective action. In a number of eases, the facility
owners nay wish to proceed with corrective action, either
to røduce their liability or to forestall subsecuent EPA
or State •CtiOfle Dnder current RCRA regulation. however,
certain activities conducted during voluntary correction
action will require a permit if the wastes are hazardous
waste (i.e., they are known to include listed hazardous
wastes or they are determined to be hazardou . under 40 C?R
261 subpart C). This could include relatively straiaht
forward activities, such as dewatering wastes or tre$tinq
orc ndwater, as well as core complicated treatment
technologies such as incineration.
We are concerned that the time needed to obtain a
permit may in some cases substantially delay desirable
cleanup and provide a significant disincentiv, to
generators and other facility owners considering voluntary
correctiv, action. I am interested in identifyinq sporoaehc5
that would allow certain relatively low concern treatment
activities to b conducted during correctiv, action without
a full RCRA permit. We have identified several possible
•orroaeh.s that right b used to allow voluntary corrective
action at unpermitted sites. These approaches are outlined
in the attachment.
Options 1-3 are possible nov. without any regulatory or
statutory changes. With r.qard to these options, I as
specifically interested in the potential benefits and
obstacles you see to each of the approaches. Are otneratoze
or others likely to avail themselves of these? Rave you us”i
•n of these approaches with parties seekin to do voltn tary
corrective action?
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eZa
ortion 4 would recuire a rule chance. In our re]i”’inary
discussions with the Office ot General Counsel , they have
Indicatec’. t)iet they see potential legal problers to this
atprosch. t4everthelesc, £ believe that it may be worth
further invcstioatinq this option to see if a lenfly
defensible approacb can be developed. hith regard to
this option, I ’m soeeifically interested in your thoughts
on thc types of treatment activities that may be appropriate
for conditional exemptions from permitting.
I see this issue of voluntary corrective action as
beino very iroortant to our program. I appreciate you
takina the time to consider this issue and I look forward
to your reactions.
Attachment
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UNITED STATV$ INYIEONMINTAL PEOTICTIOM AGENCY
9502.1988(01)
LJS 23
MEMORANDUM
SUBJECT: OECI4 Comments on Corrective Action Rule
FROM: Sylvia K. Lowrance, Director
Office of Solid Waste
TO: Edward Reich
Deputy Associate Enforcement Counsel
Last week when we met to discuss your Office’s non-
concurrence issues on the R RA corrective action rule we reached
tentative agreement as to how those issues would be resolved.
This memorandum summarizes my understanding of the agreements we
reached.
Issue 1. CAMU . The idea of including discernible units
within a CAMU will not be explicitly proposed in the rule, but
will be discussed in the preamble. The preambi.. will also
discuss optional approaches, as per the suggested preamble
language in your August 9 memorandum.
Issue 2. Temporary Units . Temporary units will be limited
to managing wastes that originat, within the boundary of the
facility, similar to the concept contained in the “Christmas
Tree” rule (see attached excerpt fro. that rule). We will also
develop additional preamble language explaining the legal
rationale behind temporary units, emphasizing how notice and
comment on such units is provided through the permit/order
procedures. Additional clarifying language describing how the
land disposal restrictions apply to land—based temporary units
will also be developed.
Issv. 3 • Point of Demartur • 11. viii add rule language on
as the point of departur. in setting cleanup levels. The
language is essentially the same as the language in the NCP (see
attached rul. language).
Issue 4. Target taveis . The preamble discussion which
explains the circumstances in which it viii not be necessary to
specify preliminary target levels will be expanded to include
additional clarifying examples.
IL-.J.. r—u . oz a aset nq between
seen aa vci.ahte to cidrifi m1 1 $bI. It s our u46.rs .anc1 ng
hat . pp c . ut3ii a in..th. .41 . ..i . .cc tsi•t.nt ith howt the
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media aggregate risk would be a factor in establishing cleanup
levels and triggering corrective measure studies. This
djacussion viii. essentially reiterate the NCP language; i.e.,
that cross media analyses will be done when there are indications
that site—specific exposure conditions warrant such analyses.
Issue 6. Protectiveness . As we discussed, the approach
articulated in the rule for setting cleanup standards within the
risk range, which allows flexibility to consider several factors
in selecting the appropriate level, is a fundamental concept in
both the RCRA and CERCLA programs. You indicated that this would
not be a non-concurrence issue for OE .
If you have any questions concerning the above, please let
me know. I will be in touch with you later this week, to confirm
that this summary of our meeting is accurate, and to discuss how
th move the rule forward to 0MB.
cc: B. Weddle (OSW)
H. Hale (OSW)
D. Fagan (OSW)
B. Grimm (OSWER)
S. Leifer (OECM)
J. Cannon (OECM)
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9502.1988(02)
EB I S :2SE
Mr. Kenneth M. Kastner
Assistant General Counsel
Chemical Manufacturers Association
2501 M Street, N.W.
Washington, D.C. 20037
Dear Mr. ICastner:
I am writing in response to your letter of January 7,
1988, in which you. outlined the concerns on the Chemical
Manufacturers Assocation (CMA) regarding constraints on
voluntary corrective action, and offered several ideas as to
how the RCRA program could be adapted to facilitate voluntary
cleanups.
We share your concern that the current RCRA regulatory
structure provides a disincentive to voluntary cLeanup, and we
appreciate your recommendations on this question. We are
currently exploring possible solutions to the issue through a
number of avenues, including EPA-sponsored corrective action
roundtables, in which your organization has been participating,
and the Keystone RCRA Project, which has identified voluntary
corrective action as a specific area of concern. 1 trust that
out of these efforts we and other interested groups can agree
on a series of regulatory and, if necessary, statutory changes
that will remove impediments to voluntary cleanups, and at the
same time ensure adequate protection of human health and the
envi ronrnent.
In your letter, you suggested two specific areas for
possible regulatory change -- permitting and the definition of
hazardous waste. In the case of the first, you suggested a
RCRA permit waiver for voluntary cleanups, contingent upon
compliance with certain reporting, handling, design, and
operation standards similar to the standards currently found in
40 CFR Part 264. As you may know, EPA discussed a similar
approach in its June 3, 1987 proposal on mobile treatment units
(52 FR 20914). we believe that this approach deserves
particular consideration for voluntary corrective action, and
we expect to explore it in more detail through the Keystone
RCRA project.
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—2—
You also suggested that EPA not define as “hazardous 1 ’ any
wastes subject to voluntary corrective action. We agree that
treating cleanup wastes as hazardous wastes may not always be
the most effective way of managing some of these wastes
--particularly soils and groundwater with low levels of
contamination. Consequently, we are examining the current
regulatory status of contaminated soils and groundwater to
ascertain whether other approaches to these wastes can assure
protection of human health and the environment. As a result of
this review we expect to reach a decision on whether regulatory
changes are necessary.
We recognize that the issues you raise require prompt
resolution, and the Agency is cornntitted to addressing them
expeditiously. As you realize, however, your specific
recommendations and more generally the issue of voluntary
corrective action raise substantial technical, policy, and
legal issues. We hope over the next several months to work
with you and other interested groups to resolve these, issues
and develop an overall strategy for encouraging voluntary
cleanups. We look forward to your continued participation in
this process.
Sincerely,
Jeffrey D. Denit
Acting Director
Office of Solid Waste
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9502.1989(01)
WSITIO STATES I R M1MTA1. P*OTECTIOIS AGEISCY
kjP —
ngus Macbeth, Esq.
Sid].eY and Austin
1722 Lye Street 1 M.W.
Washington, D.C. 2000$
Re: Financial Assurance for Corrective Action Beyond the
Facility Boundary
Dear Mr. Macbeth:
This is in response to your January 5, 1989 Letter
concerning current regulations requiring financial assurance for
corrective action beyond facility boundaries. Sections
3004(a)(6) and 3004(v) of RCRA, as amended by the Mazardous and
Solid Waste Amendments of 1984 (MSWA), codified at 40 C.F.R.
264.100(e) and 264.101(C), require that corrective action be
:-vtituted beyond the facility boundary where necessary and that
. uraflCes of financial responsibility for such corrective
.ons be provided.
As discussed in the December 1, 1987 second HSW?I
:- ication rule (52 FR. 45788), Congress intended that owners
... operators of hazardous waste management facilities provide
- -ancia1 assurances for corrective action beyond the facility
:operty boundary. The Agency does not believe that this
requirement duplicates other financial assurance requirements
such as the third—party Liability coverage requirements. (40
CFR 264/265.147). Under 40 CTR 264/265.147 an owner or operator
must maintain specific types and levels of coverage for -bodily
injury and property damage to third-parties. Sections
264.141(g) and 265.141(g) provide that the terms “property
damage’ or ‘bodily injury’ have the meaning given such terms
under applicable state law. Additionally these terms do not
include those liabilities which consistent with standard
industry practices, are excluded from coverage in liabilLty
policies for bodily injury and property damage. (40 CFR
264/265.141(g)).
In general we believe that it is both appropriate and
likely that onsite or of f -site corrective action activities wiLl
exceed the comeon definition and construction of “bodily injury”
or “property damage’ as found in an insurance policy issued to
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—2—
satisfy RCRA third-party liabilitY Coverage requirements. The
Agency is also concerned that to allow the use Of established
liability coverage financial instrl.uTtentS to satisfy known
corrective action costs could deplete those instruments, thereby
rendering funds Unavailable to satisfy the claims of injured
third—Parties.
However, insurance policies can be used to satisfy financial
responsibility for off—site corrective action under the current
regulations in certain circumstances. Specifically, if an
insurance carrier determines that off-site corrective action
costs are covered under the terms of its policy, and the carrier
provides unequivocal documentation of a specified payment to
cover all or a part of off—site corrective action activities,
then that policy would satisfy all or part of the required
financial assurance for corrective action.
The above discussion concerning the use of insurance to
satisfy off-site corrective action financial assurance
requirements can be extended, under limited circumstances, to
e use of other financial assurance instruments for liability
coverage provided by a third-party, i.e. , letter of credit,
surety bond, guarantee and trust fund. Those circumstances
could arise only when the off-site corrective action costs are
part of a third-party claim against the owner, operator, or
holder of the financial instruni.xit and that claim has triggered
payment of the instrument pursuant to 40 CFR 264.151(h), M c),
(1) and ImP. The owner or operator of a facility subject to the
financial assurance requirements cannot itself be considered a
third-party within the meaning of applicable regulations and
instruments.
Similarly, when an owner or operator uses the financial test
or corporate guarantee to comply with third-party liability
financial responsibility regulations, and a certified settlement
or court udgement resulting from a third-party claim for
property damage is coincident with all or part of the cost
estimate prepared for off-site corrective action, a second
mechanism would not have to be used to cover that portion of the
corrective action cost. If, in the situation described above,
the owner/operator wishes to use the financial test or guarantee
to demonstrate compliance with both third-party liability
requirements and off—site corrective action financial assurance.
the cost estimate to be used in the alternative formula provided
in 40 CTR 264.151(g) would be equal to the sum of the
third-party liability requirements and any off-site corrective
action costs not coincident with the valid third-party claim.
The Agency intends to carefully re-examine the procedures and
financial instruments requirements for corrective action (51
F.R. 37854), to ensure that owners and operators of facilities
are afforded ample flexibility to meet the requirements and that
sufficient funds are available to cover all necessary
liabilities.
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—3—
Finally, your letter requests that th iSSUe of duplicative
coverage alSo be exantined in tlte Context of the Subtitle D
rule. The Agency is considering these issues in the Context of
the subtitle D proposal (August 30. 1988 3 F.R. 33314) and will
formally respond to any coirinents concerning this issue as part
of the final rule.
Should you have any questions concerning the above matter
YOU may contact Margaret Schneider (382-4696) in the Office of
Solid Waste or Anne Ryan (382—7703) in the Office of General
Counsel.
Sincerely,
J. Winston Porter
Assistant Pdzninistrator
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9502.1989(02)
May 25, 1989
MEMORANDUM
SUBJECT: Comments on the Proposed OERR and OWPE Lead
Cleanup Policy Memo
FROM: Sylvia K. Lowrance, Director
Office of Solid Waste (OS-300)
TO: Robert Duprey
Acting Deputy Assistant Administrator
In response to your question concerning the OERR and OWPE
policies on soil cleanups for lead, I’d like to briefly describe
OSW’s approach to setting lead cleanup standards. The current OSW
interim policy is stated in the Clean Closure guidance (52 8706
3/19/87), the Subpart S Corrective Action draft proposal, and the
RCRA Facilities Investigation guidance (Draft as of 1/25/89) is to
use background soil levels for lead and any other constituents for
which an Agency recommended health based exposure limit (RfD, Cancer
Potency Factor) is not available. We have reiterated this policy to
the Regions and have provided some guidance on how to determine
background levels.
We recognize that background levels of lead in soil will vary
from location to location. In some cases, they may be as high as the
Superfund proposed levels of 500-1000 ppm, while in other cases they
are likely to be somewhat lower. Currently, an Agency Workgroup
chaired by ORD is developing a health-based guidance document for
lead. The Science Advisory Board is reviewing their efforts. Once
this guidance has been developed, we anticipate that the Superfund
and RCRA programs will adopt it and will thereby become consistent in
their cleanup policies for lead.
This has been retyped from the original document.
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9502. 1989(02)
May 25, 1989
MEMORANDUM
SUBJECT: Comments on the Proposed OERR and OWPE Lead
Cleanup Policy Memo
FROM: Sylvia K. Lowrance, Director
Office of Solid Waste (05-300)
TO: Robert Duprey
Acting Deputy Assistant Administrator
In response to your question concerning the OERR and OWPE
policies on soil cleanups for lead, I’d like to briefly describe
OSW’s approach to setting lead cleanup standards. The current OSW
interim policy is stated in the Clean Closure guidance (52 8706
3/19/87), the Subpart S Corrective Action draft proposal, and the
RCRA Facilities Investigation guidance (Draft as of 1/25/89) is to
use background soil levels for lead and any other constituents for
which an Agency recommended health based exposure limit (RfD, Cancer
Potency Factor) is not available. We have reiterated this policy to
the Regions and have provided some guidance on how to determine
background levels.
We recognize that background levels of lead in soil will vary
from location to location. In some cases, they may be as high as the
Superfund proposed levels of 500-1000 ppm, while in other cases they
are likely to be somewhat lower. Currently, an Agency Workgroup
chaired by ORD is developing a health-based guidance document for
lead. The Science Advisory Board is reviewing their efforts. Once
this guidance has been developed, we anticipate that the Superfund
and RCRA programs will adopt it and will thereby become consistent in
their cleanup policies for lead.
This has been retyped from the original document.
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UNITED STATES ENVIRONMENTAL PROTECTION . GENCY
WASHINGTON. D.C. 20460
9502.1989(03)
JUN I 5
. F ICE CF
301.10 ‘NAS ’E NO EME GE C’ QES?CNSE
Ms. Elizabeth M. Powell
Moore & Van Mien
One Hannover Square
Suite 1700
Post Office Box 26507
Raleigh, North Carolina
Dear Ms. Powell:
I am writing in answer to your letter of May 4, 1989, in
which you raised several questions concerning the applicability
of RCRA to certain situations involving remediation of
contamination at a facility. The following response addresses
the questions which you have posed:
I. “ Is 40 CFR c265.l(c (ll)(iii) applicable to remediation
at the facility to reguire compliance with Part 265 and Parts
122-124. where no treatment. storage, or disposal activities are
‘ continued or initiated’ in such remediation? ”
Section 265.1 defines the applicability of “interim status”
regulations to facilities which treat, store or dispose of
hazardous wastes. Section 265.1(c)(ll)(i)) provides an
exemption from this requirement for “. . .a person engaged in
treatment or containment activities during immediate
response...to (A) A discharge of hazardous waste,; (B) An
imminent-and substantial threat of a discharge of a hazardous
waste; or (C) A discharge of a material which, when discharged,
becomes ahazardous waste.t
This exemption from certain interim status requirements is
intended to allow owner/operators to respond to a hazardous
waste spill or discharge in a timely manner, without having to
comply with procedural and/or technical requirements that could
-------
inhibit such response measures, and which may otherwise be
inappropriate .for such immediate or eniergency—type si uati r1s.
A.n essentially identical provision is found L ii the Part 264
regulations (Section 264. l(g)(2H.
n exception to this exemption is found in Section
265.1(c)(1l)(iii). This is intended to limit the scope of the
exception only to those hazardous waste management activities
directly associated with an immediate response to a discharge.
(See 53 FR 34085, September 2, 1988). Thus, for example, an
owner/operator responding to a discharge might excavate Soil
contaminated with the spilled hazardous waste and store it
temporarily in containers prior to the removal of the material
off-site. The container storage area would not be sub)ect to
technical interim status standards.
However, if treatment or containment activity were to be
continued or initiated after the immediate response is complete,
the person performing these activities can no longer take
advantage of the Section 265.l(c)(l1)(i) exemption and must
comply with Part 265 requirements governing treatment, storage 1
or disposal activities.
It should be understood that Section 265.l(c)(ll) applies
only to situations involving an immediate response to discharges
for hazardous wastes. To the extent that such an immediate
response action has not occurred and is not occurring at the
facility in question, none of the provisions of this subsection
would apply.
II. “ Is the presence of soil and groundwater c ntamination
at a facility, standing alone. a sufficient basis upon which a
state agency can make p finding that disposal of hazardous waste
took place at that facility, thereby resulting in a
characterization of that facility as a ‘disposal facility’
subject to RCRA operational and permitting requirements relevant
for TSD facilities? ”
II. Past releases of hazardous waste which have occurred
anytime .after November 19, 1980 may constitute “disposal” as
defined-by RCRA Section 1004. Thus, such releases could
constitute a violation of RCRA (disposal of hazardous waste
without a permit under RCP.A 3005 or 3006) which could be
actionable under RCRA Section 3008(a). Since the situation you
described might involve the disposal of hazardous wastes, and
since RCRA Section 3005 requires that a person obtain a Subtitle
C permit for the treatment, storage, or disposal of hazardous
waste, in some cases it may be appropriate to require the
owner/operator to obtain a permit for the facility in order to
impose Part 264 standards for the disposal unit (i.e., a
landfill). Since the facility you describe is no longer an
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-3-
operating fac .lity, t-he State might decide that .i post-c’osure
permit ‘ould J.ikely be the appropriate permit mechanLsrn ..hen .i
permit is required.
III. “ Does EPA Office of Solid Waste policy require an
entity to prepare. submit and receive approval for a Part B
permit and/or Post closure permit, where the facility is no
longer operational, shows no intention to be operational, and
where the present ropertv owner has made clear its intention to
voluntarily remediate the soil and groundwater contamination at
the propertY to the specifications of the state agency? ”
III. As explained above, the requirement to obtain a RCt .A
permit for a facility, based on the facts you have presented, is
within the authority of EPA or a State, if the State has been
authorized for RCRA. The decision as to whether and when thi
authority may be exercised. is at the discretion of the
implementing agency; in the case of an authorized State, such
decisions would be made according to State program policy.
Finally, it is important to keep in mind that the discussion
found in this response contains EPA’s interpretations of Federal
regulations; authorized States may rely upon State
interpretations of State regulatory provisions which may differ
from those of the EPA.
I hope that this response had adequately addressed your
inquiry. Should you require any further assistance, please
contact David Fagan at (202) 382—4497.
Sincerely,
S
S v1vi, rrance, Director
Office t ’of Solid waste
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•.tO fli..
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON. D.C. 20460
9502.1989(04)
AUG a’ o 1 Q SQL o €u€ ’ c
MEMORANDUM
I.’-”
SUBJECT: Coordination of Corrective Actk Through Permits
and Orders
FROM: Susan E. Bromm, Directory
RCRA Enforcement Division
Joseph Carra, Director ,‘3-
Permits and State Prog, !ns Division
TO: Waste Management Brai h Chiefs, Region I-X
An increasing number of RCRA facilities are becoming subject
to both §3008(h) orders and §3004(u) permit requirements at
facilities where the orders were issued prior to permit issuance.
This memorandum is intended to provide guidance on how to
coordinate permit and order requirements for corrective action in
these situations.
The issuance of a permit requiring corrective action to a
facility does not absolve an owner/operator of any responsibility
to comply with an order for corrective action previously issued
to the facility. The facility owner/operator must comply with
both the permit and an existing order. Hence, coordination
between the two is essential.
Although § 30O8(h) and 3004(u) both authorize the Agency to
require clean—up of releases at operating facilities, the
distinctionB between the two authorities should be considered
when issuing or modifying a permit, or amending an order. The
§3008(h) order authority authorizes the Agency to require
corrective action at. RCRA interim status facilities or those that
should have had interim status, prior to the issuance or denial
of permits. Prior to issuing a permit to a facility subject to a
§3008(h) order, the Region must make a decision whether to
incorporate the terms of the order into the permit by reference,
incorporate the terms directly into the permit and terminate the
order, or require the respondent to comply with the separate
terms of the order and the permit. If not terminated, the order
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—2—
continues in effect, according tO its terms, past the point of
permit issuance for the facility. If a change in the corrective
action requirements becomes neceSsarY at a facility subject to a
separate permit and an order, the Region should determine whether
an amendment to an order or a permit modification will effectuate
a change in the corrective action cleanup more efficiently.
Because it is impossible to anticipate every scenario where both
a permit and an order are in effect at a facility, it is
important to be cognizant of the distinctions between the
authorities, and make the determination about which vehicle is
more appropriate in light of the facts surrounding each case. Of
course, a §3008(h) order cannot be issued to a facility after
final disposition of the permit application. Also, after
§3004(u) has been triggered, modifications to an order may be
limited only to those additional requirements needed to
effectively implement cleanup of releases already covered by the
order. 1 o the extent that modifications to an existing order are
made, the Region must ensure that no conflict with permit
conditions will be created.
Section 3004(u) authorizes corrective action only with
respect to a release from a solid waste management unit.
However, please note that if a release cannot be attributed to a
unit, the omnibus authority in §3005(c) (3) can be used as
authority for permit conditions that address corrective action
for that release, provided that the Region can demonstrate that
the conditions are necessary to protect human health and the
environment. In order to establish the basis for issuing a
§3008(h) order, the Agency need only establish that there has
been a release of “hazardous waste” as defined under § 1004 from
the facility. Therefore, once it has been established that a
release attributable to the facility has occurred, it is not
necessary to determine that a “unit” is the source of the release
prior to issuing an order for corrective action.
The regulations require EPA to provide the public with an
opportunity to comment on proposed permit conditions, including
corrective action provisions. The processes prescribing the
requirements for public participatioit.are set forth at 40 CFR
124.10 —.19. An OSWER directive, “Guidance for Public
Involvement in RCRA Section 3008(h) Actions,” sets forth the
requirements for public involvement in the order issuance process
and reiterates EPA’S commitment to providing meaningful
opportunity to the public to be informed of and participate in
decisions that affect them and their communities.
As previously stated, the Agency is not required to
integrate the requirements of the order into the permit to ensure
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—3—
the respondents Continued compliance With the corrective action
requirements. Regions should require facility owners/operators
to comply with both the permit and the order requirements if the
requirements of the order are not subsumed in the permit.
Therefore, increased coordination between the permitting and
enforcement programs will be critical to ensure that cleanups at
these facilities are not hindered by poor coordination of these
requirements.
Headquarters is developing an additional policy to address
the relationship between post-closure permits and §3008(h) orders
at closing facilities based on issues raised at the last branch
chiefs meeting in Chicago. Please plan to discuss any comments
you have on how the Agency can most effectively regulate the
activity at these closing facilities at the next Branch Chiefs
meeting. Headquarters is also considering the use of stipulated
penalties in the compliance schedules in the permits to compel
corrective action.
If you have questions or comments about the relationship
between the permit and the order rat a facility, please contact
Susan Hodges in OWPE at (FTS) 475-9315 or Dave Fagan in OSW at
(FTS) 382—4497. Also, see the attached March 8, 1988, memorandum
on Use of the §3008(h) Orders or Post-Closure Permits at Closing
Facilities for additional discussion on how the two authorities
can be used.
Attachments
cc: Steve Botts, OECM
Fred Chanania, OGC
RCRA Permits Section Chiefs, Region I-X
RCRA Enforcement Section Chiefs, Region I-X
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9502.1990(01)
.t:
5 UNITED STATES ENVIRONMENTAL PROTECTION 4GE Cy
_____ WASHINGTON. D.C. 20460
•. .C 0 L
MAY 1 I9
‘CE :
D ‘.D ‘C ’ C’
MEMORANDUM
SUBJECT: Interim Guiddflr ? c • E;tablishing Soil Lead Cleanup
Levels at iacilities
FROM: Sylvia K. Lowrance, Direct
Of fice of Solid Waste - -
TO: David A. Ullrich, Acting Director
Waste Management Division, Region V (5MR — 13)
This is in response to your memorandum of February 15, 1990
requesting interpretation as to whether a recent OSWER Superfund
directive ( 9355.4-O2), which sets forth interim soil cleanup
levels for lead at Superfund sites, also applies to RCRA closures
and corrective actions. In addition, this memorandum will
supplant the memorandum from Sylvia Lowrance to William Muno
dated May 27, 1988, interpreting the use of soil background
levels for lead as clean closure standards.
As you know, establishing a health-based “cleanup’ level for
lead in soil has been a major issue for the Agency for some time.
Presently, there is an interoffice project underway to develop
site-specific soil lead cleanup levels based on a biokinetic
uptake model, as referenced in the above guidance memorandum. We
anticipate that this model will be finalized within the next
several months; however, we recognize the importance of
addressing this issue at this time and so are offering this
interim guidance.
We understand that during this interim period, Region 5 and
other Regions and States will need to make decisions as to the
appropriate levels for lead in soil in the context of RCRA
closures and corrective actions. It is our understanding, based
on some preliminary runs of the new model, that the soil lead
cleanup levels could be as low as 100 — 150 ppm at some
facilities. These levels would reflect a set of defaultvalues,
based on conservative assumptions regarding exposure and other
factors. Thus, there may be a number of situations where it
would be appropriate to use other assumptions in setting cleanup
levels for specific facilities. For more information on the
model being developed, and how site—specific factors may be used
to calculate levels appropriate to a specific site, you may wish
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to contact Susan Griffin of the Health Assessment Section (FTS-
382—6392).
Until the model is finalized, we believe that it may be
appropriate under some exposure conditions, to establish soil
lead cleanup levels based on the CDC—derived numbers, presented
in OSWER directive 9355.4-02, rather than the 100 - 150 ppm range
provided above. Alternatively, background levels may also be an
appropriate choice for cleanup levels. Background levels could
be used, for example, in urban settings or industrial areas,
where they sometimes exceed levels derived from health-based
models.
If you have any further questions, please contact Dave Fagan
(FTS—382—4497) or Lisa Askari (FTS—382—4535).
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u g DWflUI 11PL I 1
I ILi V
FE5i51gg
Diz i’de #9355.4-02 ( Soil l t clasriç lcv 1s)
ai its Effs± a &
• -
P (: i v d A. UUridi, àth1g ( -13)
fr’waste Y i t Divisi
L V: Sylvia L Ia raz m, DlxeL,t4r ( —30O)
offis of 5 1 I d 1 te
p. pr of arx n is to inter atiat as to
a zei.. it aç fwd dir *ive &*y effu± a A c1 n: .
!Ibe direc±i (#9355.4—02) 8et.8 f th lnteria w 41 cl ç ] la f 1 i at
4,erftvd sitas. 1 Uy, State of 4n has jn f . t — - ___
tirg fire, fl f-MI t, is att ing to 1$i4n iI to asthblith
clean cl zre levels f 1 at A fa1]Ifi . — ___ has -
tbe U.S. ‘B a istaIxE in r ’dfrij to -N1 t t I i •
a io ?i b auU ri ’ to 1 ’ ire p In Jt 1989. Pr ar
to that ttuc , ia V roved c1o e p]m ( i1r f 4 1 t has
beea i gi t V’s p iti t, In Lal, &çerf z quithixm is z
y 1 4e ihle to -_ clc ___
sta itas ( i as f ff i re iix ts). , to t
tbe State of Io, — . Interpretaticii fr rters wild be belpfUl a
tbe partiailar dir tive referred to In 11 4
are re that tbe Off i of C al el is arfrq a re e to
this ed ai pru tkiral gruux a’ly, f liy’l m tIm ir t
tbe xy Involvin in Qrporatia% in Zax ville, ( 1 in . , -
believe a pnIfr!y interpretatia is r ry at 4i i Hw th4 ____
£ tbe q !ific of ft ti . 1 are t this
i p will itizpje to ariea at -__ - f 41 IFI t y lcy I-Mi t
as a ltant.
i *flñ tats a z e as a x n as p 4h1e , as Is In
of 1 at l t — _ t iUti i t1 I . If yui z aziy
44itj l tia to i - leth y z rt, p1
Pra ]z q Of E7 staff, at FIS 886-6198.
Att ts
! Kitth , .
I’?..
— i.. I_c’ ;, ,.I. L.
(9
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2 c( — t 9 1
42w. 4/M/ O
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k UNITED r Y S ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON. D.C. 20460
t
E SOLIO % SE OEMi C .C’ E5SC*.
S 9BO
OFFICE OF RCRA -
Waste —. -
“-
OSWER Directive *9355.4-02
MEMORAN DUN
SUBJECT: Interim Guidance on Establishing So&l Lead Cleanup
Levels at Superfund Sites. / j
FROM: Henry L. Longest II, DLrectar ll’ ’
Office of Emergency and gial Response
Bruce Diamond, Director
Office of Waste Programs Enforcement
TO: Directors, Waste Management Division, Regions I, II,
IV, V, VII and VIII
Director, Emergency and Remedial Response Division,
Region II
Directors, Hazardous Waste Management Division,
Regions III and VI
Director, Toxic Waste Management Division,
Region IX
Director, Hazardous Waste Division, Region X
PURPOSE
The purpose of this directive is to set forth an interim soil
cleanup level for total 1.ad, at 500 to 1000 ppm, which the Office
of Emergency sad Rsmsdial Response and the Office of Waste Programs
Enforcement oid.r protectiv, for direct contact at residential
settings. Tht$ra.ng. is to be used at both Fund-lead and
Enforcsment-lSd CERcLA .it... Further guidance will be developed
after the Agescy has developed a verified Cancer Potency Factor
and/or a Reference Doe. for lead.
BACKGROUND
,Lsad is commonly found at hazardou. waste sites and is a
contaminant of concern at approximately one—third of the sites on
the National Priorities List (NPL). Applicable or relevant and
ippropriate requirements (ARARs) ar. available to provide cleanup
levels for lead in air and water but not in soil. The current
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-l
National Ambient Air Quality S cindard for lead Is 1.5 ug/m 3 .
While the existing Maximum Contaminant Level (MCL) for lead is
50 ppb, th -Aq.ncy has proposed lowering the MCL for lead to 10 ppb
at the tap to 5 ppb at the treatment plant( 1 ). A Maximum
Contaminant Level Goal (MCLG) for lead of zero was proposed in
1988(2). At th. present time, there are no Agency—verified
toxicological values (Reference Doss and Cancer Potency Factor,
ie., slope factor), that can be used to perform a risk assessment
and to develop protective soil cleanup levels for lead.
Efforts are underway by the Agency to develop a Cancer
Potency Factor (CPF) and Reference Dose (RfD), (or similar
approach), for lead. Recently, the Science Advisory Board
strongly suggested that the Human Health Assessment Group (HHAG)
of the Office of Research and Development CORD) develop a CPF for
lead, which was designated by the Agency as a B2 carcinogen in
1988. The )DIAG is in the process of selecting studies to derive
such a level. The level and documentation package will then be
sent to the Agency’s Carcinogen Risk Assessment Verification
Exercise (CRAVE) workgroup for verification. It is expected that
the cocuinentation package will be sent to CRAVE by the end of
1989. The Office of Emergency and Remedial Response, the Office
of Waste Programs Enforcement and other Agency programs are
working with ORD in conjunction with the Office of Air Quality
Planning and Standards (OAQPS) to develop an RZD, (or similar
approach), for lead. The Office of Research and Development and
OAQPS will develop a level to protect the most sensitive
populations, namely young children and pregnant women, and submit.
a documentation package to the Reference Dose workgroup for
verification. It is anticipated that the documentation package
will be available for review by the fall of 1989.
IMPLEMENTATION
The following guidance is to be implemented for remedial
actions until further guidanc. can be developed based on an Agency
verified Cancer Potency Factor and/or Reference Dose for lead.
Guidance
This guidance adopts the recommendation contained in the 1985
Centers fg Disease Control (CDC) statement on childhood lead
poisoning d is to be followed when the current or predicted
land use is gsid.ntial. The CDC recommendation states that
“...lead in soil and dust appears to be responsible for blood
levels in children increasing above background levsls when the
concentration in the soil or dust exceeds 500 to 1000 ppm .
Site-specific conditions may warrant the use of soil cleanup
levels below the 500 ppm level or somewhat above the 1000 ppm
level. The administrative record should include background
documents on th. toxicology of lead and information rslatsd to
site-specific conditions.
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The range of 5 OO to 1000 ppm rc. .... - ‘:0 level 4 for ‘otal lead,
as measurd by protocols developed by the Superfund Contract
Laboratory Program. Issues have been raised concerning the role
that the bioavailability of lead in various chemical forms and
particle siass should play in assessing the health risks posed by
exposure to lead in soil. At this time, the Agency has not
developed a position regarding the bioavailability issue and
believes that additional information is needed to develop a
position. This guidance may be revised as additional information
becomes available regarding the bioavailability of lead in soil.
Blood-lead testing should not be used as the sole criterion
for evaluating the need for long-term remedial action at sites that
do not already have an extensive, long-term blood-lead data
base( ).
EFFECTIVE DATE OF THIS GUIDANCE
This interim guidance shall take effect immediately. The
guidance does not require that cleanup levels already entered into
Records of Decisions, prior to this date, be revised to conform
with this guidance.
1 In one case, a biokinetic uptake model developed by the Office
of Air Quality Planning and Standards was used for a site—
specific risk assessment. This approach was reviewed and
approved by Headquarters for use at the site, based on the
adequacy of data (due to continuing CDC studies conducted over
many years). These data included all children’s blood—lead
levels collected over a period of several years, as well as
family socio-economic status, dietary conditions, conditions of
homes and extensive environmental lead data, also collected over
several years. This amount of data allowed the Agency to use the
model without a need for extensive default values. Use of the
model thus allowed a more precise calculation of th. level of
cleanup ns.d.d to reduce risk to children based on the amount of
contamination from all other sources, and the effect of
contamination levels on blood-lead levels of children.
REFERENCES
1. 53 FR 31516, August 18, 1988.
2. 53 FR 31521, August 18, 1988.
3.. Preventing Lead Poisoning in Young children, January 1985,
U.S. Department of Health and Human Services, Centers for
Disease Control, 99—2230.
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S?4j
4’
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
C.
9502.1990(02)
JIll 111990
SOLO % STE NO E’ .IERGE\C’ RESPC’ 5E
MFMORANDt.TM
SUBJECT: Requirements for Cleanup of Fl al NPL Sites Under RCPA
FROM: Don R. Clay
Assistant Administrator
TO: Stephen R. Wassersug, Director
Hazardous Waste Management Division
Marcia Mulkey, Regional Counsel
Office of Regional Counsel
In your memorandum of May 16, 1990, you requested guidance
on the applicability of the Natiçnal Oil and Hazardous Substances
Pollution Contingency Plan (NCP) to the final National Priorities
List (NPL) sites being addressed pursuant to RCRA corrective
action authorities. Specifically, you question whether the NCP
mandates, for sites being addressed under RCRA, specific cleanup
procedures and deletion criteria for site cleanup and ultimate
removal from the NPL which are not requirements of RCRA 3008(h).
You are concerned that a site that Is considered by RCRA to be
remediated, may not be able to be removed from the NPL due to a
failure to address an administrative or procedural NCP
requirement.
Your memo refers to language in the proposed NCP which
states that “it is appropriate to apply different and more
stringent criteria in actions to delete based on deferral to
other authorities.” It also mentions examples of NCP
requirements (e.g., the ROD must detail how the selected remedy
attains ARARs and utilizes permanent solutions; a five-year
review of remedial actions is required if hazardous substances
remain at the site above certain levels; and State involvement
requirements must be met) which are not required by RCRA Section
3008(h) actions.
In response to your inquiry, it should first be noted that
the final NCP states that EPA “has the discretion to use its
authorities under CERCLh, RCRA or both to accomplish appropriate
cleanup at a site, even where the site is listed on the NPL.”
55 FR 8698 (March 8, 1990). See also 54 FR 41009 (Oct. 4, 1989).
Thus the Agency has clearly stated that RCRA authorities may be
used at NPL sites.
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—2—
Second, the “different” and “more stringent” criteria you
referred to from the proposed NCP related to deletion of final
NPL sites “based on deferral” to another authority. 53 FR 51421
(Dec. 21, 1988). That draft policy has not been adopted by the
Agency, and therefore, the preamble language is irrelevant.
The criterion that must be met before a site on the final
NPL is deleted is that “no further response (at that site) is
appropriate.” 40 CFR 300.425(e) (55 FR 8845, March 8, 1990).
Where a remedial action has been carried out under RCRA jn there
is no significant threat to public health or the environment,
a CERCL response should not be necessary. (See 40 CFR
300.425(e)(1)(iii)). In effect, where the RCRA program takes
action at an NPL site, the CERCLA program simply delays the
start-up of its Remedial Investigation/Feasibility Study (RI/FS)
site assessment process, in order not to interfere with or
duplicate the ongoing RCRA work. When the RCRA remedy is
complete, the Agency will, do an abbreviated RI (incorporating by
reference in most cases, information from the RCRA cleanup) and
make a determination of whether any CERCWI action is required.
The Agency expects that sites cleaned up under RCRA corrective
action would be considered “no action t sites under CERCL .
The finding of no action should be set out in a close-out
report in preparation for deletion from the NPL. The site close-
out report should include appropriate documentation on the RCRA
action (and any other action at the site under RCRA or CERCLA),
and a finding that no further action under CERCL is warranted
for any of the units and areas of contamination. Site deletion
can proceed when all necessary response actions have been
completed. For more information, refer to the April 1989 OSWER
Directive 9320.2—3A entitled “Procedures for Deletion and
Completion of NPL Sites.”
You also asked whether actions taken under RCRA section
3008(h) at an NPL site must meet NCP requirements for remedy
selection. Because no CERCLA remedy is being selected in a RCRA
corrective actio* situation, the remedy selection requirements in
CERCL Section 121 and NCP Section 300.430 do not have to be met
in order to delete the site from the NPL. Therefore, the
requirements of a ROD —- for example, that it detail how the
remedy will attain ARARs and utilize permanent solutions - - do
not apply to RCRA activities at NPL sites.
In addition, the formal State involvement discussed in
Subpart F of the NCP does not apply to RCRA activities at NPL
sites although the 3008(h) order should allow States to be kept
informed of the progress of the RCRA corrective action
activities, and include some type of State review of workplan
submittals.
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—3—
It should also be noted that State concurrence and public
participation are required prior to the deletion of all NPL
sites, even if much of the site was addressed under RCRA
corrective action authorities. NC? Section 300.425(e) (2) (4) (55
FR 8845).
With regard to the five year reviews under CERCLA, these
reviews are required only at sites where a CERCLA remedy has been
selected and thus would not apply to sites where no action is
taken under CERCL (e.g., RCRA corrective action sites).
However, as a matter of policy, the Agency may decide to include
in the CERCLA five—year review program no-action NPL sites where
RCRA corrective action has occurred and hazardous substances
remain on site above levels that allow for unrestricted use and
unlimited exposure. The Agency is presently considering whether
five—year review would be appropriate at NPL sites where
monitoring is already being conducted under a RCRA post-closure
permit.
If you have any questions regarding these issues, please
call Nancy Parkinson, OWPE, at 475-8729 or Larry Starfield, OGC,
at 245—3598.
cc: Hazardous Waste Division Directors, Regions I, II, IV-X
Regional Counsels, Regions I, II, IV-X
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_to s
UNITED STATES ENVIRONMENTAL PROTECTiON AGENCY
WASHINGTON, D.C. 20460
9502.1991(01)
MAR 2 7 1991
OFFCEOF
GENERAL COUNSEL
MEMORANDUM
SUBJECT: Use of Proposed Subpart S Corrective Action Rule as
Guidance Pending Promulgation of the Final Rule
FROM: Lisa K. Friedman
Associate Genera ounsel
Solid Waste and Emergency
Response Division (LE—132S).
TO: Regional Counsel RCRA Branch Chiefs, Regions 1—10
This memorandum is in response to your request for
assistance in determining which portions of the proposed Subpart
S rule, implementing corrective action requirements for permitted
facilities under Section 3004(u) of RCR.A, can be implemented
immediately on a case—by—case basis without further rulemaking.
Background
Section 3004(u) generally requiris that each permit for a
RCR,A hazardous waste treatment, storage or disposal facility
issued after November 7, 1984 contain provisions requiring
corrective action for releases from any solid waste management
unit (SWMU) at the facility. EPA has implemented this
requirement through codification of the requirement (40 C.F.R.
264.101), interpretative rules (July 15, 1985 (50 Fed. Req.
28702) and December 1, 1987 (52 Fed. Reg. 45788)), and guidance
documents (including the RCR.A Facility Assessment Guidance
(October, 1986), Interim Final RCRA Facility Investigation
Guidance (May, 19 ), Corrective Action Plan (May, 1988), and
RCRA Corrective Action Interim Measures Guidance (June. 1988)).
On July 27, 1990, EPA published a proposed rule which would
codify in detail the procedures and standards for implementing
Section 3004(u). 55 Fed. Req. 30798 (July 27, 1990). Much of
the proposal would be a codification of the current site—by—site
process by which EPA is currently implementing Section 3004(u).
In addition, certain portions of the preamble represent
interpretations of the existing statutory or regulatory
g D
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2
requirements that apply to these corrective actions. At the same
time, however, some of the proposal involves changes in the
existing regulatory requirements in order to facilitate
corrective action.
The preamble does not state how the proposed rule relates to
ongoing corrective actions or those which will be begun prior to
promulgation of the rule in final form. We understand that the
Headquarters program office primarily responsible for the rule
(the Office of Solid Waste) is generally instructing the Regions
to apply the prcposal in the interim as “guidance”. However,
because some aspects of the proposal represent proposed changes
in existing regulatory requirements, which will not be effective
until the rule is promulgated in final form, some parts of
Subpart S cannot be relied upon in establishing or defending
corrective action requirements imposed at a facility in the
interim.
Based on the questions we have been receiving about this
issue, as well as our discussions with you, there seems to be a
certain amount of confusion over which aspects of proposed
Subpart S can legally be relied on in implementing corrective
action prior to promulgation of the rule. At your request,
following is our advice concerning rWhjCh portions of the rule can
be used as “guidance” in the interim and which cannot. Note,
however, that those portions of the,rule which can be used as
“guidance” before promulgation of the final rule must be applied
and defended on a case—by—case basis in individual permit
proceedings.
Analysis
As a general matter, portions of the preamble or rule that
are interpretative and which are not based on changes to
currently applicable regulatory requirements can be used as
guidance during the interim, but must be established and defended
on a case—by- case basis. Most of the preamble and proposed rule
are interpretative and are not inconsistent with any current
regulatory requirements and thus can be used as guidance in the
interim. In cont ast, portions of the rule or preamble that are
based on changes to currently applicable rules cannot be used as
guidance during the interim. In the paragraphs below, we have
outlined the major portions of the rule and identified which
portions should not be used guidance until the final rule is
promulgated and effective.
1. Applicability (preamble pages 30805—07).
This section represents EPA’s interpretation of the
facilities at which Section 3004(u) is applicable based on the
statute and legislative history. Because this discussion
represents the Agency’s current interpretation of the statutory
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3
requirement, it can (and should) be applied to facilities
undergoing Corrective action prior to promulgation of the final
rule.
2. Definitions (preamble pages 30808—10).
Like the applicability section, this section represents
EPA’s current interpretation of key terms in Section 3004(u).
These interpretations are applicable to corrective actions prior
to promulgation of the final rule. 1
3. Investigation and selection of corrective measures
(preamble pages 30810—40).
The proposed process for investigating SWMUs and selecting
appropriate corrective measures represents a proposed
codification of existing practices which are currently found, if
at all, in guidance documents, not in existing regulatory
provisions. As a result, the proposed process, including the
provisions governing interim measures and conditional remedies,
can be used as guidance until promulgation of the final rule.
However, because the specific requirements for these
corrective actions are not currently regulatory requirements,
they must generally be imposed in the permit, and justified on a
case—by—case basis, in order to make them mandatory for the
permittee. For example, the Agency- will not be able to rely on
the proposal for the authority to require the permittee to submit
corrective action reports. In order to impose corrective action
reporting requirements, the permit must contain the reporting
requirement, and it must be based on Section 3004(u) or Section
3005(c) (3) or other relevant statutory or regulatory
authorities, as well as the factual circumstances at the
particular facility.
Similarly-, the current regulations do not explicitly provide
EPA with unilateral authority to modify the permit to add
requirements or to address disputes that arise during
implementation, as proposed under Section 270.34(c) (preamble
pages 30837 and 30850). This proposed modification procedure,
which would be an lternative to the current procedure for
Agency—initiated codifications under 40 C.F.R. 270.41, was
intended to minimize procedural delays for imposing changes to
corrective action schedules of compliance, while ensuring due
‘ As many of you know, several of the key definitions, as
well as EPA’s interpretation of the applicability of the Section
3004(u) requirements, have been upheld by the D.C. Circuit Court
of. Appeals. See American Iron & Steel Institute V. , 886 F.2d
390 (D.C. Cir. 1989), cert. denied , 110 S. Ct. 3237 (1990);
United Technologies Corp . v. EPA, 821 F.2d 714 (D.C. Cir. 1987).
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4
process.
We understand that the corrective action model permit
includes a modification procedure similar to proposed 270.34(c),
and that many permits already issued include this provision.
With respect to existing permits containing such provisions,
permittees and members of the public have had an opportunity to
object to such provisions during the comment period on the draft
permit, and to the extent they did not, have arguably waived
their rights to do so. To the extent that there are objections
raised in regard to inc. uding this procedure in pending or future
permits, we recommend that you rely instead on the existing
modification procedures in the regulations.
4. Management of wastes (preamble pages 30840—45).
Several of the proposed regulations governing the management
of wastes generated during a corrective action require changes
in the existing regulations and thus may not legally be used as
guidance until those changes have been made final and effective.
Such proposed changes include the provisions allowing for waiver
of applicable closure requirements, reduced requirements for
“temporary units”, and any use of the CAMU concept other than to
allow designation of an area of broad contamination as a single
unit for purposes of determining what RCRA management standards
apply.
The Agency can, however, continue to use existing waivers or
variances to achieve many of the same objectives as the proposed
rule changes. The CAMU, for example, can currently be used to
define the boundaries of land disposal unit to the same extent
as the Agency described the Superfund AOC in the preamble to the
revised NC? (55 Fed. Reg. 8758—60 (March 8, 1990)) because this
interpretation relies on the broad definition of “landfill” under
the current regulations. However, if hazardous wastes are
managed in the CAZIU, the unit must comply with currently
applicable hazardous waste requirements, including groundwater
monitoring under 40 C.F.R. 264, Subpart F, and closure under 40
C.F.R. Part 264, Subpart C. The authority to alter applicable
closure/post—clos The requirements for CA llUs, proposed in the
rule, does not currently exist.
In addition, if the area to be included in a CAMU includes
an already—regulated hazardous waste land disposal unit, such as
a “regulated unit”, the facility may need to obtain a
redesignation of the unit boundaries as they appear on the Part
A. The reconfiguration of unit boundaries, which must be
approved by the permitting authority, can occur prior to
permitting, pursuant to 40 C.F.R. 270.72, or after permit
issuance, pursuant to 40 C.F.R. 270.41 or 270.42. As noted
above, the owners/operators of such redesignated units would need
to comply with applicable hazardous waste disposal requirements,
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5
including groundwater monitoring and closure.
5. Required notices (preamble pages 30845-46).
The required notices are additions to, not changes of,
current regulatory requirements. As a result, such requirements
can be currently applied if imposed in the permit and justified
on a case—by—case basis under the authority of Section 3004(u).
6. Permit requirements (preamble pages 30846—51).
Most of the proposed permit requirements are changes to
currently existing requirements and thus cannot be imposed until
the changes are final and effective. The provisions which cannot
be used as guidance pending the final rule include the
requirement to maintain or obtain a permit to implement
corrective action and the special modification procedures for
schedules of compliance. The proposed requirement concerning
reporting of new SWMUs and the requirement to maintain an
information repository can currently be required if imposed in a
permit based on Section 3004(u) and 3005(c) (3) authorities.
7. Closure requirements (preamble pages 30851—52).
As discussed above, proposed ‘requirements to alter
applicable closure regulations cannot beused as guidance until
the changes are final and effective. Similarly, the proposed
addition to the interim status closure plan requirements cannot
be required until the rule is final. However, the clarifications
of the closure regulations discussed in this section of the
preamble are interpretations of existing regulations and thus may
be currently implemented.
If you or your staff have questions about the use of the
Subpart S proposal as guidance, please feel free to call Carrie
Wehling of my -staff at 382—7720.
cc: Kathie Stein
Bruce Diamond
vSylvia Lowraftce
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9502.1992(01)
S?
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
_:t.
1 L q 0 •V
MEMORANDUM 1 q -
CFFICE OF
SUBJECT: Classification of Infiltration Galleries WATER
under the UIC and RCRA Programs
FROM: James R. Elder,
Off ice of Ground Wayz( and Drinking Water
Sylvia K. Lowrance, Directq ,\ . 1i —
Of f ice of Solid Waste ./‘ ‘i
TO: Water Management Division Directors
Regions I — X
Hazardous Waste Management Division Directors
Regions I — X
PURPOSE
Underground Injection Control (UIC) and Hazardous Waste
Management program offices in a number of Regions have requested
clarification on whether or not infiltration galleries are, in
fact, Class V injection wells and subject to UIC program
authorities. These questions arise from alternative, but
conflicting, reac ir1gs of the Office of Solid Waste’s (05W) final
rule of April 2, 1991 (56 FR 13406) on th Fuxicity
Characteristic Leaching Procedure (TCLP) rule’s compliance dates
for different types of disposal facilities.
This rule makes a distinction between injection wells and
infiltration galleries for RCRA treatment and compliance
schedules, but does not provide a detailed definition of an
infiltration gallery as opposed to an injection well. The rule
grar. ed an extension to the effective date of the TCLP for
reir.jection of ground water pursuant to hydrocarbon recovery
oper3tions undertaken at petroleum refineries and transportation
fac. ities. The notice explicitly declined to extend the TCLP
rule compliance date for infiltration galleries, implicitly
concluding that no infiltration gallery can be called an
injection well. The purpose of this guidance is to provide
clarification as to which type of infiltration galleries may te
classified as injection wells and qualify for the rule’s
compliance date extension, assuming other conditions, such as
location at a refinery, are met.
PiirJed on R.cyclcd Papcr
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2
BACKGROUND
The Agency believes that a wide array of re—injection
mechanisms are and have been termed infiltration galleries,
including such operations as impoundments, pits, ponds and
lagoons. A literature search conducted for the development of
this guidance has not revealed a single, commonly—accepted
engineering definition for this practice. Neither UIC nor RCRA
Program regulations define the term infiltration gallery.
The November 1990 (55 PR 46829) proposed TCLP compliance
date extension for injection wells at hydrocarbon recovery
operations noted that there was insufficient information on the
design and operation of infiltration galleries to determine
whether they should be treated differently from injection wells.
The proposal also requested information on the design and
operation of infiltration galleries to determine if they should
be treated differently from injection wells for the purposes of
the TC rule.
The most commonly depicted arrangement for infiltration
galleries are devices employed to return treated ground water at
aquifer reinediation sites. Another use for these devices is in
water su ly system arrangements where they are designed to
collecL, :ather than discharge, ground water. UIC program
research indicates that most infiltration galleries are trenches,
backfilled with a permeable material, through which fluids are
discharged to the sub-surface. Fluids are distributed through
one or more (vertical) pipes leading to a (horizontal) pipe laid
in the trench. The intent of these operations offers striking
parallels to commonly-accepted concepts of injection well
operations.
DISCUSSION
EPA’s review of regional submissions of typical infiltration
galleries recognizes that certain types of these galleries, are,
in fact, injection wells and do fall within UIC authorities. In
the absence of a commonly-accepted definition for these
operations, this guidance is intended to clarify which types of
infiltration galleries are injection wells. This determination
is based on the regulatory definition of an injection well (see
40 CFR § 144.3).
The basic definition of an injection well is that it is
cc prised of a bored, drilled, or driven shaft, or a dug hole,
whose depth is greater than the largest surface dimension, and is
used for the subsurface emplacement of fluids. Infiltration
galleries commonly use trenches whose surface dimension is
greater than its depth. However, these trenches typically
contain multiple vertical pipes for the discharge of treated
ground water to either the gravel filled trench directly or to a
horizontal, perforated pipe in the fill.
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3
For purposes of this guidance, each of these vertical pipes,
individually or in series, should be considered an injection well
subject to UIC authorities. Conversely, other configurations
(which may also be commonly referred to as infiltration
galleries) such as pits or lagoons are not considered to be
injection wells.
Attachment A depicts an infiltration gallery which fits
within the definition of “injection well” outlined above. The
use of such a gallery system also occurs at Class III solution
mining operations.
These operations (which we recommend calling “injection
galleries” to distinguish them from other types of infiltration
galleries) are a UIC-regulated activity. Facilities discharging
fluids which are RCRA hazardous waste, as part of an approved
RCRA or CERCLA clean-up operation at a site not addressed by the
TC exemption, may be authorized as Class IV wells in accordance
with 40 CFR § 144.13(c). Injection operations at sites
specifically authorized by the TC exemption are not considered
hazardous waste injection and would, therefore, be Class V wells.
Any other ground water discharge that follows the prescribed
pattern would be a Class V well.
The UIC program’s highest priority has been and remains
addresbi: g discharges from injection wells which may endanger
underground sources of drinking water (USDWs) when they are used
to dispose of wastes. Injection galleries operating pursuant to
State or federally—approved remediation actions are not primarily
discharging a waste product, but rather are recycling the
resource to improve its quality. These activities are already a
part of an enforcement action, rather than an abuse or
endangerment of ground water, and would not require the
additional environmental controls which can be imposed by the UIC
program. Such operations should be examined solely to ensure
that adequate safeguards are incorporated into the enforcement
order to protect USDWs.
Further, a number of additional authorities are available to
address the operation of injection galleries. Generally, State
ground water protection statutes authorize the regulation of all
discharges to the “waters of the State” in parallel to Clean
Water Act (NPDES) authorities. Injection galleries, much like
surface impoundments (pits, ponds and lagoons), may therefore be
regulated under these authorities. In addition, Section 1431 of
-:- Safe Drinking Water Act (SDWA) and Section 7003 of RCRA
prc’ de an avenue of regulatory control in those cases where an
iin nent threat of endangerment to USDWs and/or human health and
the environment exists from the operation of an injection
gallery.
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4
GUIDANCE
Ground water reinediatiorl actions utilizing a method of
discharge termed infiltration galleries should be subject to a
joint review by the UIC and RCRA program directors. If the
facility can be characterized as an injection gallery in light of
the definitions referenced in this guidance, it is subject to
SDWA requirements as well as RCRA and possibly CERCL and is
eligible for the TC exemption. In cases where such rentediation
actions are not RCRA or CERCL authorized, the UIC Director
should decide whether a permitting or enforcement action is
necessary. Rentediation facilities that do not meet this
criteria, such as pits, ponds or lagoons, are to be considered
disposal facilities under RCRA/CERCLA or other State authorities
and are not eligible for the TC exemption. Such facilities are
not subject to SDWA requirements unless a Section 1431 action is
warranted, but are subject to RCRA hazardous waste disposal
requirements.
CONTACT
For furthr’- formatiori or questions relating to this
guidance, please contact Lee Whitehurst of the UIC Branch at FTS
260—5532.
Attachment
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IHLET AIR VEHT
U4LET J?JLET
I I I I i
A’4 TI YE
FiLL (0-4’)
GRAVEL (4’-16’)
F I
— Ii
I, ___ ___ _._ !
I
200’ - 1
IlIFILTRATION GALLEF Y
HUE 1
-------
IO ST 41 .
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
PROW’
9502.1992(02)
AU6 31 199!
OFFICE O
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Use of the Corrective Action Management Unit (CAMU)
Concept
TO: Waste Management Division Directors, Regions I - X
RCRA Branch Chiefs, Regions I - X
RCRA Regional Counsel, R n I - X
FROM: Sylvia Lowrance, Di
Of fice of Solid Wast
j ruce Diamond, Director f 44U.
u Office of Waste Programs-Enforcement
At the February 1992 Stabilization Conference in Colorado
Springs we discussed the possibility of implementing the
corrective action management unit (CANt )) concept before final
promulgation of the Subpart S regulations. At that time OSWER
made a commitment to provide further guidance to the Regions on
how to use existing RCRA regulations to achieve some of the
remedial benefits of the CANU. The attached document, “Use of
the Corrective Action Management Unit Concept,” provides that
guidance.
The CANt) portion of Subpart S is on a current schedule to be
finalized by December 1992. The attached guidance, which was
developed jointly by OSWER and OGC, clarifies the Agency’s legal
authority for utilizing a CAZ4U-like approach before the CANU rule
is finalized, and provides guidance on when and how to use the
concept. The concept can be applied during final remedies, and
in the implementation of stabilization actions to reduce imminent
threats and contain releases. We encourage the use of this
concept whenever the success of the remedial option at a
particular facility will be enhanced.
If you have any questions regarding the content of this
guidance, please call Dave Pagan at (202) 260-4497.
cc: Lisa Friedman, 0CC
Henry Longest, OERR
Kathie Stein, OE
Panted on Recvcl d PRnP’
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BACKGROUND
Beginning in 1992, EPA began
implementing a new strategy to increase the pace
of cleanup and to achieve positive environmental
results at RCRA treatment, storage and disposal
facilities (TSDFs) requiring corrective action.
While comprehensive facility cleanup is still the
long-term goal for the RCRA Corrective Action
Program, this new initiative emphasizes the
importance of stabilizing sites by controlling
releases and preventing the further spread of
contaminants.
At most RCRA facilities, stabilization or
final remedial actions will involve excavation and
on-site management of contaminated soils, sludges
and other wastes that are subject to the RCRA
Subtitle C hazardous waste regulations. In these
situations, a number of issues can arise regarding
the applicability of certain RCRA requirements,
and how these requirements may affect the
remedial activities. Specifically, experience in the
RCRA and CERCLA remedial programs has
shown that the RCRA land disposal restrictions
(LDRs) and minimum technology requirements
(MTRs) may limit the types of remedial options
available at sites, as well as affect the types of
specific technologies that may be used, the volumes
of materials that are managed, and other features
of remedies under consideration.
Recognizing that strict application of these
RCRA requirements may Limit or constrain
desirable remedies, including stabilization
programs, EPA is developing an important
regulatory concept, known as the Corrective
Action Management Unit (CAMU), to facilitate
effective and protective remedial actions. This
concept, first discussed in the proposed Subpart S
corrective action regulations (55 FR 30798, July
27, 1990), is similar to the Superfund concept of
the area of contamination, in which broad areas
of contamination, often including specific subunits,
arc considered to be a single land disposal unit for
remedial purposes.
CAMLJs may be particularly useful for
specific remedial activities such as consolidation of
units or contaminated surficial soils. For example,
a group of unlined inactive lagoons that are
continuing sources of releases to groundwater may
be best rernediated by removing and treating the
concentrated wastes in another unit, and excavating
the remaining low-concentration contaminated
soils from underneath the lagoons. These soils
could then be consolidated and placed into a
protective and cost-effective single-capped unit,
thereby controlling further releases to
groundwater. In other situations site remediations
will require excavation of large quantities of
relatively low-level contaminated surficial soils. In
these cases a protective and cost-effective remedy
might be to excavate the soils and consolidate
them into a single area or engineered unit within
the area of contamination. For both of these
examples, application of LDRs and possibly MTR
requirements would result in a more costly and
complex remedy, that may delay remediation and
result in little additional environmental protection
for the site.
As proposed in the Subpart S rule, there
may be certain types of situations in which
application of the CAMU concept (55 FR 30842)
would be inappropriate. In addition, several
United States
Environmental Protection
Agency
EPA
Office of Solid Waste and
Emergency Response
Washington, D.C. 20460
August 1992
Use of the Corrective
omce of Solid Waste
Action Management Unit
Concept
-------
factors (55 FR 30883) may be considered by
decision-makers in deternuning how CAMUs
would actually be designated at sites. Although
owner/operators may propose a specific area as a
CAMU, it is the responsibility of EPA or the
authorized State to determine whether a CAMU is
necessary and appropriate, and, if so, to determine
the boundaries of the unit.
The Subpart S regulations have not yet
been finalized. However, although the CAMU
concept has been presented only in proposed
regulations, e osting regulatory authority may be
used to implement this type of approach in site
remediations and stabilization actions. The
Agency’s experience with the RCRA and CERCLA
remedial programs indicates that the CAMU
concept could be applied immediately to great
advantage at a significant number of RCRA
cleanup sites. This guidance is presented to clarify
the use of the CAMU concept prior to final
regulations.
USE OF LANDFILL DESIGNATION FOR
REMEDIAL PURPOSES
Specifically, certain contaminated areas at
sites that require remediation, including groups of
units in such areas, may be designated as a
“landfill’ under the current RCRA landfill
definition (40 CFR § 260.10). Designating such an
area of a facility as a landfill within the existing
regulatory framework can achieve remedial benefits
similar to those that would be obtained by using
CAMIJs under the Subpart S proposaL Prior to
the promulgation of final CAMU rules, EPA
encourages the use of this approach at
contaminated sites, where it can promote effective
and expeditious remediaL solutions. EPA
recommends that decisions on designating certain
contaminated areas or groups of units as a landfill
be made in accordance with applicable regulations
and generally in accordance with the CAMU
provisions in the Subpart S proposal.
Owner/operators proposing to address
certain areas at a facility as a single landfill for
remedial purposes should request approval from
EPA or the authorized State agency. The
Regional Administralor or the authorized State
Director will be the ultimate decision-maker as to
whether such a landfill unit will help achieve the
remedial objectives at the facility. EPA
recommends decisions to use existing authorities,
waivers, or variances to achieve many of the same
objectives as the proposed Subpart S nile CAMU
provisions should generally follow the proposed
regulatory provisions (55 FR 30883) and preamble
discussion (55 FR 30842) in defining the
boundaries of the remedial unit. The Region or
authorized State may also look to Superfund
guidance in the designation of AOCS (55 FR 8758-
8760).
Designating an area of Contamination as a
“landfill’ will require that the unit comply with
certain RCRA requirements that are applicable to
landfills. The specific requirements that apply will
differ, depending on whether the landfill is
considered to be: (1) an Cdsting non-regulated
landfill, or (2) a regulated hazardous waste landfill.
This distinction is determined by the regulatory
status of the units or areas that are included as
part of the landfill. The following discussion
explains further the requirements associated with
these two types of landfills.
ExistIng Non-Regulated Landfills
Figure 1 shows an area of contamination
at a facility that includes several land-based solid
waste management units (SWMUs) that are not
regulated as hazardous waste units under RCRA
(c.&, because all of the disposal occurred before
the RCRA hazardous waste regulations went into
effect). By designating this area as a single landfill,
EPA can approve movement and consolidation of
hazardous wastes and soils contaminated with
hazardous waste within the unit boundary, without
triggering the LDR5 or MTRs. For example,
contaminated soils in and around SWMUs 1 and 2
could be consolidated into SWMU 3 and capped
without triggering LDR requirements.
This landfill would not be subject to the
RCRA Part 264 or Part 265 design and operating
requirements for hazardous waste landfills. This is
because the landfill would not have received
hazardous waste after November 19, 1980. (See 40
CFR § 270.1(c)). In the absence of specific Part
264 or 265 requirements for such units,
appropriate ground water monitoring and closure
requirements for the landfill can be determined by
EPA or the State as part of the corrective action
remedial decision-making process. These
requirements would be based on an assessment of
site specific factors, such as waste characteristica,
site hydrogeology, exposure potential, and other
factors. This allows the regulator further flexibility
in designing remedial solutions which are effective
and protective based on actual site conditions.
These non-regulated landfills would
remain exempt from regulation under Parts 264
and 265, under the following circumstances:
-------
• The landfill cannot receive hazardous
waste from other units, either on-site or
off-site. The landfill could, however,
receive non-hazardous wastes as part of
the cleanup actions. it it were to receive
hazardous waste, the landfill would
become a regulated unit (40 CFR §
270.4(c)) subject to the requirements of
Subparts F (40 CFR * 264.90) and 0 (40
CFR § 264.110). The facility permit
would have to be modified accordingly
(for interim status facilities, a change
would have to be approved under 40 CFR
§ 270.72), and the wastes would have to be
treated to comply with applicable LDR
standards prior to placement in the
landfilL
• If hazardous waste treatment (including
in-situ treatment) takes place within the
landfiLl, the owner/operator must comply
with all Part 264 or 265 requirements
applicable to the treatment unit, and must
modify the permit or Part A to include
the new treatment unit.
• Similarly, residuals from treatment of
hazardous wastes that have been removed
from the landfill and treated in a non-
land-based unit cannot be redeposited into
the landfill unless the residuals meet the
LDRs. If the residuals were sill
hazardous by characteristic or still
contained hazardous wastes, disposal of
the residuals into the landfill would
require the landfill to be designated a
regulated umi, as the unit would have
received hazardous waste after July 26,
198
• Hazardous wastes transferred from the
non-regulated landfill to another land-
based unit would also have to meet LDR
standards.
Regulated Landfills
Figure 2 shows an area of contamination
that could be designated as a landfill, which
contains two regulated units (as defined in 40 CFR
§ 264.90). As with the previous example in Figure
I, designating this area as a landfill would allow
wastes to be moved and consolidated within the
area without triggering the LDRs. However,
because this landfill contains regulated units, the
entire area must be considered a regulated unit.
Accordingly, the following requirements would
apply:
fiGURE 1
EXISTING NON-REGULA1tD LANDFiLL
2 fl
Uncontanlinated Soil
Facility Boundary
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FIGURE 2
REGULATED LANDFilL
Facility Boundary
iurface impoundments
Uncontaminated Soil
• The unit boundaries of the original
regulated units that were specified on the
Pan A or Part B application would have
to be redesignated to encompass the
entire new landfill unit, according to the
applicable procedures in 40 CFR if
270.72, 270.41 or 270.42.
• The landfill would have to comply with
applicable Part 264 or 265 requirements
for landfills, including the Subpart F
ground water monitoring requirements
and Subpart (3 closure and post-closure
requirements. Subpart F requirements
would generally involve instaUation of
additional ground water monitoring wells.
Compliance with Subpart G would likely
also require modifications to the closure
and post-closure plans for the unit.
MTRs would not necessarily apply to these
newly designated regulated landifils. If the original
regulated unit located within the landfill was not
subject to the MTRs (i.e., the landfill was not new
or expanding after 1984), the landfill could be
considered by the Agency or authorized State to be
a redesignation of that existing unit. rather than a
lateral expansion. As such, the landfill would not
be subject to the MTRs. However, if the regulated
unit encompassed by the landfill was originally
subject to MTRs, the entire area of the landfill
would be subject to MTRs.
SUMMARY
Existing regulatory standards (e.g.,
replacement of treatment residuals into the CAMU
triggers the LDRs) cannot be waived to unpiement
the CAMU concept prior to a final CAMU
rulemaking. EPA is considering removing some of
these limitations in the final rule. Nonetheless,
despite these current limitations, there may be a
number of situations where the use of landfills can
yield substantial benefits in remediating sites.
EPA recommends that the guidance provided in
this fact sheet be used in evaluating the use of
landfills to implement timely and protective
corrective actions at RCRA facilities.
FOR FURTHER INFO RMATION
Inquiries concerning the guidance
contained in this fact sheet should be directed to
Dave Fagan (202) 260-4497, or Anne Price (202)
260-6725.
Contaminated Soil
-------
Sr 4 ,
; a
tPt4PqL ,. , 0 1tG
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
9504.1991(01)
MEMORANDUM
Nov
7 (99 ;
O PFICE OF
SOLID WAStE AND EMERGENCY RESPONSE
SUBJECT:
Concurrence on 7003 Order for Shell
of Niobrara County, Wyoming
FROM: Bruce Diamond, Directo
Of f ice of Waste Program orcement
Pipe Line Corporation
TO: Robert Duprey, Director
Hazardous Waste Management Division, Region VIII
In the matter of Shell Pipe Line Corporation, I concur on your
of Section 7003 to compel the .company to clean—up the spilled
The use of Section 700] to compel clean-up of an oil spill is
a proper use of the RCRA statute. Spilling meets the definition of
disposal and spilled material generally qualifies as a solid waste.
For this reason, the spill is potentially subject to RCRA 57003
authority (40 CIt 260.10 and 40 CIt 261.2), regardless of whether
or not it may meet the definition of a characteristic hazardous
waste, e.g. TC for benzene.
In the future, you might also consider using the authority of
the Oil Pollution Act (OPA) to compel clean-up. This Act, which
amends the Clean Water Act may soon be available for Regions to use
in enforcement actions requiring clean-up of oil spills. Among
other things, the OPA allows an enforcement action to be taken
against a facility that discharges oil or hazardous substances into
or upon navigable waters of the United States, adjoining
shorelines, into or upon the waters of the contiguous zone, or that
may affect natural resources belonging to, appertaining to, or
under the exclusive management authority of the United States
[ Federal Water Pollution Control Act S311 (c) J. This authority may
apply to spills like the Shell Pipe Line incident. In the FINDINGS
use
oil.
The New York State Petition addresses the question of how
benzene contaminated petroleum waste must be managed during
remediation. If the petition is approved by the Agency, it will
only affect the final utanageutent and disposal of such waste, not
the Agency’s ability to use Section 7003 to obtain clean-up in
cases of imminent and substantial endangerment.
Panted on Recycled Paper
-------
OF FACT (Section IV) of the proposed 57003 Order for the Shell
spill, paragraph E states that portions of land on which are
located “navigable waters” were saturated by the spilled oil.
Presumably, the oil went into or upon the navigable waters or onto
adjoining shorelines. Also, Shell Pipe Line Corporation meets the
definition of a facility as described in the OPA §1001 (9)
“facility” and is liable for removal costs and damages as described
in §1002 (a) of the same Act. The advantage of the OPA is that
should a facility fail to comply with an administrative order for
removal, the facility may be subject to a penalty up to three (3)
times the cost incurred by the Oil Spill Liability Trust Fund
(Federal Water Pollution Control Act §311 (b) (7) (B) (ii)).
Previously, EPA could not order a company to clean-up under
the Clean Water Act §3 11. Only the President had that authority
(Federal Water Pollution Control Act §311 (C) and (e) 1. On October
18, 1991 the President delegated his authority to the Administrator
of EPA and the Secretary of Transportation. The Agency is
presently working on delegating this authority to the Regional
Administrators.
If you have any further questions regarding the Oil Pollution
Act, please contact Cecilia Smith of my office at FTS 260-9811.
cc: Matt Hale
Stephen Heare
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9502.1993(01)
I;?
1 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAY 41993
OFFICE OF
$01.10 WASTE AND EMIAQENCY RESPONSE
Doug MacMillan
Institute of Chemical Waste Management
1730 Rhode Island Ave., NW
Suite 1000
Washington, DC 20036
Dear Mr. MacMillan:
I am writing in response to your letter of January 28, 1993,
in which you expressed several concerns regarding the potential
effect that the newly promulgated regulations for corrective
action management units (CM4Us) may have on the management of
“as—generated” hazardous wastes.
As I underBtand from your letter, and from subsequent
discussions with my staff, your primary concern is that as-
generated containerized hazardous wastes being stored at a
facility could be considered remediation wastes, and therefore
could be managed at an area of a facility that has been
designated as a CANU, with the effect that those wastes would no
longer be subject to the RCRA land disposal requirements, or to
minimum technology requirements.
Let me assure you unequivocally that it was not the Agency’s
intent in promulgating this regulation to allow or to encourage
such waste management practices; furthermore, the regulations as
finalized prohibit such practices. As stated in the regulations,
and as explained in the preamble, CAMUS may only be used for the
management of remediation wastes (40 CFR S260.10; 58 FR 8663—4),
and only for the purpose of implementing remedial actions (e.g.,
corrective actions under RCRA 3004(u) or 3008(h) authorities).
The concept of remediation wastes is somewhat new to RCRA, and I
agree that it is important to have a clear understanding of what
these wastes are, and the limitations on the use of the CAMU
concept in regard to management of “as—ger rated” hazardous
wastes.
As-generated hazardous wastes, whether containerized or non—
containerized, are subject to the full set of Subtitle C
requirements applicable to treatment, storage and disposal of
hazardous wastes. These regulations are designed with the
primary goal of preventing such wastes from creating environ-
mental contamination problems that require remediation. Thus so
long as as-generated hazardous wastes are managed in accordance
with applicable RCRA standards and regulations, there BhoUld be
-------
no need to “remediate” those wastes.
In contrast, remediation wastes as defined in the CAMU rule
include only wastes that are generated and managed for the
purpoee of implementing corrective actions at facilities. It is
this purpose—-cleanup of environmental problems resulting from
historic waste mismanagement practices--that is fundamental to
the concept of remediation wastes. In the preamble to the CAI4U
rule we articulated the inherent differences between cleanup
(i.e., corrective action) and management of as—generated, or
“new” wastes. The Agency’s rationale for promulgating the CAXU
rule is tied directly to our conclusion that cleanup is a
fundamentally different activity than management of as-generated
wastes, and that RCRA requirements for management of cleanup
wastes can and should differ from those for as—generated wastes.
As stated in the preamble of the final CAI4TJ rule (58 FR
8664), “Today’s definition of rentediation waste excludes ‘new’ or
as-generated wastes (either hazardous or non-hazardous) that are
generated from ongoing industrial operations at a facility.”
Further, the regulatory definition of remediation waste in the
final rule is limited to wastes “...that are managed for the
purpose of implementing corrective action requirements under
S264lOl and RCRA section 3008(h).” (40 C?R S260.l0) In crafting
the definition of remediation waste in this way (particularly
when the definition is read together with the preamble
discussion), we believe that it is clear that CANU8 are not to be
used for management of as-generated wastes. However, we
understand your concern that if read alone, the definition might
mislead some readers or allow some room for abuse. We are
currently developing guidance for EPA and State decision makers
on implementation of the CAI4U rule. Among other things, the
guidance will emphasize that containerized as-generated wastes
that are stored at RCRA facilities cannot be managed in CAXUB.
In addition, we are willing to consider adding a clarification to
the regulation that would specifically exclude management of as-
generated wastes in CAXUs, as well as in temporary units. I
would welcome further discussions with you and your organization
on this matter.
In your letter you suggested that owner/operators might have
incentives to stockpile containerized as-generated wastes, for
subsequent treatment and disposal in CAXUs, As explained above,
suc - wastes would be as—generated wastes, not eligible for
placement in a CAXU (unless all applicable Subtitle C
requirements, including the land disposal restrictions, were
satisfied). Furthermore, in storage the wastes would be subject
to the applicable “prevention” requirements of Subtitle C, which
should serve to ensure that they are not mismanaged such that
“cleanup” of the wastes would be required. If an owner/operator
were to mismanage such wastes, for example, by dumping the wastes
with the intent that the wastes would then become reinediation
wastes, such activities would clearly be illegal, and subject to
the substantial civil and/or criminal penalties under RCRA, as
-------
well as possible liabilities under CERCLA. In addition, such
purposeful dumping of wastes would likely result in contamination
of large volumes of soils or other media, and the costs of the
required cleanup could be many times the costs of complying with
the Subtitle C prevention standards. Thus, we do not believe
that the CAMU concept realistically creates an incentive for
mismanagement of as-generated wastes.
As an additional safeguard, it should be emphasized that
CAI4Us may only be designated by EPA or an authorized State; an
owner/operator could not himself simply designate an area of a
facility as a CAXU, as a means of changing the requirements that
would apply to those wastes.
In your letter you suggested amending the CAXU regulation to
restrict the definition of remediation waste to contaminated
media resulting from corrective action at a facility. I would
like to clarify that in the CAXU rule the Agency did not intend
to distinguish between contaminated media and other cleanup
wastes. By restricting the definition to contaminated media,
certain other cleanup wastes could not be managed in CAMUs, such
as sludges disposed of before 1980. As explained in the preamble
to the rule, the CAIW concept is a response to the inherent
differences in the objectives and incentives of ramediation of
“old” wastes, as distinguished from management of “new” wastes.
Since remediation of facilities will often involve management of
sludges and other pre -RCRA wastes that would not be considered
contaminated media, we do not believe that it would be
appropriate to amend the CAI4U regulations to apply only to
contaminated media.
As you know, many of the issues addressed in the CAXU rule
are now being discussed in the context of the HWIR Forum, in
which you have been actively involved. As we have discussed in
the Forum, a major component of the HWIR discussions focuses on
contaminated media; this important dialogue is thus an
opportunity to reevaluate many of the issues associated with
remediation, as well as requirements for as-generated hazardous
wastes. It is possible that the HWIR dialogue will result in
substantial revisions to the existing RCRA regulations that
address management of remediation wastes, including the CAMU
regulations. If so, the Agency is committed to reviewing the
need for changes to those regulations. I ,look forward to the
contInued participation of ICWMA in these discussions.
I hope this has been responsive to the concerns raised in
your letter. If you have any further questions, please do not
hesitate to contact ma or Dave Fagan ((703) 308—8620).
Sin erely,
Sylvia K. Lowrance
Director, Office of Solid Waste
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.osr 4 p P -
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON, D.C. 20460
9502. 1994(01)
SEP I OFFICEOF
1994 SOLID WASTE AND EMERGENCY
RESPONSE
Mr. Willard R. Kieckner
Oxford Environmental, Inc.
25 Riverside Drive
Pine Brook, New Jersey 07058
Dear Mr. Kleckner:
Thank you for your letter of August 10, 1994 regarding your
request for information on the qualifications necessary to
perform environmental remediation tasks under Environmental
Protection Agency (EPA) regulations. I understand that you spoke
to Wayne Roepe of my staff about this issue.
EPA regulations promulgated under the Resource Conservation
and Recovery (RCRA) contain a definition of “qualified ground-
water scientist.” (See 40 CFR 258.50(f) and 40 CFR 260.10).
This definition states that a “qualified ground-water scientist”
is a scientist or engineer who has received a baccalaureate or
post-graduate degree in the natural sciences or engineering, and
who has sufficient training and experience in ground-water
hydrogeology and related fields. This may be demonstrated by
state registration, professional certification, or completion of
accredited university programs that enable an individual to make
sound professional judgements regarding ground-water monitoring,
contaminant fate and transport, and corrective—action.
Unfortunately, this definition only directly addresses one
scientific discipline, but it is the only one that exists under
the RCRA program. However, the principles it embodies can be
applied to related scientific disciplines such as environmental
engineering.
You also raise concerns regarding the present New Jersey
Professional Engineers Examination, which does not address
environmental issues. The relevant RCRA definitions do not
specifically regulate the contents of a professional
certification, nor do they address other organizations such as
R.cyc .dfRecyCJabIO
with Soy w a Ink on paper tMI
cont rw at l at 50% , ec UatI fiber
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the National Registry of Environmental Professionals. However,
the definitions do state that a person conducting a particular
activity must have the appropriate training and experience.
Further, under 40 CFR 271.1(i) (1), States are allowed to adopt or
enforce provisions which are more stringent or broader in scope
than the federal RCRA provisions.
I hope that this information has been helpful. If you
have further questions, please call Wayne Roepe of my staff at
(703) 308—8630.
Sincerely yours,
ichael Shapiro, Director
I Office of Solid Waste
Enclosure
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1 ci :1g...
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
FEB 7 :9 9502.1995(01)
OFFICE OF
SOLO WASTE APO EMERGCNCY
RESPONSE
! ‘ MOR.AND M
SUBJECT: CN4U at U.S.S. Lead Facility
FROM: Devereaux Barnes, Director —..
Permits and State Programs Division, OSW
TO: Norm $iedexgang, Director
Office of RCRA,. Region V
Recently we have had several discussions with your staff
regarding the approval of a corrective action management unit
(CAMtY) at the U.S.S. Lead Refinery facility in East Chicago,
Indiana. In those discussions we were asked to provide the
Agency’s position on the specific question of whether a §3008(h)
enforcement order is an appropriate mech riiam for approving a
CAMU at this facility. As you Ja ow, interim status for this
facility was terminated under the provisions of RCRA §3005(e).
It is the Agency’s position that §3008(h) orders are an
appropriate mechanism for approval of CAMUe at facilities that
have lost interim status pursuant to §3005(e). Other types of
hazardous waste management unita (e.g., tanks, piles) that may be
needed to implement remedial actions at facilities like U.S.S.
Lead may also be approved under §3008(h) orders. This
interpretation of the scope of §3008(h) authority is supported by
the broad language of §3008(h) (providing for corrective action
or such other response measure as...necessary to protect human
health or the envirorunenti). The legislative history supports
this interpretation in that the conference report indicates that
the intent was to allow EPA to address ongoing problems without a
permit. In addition, EPA’s longstanding interpretation is that
§30b8(h) applies to LOIS facilities as well as facilities that
are currently operating under interim status, and the CA?4D rule
itself imposes no limits on this interpretation. See memo from
J. Winston Porter, Intepretation of Section 3008(h) of the Solid
Waste Disposal ActU(Dec. 16, 1985).
We believe that this is a reasonable reading of the statute.
Based on this interpretation, RCRA permits are not necessary for
such units as long as they are part of the selected remedy (or
interim measure), and they are specifically authorized under the
§3008(h) order. Furthermore, we believe that from a policy
RecycIedlRecy abIo
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‘a l M I at 10% Iicy ud
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perspective, permits would generally be Inappropriate in these
circumstances, since they would likely have the effect of
delaying cleanup and adding to procedural costs without
increasing environmental protection. As e cplained in the
preamble to the c z’iu rule (58 FR 8676, February 16, 1993), public
participation procedures similar to those for Class III permit
modifications should be followed in approving CN4tJe under
§3008(h) corrective action orders.
If you or your staff have more specific questions about the
use of orders to approve CAMUs and other types of unite, you may
wish to contact Barbara Pace in the Office of General Counsel, at
(202) 2 O-7713, or Dave Pagan of my staff at (703) 308-8620.
Please let us know if we can be of any further assistance.
CC; Joe Bc le
Kevin Pierard
Barbara Pace
Larry Starfield
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I
EfOTLINE QUESTiONS MD ANSWERS
Febniary 1995
9502.1995(02)
RCRA
.2. Corrective Action Authorities.
• RC&4 53004(u) requires coneedve ie’ion
for all releases Pr hazardous n cw or
hazardous consdzuertrs from solid ic.ffe
mana:cneiu sit (SWMUs) azpeimited
hazardous waste weatment , storage, asrd
disposal facilizi a 7SDFs). Is RCRA
correSve atw 1 on lbnire w rektuesfrom•
swMua
Any release bf solid or hazardous waste
• wbichposesateattobealthorthe
environment is potentially subject to RCRA
• remedial authority. To this Sd, RCRA
pitvides EPA with setal distinct authorities
to requ i re cwieciive actioç for cont min2tiOn
wm.i.ng &om sowecs cdii than SWMUS.
ASWMUis adiscernibicunitin whichsolid
have [ I plwedm y tnr4
i rSpectiveof whether the unit was intended
for die managáneat of lolid or hazardous
wastes. This ddlnhon includes any rca it a.
facility at which solid wastes have been
routinely and systematically ietesset RCRA
§3004(u), which is specifically t. .e4to
rejesies f iii SW Usist priumiy
authodty tequhingconecdve action at
jcnñued TSDFL Section 3004(u)iequires a
facility owner or operaS to address releases
fmiu SWMUs whenever seeking i RQA
- i
)Sy potesial jthues at rSins4 .
TSDFs do not odginam from SWMUs,
h ewe t t , and arc not sdbjcct to 13004 cleaâup
requlieluents . example, aone.dme spill
at hazardous Wan ftoaa wMtt tak’eling
• aaossafscl lityisnarclcasef iu&i
SWMU. Far such releases not originniiig
fLOifl SWMU at pamk’td ThDPs , and for
releases at TSDFs with p eruilts that pré-date
NSWA and which therefore doiota,nnin
§30O4(u) provisions, EPA may thoose to use.
its omnibus perm itting authority pursuant to
RCRA §3005(4(3) 1* modIfy the facllit 1 ‘a
pamit as necessary to require o3awtvc
action for ah otentiAl threat to h uman health
or the environment. Additionally, RCRA
§3004(v), which is not limited to releases
from SWMUs, requires TSDFs to cleanup
conr2min2tion beyond’the facility boundary of
a permitted TSDF
RQA also provides EPA tth the author.
i ’ toissuc adminith’adve corrective action
orders or bring suit in a United States District
Court againct TSDFi Operating under interim
statnc The inSm rRmsmiipwxective
action — authority, provided by ROtA
§3008(h), is not limited to releases ( rota
SWMUs or any other type of unit. EPA can
invoke §3008(h) to address any release of
hsnidons waste front Vt U1tC11U1 facil
ity Section 3008(h) gives EPA authority to
issue corrective actionorders orbringsuit for
• both ite releases as interim status facithies
and releases which have migrated beyond an
interim status facility boundary.
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Finally, RCRA §7003 gives EPA broad
authority to abate hazards caused by releases
of solid or waste f ui any source,
including SWMUs. Specifically, §7003
provide EPA with the authority to seek
injunctive relief in the appropriate United
States Disuict Court, or, afwn odce.to the
affected state . isspc inisuad corrective
acdon orders for releases fwm anysfte where
•the handling , storage, u annent, transportation
ordiaIofwlid rhazardouswaStemay
pose animninát and substantial endanger-
ment to health the coviroiunent. U e of
17003 is lot limited to any particular type of
facility or waste unit.
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O w- u
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OCT I 8 995 9502.1995(03)
OFFiCE OF
SOLO WASTE AND EMERGENCY
RESPONSE
M.L Mullins, Vice President
Regulatory Affairs
Chemical Manufacturing Association (CMA)
2501 M St., NW
Washington, DC 20037
Dear Mr. MuI1in- :
This letter is in response to your letter of August 22, 1995 in which you expressed
CMA’s concern regarding the Agency’s plans to “disaMow continued use of the corrective
action management unit (CAMU) provision” that was promulgated on February 16, 1993
(55 FR 8658).
As I believe you know, the CAMU rule was the Agency’s initial attempt at
resolving many of the problems that have been encountered by EPA State remediation
programs in applying the prevention-oriented Subtitle C regulations to the management
of remedial wastes. The Agency continues to support the need for flexibility in this area;
however, some parties have argued that the CAMU rule allows regulators too much
discretion in determining appropriate, size-specific management requirements for
remediation wastes. In recognition of this view, the Agency agreed to evaluate whether
the CAMU regulations should be modified or replaced with a different regulatory
approach. As an ot tcome of this process, the Agency agreed the CAMU regulation
should be replaced with the Hazardous Waste Identification Rule for Contaminated
Media (HWIR-Media). The Agency is currently planning to propose the HWIR-media
rule in December of this year and issue final regulations in March 1997.
The Agency believes that much of the site-specific flenbiiity provided in the
CAMU will be preserved based on the current version of the draft HWIR-media
regulation, especially for less-contaminated media. Furthermore, the Agency intends to
include a provision in the proposed HWIR-media rule that would in effect “grandfather”
CAMUs that were approved before the HWIR-media rule is issued final , However, no
new CAMUs could be approved after the that date. The Agency believes that this
“grandfathering” provision, if flnali ed , would will result in minimal disruptions to
cleanups involving CAMUs that are planned pr underway. It should be -toted, however,
that the Agency plans to ask for coment in t1 e proposal as to whether grandfathe ing”
of CAMUs is appropriate, and, in particular, whether the Agency should set a date upon
which approval of “grandfathered” CAMUs would expire.
fl * n r
Vit 1 ‘wit so I VUs iiwr
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-2-
In the interim, our recommendation to both the regulators and the regulated
community is to use a CAMU if it truly provides the best alternative for a site (and the
AOC concept which is a concept independent of the CAMU rule, cannot be used). Of
course, the most conservative course of action would be to use a CAMU only if it can be
completed prior to publication of the fin 1 HWIR-media rule.
I hope that this letter helps to clarify the basis fur our airrent plans. If you have
any questions regarding the HWIR-media rule and its impact on the CAMU rule, please
call Carolyn Hoslcinz3n at 703/308-8626. Questions regardinf the AOC concept should
be directed either to Hugh Davis at 703/308-8633 or 1Th abeth McManus at 703/308-
8657.
Waste
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C 4?’)b rP O
c, 1 fJ.
August 22,1995
Mr. Michael H. apbo, Director
O or of Solid Waste (5301)
U.S. Environmental Protection Agency
401 MStzeetS.W.
Washington, D.C. 460
Re: Cmiective Action Managemeiturdb
DrMr. f
- ct mic i Maniifactuzers Assodatlon COdA) Is concerned by.repoxts that
EPA. in the context of the upcoming HW contaminated media proposaL plans to
disallow conthmed use of the action managenient unit (CAMU) provision.
that was pronwigated on Pebruiry 16,1993(58 FR 8658).
• EPA hal recognized that TM rentedlatiat of e dsting amktadoit problems is
inherently l4rr. .ua &iw the____ _____of aiugenerated lndustrlalwastea (58 FR
8660) and that tbe e dstlng regulatory a i ue of RCRA Subtitle C, when applied to
management of hazardous waste for remedial pwposes, cart often seriously hamper the
ability of decis n ma rs to select and Inip]eomit aft Gy , pioteJive , and cost
ef ctlve r ied1es” (58 FR 8659). ‘l1 Agency pronwigated the CAM Vprovlslon to
provide remedial ded.binmal rs with an added measure of iedbility in order to
expedite and Improve remedial dedalons. Marty CMA member companies have foimd
the CAMU puviaion to be highly suc sdul In that regard. It has afforded valuable
and needed fleadbilhty 4 has si &ant1y expe ited remediad n eftort& by
zemovntg many of the impediments that e dsted under Subtitle C.
In her s t atement before the U.S. House of Representatives Committee on Sc ror
on January 6, 1995, AdmInistrator Bro*ner said:
A11 of us axe co w ltted to protecting public lwakh and our air, land,,
• and water At EPA, we want to Imp’.ivw rt these co ’ ’ 1 ’ ’ In the
most cost effective way possible. But todo’thls, we aunt move beyond a
one size fits afl regulatory epproath towards a more common sense
approath - art approath that uses fleidbllity, eattvfty, and Irmovation In
reach gthese goals.”
CMA believes that the CAMU pzpvlsthn Is art ecoslient exan’ple of foarsed
regulation that provides considerable fle bIlj y, f iii neadvity - and enables
e edlted clean-un of contaminated hazardo I waate dtpa in a inn
•,T
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Mr Mid’tàè1;H ’
Aug t 22,1995
Page 2
ma imer. To disallow this sensible and v 1 mbli provision would be totally Inconsistent
with the many ort-going EPA regulatory reform bIt1atlves U EPA Is tq be SII ssM in
áduevmg znèai higfu1 regulatóry refum , lt rat stand bebm thübod progress It has
- n’ 4e with the CAMU pro lsIon nd cantk tàe to w k to1dç lify-addItIouial
opportunitletto b i foous zegu1atIm s to achiEve ivh nt italgoa1i hi a more
&3dble cost effec vç mara . To disallow the CAMU pro 1sion would be a giant step
backwa
O.4A recognizes that some parties have challenged the legal and policy basis of’
the CAMU and temporary umt CW) rules. QS’IA u ’ges 4he Ager cy to IgOrOU4y ..
. dthM these rules fli ’ iec*lved broadi pp twl t tbijweiepr’ d ’*ted auid:!
have bi— ___
A S_ _ _ ;
-ccá pazi
:prOteCIiV
f2rfli.sha ñ
____ base the -
- . .1fyo oi 1dh aly ddI th al
information, please ecntact Q’dp Vitarelli, oi my stailat O2)887-8936.
}.tLAu
• eguiatoryAffazrs
Matthew Halo, Jr., Dire tor
Permits and Site Pro ams vWon.
a of Solid Was .
Rcb tHaU , Qi f .
CO i i1vt Action Programs Branch,,
Pez d and S+ s Prbgrams lv1s t
Offi Of Solid Waste
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F
HOTLINE QUESTIONS AND ANSWERS
January 1996
9502.1996(01)
4. Corrective Action Beyond Interim
Status Facility Boundary
RCI A iUU4(v) reqwres owners/operators
of permitted hazardous waste treatment,
storage, and disposal facilities (TSDFs) to
pezform corrective action for any.
contamination that has migrated beyond the
facility boundary. What awhorities can EPA
use to order i orrec:ive action for releases
which have migrated beyond the boundary of
an interim status facility?
EPA can invoke §3008(h) or §7003
authority to address releases that have migrated
beyond an interim status facility boundary.
Pursuant to §3008(h), EPA can order
corrective action or bring suit for the “release
of hazardous waste into the environment” from
• a facility chat is interim status, should have had
interim status, or formerly had interim status.
This includes authority for releases which have
migrated beyond the facility boundary.
Although §3008(h) does not explicitly state
that EPA can order corrective action beyond an
interim status facility boundaiy EPA interprets
the §3008(h) statutory authority to be at least
as broad as the permitted facility corrective
action authorities in § 3004(u) and (v) (50 E
28716; July 15, .1985). Thus, because
§3004(v) explicitly provides authority for
corrective actionbeyond a permitted facility
boundary, §3008(h) provides parallel authority
for r 1eases beyond an ntenm status boundary.
Section 7003 gives EPA the power to order
corrective action or bring suit to abate
imminent and substantial endangerment caused
by the past çr px esent handling, storage,
treatment, transport, or disposal of any solid or
hazardous waste. This broad and powerful
• authority is not•limited to any particular kind
of RCRA site. Section 7003 is, therefore,-also
potentially applicable to contaminatiàn which
• has migrated beyona the boundary.of an
interim status facility.
N
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This Page Intentionally Left Blank
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00 S7
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
ITL
4 L FRO
9502.1996(02)
MAR 25 gg6
OFFICE 0f
SOLID WAS1E.AND EMERGENCY.
RESPONSE
Norman H. Nosenchuck, P.E., Director
Division of Solid & Hazardous Materials
New York State Department of
Environmental Conservation
50 Wolf Road -
Albany, New York 12233-7250
Dear Mr. Nosenchuck
Thank you for your letter requesting additional information
on the scope and applicability of the Area of Contamination (AOC)
concept. Independent of your request, EPA recently completed
guidance on application of the AOC concept during cleanups
regulated under the Resource Conservation and Recovery Act (RCRA)
and other cleanups. This guidance is attached.
As you requested, we have reviewed the June 11, 1992 letter
from Sylvia K. Lowrance to Douglas H. Green regarding application
of the AOC concept to routine earthmoving and grading activities.
The discussion in the June 11, 1992 letter continues to reflect
Agency policy on areas of contamination.
The area of contamination concept was discussed?in. detail in
the preamble to the National Contingency Plan (55 8758-8760,
March 8, 1990). Through the AOC concept, EPA recognizes that
certain discrete areas of generally dispersed contamination may
be equated to RCRA landfills. Just as movement of hazardous
wastes within a landfill would not typically constitule a new act
of treatment, storage, or disposal for purposes of RCRA, movement
of media contaminated by hazardous wastes within an area of
contamination does not typically trigger RCRA requirements.
While the area of contamination concept was first explained in
the CERCLA NCP, it is based on an interpretation of RCRA. It
applies equally to RCPA corrective action sites and other
actions.
In most cases the AOC concept is applied in the context of a
government overseen cleanup action, and delineation of AOCs are
reviewed, overseen and approved as part of those actions.
However, since the AOC concept is an interpretation of current
Federal statutory and regulatory requirements, its application
outside overseen cleanup actions does not require oversight or
Recyded RecycIabIe .Pilnled wdrl Vegetable Oil Based 1n 15 o. 100% Recycled Paser 140% PostconswT’Or)
-------
advance approval at the Federal level. When the AOC concept is
applied outside the context of an overseen cleanup action, EPA
encourages consultation with the appropriate agency and routinely
cautions individuals that mis-application of the AOC concept
could, potentially, result in substantial fines and penalties
associated with improper disposal of hazardous waste. EPA also
routinely cautions individuals that state standards may be more
stringent and may require oversight or advance approval of all
AOC5.
In your letter, you mention the specific concern that
individuals could store soils contaminated with hazardous wastes
in temporary piles anywhere within an overall area of
contamination while installing pipelines qr foundation footings
and then replace the soil, “all with no RCRA egulatory
requirements or governmental oversight.” W .nbte that, while
movement of soil contaminated with hazardous..waste within an area
of contamination would not typically trigger RCRA, the AOC
concept in no way shields individuals fi om otherwise applicable
cleanup requirements. For example, in many states discovery of
contaminated soils triggers reporting requirements under the
state cleanup program. In these cases, if a state determined
that cleanup was warranted it could require management or removal
of contaminated soils, independent of RCRA. We believe that,
addressing potential cleanup needs for contaminated soils
discovered during normal earthmoving and grading activities using
cleanup laws is more appropriate than imposing the RCRA
permitting process on these activities.
Thank you for your concern regarding the AOC concept. EPA
continues to believe that proper application of this concept will
support appropriate remedies and expedite cleanup processes, not
encourage avoidance of legitimate cleanup obligations. For
additional information, your staff may wish to contact Elizabeth
McManus or Hugh Davis, of my staff, at (703) 308-8657 and (703)
308-8633, respectively.
Sincerely yours,
Shapiro, Director
of Solid Waste
Enclosure
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1IA k ’. : -‘
New York State Department of Environmental Conservation
uvision v Solid & Hazardous Materials
Woif Roao. 1bany. New York 12233 — 7250
wision of Solid & Hazardous 4ateri 1 s
518) 457—6934 FAX (518) 457—0629
FEB 1 4 1996 M cnaeI 0. Zagara
C mmissione,
Mr. Michael Shapiro
Office of Solid Waste MC5301 - s
U.S ...Environmental .Protection Agency. —
40]. 14 St., S • W. - 2?/O ( J
Washington, D.C. 20460
Dear Mr. Shapiro:
We need your clarification of an important issue regarding
the CERCLA Area of Contamination (AOC) concept and its
applicability to routine excavations where soils containing
hazardous waste or exhibiting a hazardous waste characteristic
may be encountered.
These routine excavations can occur at construction sites or
pipeline trenches where soils are temporarily removed and
subsequently redeposited in the same excavated area.
Our specific concern is whether a June 11, 1992 guidance
letter from Ms. Sylvia K. Lovrance, Director, Office of Solid
Waste (EPA), to Mr. Douglas H. Green (see Enclosure No.1)
properly extended the AOC concept to excavations at non-CERCLA
sites or other sites without any federal or authorized state
oversight. This June 11, 1992 letter is being taken at “face
value” as allowing contractors to routinely excavate what may be
regulated hazardous waste soil, store it in temporary piles
anywhere in the overall area of contamination while installing
pipelines or foundation footings, and then replace the soil, all
with no RCRA regulatory requirements or governmental oversight.
We question if this June 11, 1992 letter was meant to have
broadly sanctioned such activities. We need your guidance in
this matter.
The AOC concept, as described in such documents as the EPA
memorandum of April 17, 1989 signed by Jonathan Z. Cannon (see
\ V Enclosure No. 2) and EPA Superfund LDR Guide #5, “Determining
When Land Disposal Requirements (LDRs) Are At,piicable to CERCLP
,\\ \ Response Actions” (see Enclosure No. 3), is used only in CERCLA
contexts.
EPA’s letter of January 7, 1991 signed by Don R. Clay,
Assistant Administrator (see Enclosure No. 4), extended the AOC
concept to R RA Corrective Action sites, but cautioned that
“designation of an AOC is a function performed by the regulatory
agency.”
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Mr. Michael Shapiro
2.
The EPA June 11, 1992 letter, however, extended the AOC
concept to essentially any temporary excavation activities
anywhere.
We hereby request that your office reexamine the reasoning
behind this EPA June 11, 1992 letter (see Enclosure No. 1) and
determine whether it properly broadened the AOC concept to
sanction such activities, even at ordinary construction sites.
Thank you for helping us with this important matter. Please
call me if you have any questions.
H. Nosenchuck, P.E.
Director
Division of Solid & Hazardous Materials
Enclosures
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?
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
0 ’it.
9502.1996(03)
APR 2 .1996
OFFICE OF
SOUD WASTE AND EMERG NCY
RESPONSE
The Honorable Michael J. Collins
Maryland General Assembly
Senate of )Iaryl and
216 James Building
Annapolis, Maryland 21401—1991
Dear Senator Collins:
Thank you for your letter of March 1, 1996 to Administrator
Browner urging the Environmental Protection--Agency (EPA) to look
into the performance and safe applicability of cold—mix
technologies and bioremediation for petroleum—contaminated sites.
As indicated in my earlier response to you onMarch 25,
1996, we have been gathering the latest information on these
technologies from-our research laboratory in Cincinnati, Ohio to
provideS you: with some valid information.
To respond to your specific concerns, we’ll be addressing
the issues pertaining to cold-mixing technologies and
bioremediation separately in the following paragraphs.
Cold-mixing Technologies : All asphalt-based or cement-based
mixtures are generally covered under Solidification/Stabilization
(S/S) technologies by EPA. - The term cold-mix for Portland. cement
mixtures may, not .be sc enti icaUy appropriate—because ‘Of’ the
fact that a ni .xture. ,of Port d cem ’ènt and - iater causes a
exothepnic reaction thereby generating some heat.
A propriateness of S/S for organics is addressed
specifically Tn the attached report ( Attachment 1) ,
“Solidification/Stabilization: Is it always appropriate?” by
Canton Wiles et p1 . from tbe EPA research laboratory in
Cincinnati,: OH. It is clearly stated in this report that the
oppdrt-unitie’s to- capture and contain organic materials in a
cement-based solidif .ication -p ocess-are limjte4 r (p. - 4). Also,’
referring to the EPA document cited in your letter, EPA/530/R—
93/012, it states that all other factors being approximately.
equal, destruction or extraction technologies are preferred to
S/S because they ejiminate or remove the contaminant as opposed
to just immobilizing it (p. 2—59). It also states that S/S -
treatment is frequently appropriate for-the residuals remaining
after the isè of one of these other teàhnologies, or for soils
) Recycled/Recyclable
Q] punted enn SoyICanat. ma au papef mat
a.4eInjatIe*te 50% re yctedtIber
-------
after the use of one of these other technologies, or for soils
and sludges containing low concentrations of organics (p. 4-48).
In general, generic binders such as Portland cement do a poor job
of immobilizing organics, with the exception of highly polar
compounds in low to moderate concentrations (p. 2-59). While
this is true, Portland cement is rarely used by itself as a
binder to S/S organic waste. Additives such as carbon or
modified clays are usually added to the S/S formula. However,
the long term effectiveness of these additives has not been
established.
About leaching possibilities of contaminants once treated by
S/S... tecbno1ogi , results of leach- tests for a few .organics. are
shown-on Figure 2, at the back of Attachment 1. Very limited data
- exist on - .ea hing possibilities of the S/S treated matri ç .. Leach
tests .shown on Figure 2 were conducted .Qn deinent containing-
charcoal with adsorbed phenol, .
dichiorophenol. There is alwiys -a pdss-ibilit that contaminants
can leach ! m any medium if they-ate present.. This is
especially true f or non-aqueous phases mixed with non-compatible
mate Ial- For these reaàons, treatability tests incorporating
leaching evaluation and physical durability are. recommended.
As indicated in EPA’s Best Demonstrated Available Technology
(BDAT) background document for hazardous soils, August 1993, (p.
4-95) organic hazardous cOnstituents have not been shown to be
stabilized using cementitous and pozzolanic stabilization- agents.
because organic hazardous constituents generally do not react to
form insoluble silicates or hydroxides. Thus, the Resource
Conservation and -Recovery Act (RcRA) program would not consider
S/S technologies as a BDAT for treatment of commonly encountered
petro eum wastes.. However, EPA generally established performance
standards for hazardous cOnstituents achieved by the.B . Any
technology (except dilution) that meets those perforniäñcI
standards is permissible under our rules. -
The role of volatilization during S/S is addressed in the -
attached-paper ( Attachment 2 ) by T rence M. I yons et al . of
EPA’ s zèsearch laboratory in Cincinnati. This paper pre ehts -
results ofa bench-scale treatability stu y deeigne&te qUaflt
the release of volatile organic compounds (VOC5) during and 0 .after
éx situ S/S-tteatment. Control of air emissions from waste
management facilities is addressed in detail in several EPA
publications- (EPA/625/R-92/012, Nov 92; EPA/625/R-92/Q.03, Aug 92;
A45 /R93- Ol - Mar 93; ãhd EPA ...453/R-94-070a, Sep 94). EPA
has - recognized that vblatil.ization of volatile organics with t cold ’
mixing processes can occur. At a minimum, controL •and capture of
these emissions are recommended. -
EPA’s Office of Emergency and Remedial. Response (OERR or
Superfund) has issued draft guidance’ on the use of. S/S for
organics. - The guidance states that S/S is not appropriate for
sites containing VOCs only.. This guidance suggests use of a
severe solvent extraction procedure to indicate whether the
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organics are bound. Several Superfund sites have had at least a
portion of the remedy involve cold mix processing of organic
waste. Two large sites are provided as examples. The Sand
Spring site in oklahoma involved S/S of petroleum waste,
containing heavier hydrocarbons, and the Craig Farm site in -
Pennsylvania - involved S/S of resorcinol waste. The S/S treated
wastes were placed in lined land disposal units based on the -
recommendation of EPA’S Office of Research and Development (ORD).
ORD has limited experience in the utilization of S/S—treated
wastes that were not characteristically-hazardous per RCRA after
treatment. This includes studies of using cement products for
light duty construction materials with ash from municipal waste•
combustion (primary metals) - incorporated. into the cement product.
Generally, there are site-specific limitations on the use of
tre&ted mixtures depending upon the type of waste treated, soil
type, and probability of waste -migration. EPA Region r approved
the stabilization of polychiorinated biphenyls (PCB) contaminated
soil (<10 mg/kg) into an asphalt emulsion mix that was to be
covered.
Bior inediation Techno1ogi s Biopiles or ex situ
landfarming treatment technologies, which fall within the
category of bioremec*iation, are discussed below.
Although Bioremediation (which includes land treatment) is
-widely accepted for the treatment of petroleum-contaminated
soils, the processes used and the fates of degradation thaf can.:
be achieved are very different. Although land treatment units
have been extensively used for- treatment of petroleum—
contaminated soils, available data with EPA do not indicate
.routine ex situ treatment of petroleum-contaminated. sojis by
biopiles àr landfarming to 10 parts per million ij ’. There is
a declining trend on the use of landfarining technol g for
treatment of- petroleum-contaminated sites - - An in situ -treatment
biorenediation technology known as bioventing. is
increasingly to treat petroleum-contamin ate soils. It is an
effective and relatively inexpensive technology which is growing
exponentially in the marketplace. ORD along with the;US Air Force
has been principally involved in its development and evaluation.
Over the past 3-4 years it has been applied to about -1000 sites.
We anticipate a significant reduction in off—site treatment of
these wastes, given Jie casts , effectiveness and minimal site
disruption .with. its use.
Pertaining to the claims referenced in your letter about
reductions in total petroleum hydrocarbons (TPH), EPA is not
aware of a bioremediationtechnology that would degrade any
concentration of petroleum-contaminated soils to 10 ppm in 30
days. Three critical factors in assessing biodegradability are
the soil type, concentration, and type of product being treated.
Without accounting for these factors specifically, it is.
difficult to. make a judgment regarding the actual rate and extent
-------
of degradation. Generally, bioreinediation technologies
(bioventing) take about six months to two years for degrading
organic wastes (EPA-510-B-94-003, Oct 94, p. 111-3).
Polynuclear aromatic hydrocarbons (P Hs), especially those
that are predominant in crude oils, such as the di-, tn- and
tetracyclic aromatics, are much more difficult to degrade than
aliphatic hydrocarbons, but are degradable to some extent. As the
ring structure becomes more complex, the compound becomes more
persistent. Pyrogenic P Hs, such as benzopyrene, are
significantly more. resistant, but fortunately don’t exist in high
concentrations in crude -oils. The tetracyclic arothatics and above
will not biodegrade in 30 days even :uxider optimized laboratory
conditions. - -
Volatilization mar. be significant d,ep nding. upon the age o
the materia3. and if it i exposed t -the ground surface. Aged
material is less likely to volatilize hut.’ i ridin .uponT.any.
agitation— (tilling, aeration) and envitónméntakcon itions,
fl ictuati ns in volatilization can. occi .- - several EPA documents .,-
referred to earlier, address the capt eand contràl of crganic
air mjesions from -waste mänagement facilities.
An EPA publication, “Bioreinedjation in the- Field, E AfS4( /
95/500, No. 12, Aug 1995, is attached ( Attachment 3 ) for further
information. Also, bioremediation in the-field search system..
(BFSS) database is available on- EPA’s Cleanup Information (CLU-
IN) bulletin board service (301-589-8366, data line) for
downloading.
I hope this letter addresses your oncerns,. -If your office
stiff wishes to discuss any specific. conc rnS or issues related
to these technologies, please have them contact Subijoy Dutta, of
my staff, at (703) 308-8608.
a 1 e
I L Shapiro, Director
of Solid Waste
Sincerely yours,
Enclosure
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MICHAEL .1. COLLINS
DISTRICT OFFICE
0TH LEGISI..ATIVE DISTRiCT
4*9 EASTERN BOULEVARD
MORE * MARFOR0 COUNTIES BALTIMORE. MARYLAND 21221.0700
— PHONE: (410) 39 1-7400
CHAIRMAN FAX. (410) 301-7003
BALTIMORE COUNTY DEI.EGATIOH
MEMBER ANNAPOLIS OFFICE
ECONOMIC ANO ENVIRONMENTAL t’ A 2IBJAMES BUILDING
AFFAIRS COMNrrrEE i.j ,ia 4% A LI tfll JYLARYLAND ANNAPOUS. MARYLAND 21401-1991
ANNAPOLIS, MARYLAND 21401-1991 PHONE (4)0) 14 1-3042
March 1, 1996
The Honorable Carol M. Browner, Administrator
United States Environmental Protection Agency
410 M Street, SW.
Wacliington, D.C. 20460
Dear Administrator Browner
The Maryland State Senate this year has begun considering legislation designed to limit
the State’s liability from actions taken in response to releases of petroleum from above-ground
and underground sources. Before us this Session is proposed legislation that directs the Maryland
Department of the Environment (MDE) to maxImize the use of tecimologies that destroy the
contpmination found in soil and groundwater when they respond to petroleum releases. While
Senate Bill 668 (see attached) only pertains to the funds directly under MDE’s control, the issue
is critical to generators throughout the State.
Maiyland has many different types of pe roleum-contaminated soil treatment facilities
operating state-wide. These facilities utilize tec nQ1 gies as varied as bioremediation, cold-mix
soil-cement, cold-mix asphalt, brick-kiln incorporation, landfihling and thennal desorption. While
each technology type has its proponents, of concern is whether the treatment technologies
cuirently operating in the State can adequately provide the cleanup levels mandated by State
regulation and daimed by the providers of the service.
The MDE has used a standard of 10 parts per miflion (ppm) Total Petroleum
Hydrocarbons (TPH) as a cut-off level below which treated soil is considered non-contaminated
and eligible for unrestricted use. Under this criteria, large quantities of soil have been treated in
the State, much from out-of-state sources and disproportional to the amount generated within the
state. Several of these technologies are not approved for use in most states, which gives cause for
concern that perhaps Maryland is not aware of the r niiflca1ions that can arise flom the use of
some of these technologies.
We have been informed that a considerable amount of investigation has been conducted by
the Environinent l Yrot ct on Agency regarding several of the specific treatment technologies in
-------
The Honorable Carol M. Browner, Administrator
United States Environmental Protection Agency
March 1, 1996
Page Two
question - bioremediation and cold-mixing. Recognizing that petroleum releases from
underground storage tfink are not considered, at least at this time, a h rdous waste, none-the-
less there apparently has been a great deal of work done by your RCRA office in deciding “Best
Demonstrated Available Technologies (BDAT) for a large variety of wastes that fall under “land-
ban” restrictions. The studies seem to indicate that organic contaminants are not considered
candidates for treatment by using either asphalt-based cold-mix or Portland cement cold-mix
technologies. Apparently the concern by researchers is similfir to the concern of this legiclative
body that is, that organic contaminants will tend to leach even after treatment. Also, I have been
informed that your Superfiind office in Cincinnati, Ohio arrived at the same conclusion, and has
developed a guidance document (EPA/530fR-93/012) which mdi ates that this practice should be
avoided.
Bioremediation is an accepted means by which many contaminated sites can be remediated
to decreased contaminant levels while leaving the cont*rn,n 4ed soil in place. However, in
Maryland there are treatment facilities which claim remediation of anx petroleum-contRmin ted
soilatthoff-sitelocationsinthirtydaystolevelsoflOppmorlessTPK Whilethiswouldbe
of tremendous benefit to the State, i’ve been told by industry experts that this is not a physical or
microbiological possibility. Apparently there are recalcitrant compounds routinely found in
petroleum, such as polynuclear aromatic hydrocarbons and oxygenates which have bioremedial
half-lives that are routinely measured in terms of years. I’ve also been informed that the means by
which MDE determines whether a treated contaminated soil is “clean” is by use of a test (8015M,
purge and trap) that only measures the VOCs, therefore not measuring non-VOC hydrocarbons
when testing for acceptability as to unrestricted use.
We are thcrefbre soliciting your response to the following inquiries:
1) Are the use of cold-mix technologies appropriate for hydrocarbon-contaminated
soil? Is there any possibility of the contaminants leaching once treated by these
methods? Are there any instances where RCRA would consider the cold-mixing
of a hydrocarbon contsmin2ted hawdous waste containing compounds similar to
those found in commonly encountered petroleum, a BDAT? What role does
vol ti, fion play in the disappearance of volatile organic compounds during cold-
mixing? Does EPA allow the use of cold-mix technologies to treat hydrocarbon-
contaminated soil at SuperfI nd sites? If so, what conditions are placed on the
post-treatment use of this mixture? Lastly, are these cold-mix treatment mixtures
allowed to be used in an unrestricted numnPr ?
-------
The Honorable Carol M. Browner, Administrator
United States Environmental Protection Agency
March 1, 1996
Page Three
2) Is EPA aware of any form of biopiles or ei-situ Iandfamñng that can routinely
beat by rocabon-cont2minated soils to levels of 10 parts per million of total
petroleum hydrocarbons? Are there any instances where EPA has found that
bioreinediation can be used to treat a y p oleum on im ted soil to a level of
10 parts per million total petroleum hydrocarbons within 30 days? Are certain
hydrocarbons such as polynuclear aromatic hydrocarbons or oxygenates
recalcitrant to bioremediation? What role does vol2tilintion play in the
bioranediation of volatile organic compounds?
Your Agency’s prompt response to these questions will enable us to proceed forward with
our deliberations in this matter. Mr. Steve Verch of my office is available to speak with your staff
member assigned to respond to this request. He can be reached at (301) 858-3642. Thank you
for your efforts in this matter .
Sincerely,
chae l . Collins
Senator
Maryland General Assembly
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This Page Intentionally Left Blank
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UNITED STATES ENVIRONMENTAL PROTEC11ON AGENCY
_____ WASHINGTON, D.C. 20460
p 0 1t
9502.1996(04)
SEi 24 1996
M1 MC)RANF)TTM
STJBiECT: CäOrdination between RCRA Correctiv&Action aifd Closure and CERCLA Site.
Activitieà :
FROM: StevenA. Herman::
Assistant Administràtór
Office of Enforcement and Compli Ce Assurance
Elliott P, Laws -
Assistant Administrat .
Office of Solid Was and m • Response
TO: RCRAJCERCLA Natk uia1 Policy Maiiagers.
Regithis I-X
(Iood RCRAICERCLA cooidination has become increasingly inpórtani asour offices
have reorganized and programs have assumed new ôrg2nizational relationships. We believe
that, in general, coordination of site cleanup activities mong EPA RCRA, EPA CERCLA 1n4
‘stateltribal c1eahu Pr grains has improved greatly; however, we are a ’are of examples of
some remaining coordination diffiáulties. In thismetho, we discuss three areas: . acceptance of
decisions made by other remedial programs; deferral of activities and coordination among EPA
RCRA, EPA CERCLA and state/tribal cleanup programs; and coordination of the specific
standards and administrative requirements for closure of RCRA regulated units with other
cleanup activities. We also announce a revision to the Agency’s policy on the use of fate and
transport calculations to meet the uclean closure” performance standard under R CRA. . We
hope the guidance offered here will assist in your continuing efforts to eliminpte duplication of
effort, streamline cleanup processes, and build effective relationships with the states and tribçs.
This m rnorandui focuses on coordination between CERCLA and RCRA cleanup
pzograms; however, we believe the approaches outlined here are also applicable to
coordination between either of these programs and certain state or tribli cleanup programs that
meet apprcpriate ritetia. For example, over half of the statôs have “Superfund-like”
£ XY R.cycl.dlR.cydlbll
, Pr’,rd.d wfth SoyICanoIl t *on papar Ihat
L. .... EIW. ,. ,.vr4 1 bIf
-------
authorities. In somecases, these state authorities re substantially equivalent in scope and
effect to the federal CERCLA program and to the state or federal RCRA corrective action
program. In accordance with the 1984 Indian Policy, EPA recognizes tribes s sovereign’
nations, and will work with them on a government-to-government basii when coordinating
cleanup éffçrts on lands under tribal juris !iction.
:111 addition to the guidance provided in this memorandum, two other on-going
initiatives a kir ss coordination of RCRA and CERCI4 First, EPA is currently coordinating
an inter-agency and state “Lead Regulator Workgroup.”, This workgroup intends toprovide
guidance where overlapping cleanup authorities apply at federàlf diities thit identifies options
for coordin ting oversight and 4efer ing cleanup from on program to another. We_intend for
today’s memotandum and the pending guidance from the Lead RegulAtor. Workgrou .to work
in concert to improve RCRA/CERCLA integradon and cóordinatioá. Seêon I,EP4 has also
requested comment on RCRA/CERCLA Integration issues in the M y 1 , 1996 Advanced
Notice of Proposed Ru emn1ring Corrective Action for Releases From Solid Wast
Management Units at Hazardous Waste Management Facilities (61 FR 19432; áomnioiily.
refefted to as the RCRA “Subpart S ” ANPR). We inteád to coordinate all of these efforts as
we develop .further policy onintegration issues..
Acãeptance of Decisions Made by OTher Remedial Programs
Generally, c1e ups under RCRA corrective actiqnpr cERCIrA will substhntivály
satisfy, the ük niànts’of both piograms. 1 .. We bólieve,that, ‘in most sitüatioã,’EPkRCRA
and CERCLA site mnnagers can defer cleanup activities for all or part of a site from one
program to another with the expectation that no further cleannp will be equired under the
deferring program. For eYaTnple, when nvestigatio or studies hive been completed under’
one program, there should be no need to review or repeat those investigations or studies under
anothàr program. Similarly, a remedy that isaccéptable under one program should be
presumed to meet the standards of the othcr. ’.
• It has been our experience that, given the level of. site’specific decision-t iking
required for c1e ning up sites, differences among the implementation approaches of the various
remedial progr jns primarily reflect differences in ’professional judgement rather than
strLctural inconsistencies in the programs themselves. Where there are differe ces in
approaches among remedial programs, but not in their fundamental purposes or objectives
(e.g., differe ces in analytical QA/QC procedures), thse differences should not necessarily
In a few, limited cases, progra i differenëes may be sufficient!y great to prevent deferral to the
other program (e.g thc inability of CERCLA to address petroleum releases or RCRA to address certain radioactive
these instances we encourage remedjal prggza s to coordinate closely with each other tà â hiim1ze
duplication of fifort, including oversight.’ .
‘2
-------
prevent, deferral. We encourage prqgram implernentors to focus on whether the end resu1ts of
the remedial activities are substanLively similar wheii rnakinE deferral decisions and to make’
every effort to resolve differences in professional judgement to avoid imposing two regulatory -
programs.
We are comniitted to the principle of parity between the RCRA corrective action and
CERCLA programs and to the idea that the programs should yield similar rem dies in similar
circumstances.’ Tø further this goal we have developed and continue to develop a’nurnbet’of
joint (RCRA/CERCLA) guidance documents. For e, mip1e, the.several ‘Presumptive
Remedies,” which are preferred technologies for common categories of sites,- and the Guidance
for Evaluating the Technical Impracticability of Ground-Water Restoi ation (OSWER Directive
9234.2-25, September 1993), ‘which recognizes the inip4cticability of achieving g oiindwater
restoration at certain stes, are applicable to both RCPA andCERCLA’ckánups or mor
information on the concept of parity between the RCRA and CERCLkprogràzns see: 54 FR
41000, esp. 41006-41009 (Octobcr4, 1989),RCRA deferral policy;.54 FR 10520 (March 13,-
1989), National Priorities List for Uncditrblled Hazardous Waste Sites Listing Policy for
Federal Facilities; 55 FR, 30798, csp. 30852-30853 (July 27. 1990); Proposed Rule fo
Corrective Action for Solid Waste Management Units at Hazardous Waste Management I
Facilities; 60 FR 14641 (March 20, 1995), Deletion Policy for RCRA Fa cthties, and, 61 FR
19432 (May 1 1996), Corrective Action for Releases From Solid Waste Management Units at
Hazardous -Waste Management Facilities, Ath’uicedNqticéof Pr9posed Rulemaking.
Program Deferral
The concept of deferral from one program to another is Ireadym general tise at EPA
For example, it has long been EPA’s’policy to defer facilities that may be ligiblè far inclusion
on the National Priorities List i NPL) to the, RCRA program if they are ‘subject to RCRA.
corrective actio,n (unless they fall within àertain exceptions, -such as federal facilities).
Recently, EPA expanded on diii policy by issuing criteria for-deleting sites that are on’the
NPL and deferring their deanup to RCRA corrective actioii (attached). 2 Wheá a site is-
deleted fràm the NPL and deferred to RCRA, problems of jurisdictional overlap and,’
duplication of effort pie eliminated, bec&use ‘the sitej’ill be b 11ed solely under RCRA
authority. Corrective action permits or orders should address all releases at a CERCLA site
being deferred to RCRA; some RCRA permits or orders may need to be modified to address
all releases before a site is deleted from the NPL.
Currently, the RCRA deletion policy does not pàtai to fedeial facilities,even if’such facilities are also
subject to Subtitle C of RCRA. ite Managers arc encouraged to use interagency’agrcenicnts to clhninatc
duplication of effort at federal facilities; the Lead Regulator Workgroup Intends to provide additional guidance on
coordinating oversight and deferring cleanup from one pro am to another at federal facilities.
3,
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.While EPA’s general policy is for facilities subject to both CERCLAI and RCRA to be
cleaned up under RCRA, in some cases, it may be more appropriate for the federal CERCLA
program or a stateitribal “Supe cl4i cleanup program to take the lead. In these cases,
the RCRA permii/order should dekr corrective actioü at all of the facility to CERCL.A or a
state/tribal cleanup program. For example, where program priorities differ, and a cleanup
under CERCLA has already been completed or is underway at a RCRA f cility, corrective
action conditions in the RCRA permitlorder could state that the existence of a CERCLA action
makes separate RCRA action unnecessary. In this case, there would be no need fo th6 RCRA
program to revisit.the remedy it some later point in time Where the CERCLA program has
alxeady selected a remedy, the RCRA permit could•cite the CERCLAtdecision do uiIient(è.g,
ROD), but would not necessarily have to incorporate that document by reference. :RCRA
permits/orders can also defer corrective action ina similar way for cleanüpè uxdertakéi under
state/tribal programs providedthe state/tribal action protects hi man heiJth and the
en rironthent to .a degree at i t :equl aient to that required undertheRCRA program.
. Superfund policy on deferral of CERCLA sites for listing on the NPL while states and
tribesoversee response actions is detailed in, he May 3, 1995 OSWRDirective 9375641
(“Guidance on Deferral of NPL Listing Determinations While States Oversee Response
Actions”). The intent of this policy iè t a celerate the rate of response actions, by.
encouraging a greater state or tribal role, while maintaining protective cleanups and ensuring
full public participation in the deàision-nialdng process. Once a deferral response is oñiplete
EPA will remove the site from CERCLIS and will not consider the site for the NPL unless the
Agency receives new information of a release or potential release that poses a signiflcait threat
10 human health or the environment. The state md tribal deferral policy is ‘available for sitei
not listed on the NPL; deferral of final NPL sites musi be. a idressed under the Agency’s.
4eletion policy, as described above.
Coordination Betwe n Programs
While deferral from one program to another is typically the plost efficient and desirable
way to address. óveilipping cleanup requirements,. in some cases,’full deferral will not be
apprOpriate and coordination between programs.wili be required. The goal of any approach to
coordination of remedial requirements should be to avoid duplication Of effort (including
oversight) and second-guessing of remedial decisions. We encourage ybu to be creative and
focus on the most efficient path to the desired environmental result as you craft strategies for
coordination of cleanup requirements under RCRA.and CERCLA and between federal. and’
state/tribal cleanup programs.
Several approaches for coordination between programs at facilities subject to both
RCRA and CERCLA are currently in use. It is important to note that óptiôns for coOrdination’
at’federal facilities subject to CERCLA §120 may differ from thOse at non-federal facilities
4
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because of certain prescriptive requirements under § 120. EPA-anticipafes Suing further
guidance on coordinatioli options specific to fedeial facilities thrâugh the interagency Lead
Regulator Workgroup. Current approiches that are in use nclude:
Cr# CERCLA ok RCRA decision docwnenu so that cleanup responsibilities are
diWdd. çERCLA and RCRA decisi ia documents .0 not have to rcquire that the
entire facility be cleaned up inder one or the other program. For example, at some
facilities being cleaned upi nder CERCLA, the RCRA uits (regulated or solid waste)
•ar physically distinct abd could S addressed under RCRA;’ In these cases, the
CERCLA decision documents can focus CERCLA activities on c rtain units or areas,
and designate ot(iers for action under RCRA. When pnits or res are leferreél from
‘cERcLA to RCRA, the CERCLA program ihouldinciude a state ment (e.g in a ROD
or memorandum submitted to the admimctrative record) that successful completion o1
:these ac vitieS would el(minate the neEd for fuifther cleantip undi CERCLA at.those
unit md rniniml Siel v?ould be ecessy to delétà the site frâinthe NPL:, -
Similarly, whenünits or eels are dèferredfrorn RCRAto CERCLA; RCRAjerinits
:or orders cn referinco the CERCLA cleanup process .an4 ktate fthat com ilying *ith the
terms of the CERCLA requirements would satisfy the requirethents of RCRA
Establish tinilng sequen es in RCRI4 and CERCZS4 deçtsion documents. RCRA and
CERCLA decision documents can establish schedules according to which the -
réajzirèmebts for clcanu a&all or $i±t of a facility under brie authoiit)i would be.
determined only after completion of an. action under the other authority For example,
RCRA permits/orders can establish schedules of compliance which allow decisions as
o’*hethèr coriective actiQnis re uired to be m adE iftei completion of CERCLA
die nupor a cleanup under a state/tribil authority.. After the state or CERCLA
resp onse is carried out, there ihould be rib need for further cle up under RCRA an4
the RCRA permit/order could simply make that finding . SiniilailyCERCLAor”
state tribal cle n”p program decision docuthents could delay revLâw oQunits Or areas
that are being addressed under .RCRA, ‘with the expectation that S additional cli4nup
will kieed to be undertalcen pending successful càmpletion of the RCRA activities,
although CERCLA would have to go through the athninistratite step of deleting the kite
from ihe NPL
A disadvantage of this approach is that it contemplAtes subse4uent review of cleanup by
the deferring program and creates uncertainty by raising the possibility that i second
rOund of cleanup may be necessary. Theràfore, we recommend that program
impiemènters làok first to.approaches that divide responsibilities, as described above.
A timing approach. liowevei, may be most appropriate in certain circumstances, for
example; where two different regulatory, agencies are involved. Whenever atin ing
approach is —, the final review by the defethng’program will generaliybe very
5
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streamlined. In conducting this review, there should bea strong presumption that the
cle’anup under the other prágram is adequate and that reconsiderinj the remedy should
rarely be necessary. - -
The examples included in this memo demonstrate sevet possible approaclis to
deferring action from one cleanup program to another. For exaniple, under RCR.A; situitioñs
are dàcribedwh re the RCRA corrective action program would m2fr a’finding that noiction
is required under RCRA because the h wd is already bàiñg addressed under the CERCLA
program, which EPA bàlieves affords equivalent prottion. In other examples, the RCRA’
program defers not to the CERCLA prograni p r s but either defers to a particular CERCLA
ROD or actuall3i incorpor s such ROD by reference intà a RCRA permit or drder. In
addition, there are examples where the Agency commits to revisit a deferral decision once the
activity to which RCRA action is being deferred is completed; in other situations,
reevluation is’not contemplated As discussedin this memorandum, no single approach is
recommended, because the decision of whether to defer action under one program to another
and how to structure such a deferral is highly dep M2nt on site-specifi and community..
circumstances In additicn, the type of deferral chosen may raise issues concerning, for
example, the type of suppofling docu nentatiQn that should be included in the adniinictrath e
record for the decision, as well as issues concerning ivailability and scope of administrative
and judicial review.
Agreements on coordination of cleanup programs should be fashioned to prevent
revisiting of decisions and should be clearly incorporated and cross-referenced into existing or
new agreements, permits or orders We recognize that this up-front coordination requires
significant resources Our expectation is that, over the long-term, dupflcanv Agency
oversight will be reduced and cleanup efficien y will be enhanced
RCRA Closure and Post-Closure
Some of the most significant R CRA/CERC A integration is esare associated With
• coordination of requiren énts for closure of RCR regulated units 3 with other cleannp
activities. Currently, there are regulatory distinctiâns between requirements for closure of
RCRA regulated units and other cleanup requirements (e.g., RCRA córreótive action
requirements); RCRA regulated units are subject to specific tandards for operatIon,
characterization of release , ground water corrective action and closure. Coordination of these
standards with other remedial activities can be challenging. In the November 8, 1994
proposed Post-Closure Rule (59 P1(55778), EPA requestid comment on an approach that
- In this document, the term “regulated unit” refers to any surfiée mpoundment %yaste pile, land Weaflnent
unit or landfill that receivá (or has received) hazardous waste after July 26, 1982 or that certified closure after
Janua ry26, 1983. - - - -
6
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would reduce or eliminate the regulatory distinction between cleanup of releases from closed
or closing regulated inits and cleanup of non-regulated unit releases under RCRA cor}ective
action. The.Office of Solid Waste will address thià issue further in the final Post-Closure and
Subpart S rules.
At the present time, however, the dual regulatory stru ture for RCRA cbs reand other
cleanup activities remains in.place. :fhere are several approaches program implementors can
use o reduce inconsistency and dupliéation of effàrt when implementing :RCRA closure
requirements during CERCLA cleanups or RCRA correétive actions. Thése appr aches are
analogous to the options discussed above for coordination between cleanup programs:. For.
example, a clean-up plan for a CERCLA operable unit that physically eaàompasses a. RCRA.
• regulated unit could bestnictured to provide for concur enç compliai ce with CERCLA and the
RCRA closure and post-closure requirements.. In this, eaTnple;.theRCRA permit order could
cite the ongoing CERCLA cleanup, and incorporate the CERCLA requirements by reference.
• RCRA public participation requiremei S would have tO be metfor the permit/order to be
issued, however, at many sites it y be possible to use a single process to meet this need
under RCRA and CERCLA.
At some sites, inconsistent cleanup levels have been applied for removal and
decontamination (“clean closure”) of regulated unht an4 for site-v’ide remediation under
1 CERCLA or RCRA corrective action. Where this has hippend clean closure.levels have
been generally set at 1 ackgroünd levels while,’ at the sime site cleanup levels have been at
higher, ‘risk-basedconcentrations. . Ta avoid this inconsistency.and to better coOrdinate
between different regulatoryprograms, we ci cour ge y u to se risk basecI level when
developing clean-closure stand rds. The Agency has previo sly prescnted its j,ositio&onme
use of background and risk-based levels as clean closure standards (5 FR 8704-8709, March
19, 1987; attached). This notice states that clean closure levels are tobé based on health-.
based levels approved by. the Agency. If no Agency-approved level exists, then background
concentrations may be usedor a site ownei may submit sufficient data ontoxicity to allow
EPA to determine what the health-based level should be.
EPA continues to believe, as stated in the March 19,1987 notice, that risk-based
approaches are protective and appropriate for clean-closure determinations. In EPA’s view, a
regulatory agency could reasonably conclude that a regulated unit was clean-closed under
RCRAif it was cleaned up under Superfund, RCRA corrective action,’ or certain state/tribal
cleanup programs to. the performance standard for clean closure. This performance standard
can be met.with the use of risk-based levels. RCRA units that did not achieve the closure
performance standard under a cleanup would remain subject to RCRA capping and post-
closure care requirements.
The 1987 federal register notice described EPA’s policy that the use of fate and.
transport models to establish risk levels would be inappropriate’for clean closure ‘
determinations. This discussion, however, also included the statement that, after additiànal
experience with clean closures, “the Agâncy may deóidethat a less stringent ap røach is
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sufficiently reliable to assure that closures based on such analyses are fully protective of
human health and the environment.’ After nine years of further experience. EPA believes that,
consistent with the useof rsk-based standards in its remedial programs, use’of fate and
transport models to establish risk levels can be appropriate to establish clean closure
determinations. EPA today announces that it is changing its 1987 policy on evaluating clean
closure under .RCRA to allow use of fate and transport models to support clean closure
demonstrations. EPA intends to publish this change in the Federal Register in the near future.
We encourage you to consider risk-based approaches when developing cleanup -levels
for RCRA regulated units and to give consideration to levels set by srateltribal programs which
use risk-based approaches. EPA is developing guidance on risk-based clean closureind on the
use of models to meet the -clean closure performance standard.
Sinceilmost all states oversee the closurelpost-closure process and more than half
implement RCRAcoitective action, coordination of RCRA corrective action and closure will
often be solely a state issue; However, if a state ii not authorized for corrective action,.or if a.
facility is subject to CER LA as well as RCRA corrective iction, close coordination between
federal and state agencies will be necessary. As discussed above, actual approaches to.
coordinatiOn or deferral at any site should be developed in consideration of site-specific and
-community conc ms
Summary
We encourage you to continue your efforts tO coordin te activities betw en the RCR&
and CERCLA p graxEis and between state, tribal and federal cleanup progr ms.’ We are
aware that se ieral of the EPA Regionsare cOnsidering çleveloping formal mechanisms to’
ensure That coordii ation Will occUr among these programs. We endorse these efforts and
encourage all Regions, states and tribesto onside the adoption of mechanisms or poliqies to
ensurcoo dination; If you have any cpiestions onthe issues discussed in this memorandum,
or on other RCRAJCERCLA issues, please call Hugh Davis at (703) .308-86 3.
attachments
cc: Craig Hooks, FFEO
BanyBreen, OSRE
Robert Van Heuvelen, QRE
Steve Luftig, OERR
Michael Shapiro, 0 5W
JjmWoolford, FFRRO
Regional l CRA Branch Chiefs
Regional CERCLA Branch Chiefs
Federal Facilities Leadership bound
Tom Kennedy, Association of States and Territorial Solid Waste Management Officials
8
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Robert Roberts, Environmental Council of States
John Thornasian, National Governors Association
Brian Zwit, National Association of Attorneys General
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9502.1996(05)
November 26, 1996
Mr. Anthony E. Perrotti
President
R. I. Analytical Laboratories, Inc.
41 Illinois Avenue
Warwick, RI 02888
Dear Mr. Perrotti:
Thank you for your letter of November 22, 1996 requesting
approval for the use of aluminum cap liners instead of Teflon for
soil sample containers.
The reason that the Agency recommended the use of Teflon cap
liners for soil sample containers in Chapter Four of SW-846, Table
4-1, was as a precautionary measure. Historically, a few samples
collected for analysis for the R RA and CERCL Programs contained
constituents which could corrode the aluminum cap liners and
contaminate the collected samples. In order to minimize this
potential problem, the Agency recommended the use of Teflon-lined
caps for all soil sample containers.
However, we see no reason why aluminum cap liners cannot be
used for soil sample containers for the organic parameters
mentioned in your letter, TPHs, semivolatiles, PCBs, and
pesticides, provided that you can demonstrate that the samples in
question do not contain constituents that corrode the aluminum cap
liners.
If I can be of any further assistance, please call me at 703-
308-0476.
Sincerely,
Barry Lesnik, Chemist
OSW Methods Team (5307W)
RCPA Organic Methods Program Manager
COWCUR*!M ! S _________
SyMBOL (1 3Q7k1) jZ o wj I I [
....... .. •S•OSS•S••*1e a...fl....... ..... ...S •....flSS Sfleee
JRtIAM I. . — j..ns._ —
DATE N /27l94 ///‘ /U I I I _________
EPA Fev 132 (72.70) OFFiCIAL. FILE COPY
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R.l. Analytical
Specialists m Environmental Services
November 22, 1996
Mr. Barry Lesnick
US EPA
OSW Methods Team
(5307W)
401. M Street, Southwest
Washington, DC 20460
RE: Aluminum Cap Liners
Dear Mr. Lesnick:
Pursuant to our recent telephone conversation, I am requesting a
written response approving the use of aluminum cap liners instead
of Teflon for soil sample containers.
The soils that are to be collected in these containers will be
analyzed for organic parameters such as; TPH’s, semi—volatiles,
PCB’s, and pesticid
to this request.
R i. Analytical Laboratone% Inc
41 Illinois Ave., Vv rwidc, RI O288 (401) 737L8500 Fa,c (401) 738-1920
Thank you for your al
Sincerely,
RIAL,
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9502.1997(01)
OFFICE OF
SOLID WASTE AND EMERGENCY
RESPONSE
Ms. Karen Florini b 1 PR 17
Senior Attorney
Environmental Defense Fund
1875 Connecticut Ave., N.W.
Washin ton DC 20009
Dear M lorini:
Thank you for your letter of March 13, 1997 requesting clarification of
the Environmental Protection Agency’s (EPA’s) recent guidance on coordination
of clean—up actions undertaken pursuant to the Resource Conservation and
Recovery ) ct (RCRA) and the Comprehensive Environmental Response Compensation
and Liability Act (CERCLA). I am pleased to respond to your- questions on fate
and transport modeling during closure of RCRA regulated units and public
participation during .RCRA corrective action. This response was coordinated
with EPA’s Office of Enforcement and Compliance Assurance.
You expressed concern that the discussion of fate and transport modeling
in the RCRAJCERCLI. memorandum might be used by facility owner/operators as
justification for leaving waste or waste residues in place during clean
closure. - I assure you, this is not the intent of the new fate and transport
policy.
By allowing appropriate use of fate and transport modeling during
closure of RCRA regulated units, EPA is not altering the fundamental,
unit-specific requirements for clean closure which, as discussed in the
March 19, 1987 Federal Register notice cited in your letter, require facility
owners and operators to “remove all waste and contaminated liners and to
demonstrate that any hazardous constitue nts left in the subsoil will not cause
unacceptable risks to human health and the environment” (52 FR 8206). The
1987 notice went on to discuss the Agency’s policy for demonstrating that any
materials contaminated with waste that are not removed do not present
unacceptable risks. The RCPA/CERCLA memorandum revises only the policy for
these demonstrations —— by allowing appropriate use of fate and transport
modeling. It does not change the requirements for removal of all wastes.
The Agency is developing additional guidance to clarify this issue.
You also expressed concern about public participation during RCRA
corrective actions. I assure you that EPA remains committed to full, fair,
equitable and meaningful public participation in all of its environmental
programs, including the RCRA corrective action program. Our commitment to
public participation is the same whether corrective action is implemented in
the context of a I CRA permit or an enforcement order. Guidance on public
participation during RCRA corrective action can be found in the RCRA Public
Participation Manual , EPA530-96-007, September 1996. We have not developed
specific guidance on deferral to non-RCR.A programs, and will continue to
consider your concerns as we address that issue further.
. Punted wulh vegetaDle Oil Based InI on 100% Recycled Paper (40% Poslconsumer)
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In the meantime, where implementation of RCRA corrective action
requirements is deferred to a non—RCRA clean-up program (e.g., a state
Superfund program), we fully expect that the non-RCRA clean—up program will
provide an appropriate level of public participation, e.g at a minimum, offer
the affected co un1ty an opportunity to review and conmient on any proposed
remedy. We note that decisions on deferrals to non-RCP.A programs are site-
specific, and that the amount and timing of public participation is one factor
EPA may consider when making deferral decisions.
In addition to public participation provided in a non—RCRA clean-up
program, the public has an opportunity to review and conm ent on whether it is
appropriate for the Agency to defer. RCRA corrective action requirements to a
non—RCRA program when: (1) a RCRA permit is issued; (2) modification of a RCRA
permit is proposed to reflect that corrective action requirements are
satisfied; or, (3) a permit is no longer needed (i.e., the facility has clean
closed all regulated units) and permit denial is proposed to terminate interim
status. For example, it a deferral decision is made during the permitting
process, the public has an opportunity to review and conmient on the deferral
decision, including the extent to which the contemplated non-RCRA clean-up
satisfies substantive corrective action requirements as well as whether it
affords an a ’ ppropriate level of public participation, during permit issuance.
EPA encourages program implementors to, whenever appropriate, coordinate
and consolidate opportunities for public participation to minimize duplIcation
of effort and respect thetime and resource constraints often, faced by
community groups. For example, in cases where corrective action has been
deferred to a state Superfunci program EPA encourages program iisplementors to
combine public notice on proposed remedies with public notice (if appr0priate
of the proposed determination that the state superfund remedy will satisfy
corrective action requirements.
Thank you again for your inquiries into these matters, and for your
continuing interest in and assistance with the national RcRA.program. I hope
these responses have resolved your concerns. If you require additional
information or have any follow-up questions, please do not hesitate to contact
me or Elizabeth McManus, of my staff, at (703) 308—8657.
Sincerely,
1 hco rth,Acting Director
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E F
ENVIRONMENTAL
DEFENSE FUND
- ‘ Capual Office
1875Connecticut Ave., N.W.
Washington, DC 20009
(202) 387.3500
Fax: 202.234-6049
March 13, 1997
Steven A. Herman
Assistant Administrator,OECA
EPA
401 MStreet, SW
Washington, DC - 20460
Timothy Fields
Acting Assistant Administrator, OSWER
EPA
401 M Street, ’SW
Washington, DC 20460
Re: September 24. 1996 Memorandum
RegardingClosure and
Corrective Action
Dear Sirs:
I am writing to seek clarification of several aspects of your memorandum of
September 24, 1996 to RCRA’CERCLA National Policy Managers. As you know, EDF
has a long-standing interest in matters involving clean closure and corrective action,
and your memorandum raises several matters of great concern.
First, the memorandum purports to change 10 years of policy regarding clean
closures and now allow the use of fate and transport models to establish risk-based
clean closure l vels. However, the legal basis for this policy change is entirely unclear,
given EPA ne &.flnaJized the closure changes proposed in March .1987.
Of parti ular importance to EDF is whether this change in policy applies both to
wastes and contaminated media, orcontaminated media only. While the contained-in
principle could theoretically provide some flexibility in applying the clean closure rules to
contaminated media, there is no apparent legal or policy basis for allowing wastes or
residues other than contaminated media to remain onsite under a clean closure
scenario.
Na ID j gpe of hazardous wastes, clean closure rules typically require the
257 Park Avenue South 5655 College Ave. 1405 Mapaboe Ave. 128 Ee Hargelt St. 1800 Guadalupe
New York, NY 10010 CA 94618 Rouldor , CO 80302 Raleigh. MC 27601 Austin, TX 78701
(212) 505-2100 (510) 658-8008’ (303)440-4901 (919) 1.7793 (512) 478-3161
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owner/operator to “remove or “decontaminate” all waste residues, actions not satisfied
by simply leaving the material in place. See 52 FR 8706 (March 19, 1987). Moreover,
as EDF has consistently argued in the ongoing debate regarding the scope of the
proposed HWIR-media rules, it is poor public policy to both encourage substandard
waste management practices and discourage source removal by providing incentives or
mechanisms aimed at avoiding comprehensive waste treatment and proper disposal
otherwise àchievab e at closure. Therefore, even where a tank, pile, or drip pad is
closed “as a landfill” (i.e., with some contaminated soils remaining in place) because it
is not “practical” to remove all contaminated soil, the Agency’s closure rules still require
waste removal or decontamination first. See e.g., 40 CFR 264.197(b), 264.258(b),
265.445(b).
Accordingly, EDF seeks clarification as to whether the September 24
memorandum .br other Agency guidance contemplates or otherwise allows hazardous
waste or residues other than contaminated media to be left in place under EPA’s clean
closure rules on the basis of fate and transport modeling, and If so, the legal and policy
bases for the Agency position.
Second, the September 24 memorandum indicates federal or state regulatory
agencies may defer RCRA corrective actions where “equivalent” actions are underway
pursuant to state/tribal cleanup programs. However, it is unclear in the memorandum
whether these “equivalency ” considerations apply both substantively and procedurally.
Specifically, where the non-RCRA aUthorities do not provide for public
participation in all significant aspects of the cleanup process (i.e., provide for public
participation only at remedy selection or not at all), deferral to non-RCRA authorities
may result in a substantial loss of public participation rights and opportunities currently
provided under RCRA and its permit modification procedures. For example, the
opportunity to provide input on site investigations, feasibility studies, compliance
schedules; or to seek judicial appeal of final agency actions, may be lost under non-
RCRA authorities.
Under these circumstances, the RCRA and non-RCRA processes lack the
equivalency discussed in the September 24 memorandum. This scenario is not simply
a hypothetical concern, since state cleanup procedures (especially for voluntary
programs and/or programs relying upon enforcement authorities) do not uniformly
provide for public participation. The resulting loss of public participating rights would be
particularly inappropriate originating from an Administration heretofore committed to
advancing public participation and environmental justice in environmental
decisionmaking.
Accordingly, EDF seeks clarification as to whether equivalent public participation
opportunities must be provided where RCRA corrective actions are deferred to non-
RCRA authorities, and if not, the legal and policy bases for authorizing such deferrals.
Given the importance of the issues raised by the September 24 memorandum,
-------
please provide a response to this letter within 30 days. Please feel free to contact me
or my colleague, David Lennett, at (207) 582-3826, if you have any questions or need
further information. I look forward to your response.
Sincerely, r)
Karen Florini
Senior Attorney
cc: Hugh Davis, OSW
David Lennett
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9503 — SPECIAL
PERMITTING
UNIVERSE
ATXI/1 104/54 kp
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9503.1985(01)
MAY I 0 1985
EMO AN DUN
SUBJECTi Ditinition of Niz.d Waste (DOS ac1lit1es)
John Skinner. Director
Otfia. of Solid Waste
Jaa.a kI. Scarbrough, Chi.t
Waste Nanag.a.nt Divisios
Region ZV
This is in r.sponse to your ao of April 1. 1985, concerninç
DOS facilities.
The qusit ion of which radioactive wastes are subject to RCIA
control turns on th. definition of ‘byproduct material’ as d.firi.d
und•r ths Atomic Inergy Act. such ‘byproduct material’ is not sub-
3ect to RCR?. control. Radioactive wastes that are not byproduct.’
i.e., so cal.l.d •mtxed vastss,’ are eubj.at to RCRA control it t.h•
waste exhibits a characteristic or contains listed vast.. Ws have
been discussing this issue with DOE for sevsral months and isv.
d•veloped, at staff lev.l, a reasonable definition of ‘byproduct
material.’ This definition will be propos.d by DOS under Atomic
Energy Act authority. Bubs.quently. we will propose administrative
regulations s•tting out procsdur.s for DOS taciliti.s.
Zn any event under the SCRA amendments, facility owners
and operators of land disposal faciliti.a, including DOE, h Vi
a statutory responsibility to •u it a Part $ permit application
and certify that th.y an, in compliance with the !ntsnie Status
Subpart P requirements si. Section 300 5(.U2)). Sinc, east
DOS facilities generate and dispos. of nan—radioactive hazardous
wastes just like other industries, they are subject to this
requirement even if the hasardous wastes an. combined after
generation with radioactive wastes which are not subject to IkCRA
control. How•ver, the requirements of the •tatut• are not limit.d
to non-radioactive hazardous wastes, but cover all: hazardous
wastes under RCRA control. There 5 no provision that •zempts
land disposal facilities holding ‘mixed wastes’ from th. duty to
comply with 8.ction 3005(.)(2) simply because DOS has not y•t
finalized its definition of ‘byproducto’
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Until DOE pr ulgat.a the d.finitioa of byproduct I sugg.st
that you us. thi staff lsv•l definition as interim guidanc.. DOE
has determined, under that d.fisition, which wastes trait •ach
g.n.rating plant ar. byproducts and which are aizsd wastes’
subj.ct to RC A control. 1 have r.vi.w.d thos. lists and find
then to provid, a r.asonabl. split btwssn vastis that ar. hazardous
primarily du. to radioactivity and those that pr.s.nt primarily a
chemical hazard. W. suggest that DOE faoiliti.s proc.ed to d.v•lop
their Part B’s based on these tests.
‘ro implement this. we have written a letter to DOE management
advising th•a of th.Lr statutory r.sponsibtlitt .s and suggesting
that they proceed in accordance with th. draft definition.
Kany DOE facilities will be interacting with authorized States
rather than EPA. Whue appropriate. isgions should pace this
information on to thosi States.
If th.r. ar. any qie.stioits on this matter, call Andrs Pearl
(3832222) or Jon Perry (352.4514).
cc RCRA Branch Chi.fs, Regions I — II ! . V — I
Office of F.d•ral Activities
Regional t.d.ral ?aciliti a Cosxdtnators.
R.gionsZ*
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MAY O
r. Williaa A. Vaughn
Acting Assistant Secretary for
Policy, Safety, and the Enviroamast
Departaent of Energy
Washington, o. c. aosai
Dear Kr. Vaughnz
I am writing to be sure you are aware of certain statutory
r.sponsib iliti.s the Department of Energy (DOE) has in managing
certain wastes under th. new amendments to the lesoura. Cons.rva
tion and Recovery ACt (ECRA). Under these amendments (Section
3005 (.)(2)) owners and operators of hazardous vast, land disposal
2 facilities, by November 1, 1555, ists
(a) submit a RCU Part S permit application to EPA
or an authorisid Stats,
(b) certify that th.y are in compliance with the
interim status groundwater monitoring rsquiro-
meat. of Subpart P of 40 Cfl part 263. and
(c) certify compliance with the interim status
financial requirement. of Subpart H of 40 Cr1
>1 Part 265 (undsr 52li.140(c) lederal facilities
are exempt from these rsquir..uitsuu-c.rtification
should simply so state).
Pailur. to do so will automatically result in loss of interim
status for these facilities and they viii therefore be opru ing
illegally.
In
As you are probably aware, our staffs hay, been seeting for
. e months to discuss acceptable definitions for determining
which radioactive wastes are subject to ICRA control (so—called
aixed wase.1) and which are byproduct materials and thus exempt
from RCRA. Tour Office of General Counsel has developed a definition
that reasonably accomplishes this and your generating plants have
identif 1.4 specific waste streams that fall Lit each category.
Ky staff has reviewed these lists and finds that they generally
relegate wastes that pos. a chemical hazard to idA control while
those that pose a high level radioactivity hazard are generally
-------
-a-
exempt as byproduct aat.rialu. But it doss not appear that in
the near future remaining questions surrounding th. definition
of byproduet’ will b fully resolved and the definition proposed
and prosulgatad under the Atomic Inergy Act.
The November 8 deadline Is rapidly approaching, and developing
permit application, and groundwater monitoring •yst.ms that meat
the RCRA requirement. are time consuming activ lti.s, Therefore,
as an interim approach, I r.ooemend that I us. th. list, of wastes
d.v.lop.d from th. staff definition in determining which wastes
and waste management facilities are subject to ICIA regulatory
control for the purpo.. of complying with the November 8 deadline.
Also, many of your plants generate nonradtoactiv. hasardous
wastes subject to 1CM control. The.. waatac and 008 facilities
managing them must also c..ply with the mew amendments to the
statute . - -
Many Øtates hews bean authorised to masege the permittiag
operation. In those $tatee, your application should be semi to
the appropriate Beat . agency. Our regional offices (contact list
enclosed) are prepared to counsel your facilities on this matter.
Ttu.tt D.Gears (383-2210) i th. appropriate contact an permitting
questions in Washington. Guidance on th. mechanics of certifying
compliance with the monitoring rules viii be issued in ths mear
future. Bob Linnett (3S2 - U44) is the appropriate contsc should
you hay, questions in the meantime.
L u sw
Jack W. ScOraw
Acting Assist.,t Adainistratc
Inclo sure
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9503 • 1985 C 02)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. Z0460
UG 3 0 1985
OFCICE OP
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Regulation of “Mixed Wastes” at DOE Facilities
I F
FROM: ‘ John H. Skinner-i’/ / I
,1’ .1’ i /
Director
Office of Solid W ate
TO: James H. Scarbrough
Chief, Residuals Management Branch
Waste Management Division, Region IV
The purpose of this memorandum is to respond to your
request for guidance on the ability of States and Regional
Offices to regulate “mixed wastes” (those wastes which have
both radioactive and hazardous characteristics, but which
are not “by—product” material) at DOE facilities.
The first issue is whether States are authorized to
handle mixed wastes. The answer is that they are not. A
State may of course regulate mixed waste pursuant to State
Law, however, such regulation is not part of the authorized
State RCRA program. When a State applies for authoriza-
tion to operate its RCRA program, EPA reviews each portion
of its program to ensure that it is equivalent to the
Federal requirement. Because EPA had no interpretation on
the radioactive waste exe tion, there is no way that EPA
could have reviewed the State programs for equivalence.
When EPA publishes a Federal Register notice explaining
its interpretation of the mixed waste issue, States will, be
requir.d to develop equivalent authority, or, if such
authority ii already part of their hazardous waste program,
they will be required to certify (through the Attorney
General) that they are interpreting the radioactive waste
exes tion in the same manner as EPA. I refer you back to
my May 1 1985, memorandum on the applicability of RCRA to
DOE facilities for a more detailed discussion of this issue.
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—2—
The next issue which you raise is whether DOE should
be sending Part B applications to various authorities
based on whether the facility handles mixed or RCRA—only
wastes. I understand your confusion on this issue and will
try to clarify it here.
For purposes of the wastes that are clearly under RCRA, the
answer here is no different than it is for any facility at this
stage of the RCEA program. Where a State is authorized for the
RCRA program, EPA ! the States are currently involved in issuing
RCRA permits because of joint permitting under the Hazardous
and Solid Waste Amendments of 1984 (HSWA). Therefore, a complete
RCRA permit application should be sent to both authorities.
For a discussion of this joint permitting process, see RCRA
Statutory Interpretation *5, dated July 1, 1985. Where EPA
operates the hazardous waste program, DOE should submit only
one application directly to EPA.
Both EPA and DOE have agreed that RCRA also applies to DOE
facilities handling certain mixed wastes. Permitting these
facilities is a bit more complicated. Where a State is authorized
it can issue RCRA permits only for RCRA wastes. If a State
also has authority under its own laws to regulate mixed waste,
the State portion of the permit will address that mixed waste
although this portion of the permit will, not be part of the
RCRA permit. We recognize the limitations of this approach,
however, we simply io not have the authority to do otherwise;
the State’s authorized program operates in lieu of EPA’s which
means that EPA cannot issue a RCRA permit covering those wastes
either. EPA has authority to directly conduct permit activities
in an authorized State only when the regulations governing that
activity derive from HSWA. The addition of mixed wastes to the
Federal universe of RCRA—regulated wastes is not pursuant to
HSWA. Therefore, EPA has no authority to permit such activity
in an authorized State. Until such time as the State is
specifically authorized for mixed wastes, EPA cannot enforce
any State permit conditions relating to such wastes.
Where the State is not authorized, EPA will be issuing
the permit. for mixed waste and these permits will, be RCRA
permits. The onlf remaining question, therefore, is how
to define mixed waste. Although we do not yet have a final
definition of mixed waste (due to remaining questions over
“by—product material), we recommend that permits be issued
for those mixed wastes which DOE acknowledges are subject to
RCRAI based on waste stream analyses that were generated by
DOE at individual plants. They were reviewed by the EPA
technical workgroup addressing DOE issues and were determined
acceptable for use in permitting. You should be requesting
those documents from the specific DOE facilities which you
will be regulating. You should make sure that the documents
are the original studies that have not been revised since
EPA’S review. Headquarters policy is that where you suspect a
-------
—3—
DOE facility.is handling nonradioactive hazardous waste, you
should proceed with the Part B application unless and until you
are notified by the facility that it does not handle such wastes.
In addition. DOE controlled mixed waste as indicated in the waste
stream analyses subject to RCRA if such wastes are mixed with
RCRA waste after generation, e.g., where the waste is placed in
a RCRA site.
I have also included a copy of the staff level definition
of by—product material referred to in my May 10, 1985, memorandum
as per your request, however, please realize that it is still in
draft form. If you have any additional questions on this matter,
please feel free to call Andrea Pearl of our State Programs Branch
at FTS 382—2210.
Attachment
cc: Thomas W. Devine, Director, Waste Management Division,
Region IV
RCRA Branch Chiefs, Regions I—X
State Programs Branch, OSW
Permits Branch, OSW
Fred Lindsey, OSW
Jon Perry 1 OSW
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. DC. 20460
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
CEC 2 3 OSWER Directive (/9503.50—IA(85)
MEMORANDUM
SUBJECT: RSI Memorandum for RD&D Permits
FROM: Marcia Williams, Director
Office of Solid Waste (WH—562)
TO: Allyn N. Davis, Director
Hazardous waste Management Division (61 !)
I am responding to your memorandum of November 13, 1985,
which requested policy guidance on the following issues pertaining
to RD&D permits.
1. May an RD&D permittee who collects hazardous waste from a
generator who does not have a TSD RCRA permit, return the unused or
reduced part of the waste to that generator after experimentation ?
Although the Agency may modify or waive permit application
and permit issuance requirements to expedite the permitting of
RD&D activities, there is no authority to modify or waive the
requirements pertaining to shipping hazardous waste from an RD&D
facility. Waste shipped from an RD&D facility must be manifested
and go to a facility with a RCRA TSD permit. The RD&D facility
could arrange for the generator’s transporter to pick up the
unused and reduced portions of waste and take it to such a
facility —— either the facility normally used by the generator or
another facility
2. How much reporting information should be required from
perinitt..s, and who should accept this information and in what
form ?
The reporting requirements are determined by what information
is necessary for the Agency to ensure protection of human health
and the environsent. Because each RD&D permit is unique, the
tim.—fram. for reports and the level of detail required must be
determined on a case-by-case basis. Applicants who intend to
ultimately apply for a full RCRA permit must assure that their
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—2—
procedures meet routinely acceptable research practices, otherwise,
the Agency may not be able to consider their results in issuing
the permit. When Regions receive information on the results of
experiments, this information should be submitted to Art Glazer,
Program Manager, Permits Branch. This information will then be
shared with other EPA Headquarters staff and ORD to assist the
Agency in developing permit standards and analytical methods for
new techniques and processes, and to assist the Agency’s research
efforts. There is no set form for submittal of information, except
that the information must be legible and the r sults clear.
3. If the permittee wants to test more than one machine, whether
or not they are similar or modified, is a permit required for
one set -up or is it for an entire experimental process? When a
perinittee is finished with one machine, he may want to decon-
taminate and dispose or sell it, but then he wishes to continue
similar experiments. Is this considered partial closure of an
RD&D permit ?
RD&D permits should cover all experimental processes to
minimize the need for permit modifications. The permit applicant
should identify, as best they can, all potential alterations or
additions to their experimental equipment and this information
should be covered in the permit. Given the uncertainty with
RD&D activities, we see no problem with...including conditions in
the permit to cover activities that could potentially occur but
do not actually happen.
Decontaminating and disposing or selling one machine, when
other equipment is still operating, should be considered partial
closure of the RD&D facility. Since an RD&D facility is required
to have a closure plan, the permit should address procedures to
partially close. Permittees should be required to decontaminate
equipment which will be sold. The procedures for decontamination
should be specified in the permit.
4. Has any decision reQarding mobile RD&D units been made ?
Not at this time. As you may know, vs have formed a workgroup
to develop recommendations for expediting the permitting of mobile
treatment units, including RD&D activities. We expect to issue
a set of draft recommendations to the Regions for comment in a
month or so. In the meantime if you have specific questions on
permitting mobile units or wish to provide your thoughts on the
issue please contact Art Glazer on 382—4692.
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—3—
If you have any further questions on per nitting RD&D facilities
please contact Art Glazer on 382—4692
cc: Peter Guerrero
2ruce Weddle
Art Glazer
William Rhea
Permit Section Chiefs Region I—’!, VII—X
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ITE S NV CNMENTAL G NCY
9503 .31—1.
MEMORANDCM
SUBJECT: RD&D Permit for a Sludge Drying Process in a Wastewater
System
F M: Marcia E. Williams, Director
Office of Solid Waste (WH—562) ‘
TO: Allyn M. Davis, Director
Mazardous Waste Management Division (6ff)
Region VI
In your letter of ovember 15, 1985, you requested written
confirmation that the use of a sludge drying unit, manufactured
by Water Management, Inc., at facilities with a vastewater
treatment unit, would not jeopardize their exemption from RCRA
permitting. The sludge dryer is intended to further reduce the
volume of sludge requiring disposal.
If the sludge drying unit is a tank, as stated in your
letter, then persons who are currently exempt from RCRA permit
requirements under 40 CFR S270.l(c)(2)(v) because they have a
wastewater treatment unit, will continue to be exempt from RCRA
permitting if they us. this sludge dryer. The Agency has clari-
fied the definition of ‘tank’, for the purposes of the wastewater
treatment unit definition in S260.l0. to cover unit cperatiorts
which are not obviously tanks such as presses, filters, sumps,
and many other types of processing equipment. (See attached
memorandum dated July 31, 1981 from John Lehman to Richard Boynton,
‘Suspension of Regulations for Waseewater Treatment Units.’)
I understand that the intent of the sludge dryer is to
assist metal finishing industries, who have wastewater treatment
units, to meet the waste minimization requirements of the new RCRA
S3002(b). lou should advise Water Management, Inc. that although
their potential clients will continue to be exempt from RCRA permit
requirements, their clients must comply with the RCRA manifest
requirements of 40 CFR Part 262 for generators. Also, they must
comply with 40 CFR Parts 261—263, as appropriate. The clients will
need to sign the RCRA manifest for off—site shipments of the residue
resulting from the use of the sludge dryer, including the waste—
minimization certification statement on the r•vised Uniform
Hazardous Waste Manifest Form (see 50 FR 28744—46, July 15, 1985).
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—2
The client must also submit a biennial report to the Regional
Adniinistrator which includes a description of the efforts under-
taken to reduce the volume and toxicity as well as a description
of the changes in volume and toxicity of the wastewater actually
achieved during the year, by comparing it to previous years
(S262.4], 50 FR 28746, .July 15, 1985).
Since the sludge drying unit is intended for use by persons
with wastewaeer treatznent units, and the faci1i ies with these
units are exempt from RCRA permitting, it is unclear why Water
Managemeflt Enc. wants a research, development, and demonstration
permit to test the unit. You should discuss this issue with
Water Management Inc. to determine if you should spend the
resources on processing their permit application.
If your staff has any further questions on this matter,
please have them contact Nancy Pomerleau at (FTS) 382—4500.
Attachment
cc: Bruce Weddle
Jack £.ehman (WH—565)
Irene Homer (WH—565A)
Ken Gray (LE—132S)
Peter Guerrero
Art Glazer
Nancy Pomeri.eau
Tina Parker (WH—562)
William thea, Region 6
Hazardous Waste Division Directors, Regions I—X
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, I
UNITED STATES £NVI ONM!NTAL P OTEcrIoN AGENCy
WA3HIN rONI D.C. 204 9503 51-lA
Attachment
JL3 1198 1
0 ”ci 0i
S0 O M?t £N IMI I C,
tichard C. Soynton , .teI
Persir.. D.welopnsnt Section
U.S. Es vtro’a. td Protection Agency
7 P. ZISd7 Isilding
)osto$, 02203
let Suspension of legulation. for Wast.v. tar Trea nt Units
ax ) . 3oynton:
This letter responds to your recent request for en interpretati of the
regulations of N0veaber 17, 1960 (43 11. 76074) vbich suspended certain require
seats of the hazardous vaste regulation, for ovaers and operators of
trsacaait i=ita vbere such facilities are subject to rsgv.latioa der Section 40
or 307(b) of the Cain Water Act.
Tour letter is corrsct L i sta:in that there is nothing in the definitions,
pr.aahl., or regulations vh.tch precludes an off—sita hazardous vast. sanagsse
facility fros qualif tog for a suspension of the hazardous vests requirsnsnt. in
40 CTZ Parts 122, 264 and 263. The Agency considered uniting the suspension and
proposed aneodnents to on-site facilities but vie unable to justify tbat this
type of facility via inherently less hazardous than en off—site facility so as to
necessitats different standards. Accordingly, EPA does not intend to distinguish
becveen on—site and off—site facilities in this regulation.
Even under the terse of the sIapeuion, hazardous vaste shipped to an off—
site facility vi i i, of course, be subject to the sasifest requirseents. Zn addi—
U.n. the treatnent facility ins: be subject to regulation under either Section
402 or 307(b) of the Clean Water Ac:.
To be ccsplet.ly eusptad for nov (end i]tisately subjected to the persit
by rule) all mi i i in a facility suit sect the definition of in 260.1O.
Lagoo?ts, incinerators, and ether types of facilities axe not eligible. : is
bovever, true that the definition of tank is rathü broad, covering unit opera-
tions which axe not obviously tanks such ax presses, filters, sunps, and amy
other types of processing equipeent.
The Agency also intends the: the pbrue subject to regulation under either
Section 402 or 307(b) of the Ccii Water Act should be ‘ive, a bread interpre —
tacion. This phras, includes ill facilities that axe subject to ) DU perniti
E.passes facilities subject to either categorical pretreaa.nt standards
or gi sarel pretrea ent standards. It is ! 2 necessary that the persits a ua1
be us or thet pretrea ne standards actually be in force, I: is sufficient
t t t facility be subject to the rsquirenents of the Clean Water Act.
-------
It .b .*l4--bs *.t.d tbi’ el.igibls facilities suet in
vSt srs and tOt Co fltrat.d ch LCI1* O 505 M’3IO IS ut.g.
pro. ggatnd • forud 4*fit.ttg*, us interpreting the tsr
vbi are .aabstantLdl7 vatar vith cost .tmts imtLng to a
sost. It he.. bees SuUSsted that a for.al dsfttitio vould be
couidsrisg ,Adttg such a definition to the final pr .igatjos,
p 3U cc2St$ 0* the lsvsober 17, 1980 proposal also sotd that so.. vests—
mtta do sot dinbargs a Liquid strsso end thus are not sub set o
the @sa.s Water Mt. L is cosaidsri esnging this subjec: to• Language to
clud . suek zero dts irr. faeuttiqj I the proposed
regulations for .tsv.tsr t?sa’ ent suits and allntar7 asstraligat on it.
within the sent fsv sonth ..
If you have any further
Lindsey, the Deputy Division
cc: Dsnsis Usubner
EPA, Region I
Zrssst Regna
EPA legion II
Robert L. Allen
EPA Region IU
Jane. Scarbro agh
EPA Region T
Karl J. C.pitsch
EPA Ragiost
questions, please do not bssitate to call so or Pred
Dirsetor at T $ 753—9113.
Sincerely yours,
9 t1S? c
Jobs P • tmbss*, Director
Eaaardoias & Industrial Teats Division
I. Stan Jorgensen
DA l egLnVI
Robert L. Morby
EPA legion VII
Lawrsscs P. Geada
EPA legion V!U
ArnoLd 1. Des
DAlegion IX
Kenneth D. Tsignsr
EPA Region I
be treating vuts—
VbLLe vs have not
to ref er to waste.
few percent at
helpful. We us
-------
f UNITED STATES ENVIRONMENTAL PROTEC -. -
WASHIN roNDc. zouo 9503 .52-jA
J4 l 2 1986 O”,CEOF
SOLIO WASTE AP4Ø EMt GEP y RtSPOPIS(
C. T. Philipp, P.E.
Pres ide nt
Water Management, Incorporated
2300 Highway 70 East
Hot Springs, Arkansas 71901
Dear Mr. Philipp:
In your letter of December 5, 1985 you requested that the
Agency identify thi Resource Conservation and Recovery Act
(RCRA) status of sludge dryers that are part of a conventjonal
treatment syetem not regulated by RCR.A. You questioned whether
adding a sludg. dryer to a waatwatar treatment unit exempted
from RCRA permitting will jeopardize the exemption. The RCRA—
Superfund Hotlins correctly identified sludge drying for you as a
treatment process according to the definition of treatment in
40 CFR 5260.10. Howsver, when sludg. dryers meet the definition
of vastewater treatment units, they qualify for the wastewater
treatment exemption of SS264.l(g)(6), 265.l(c)(l0), and
270.1(cU2)(v). In your case, adding a sludge dryer to treat
sludge generated by a tr•atment system operating under a wastewater
treatment exemption does not subject the treatment system to RCRA
permitting.
As you know, sludge dryers must meet the three criteria in
the definition of wast•vater treatment unit in order to be
part of a vast•water treatment exclusion. First, the information
you sent shows that your sludge dryer qualifies as a tank as
defined in 5260.10; that is, it is designed to contain hazardous
waste and is constructed primarily of non•arth.n materials that
provid. structural support. Purthermore, the Agency has clarified
the d.finitiori of tank—-for this •z.mptiori——to include unit
operations such a. press.., filters, sumps; and many other types
of proc.ssing .quipmene. (See the attached me randum dated
July 31, 1981, from John Lehman to Rsgion I.) In addition,
the pr.a l. of the November 17, 1980, proposed rule (45 fI
76077—76078) clarified the definition of a wastewater treatment
unit as follows:
This definition...covers...th. sludg. dig.st.rs,
thickners, dryers and other sludg, processing tanks...
in which hazardous was tswatsr treatment sludge is
treated and sny...tanks used for the storage of
such sludge.
-------
Second, the sludge dryer treats or stores a wastewater
treatment sludge which is a hazardous waste as defined in S261.3
(i.e., the sludge itself is a listed waste, derived from treatment
of a listed waste, or is hazardous on the basis of characteristics
identified in 5261 Subpart C). This means that the treatment of
sludges generated from wastewater treatment units is also exempt
from regulation under the RCRA treatment standards.
Tanks (here a sludge dryer) that do not themselves have any
discharge subject to regulation under Sections 402 or 307(b) of
the Clean Water Act, but that are part of the vastewater treatment
syst , qualify for the exemption if other tanks in the treatment
train have discharges that are subject to these Clean Water Act
provisions. So the third condition, being past of a vastewater
treatment unit subject to regulation under Section 402 or 307(b)
of the Clean Water Act, can be met by sludg. dryers in certain
circumstances. However, as the November 17, 1980 preamble stated
(45 PR 76077), even the proposed regulations....’may not provide
adequate environmental protection when, treatment of the hazardous
was tewater tends to result in the escape of hazardous waste
constituents into the atmosphere (e.g., the treatment of highly
toxic volatile wastes in open tanks). Unless the Administrator
promulgates regulations covering wastewater treatment units,
was tevater treatment tanks that qualify for exemption under
current RCRA standards may volatilize thur contents and retain
the exemption.
Sludge dryers may b. used as part of a program to meet the
waste minimization requirements of Section 3002(b) of RCRA without
requiring permitting if the above conditions an. set. Of course,
although .xomptsd from permitting requirements in the wastevater
treatment units, any hazardous waste sludge that is removed from
the tanks ii subject to applicable regulations under 55260-266,
such as manifesting off site, permitted storage after 90 days,
and so on. If you have any additional questions regarding this
exemption for wastewater treatment units, pl•.se do not hesitate
to call Irene Homer at 202—382-7917.
Sincerely yours,
L .jGnU
Winston Porter
Y Assistant Administrator
Enclosure
-------
WATER MANAGEMENT, INCORPORATED
the Federal
was a definite
2300 HQHWAv 70 LAST
NOT SP INO$. A kAN$AS 71101
(S01 123.2221
As you may know, your Agency notified industry in
Register, 7/15/85, p. 28733-34 that Waste Minimization
goal of your Agency. We support this goal.
There is a definite problem of interpretation that is delaying
the use of sludge dryers to accomplish waste minimization. I hope
that your office can clear this up as soon as possible. We and many
of our potential customers have contacted the Hotline and have been
advised that drying is a form of treatment per Section 260.10 under
RCRA. This is technically true; however, the sludge dryer can also
be consiaered as an extension of the conventional treatment system.
I am enclosing several copies of our sales literature on our
dryer. Please note the back page where we illustrate four solids
concentration devices in the following order:
1. Clarifier to separate solids from water.
3. Filter press to separate solids from water.
It is very important that your Agency define a sludge dryer as
an extension of a conventional treatment system because of insurance
premiums! The minimum cost for liability coverage (40 CFR 264.147)
is $50,000 annual premium. Therefore, how can a generator purchase
a dryer to save $30,000/yr. in disposal costs if the regulations
change his generator classification to a TSD classification? The
goal of waste minimization will be deterred if dryers are classified
as a RCRA regulated unit operation. Dryers should be regulated under
NPDES or state/local permit regulations.
I
December 5, 1985
Mr. Lee M. Thomas, Administrator
U.S. EPA
Mail Code A-100
401 M. Sc. S.W.
Washington, DC 20460
RE: Sludge Dryers - Metal Finishing Industry
Waste Minimization Program
Dear Mr. Thomas:
2. Sludge thickener to seperate solids from water.
4. Dryer to separate solids from water.
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Page Two
U.S. EPA
December 5, 1985
Will you please review this problem and advise me at your
earliest convenience. It is most important that the personnel
at the Rotline give accurate uniform answers to this question.
Sin re
C.T. Philipp, P.
President
CTP/mjt
Enclosures
cc: Marcia Williams,
Director of Office of Solid Wastes
Governor Bill Clinton 1
State of Arkansas
-------
I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9503.1991(01)
ILZ j WASHINGTON. D.C 20460
4 .. j¼
MAY 2 I 1991
Se .. ..%-...‘ PESPO SE
Mr. Steve Nowak, Controller
Compacting Technologies International
2417 N.W. Thurman
P.O. Box 29046
Portland, Oregon 97210
Dear Mr. Nowak:
I am writing in response to your letter, dated
March14, 1991, in which you request clarification of the
definition of treatment. Of particular concern to you is whether
treatment includes practices such as compacting hazardous waste
inside a steel drum.
As described in your letter, Compacting Technologies
International (CTI) sells a machine that compacts hazardous waste
inside a steel drum; the benefit to the customer is a reduction
in waste volume and thus, a reduction in disposal cost. Your
concern seems to be whether such a practice constitutes treatment
that is subject to the permitting requirements of
40 CFR 270.
Treatment is defined in 40 CFR 260.10 as “...any method,
technique, or process, including neutralization, designed to
change the physical, chemical, or biological character or
composition of any hazardous waste so as to neutralize such
‘waste, or so as to recover energy or material resources from the
waste, or so as to render such waste non-hazardous, or less
hazardous; safer to transport, store, or dispose of; or amenable
for recovery, amenable for storage, or reduced in volume ”
(emphasis added). Based on the limited amount of information in
your letter, a machine that compacts hazardous waste in a drum
will meet the definition of treatment if the reduction in volume
results in a change in the physical, chemical, or biological
character or composition of the waste. Bear in mind, however,
that under many circumstances, RCR.A permits are not required for
generators who treat their waste on—site in tanks or containers
(see enclosed memorandum dated June 17, 1986).
-------
A final determination on whether a permit is required for
such a compaction practice, however, must be made in the EPA
region or authorized state where this machine will be operated.
The determination will be subject to site—specific conditions and
waste types that are best assessed by regional or state
personnel.
I hope this information is helpful. Again, if more specific
information is needed, please contact the applicable EPA regional
office or the authorized state.
ivia K. Lowranc
Director
Office of Solid Waste
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Srq, ,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
ZJ WASHINGTON, D.C. 20460
%L pRۯ
9503.1993(01)
PEC 021993
OFFICE OF
SOLID WASTE AND EMERGENCY
RESPONSE
l’ 1ORANDUM
StJBJECT: Eligibility of In-Situ Vitrification Technology to
Research, Development, and Demonstration Permitting
FROM: Frank McAlister, Chief 4... t 7 £
Assistance Branch
Permits and State Programs Division (53 03W)
TO: Dan Duncan
RCRA Permitting Section (HW-10 )
Region X
Thank you for your recent inquiry regarding the Department
of Energy’s (DOE) June 25, 1993 request for an eligibility
determii tation on the permitting of in-situ vitrification (ISV)
technology under the Research, Development, and Demonstration
(RD&D) permitting program (40 CFR 270.65).
In their June 25 letter to Region X, DOE expressed concern
that ISV may not be eligible for RD&D permitting, citing a
section from page 7 of the “EPA Guidance Manual for Research,
Development, and Demonstration Permits under 40 CFR Section
270.65” (EPA/530-SW-86-0008, Jnly 1986) prohibiting the RD&D
permitting of technologies that involve placement of hazardous
wastes into or onto the land. Placement of hazardous wastes
triggers the land disposal restrictions (LDRs), and constitutes
disposal, not treatment. However, ISV technology treats wastes
in place and does not involve placement. The Agency, at
55 8758, March 8, 1990, states that “Placement does not occur
when waste is consolidated within an AOC (area of contamination],
when it is treated in situ, or when it is left in place.” Since
in-situ treatment is not considered placement, it does not
constitute dióposal, and, therefore, should not be denied
eligibility for permitting under RD&D based on the placement
issue.
If an RD&D permit is issued to DOE f r ISV technology, we
are interested in receiving monitoring data obtained at the
collection hood, and from the lateral and lower boundaries of the
unit. This information will help us further evaluate ISV.
technology.
Q ) RecycledlRecyclable
Printed with S yCanoia ink en paper that
cOntein5 at least 50% recycled tibet
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Thank you for the opportunity to respond and provide input
to RCRA permitting activities in Region X. If you have any
questions, please call Jeffrey Gaines at (703) 308-8655.
cc: James Michael, Osw
Larry Rosengrant, OSW
Jeffrey Gaines, OSW
Barbara Pace, OGC
James Cummings, TIC
Carrie Sikorski, Region X
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9504 - COMPLIANCE
AND ENFORCEMENT
ATK1/1i04f55 kp
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9504.19 84(01)
,,lt. %
UNITED Si. .TL. ENVI ’.1 NTAL PROTECTION AGENCY
_____ WASHINGTON D.C. 20460
AUG 16 1984
MEMORANDLYM
SUBJECT: Enforcing Groundwater Monitoring Requirements in
RCRA Part B Permit Applications
FROM Courtney N. Price QJ 4 .I ..L ( .
Assistant Administrator for Enforcement
and Compliance N itori
Lee N. Thomas c4?L.
Assistant Administrator
Office of Solid Waste and Emergency Response
TO: Regional Counsels
Regions I-X
Air and Hazardous Materials Dtvis ion Directors
Regions I-X
Existing regulations under the Resource Conservation and
Recovery Act (RCRA) require owners and operators of hazardous
waste Land disposal facilities to conduct groundwater monitoring
in order to obtain a Part 3 RCRA permit. (40 CFR 270.14(c)(4).
(6). and (7); 40 CFR 264.98(h)(2) and 264.99(f)). To satisfy
these requirements, owners and operators must, under certain
cLre* stances, monitor for each constituent listed at 40 CPR
Part 261, Appendix VIII.
Recently a n ber of Regional Offices, in resporf e to
inquiries from th. regulated community, have questioned whether
certain groundwater toni ing .x qu em.nts might be_waived n
a FTitecircumstances. Specificially queationed [ ithe
need to mom cot or each and every constituent Listed in
Appendix VIII.
Th.re are essentially thre. at unents advanced to support
selective waiver of the regulatory requ rementa:
1) certain constituents listed in Appsndtx VIII are
uns tab - a d th.re&rL vi U a e _ dec..ec!e d In
gr idvater using generally accepted analytical techniques;
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2) EPA-accepted. tandardLzed test Drocedures do noc exLst
for some Appendix VIII constituents . Until such procedures ire
spec LeJ. EPn should no gl LL’c facility owners to monitor
for these constituents; and
3) certain constituents are not analyzable b scan
methodolog . Testing for these constituents is dttff ij t and
thi InJLvid a1 chemical methods use4 are very expensive az id
should not be required unless there is some reason to believe
that such constituents are actually present in the groundwater.
DISCUSSION
Any request to waive or selectively enforce groundwater
monitoring requirements runs counter to the high enforcement
priority the Agency has assigned to groundwater monitoring
violations and must be viewed carefully. Nevertheless, the
Agency recognizes that there is technical merit to someo.f . the
c entions set forth above and ii E .iilo in regulatory
to correct these problems. Prppo of thile changes
by the Office of Solid Waste is expected in Au usc 1984. and
that Office plans to promulgate the changes as a inal rule by
early 1985 .
Recognizing the problems created by existing regulations,
we believe that it is permissible for Regional e orcement
personnel to as.i&n low priority to certain technica.L ..egula—
violations in appropriate circumstances . The first situa-
din concerns the reguTAtion whichcurrentl requires permit
applicants to monitor for constituents which, because of their
chemical properties, are not detectable in groundwater using
generally accepted analytical techniques. The constituents
that fall into this group are set forth at kttachment I to
thi, memorandum. Because these constituents cannot be detected
In groundwater, there is no conceivable environmental benefit
to be gained by requiring formal laboratory analysis.
rb. second situation which we believe merits low
enforcement priority involves the Latture to monitor for those
constLtuent for which there are no EPA-approved test methods.
These constituents are set forth at kttachment It to this
memorandum. We believe that low enforcement priority is
warranted in these cases because the absence of any approved
test method makes meaningful analysts of any reported data
difficult.
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-3-
Unlike the first two situations, the Last situation
presented by permit applicants does not warrant any change 1n
our enforcement priorities. This situation concerns the need
to monitor for those constituents that are not analyzable by
scan methodology. These constituents are listed in Attachment
III to this memorandum. Applicants have argued that absent
some indication that such constituents are present In the
groundwater, no monitoring should be required.
This argument is not persuasive. The regulations clearly
require analysts for these constLtue ts. Unlike those constit-
uents listed in Attachment II, accepted test procedur
exist for Attachmei t _ flI constituents . The fact that suã
estprocedures are expensive is legally irrelevant. Moreover,
EPA has previously rejected the notion that facility owners
can determine the hazardous constituents emerging from a land
disposal, unit from records detailing the wastes previously
disposed of at the facuLty. Therefore, a facility owner’s
failure to monitor for these Attachment III c5nsttt ents should
ordtnar2.ly te iflt in enforcement action .
Attachments
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ATTACHMENT I
Acetyl chloride
Alw5Lnu phoapbide
Carbon oxyfluoiide
Di ethy].carba oyl chloride
Fluor the
Methyl ch].oroearbonate
Methyl ieocya!iate
Nitrogen dioxide
Phosgene
To].uene dilsocyariate
Zinc phoephide
ATTACHMENT II
Cacasth
Echylenebt sdithioc&Zbaaic acid
2-Fl uo roa ce t am ide
Iron dextran
Lag iocarpine
Mustard gas
Nitrogen uaeard, N-oxide and MCi saLts
Nitrogen uscard and MC i salts
Nitric oxide
fb i phine
ATTACHMENT I II
Cyclophosphamide
For aldehYde
Formic acid
Hexa chiorohexahydrod imethanonaphthalene
HydroxydL ethYlarSine oxide
7_Oxabicyclot2.2.IlhePtaflS -2,3-dtC&tbo*71tc acid
S. lenourea
S treptosotocia
Strychifle
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9504.1984(02)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
101 2 9 l 4
MEMOR DUM
SUBJECT: Part B Permit Applications With Insufficient
Ground—Water Monitoring Data
FROM: L.ee M. Thomas
Assistant Admini trator for Solid Waste and
Emergency Response
- - - p
Courtney M. Price &‘
Assistant Administrator fo Enforcement and
Compliance Monitoring
TO: Regional Administrators, Regions l—X
Regional Counsels, Regions l—x
Air and Hazardous Materials Division
Directors, Regions I—X
BACKGROUND
Regional personnel have raised questions as to how to deal
with RCRA Part B permit applications containing insufficiett
ground—water monitoring (GWM) data. (This includes hydrogeo].ogical
data, specifications on well, construction, sampling methodology,
past monitoring results, and other aspects of ground—water
protection as required by 40 CFR 5270.14(c ).) The GWM data
submitted in Part Ba is often insufficient to satisfy the
informational requirements of S270.14(c). The failure of many
facilities to generate appropriate GWM data prior to the Part B
due date has resulted in a number of incomplete Part Bs, as well.
as complications and delays in the peraitt g process.
While general guidance on responding t late and incomplete
Part B applications is set out in a memo da:ed September 9, 1983,
the deficiency of a Part B with respect to M data presents a
special case. This type of deficiency is often the result of a
facility’s failure to comply with Part 265 requirements and can be
addressed (or if detected early can be avoiied) through enforcement
of the Part 265 requirements. Further, Par: Ba with inadequate
GWM data are often submitted by facilities that have been suspected
of presenting substantial: hazards to human health or the environment
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—2-
through ground—water contamination. If Orders issued under RCRA
S3013 are used to require such facilities to gather appropriate
ground—water data, that data may also satisfy the Part 270 icifor a—
tiortal requirements and thus ensure that such facilities submit
adequate Part Be.
The purpose of this memorandum is to provide EPA Regional
Offices with guidance on which mechanisms can be used to prevent
GWM deficiencies in Part Be, and to discuss what mechanisms are
available to respond to deficiencies when they occur.
This memorandum was prepared before RCRA reauthorization, and
therefore does not reflect the new provisions regarding ground water
protection or permitting. Guidance on implementation of those
provisions will be provided separately.
I. GWM Information Needed in Part Be
Section 270.14 (c) lIsts the requirements for GWM information
in Part Be. In essence, the permit applicant must characterize
the uppermost aquifer, describe any existing contamination, and
provide all information necessary for EPA to establish either a
detection, compliance, or corrective action program in the
facility’s permit.
Data generated during a facility’s interim status period may
or may not fulfill the Part B information requirements. In genera].,
if a facility has fully complied with the cWM requirements of Part
265, including well placement, sampling frequency, and sampling
methodology, the results of interim status monitoring should be
deemed conclusive evidence of the presence or absence of contami-
nation. In a majority of cases, however, facilities have not
complied fully with 265 requirements. This category includes
facilities which have installed only three downqradient wells,
where a minimum of four or mare is necessary to meet the standard
of S265.91. Facilities which have not fully complied with 265
requirements may need to do substaptially more work, in some cases
including hydrogeological investigations and sell installations,
before they can successfully meet Part 270 re;uirements.
EPA’s Permit Applicant’s Guidance Manual for Iazardous Waste
Land Treatment. Storage, and Disposal Facilities, and the RCRA
Permit Writers’ Manual f or Ground—Water Protection, provide
descriptions of specific information needed from applicants.
Prior to or upon calling in a facility’s Part B, Regional
personnel should examine any available interim status data from
the facility, and determine what additional data the facility must
generate in order to produce a complete Part B. This determination
should be coordinated with the joint permit writer/inspector site
visit conducted when the Part B is called in. This initial review
of the facility, and early setting of expectations by EPA, is
essential to expediting the Part B process.
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If EPA makes clear to the facility what types of data are
expected in the Part B, and the initial Part B does not provide
this data, the Region should respond in accordance with the
Late and Incomplete Part B Policy. In such cases, conservative
deadlines should be set for the facility’s response to a Notice
of Deficiency.
It should be noted that 52 7 0.14(c) requires more and different
GWM data than does Part 265. Zn particular, S270.14(c)(2) and
(4) to requLre facilities to investigate hydrogeological conditions
at the site, including any plume of contamination that has entered
ground water from a regulated unit at the facility. In addition,
in order to satisfy S270.14(c)(6) — (8), facilities must provide
information to support a determination of whether hazardous
constituents (i.e., compounds listed in Part 261 Appendix VIII)
are present in the ground water. Regional personnel should
explain to facility owners and operators as early as possible
what kinds of data (e.g., pieziometric, resistivity, pump—test,
sampling for Appendix VIII compounds, etc.) vii]. be necessary to
meet the Part B requirements.
Clearly, the exact type and extent of testing and information
gathering will va y considerably from facility to facility due to
such site—specific factors as geology and contaminant behavior.
Also, as a technical matter, Regional personnel initially may not
know exactly what types of data gathering are necessary from each
facility. Experience has shown that initial ground—water
investigations often uncover problems which require further
investigations. Even under the best conditions of Regional
attention to facility Part B preparation, applicants may have to
submit several Part B documents before the application can be
deemed adequate. Although we understand that some delays of this
nature are inevitable, certain delays can be avoided through early
involvement between the Regions and applicants.
II. Facilities for which the Part B Due Date !as Passed
In general, the most appropriate response to a facility
that has submitted an incomplete or inadequate Part B is
enforcement action under RCRA S3008. The action should cite
violations of 40 CFR Part 270. The RCRA Civil Penalty Policy
should be used to determine appropriate penalty amounts.
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—4—
I t t. Facilities for which the Part B is Not Yet Due, and where a
Hazard May ExLSt
Some facilities with Significant deficiencies in. Part 265
ground—water data may also be presenting hazards to human health
or the environment through ground—water contamination. EPA ’S
authority under RCRA 53013 can be used to gather data at
facilities for which the Administrator determines that the
presence or release of a hazardous waste may present a substantial
hazard to human health or the environment. A 53013 Order may be
used to require such monitoring, testing, analysis and reporting
as the Administrator deems reasonable to ascertain the nature.
and extent of such a hazard. Revised Guidance on writing 53013
Orders was issued on September 26, 1984, and supersedes previous
Guidance.
Data generated by facilities in response to 53013 Orders
could be used to satisfy Part B informational requirements.
Therefore, activities required by 53013 Orders should be consistent
with monitoring activities required for compliance with Part
270, as well as with Part 264 requirements that will, be applied
in the future.
IV. Facilities for which the Part B is Not Yet Due, and which
are in Violation of Interim Status Standards
A major category of GWM deficiencies involves owners and
operators who are subject to but have not complied with interim
status ground—water monitoring requirements in Part 265. There
are a variety of Part 265 violations at facilities, ranging from no
monitoring wells in place to inappropriate sar’pling techniques.
The result may be insufficient data from which the facility can
respond to S270.14(c).
In some cases, prompt enforcement of Part 265 violations may
be sufficient to ensure the development of ad. quate GWM data to
meet the Part B requirements. For instance, if the Part 265
violation is an insufficient number of monitoring wells, the
specified remedy (installing additional wells’ may be sufficient
to provide data for the 5270.14(c) requirements for information
regarding possible ground—water contamination and for a proposed
well network.
Alternatively, where a Part 265 remedy WL11 not provide usable
or sufficient information to satisfy a Part B requirement, and
where a substantial hazard may exist, it may bä more appropriate
to use EPA’s broader authority under RCRA 53013 to obtain data.
Also, where a Part 265 remedy will not satisfy Part B requirements,
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—5—
and the Part B will be due shortly, enforcing the Part 265
requirements may be counterproductive. In that case it may be
more practical to wait for the Part B due date and enforce the
requirements of Part 270. Of course, it is generally appropriate
to assess penalties for past violations of the Part 265 requirements,
regardless of whether future compliance with Fart 265 is sought.
V. Facilities Not Currently in Violation of Interim Status Gww
Standards
There is a range of situations where an applicant is not in
violation of Part 265, but has not generated complete Part 265
data either. These facilities’ Part Bs do not include enough
Part 265 data to address the 52 7 0.14(c) requirements properly.
This category of facilities includes:
• neutralization surface impoundments;
• facilities operating under a S2 6 5.90(c) waiver which
was not evaluated by EPA or an authorized state;
• facilities located in states which prohibited
wel]. installation prior to state approval, and the state
issued its approval late (or has not yet done so); and
• facilities in early stages of Part 265 ground water
uassessmentu 4 and where contamination data is not yet
available.
In addition, new facilities often present little or no
existing data from which to evaluate compliance with S270.14(c).
The foregoing are complex situations and the appropriate
response may vary. We intend to develop further guidance on the
information—gathüing mechanisms that may be applicable to
these categories. As mentioned in Section I of this memorandum,
Regional personnel should notify facilities as early as possible
prior to or upon calling in their Part Be (or upon knowledge of
a planned new facility submittal) of the types of data that must
be submitted in the Part B In order to satisfy S270.14(c).
These informational requirements should be further clarified
during the EPA, joint permit writer/inspector site visit when the
Part B is called in.
cc John Skinner
Fred Stiehi
Gene Lucero
Tony Montrone
ruce Weddle
Jack Lehman
Eileen Claussen
Peter Guerrero
Xen Shuster
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9504.1985(01)
RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION
MAY 1985
A Thspecticz s
6. Sectic 3007 of RQ A alla ,is for the entry of any duly aut rized rq resentative
of the Agency to obtain ccpies of records az to inspect aZ obtain sanpies at
any establi&mient where hazardc is stes are or have been generated, stored,
treated, disposed of, or transported L . Is this Agency r presentative in
any way limited to what he or she can inspect aid sanple?
Aut rizad officers, enployees aid representatives including aixt rized
tractors , are allo ,,ed to enter any portion of a fat’il 4 ty whith is being
or has been used to generate or nanage 1 ” ’-dcAw wastes • Suth persons nay
inspect and obtain sanpies of bazardons wastes and inspect containers aid
labelling of auth wastes. The inspection mist be for the purpose of devel-
oping regulations or enforcing provisions of RCRA. The specific objective
of the inspection does r t have to be written in any form, bit the inspection
mist strictly deal with t generation, nanag ant or transportation of
hazardcais waste.
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ctJ( -i5—t996 10:56 FI Jt1 EPA CE-RC TO 97033 88G09 P.e
UNITED STAtES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C.. 20460
9504.1986(02)
oP-vI g q
C6ut gs.-
PR 17 1986
MEMORANDUM
SUBJECT: inspection Authority Under Section 3007 of RCRA
rRON: Francis 6. B1ake ? .4 d6_—
General Counsel
TO: J. Winston Porter
Assistant Administrator for Solid Waste and
Emergency Response
A number of questions have arisen concerning the scope
of the Agency’s inspection authority under Section 3007 of
RCRAS As discussed below in more detail, I believe that our
inspection authority (including the authority to sample)
extends to aflf-establisluaeflt, place, or facility that either
presently or in the past has handled solid wastes that EPA
reasonably believes may meet the statutory definition of a
hazardous waste. This authority is limited by the fact that
it must be used to gather information concerning hazardous
wastes and must be exercised for the purposes of RCRA rule-
making or enforcement. Within these limits, section 3007
authorizes inspections in connection vith a number of RCRA
provisions including the Agency’s section 7003 imminent
hazard authority, its present Subtitle C regulations, it
corrective action authority under sections 3004(u) and 3008(h),
arid its Subtitic D authority under sections 4005 and 4010.
Section 3007(a) provides that 1f]or purposes of developing
or assisting in the development of any regulation or enforcing
the provisions of this tttle, EPA is authorized
(1) to enter at reasonable times ny establishment
or other place where hazardous wastes are or
have been generated, stored, treated, disposed
o or transported from;
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Ui15—t9% 16:55 F J1 EPR OE-RC . 10 97 8669 p.e
—2—
(2) to inspect and obtain samples from any person of
any such wastes and saaples of any containers or
labeling for such wastes.
plain reading of this language unambiguously suggests
a broad grant of.inspection authority. ? s noted above, the
exercise of this authority is expressly limited by only two
conditionS. First, the specific information oathered must
relate to hazardous wastes. Second, it must be used for, the
purposes of RCRA rulemaking or enforcement. Each of these
conditionc, while providing clear liii it on the us of the
Agency’5 ’inSpectiOfl authority, is nonetheless stated in
expansive terms. /
a. • azardous Wastes
The first condition is stated in general unrostrictivc
language. By providing authority to enter “ any establishment
or other place where hazardous wastes are or have been gener-
ated, stored, treated, liz .posed of or transported from’
(emphasis added), Congress unequivocally provided for a broad
application of the Agency’s inspection authority. There is
no limiting reference in this language to Subtitle C facilities
or units. Nor is there any requirement that the hazardous
waste management activity be currently ongoing or even that
the site of the activity be a disposal area. ‘or example,
under the language noted above, EPA’S inspection authority
extends to generator sites, storage areas, treatment opera—,
tions and transfer points. Thus, the emphasis is on any
geographical, location where hazardous wastes presently may be
or in the past have been handled — whether or not in compliance
with Subtitle C. Quite clearly, this may include solid waste
management units otherwise subject to Subtitle D.
Use of the phrase “hazardous wastes” is itself a further
indication that the scope .of section 3007(a) is not limited
to Subtitle C facilLtie and units. Unlike sections 3002
through 3004 and section 3010, Congress did not cánfine the
operation of 3007(a) to “hazardous wastes identified or listed
under this subtitle ” (ampheots added). As explained in the
preamble of the May 19, 1980 hazardous waste identification
f The inspection provisions of bection 3007(a) are similar
to those under section 104(e) of CERCLP 4 . Although not
addressed in this discussion, it IS iiZL Ortaflt to note that
section 104(e) as well as other provisions of C RCL? i uy
provide additional and independent grounds for entry and
inspections at solid waste facilities.
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cLU-15-1996 18:57 F ]M EPR OE-RC TO 97833 88689 P.64
3
and listing rules f and more recently articulated in the
Agency’s amendments to the definition of solid waste 3/, EPA
believes Congress’ unrestricted u8e of this phrase co firms
that the scope of section 3007(a) extends to any solid waste
that the Agency reasonably believes may meet the statutory
do! mitten of a hazardous waste under section 1004(5). /
As defined by Congress, the teza azardous waste means
any solid wnste that EPA ro sonabLy b 1io .
because of its quantity, concentration, or
physical, chemical, or infectious charac-
teristics may
(A) cause or significdntly cuntribute to an
increase in mortality or any increase in
serious irreversible,, or incapacitating
reversible, ilinesat or
(B) pose a substantial present or potential
hazard to human health or the environ-
ment when improperly treatedfl stored,
transported, or disposed 0! , or otherwise
managed. (emphasis a dedT
Clearly a waste which is wc1assified as hazardous pursuant
to regulations under section 3001 (i.e., is listed or meets
one of the characteristics) would automatically fall within
the scope of the section 1004(51 definition. But just as
cLearly, any other solid waste that emay pose a...hazard...
when improperly...iaanaged (emphasis idded) also meets the
statutory definition even though no forma action identifying
it as a hazardous waste has been taken. This second group
includes, for example, solid wastes containing any of the
hazardous constituents li5ted in Appendix . VIII to Part 261
2/ 45 Fed. R . 33084, 33090 (May 19, 1980).
. / 50 Fed. Req . 614, 6.27 (January 4, 1985); 40 CFR S
26 1.l(b)( 2).
This view was expressly affirmed by Congress in its
consideration of the 1984 Hazardous and Solid Waste
Amendments: EPA’s authority under these provisions [ section3
3007 and 70031 is not limited to wastes that are ‘identified
or listed’ as hazardous, but rather includes all wastes that
meet the statutory definition of hazardous waste. E .R. Rep.
I o. 198, 98th Cong., let Seas. 47 (1983).
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FtJ -15-l9% jØ:57 FI t1 EFA ()E-R TO S7 33ø886ø9
—4—
which may fo n the basis for listing actions under 40 C ’R
S 261.11. As explained at Length in the Agency’s May 19,
1980 rule. the presence of any of these constituents in the
waste is presumed to be sufficient to list the waste unless
after consideration of the designated multiple factors
[ specified at 40 CFR S 261.113 EPA concludec the waste is not
hazardous.” /
There La littlo quoetion that materialo t iooting the
definition of hazardous waste may be improperly disposed eE
at Subtitle D solid waste management sites. We,therefore,
believe the scope of sesttbn 3007(a) may extend to 5uch
locations. As Congress recognized in enacting amendments to
Subtitle D as part of the 1984 Razardous and solid Waste
Amendments,
Subtitle D facilities are the recipients of-
unknown Quantities ot hazardous waste and other
dangerous materials resulting from the disposal
of household waste, small quantity generator
wastes and illegal dumping. 6/ (emphasis added)
To interpret EP? ’s inspection authority as applying only
to wastes managed at Subtitle C facilities or units leads to
the incongruous result of EPA’S inspecting a self—defined
class of facf ities that have already acknowledged their
hazardous waste management responsibilities. This narrow
interpretation essentially precludes the Agency from identi-
fying other situations where the improper and unacknovled ed
storage or disposal of hazardous wastes may pose a threat to
the envirorunent. We do not believe that this is either what
Congress intended or what the plain language of section
3007(a) suggests.
b. Ru1e uekLng and Enforcement
The second condition of section 3007(a) explicitly provides
hazar ous waste inspection aut1zur1t Ulor the purposes of
developing or assisting in the development of any regulation or
enforcing the provisions of this title ” (emphasis added). 1n
passing the 19 3O amendments to the Solid Waste Disposal Act,
Congress substituted the term “title’ in place of subtitle ’
specifically to extend the scope of section 3007(a) beyond
Subtitle C. As explained in the accompany ng Senate report,
this change
/ 45 Fed , . 33084, 33101.
/ 1T. , Rep, No. 1133, 98th Cong. 2d Sees. 117 (1984).
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aJ( -15—i9%- jØ: F i EPA aE-R io p.06
—5-
• . . expands the Administrator’s authority
to request information or examin, the rècord
of a person handling solid waste. At present,
this authority applies only to actions under
Subtitle C dealing with hazardous wa5tes.
The Rmcrndments would allow such access for
purposes of the entire Act. if
Thus it is clear that the Ageney’s inspection authority
extends not only simply to Subtitle C actions but also to
activities under other RCMA Subtitles, as well, Within the
general -constraint that it be related to hasardouc waste, the
scope of section 3007(a) authority is determined primarily by
the specif to rulemaking or enforcement purposes for which it
is used. i:z this context, we believe there are a nuznbcr of
legal bases under which the authority to enter and inspect is
broadly available to the Agency.
1. Rulemaking
With regard to rulemaking, section 3007(a) by its terms
is available to assist aj the development of any r gulation
under RCRA. Under this provision, we believe that the Agency
has the authority to gather preliminary data both to determine
the need for regulation and, where the need is established,
to develop an appropriate regulatory strategy adequate to
óarry dut the requirements of RCRA. Depending on the criteria
and relevant requirements of the provisions or sebtion under
which a particular rulemakirta is developed, this may include
detailed scientific, tethn ical, or financial questionnaires
and surveys, as well as on—site inspections and sampling.
This authority extends not only to rulemakings under
Subtitle C but, as noted above, to rulemakings under other
of RCM. With respect to Subt t1e C, this authority
would extend, for example, to gathering information to a sist
in developing corrective action standards under section
3004(u). Secause the provisions of section 3004(u) apply to
both solid waste and hazardous waste units’ at any facility
seeking a section 3005(c) permit, the inspection and sampling
authority of section 3007 would also extend to such units to
assist in gathering data relevant to the rulemaking process.
With respect to non Subtitle C provisions, section 4010
provides an example of section 3007’s applicability under
Subtitle D. Enacted as part of the 1984 BSWA amendments,
section 4010 requires the Administrator to conduct a study on
2/ 5. Rep. to. 172, 96th Cong., 26 Sees. 3 (l979) see also
8.R. Rep. tao. 1444, 96th Cong., 26 Seas. 35 (1980).
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ØJG-i5-J996 je: 58 FM]Pt R (E-f TO 97833@8860Y P . S ?
the adequacy of existing SubtitleD guidelines and criteria
and to promulgate revised criteria for Subtitle D facilities
that may receive hagardous household wastes or hazardous
wastes from small quantity generators under section 3001(d) ’.
Because one of the purposes of the study end the central
purpose of the ro iie Lone is to address hazardous wastes at
Subtit ’Le.D facilities, we believe theAgency’s entry and
inspection authority under section 30O7 a) extends to gather—
my information at Subtitle D facilities bøth for the purpose
of conducting the study as it relates to hazardous wastes and
to assist in developing revisions to existing Subtitle P
criteria.
2. Enforcemen
With regard to enforcement, the scope of section 3007(a).
is equally broad and, again, extends not simply to Subtitle C
actions but also, tor example, to enforcing Lhe broad imminent
hazard provisions of section 7003(a). By its terms, this
section applies to any situation under RCR (whether or not
it is regulated under Subtitle C) in which the past or prw
sent haMling, storage, treatment, transportation or disposal
of any solid waste or hazardous waste may present an imminent
and substantial endangerment to health or the environment.
In additthn to enforcing section 7003, the Agency’s
inspection authority is available to gather information in
support of actions under the general Subtitle C enforcement
authority of cection 3008, as well as under the Subtitle D
enforcement authority of section 4005(c). With respect to
both sections, EPA interprets its enforcemant’ inspection
authority to extend not only to information gathering in
connection with a particular judicial or administrative
proceeding but also to assist in the preliminary dayu’to—day
information gathering end data analysis acsociat d with
permi•tting and compliance assessnients that ultimately mat’
lead to specific enforcement actions. Section 3008. applies to
a violation of y requirement’ of Subtitle C and thus, for
purposes of enforcement, the inspection and sampling’ authority
of section 3007 is available for determining and assuring
- compliance w&th any Subtitle C requirement. Under section
4005(c), EPA’s inspection authority is also available but in
a somewhat more limited context for purposes of enforcing
Subtitle D open d nnping criteria that have been revi.aed under
section 4010. This open dumping enforcement authority and,
by extension, EPA’s inspection authority is available only in
those circumstances where a state has failed to ac opt an
adequate program assuring compliance with the revised criteria.
In the case of inspections at a Subtitle C facility to
determine compliance with applicable hazardous waste regulations,
the scope of section 3007(a) authority is determined, again,
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aJ( -15-L996 1.8:59 FI 1 EPA CE-Rc - TO ?8 88669 P.08
—7-
by the two constraints that the information gathered relate
to hazardous wastes and be used to enforce a RCRA provision.
The cleareat example of an authorized inspection at such a
facility under section 3007(a) is, of course, sampling at
solid waste units that are expressly managed as Subtitle C
hazardou5 raste unLt , The infori zatLan obtained unquestion-
ably viii relate to hazardous wastes arid can be used to
enforce applicable regulatory requtrements. However, it
should be eiz&phasi cd, 05 noted above, that section 3 007(a)
inspection authority just as clearly extends to other non—
Subtitle C units at a Subtitle C facility where there is some
basis for concluding that they may also provide information
relating to hazardous wastes. Samples from the non—Subtitle
C unit may. provide information concerning hazardous wastes
that have been disposed of in the unit itself,and, in cert tin
circumstances, the samples may provide information regarding
the management of hazardous wastes ‘that have been placed in
nearby Subtitle C units. n ezample of the second case would
be a situation in which both the solid waste and hazardous
waste units were located near one another over the same
aquifer. Depending on the hydrogeology at the site and the
placement of wells at each unit, samples from the solid waste
unit may well provide information regarding leachate from the
hazardous waste unit.
The corrective dction requirenteuts in sections 3004(u)
and 3008(h) provide additional grounds for the. broad applica-
tion of section 3007’s enforcement inspection authority.
Section 3004(u) requires corrective action ‘for all releases
of hazardous waste or constituents from any solid waste
management unit at a...facility seeking a permit under this
Subtitle LC1i empbasic added). / Congress made clear that
the phrase ‘solid waste management unit’ .was specifically
!/ Congress specifically provided that the corrective action
requirement is to be implemented through standards promul-
gated under section 3004 and permits issued after November 8,
1984. EPA’s inspection authority for rulemaking purposes is
discussed above. The agency has incorporated the general -
requirement for corrective action in its reg zLations at 40
CFR 264.101. See 50 Fed. . 28747 (1985). Thus, the
requirement is presently in effect and applies to any facility
seeking a permit for the treatment, storage or disposal of
hazardous waste...’. 40 CFR 5 264.101(a). EPA intends to
issue more detailed national standards addressing appropriate
corrective action for releases of hazardous waste or consti-
tuents from solid waste management units at such facjlitzes,
but until auth standards are established the Agency will
implement the corrective action requirement of section 3004(u)
on a case—by—case basis. See 50 Fed. Req . 28713 (1985).
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aJG-15—1996 t1:ee j EP IE-R TO 9?8 ø88689.. P.B9
—8—
added to the language of section 3004(u) uto reaffirm the
Administrator’s responsibility to examine all units at the
facility from which hazardous constituents might migrate,
irrespective of whether the units were intended for the
management of solid or hazardous wastes.
By explicitly requiring that the proui ions of section
3004(u) apply to any solid wacto ma1taga ent unit at a hazardous
waste facility, Congress has made the cleanup of such unite
an element of hazardous waste management under section 3004.
Congress’ specific reference to releaae of hazardous consti-
tuents from solid waste management units conf inns the broad
scope of section 3004(u) and is consistent with the Agency’s
interpretat ion of hazardous waste discussed above, which
includes not only identif Led’ hazardous wastes but also
those wastes that may contain hazardous constituents listed
in Appendix VIII of 40 CFR Part 261. These factors when
considered in conjunction with the explicit legislative
history noted above reaffirming ‘the Administrator’s respon-
sibility to examine all . units at a Subtitle C facility
confirm that Congress considered the regulation of these
units to be an integral part of the hazardous waste program
under Subtitle C and thus clearly within the scope of section
3007(a) inspection authority.
With respect to interim status corrective action authority,
section 3008(h) provides that ‘whenever on the basis of any
infotination the Administrator determines there is or has been
a release of hazardous waste into the environment from a facil-
ity authorized to operate undersection 3005(e) of this
subtitlc, the Administrator may issue an order requiring
corrective action.’ Congress viewed this provision as ‘a
supplen ent to EPA’s power to impose corrective actibn through
pei:iuits /, that EPA would usc ‘to achieve the environmontal
standards promulgated under section 3004.’ 11/ Because ection
3004 has been amended to extend corrective action requirements
to all solid waste management units at facilities seeking a
RCRA perndt, the Agency has interpreted this mandate to
authorize the issuance of corrective action orders to any
interim status facility containing solid waste management
units (regardless of whether they are Subtitle C or Subtitle
D units) from which there has been a release of hazardous
waste to the environment. 12/
.2/ LR. Rep. No. 198, 98th Cong., 1st Sess. 60 (1983).
Q/ B.R. Rep. No. 1133, 98th Cong., 2d Bess. 111 (1984).
12/ See 50 Ped. g . 28716 (1985).
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L -15—1996 11:01. F Jii - EP(1 CE-R TO 9C 88689 P.10
—9—
Because section 3008(h) e,ctends corrective action
authority to releases frog any solid waste aanager ent unit at
an interim status faci1i y, we believe that section 3007(a)
inspection authority also extends to such units for the
purpose of dete nining whether there has been a hazardous
constituent release and what corrective action would be
appropriate.
cc: Richard H. Hays (LE—133)
Regional Couns els
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This Page Intentionally Left Blank
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9 50 4. 19 87( Ui)
JU. 201987
St.YBJtC?z oforcement of 3pplicabls RC*A Regolatloas at Vacuities
with Pending D.listlnq Petition.
Gene A. 1 ucero • D I rector
Off Ic. of waits Px.grasa £nforc.msnt
?larcia Williams, CIr.ctor
Off La. of Solid Vests (WII..S 52)
TO: Waits Mana;sent Division Directors
R.gions I, IV, V 1 V I I, & Vi ii
Air & Waits Nang.e.ot Division Director
*egioa Ii
Kazardous Vasti Management Division Director
ae ion III, VI I
Tozics I Waste Management Division Director
R ion 12
The purpos. of this s orandua is to restate agoney
policy r.qarding the enforcement of applicable RCRA
regulations at basardous vests handlers that have pending
daunting p.titioos. It has come to our att.ntioo that so ’s
asgions and States may be allowing 000’compliancs with some
or all of th• RCaa Subtitle C requirements pending a dciston
on active d.11.ting petitions. We are reaffirming he rC that
these wastes remain basardoss wastes aid that they, and the
units In which th•y ars aanagsd, are subject to all .pp]icsble
PCRA r.qmlatloaa, including financial responsibility, jroundvater
onitorinq and closure rquir.asnts, until the dslisting is
officially granted. In addition, faeilitl.o are still subject
to the 1988 and 19*9 statutory deadlines for permit issuance.
-------
Sections 261.21 and 261.22 establish a p.titleo process
which allows a facility to demonstrate that its waste, although
capturedby th. broad listings of hotion 261.3, does not meat
any criteria under which the vast, was Ust.d, including the
presence of additional constituents. Decisions on waste
delisting have always bun based on a chemical characterisetion
of the waste itself and of the procesets gen.rating that
waste, not on facility design, management practices or site
conditlona. Therefore, until a final decision is made to
grant the petition, the vast. Is hazardous and the facility
remains subject to enforcement of all applicable regulations
(including compliance with Subpart V groundwater monitoring
requirements). Facilities that are not in compliance with
RCRA regulations are subject to enforcement action.’
Conco !wiitantly, facilities (excluding those with temporary
or thformal exclusions) that had p.nding delisting petitions
on November 8, 1985, were subject to the toss of Interim
Status (tOIS) provision of the Hazardous and Solid Waste
Amendments of 1984 (HSWA). Facilities that fail.d to validly
certify compliance with Subparts 8 and H and submit a Part B
application for an operating p.rmlt on or before øovembsr 8,
1985 were required to cease operating their basardous waste
land disposal units and submit a closur, plan for those units.
by November 23, 1985. Facilities with pending dalisting
petitions that failed to retain int.ria status and continued
to operate after Nov.mbe: 8, 1985, and/or fai].d to subsit the
required closure plan ar. subject to cut orc.ment actions
under Section 3008 of RC*A.
1 Facilities whose only waste was subject to a temporary or
informal •xcluston were net required to meet Part 265
standards during the effective time of the exclusion.
However, all temporary and informal exclusions that had
not previously been acted on expired by statute on 11/8/86
(Section 3001(f)(2)(8)). Facilities that had either a
temporary or informal exclusion were in one of four
categories on 11/8/86* (1) the final del&stiwj wa, granted
and that waste is no longer subject to regulation under
RCRA; (2) th. petition was denied when, after repeated
requests from the kg.ncy, the facility failed to provide
additiosal information for the petition; these facilities
had. te be in complianc, with Part 265 regulations immediately;
(3) the completed petition was denied based on the merits
of the petition (i.•., the waste was determined tO be
basardous); these facilities had six months from the date
of publication of th. denial in the Federal Register to
coma into compliance with Part 265 standacds; cx (4) the
exclusion expired by statute; these facilities petitions
moved back into the standard delisting process and the
facilities were again subject to all applicable RCRA
requirements. -
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If you hay. a y qucstioi s i q th i ratioo of
this policy, please call Ste,s M•a Q t 3 2c22S7o
cc$ f.L.in. Stanley
Bruce w.ddl.
RCRA r- - . BrsDch Chiefs,
Regions I X
NBrowne :cmc :WH —527: 6/19/87: 475—9326
Nancy 1: File 1
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UNITE TES ENVIRONMENTAL PROTECflO, 9504.1987(02)
J.frl -5 1987
MEMORANDUM
SUBJECTs OSHA Hazardous W..t. Sit. Activity
Art Glazer. Chief
Incin.rator/Storage PA? Section
TO: Hazardous iaate Branch Chiefs, Regions I—X
During the Marth Permit Writers Conference Call I polled
the 1eçicns to determine if ycu anticipated needing large—scale
aa.istanct frais the Occupational Safety and h.alth Administration
(OS ) to address issues relating to worker health at RCRA
tacilities. Th. potential need for OSM assistance bad cone
up during earlier discussions with the Regions when we were
id6ntifying candidat€. facilities for health assessments by ATSDR
under Section 3019 of RCPA.
As it turns cut, tue polled Region. generally did not oreeee
the need for large—scale OSRA assistance in addressing worker
h. .altl issues at tnis time since there bed betn only a few isolated
cases where workr health issues bad surfaced. However, several
Reç ions indicateu it may be helpful to have access to inforriatior.
OSHA has prepared on ?SDs they have inspected in order to assist
the permit writers in evaluating worker safety/contingency plans
or other aspects of the Past B. My staff talked with OSHA’s staff
and they can provide us with informatiøn on OSRA’s conpliarsce
monitoring history at RCRA facilities.
OSHA has baen inspecting RCRA facilities aed has developed a
data systsm. 0 5 5*’s data system divides the RCRA univrse into
two catsgoti i generators (including on-site facilities) and
oft-site tiDs. Attadied is a list of OSRA Regional Administrators
responsibl, for monitoring RCRA/CER IA facilities and an example
of how OSM g.óords inspection, in it’. data .y.t.r. This infor-
mation was Surnished by staff at OSkI&’s Haalth Response Teem
(KR ?) which is located in Salt Lake City.
C l - ‘ -
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—2—
PA and OSHA have worked together in the past at several
RC&A facilities (e.g.. LPA inspectorb hav€ ref tarred facilitica
to OSfiA’s inspectors when there was concern for worker satety).
Alth..ugh EPI% does not hay., a signed agre ement with OSLIA to do
joint inspections at RCPA facilities, or for that matter, to
make re .rrals. OSIIA’s IIRT providcd us with a print—out £r
their data system of a.t OSliA activitie, at RCRA comaegcjal
facilities; about 75 inspections (sore repeats) have been recordc d
over the last several years. The print-out is not in a format
that lends itself to easy reproduction, so I am attaching several
pages as an example. OSHAs information on RCPA facilities
appears to be useful in writing perait. and performing inspections.
You are .nca ra ’ ed to contact th. appropriate OSHA Regional
Adainistrator (note. OSHA’. Regions are the sam. as LPA’s Regions)
to diicuss ina ection philosophies or to obtain a coii pliaass
re .crt on a articular rac.Llity.
Onc: Ot Oot A’ LIcT objectives is to prepare a Cczsp1iance
Directive and Targeting Notice (CDTN) which will list, facilities
targeted cr insliectiOn OSHA agr.ed to send us a cqy 4ken it is
conpicted and in turn I’ll provide each of the you wLth a copy.
o i 04n cisc contact HPT’e Cir y Coe at F1 S 58 ,—5 6 or OSEA’s
MQ—RCIA representative Chap Pierce at LX’S 523—7216 to discuss
this information systent or their general erating procedures.
I hop . this inrormation aids you in the working with O HA.
If ou hay- any questions rerjardin; OSHA’s standards, policy, or
guidance fror the EPA standpoint, please contact Chat Qszran at
1T 3c2—449 ’.
Attachments
cc. LIruc b.eddi.., O
Susanne f udsinski. OSW
Cindy o.’. OSHA
Chap Pierce, OS1 .A
C et Oszraan, C ,
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9505 - PUBLIC
PARTICIPATION IN
PERMITTING
ACTIVITIES
ATKII1 10418 kp
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9505 .1986(01)
Septeitb.r l , l9ó4S
MEMORANflUM
5UBJ , Field As.a. ient ane P ]ic Iwolvsment Plan
for the Occidental Incinerator
FRO 1: Vanessa I usgrave, r Q
TO, r,rew Lehunn and Larry Ennist, Region II
It occurred to ‘ that there are several points vu a y
nt to cai r iicate to PA Pegional an State staU who nave
not becr involved with the p1a nixxj for the Occi1.ntal iaicinerator
facility’s public involveivent elan to date. In particular, you
need to be s e that these staff clearly understitid the p pos
and likely outco of th. field assessrnt and public involvez vnt
plan. r)therwive, I thin), they nay have unr.slLst.ic z?cct .t ons
about ! ow i’iu the plan can accompl.t.h and ‘ihat is involved in its
preparation. Specifically, thW should unuerstan that,
o The p’ir o.e of th. field ass•sext nt is to res.ercn
c nuni ty concern., not to provide n infornation
to the c sunity. We will riostly be listening in
our intervie s with cit z.na and officials in the
Niagara ?alLs area.
o Th’ ’ fit 1 dinqs fruit this r.aeara effort will be useJ
to epare the public iniolveosnt 1 4an.
o The p tUc Lnvol.issi•nt plan ii only the first .tq
in VL p iblic Ln lv. nt ogra for the
peitting proces. for th• Occidental facility.
Th p&sn will deorib• the findin of the field
asss..nt a describ, activities to be undertaken
the Atate and Region d ing the par tting ocess
to pro id. info aatien to the p Uc a provide
c rtuniti.s for piIlic input.
o The plan will be con. Latent with the fecility manaJ.ii nt
plan. In dition, th. plan will include pi lic partici-
patioi’ activities r uir.ci under State aixi Federal law
or ,.ai, .,i1 •4p.,ii p’tA i 4 fl v- 1s(” •, $.41r r a *
e 4 .c c II4M uit.. ta 4i i .J • ir ,r1e1J 1
N af .ct.d p 4 lie n. i.Occ4dental f CUty
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—2—
o One i. port4nt reason tcr develoç,i n7 thib Lar . 9 t : iVe
a i d.l r public involv.r .nt plans to e d.velo .n b
other Regions or States. In particular, because many
facilities involve both RCRA and CERCL activities, this
plan can begin to edclres. the coordination c these
activities.
It is irportant that all staff involved with ene Occidental
incinerator understand the lii tts on the a oiz t a public involve-
rnent plan can aeca plish before the field assesa ent is conducteu.
A plan can help coordinate public involves nt activities and
prevent unnecessary friction with the caamunitj caused ‘ hap-
hazard or insufficient of forts. ilowever, no one should ez ect
th nian to irlentifj activities that will resol all the lic’
concerns and prevent any local qpoeition to Federal or State
goverr tent actions.
I’ u save ar ’ ue6tiOfls or want to i cuss these toj ics
further, please give a call at 202/332.4751.
ccs ue. n Katz
‘ uL Countcr ’t
Jir Dolan
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9505.1987(0])
( JG I 3
E OF.MIDtflb !
Suajcc,h Ne otjated Perr jt.
t’ arcia lilliams, Director
Office of Solid Waite (W!!—S62)
TOs Regional Division Directors
Re iona I—X
As we move toward the 1988 and 1989 permitting deadlines
and as we per”tit new treatr nt and disposal capacity ever
the next several yeer , we ar. likely to face a nuirber of
difficult issues, both with the facility sseking the peruttt
ari i with the public. I believe that in a number of tneie
cases, a co-effectiv. route to a sound and protective
perr it will be throuch a formal negotiating process. includinç
representatives of all inter.stsd parties end run by a Iteutral
facilitator. e found this approach useful in our regulatory
negotiation on RCRA perntit modification.. Such an approach
should be equally applicabl• to permitting. This may be
particularly true for permitting new facilities.
I stronç ly encourag. you to consider a negotiation
process in issuing permits and an willing to provide financial
support to a pilot negotiating project in one of the P.egions.
Specifically, the Off ic, of Solid Wast• will commit approx-
imately $2c —25,OO3 of extramural funds for a neutral Lacili—
tator and logistical support for n.gotiation.s r.lat.d to a
specific permit. If any of you are int.rest.d in financial
support for such a project, pisas. let ms know.
wid• range of facilities nay be appropriate for nego-
tiated psr it.. In selecting a pilot, however, we will be
looking for a project that baa a rsa.onabl. chance of reaching
a successfvl conclusion within six i nths. Although a new
facility u4ght be an appropriate candidate if the community
i i generally receptiv, to it. siting, I believe that a facility
raising controversial siting issues would not be a good
subject of a pilot study sine. vs wish to quickly determine
the suitability of tns process to permitting. Ideally, a pcrut
should be selected ‘*sro th. couw unity ha. a stake in the
facility an 4 where negotiation. could be focused on tech iiicol
issues, such as the scope of corrective action r.qu 4 ?a .fB
—— .._._ ,.
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—2-
Please let r e know if you have any facilities in your
Recion that you believe are a2j’ro riate far nccotiatjon,
art3 if you are interested in financial aurport frcr Os.: for
a pilot project. If you have any questions on tnis isauc,
please contact Frank cAlister of the Permits Branch (3C2-2223).
ccs R ziona1 l3ranch Chiefs, Rec7iona I—X
Bruce 1&dle
Matt k-ale
Frank -icAliater
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?M3o- r- i4 ô
ST 4
UNiTED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON. DC. 20460
\ PROI
M4Y 23 ? 9505.1994(01)
OFFICE OF
SOLID WASTE AND EMERGENCY
RESPONSE
MEMORANDUM
SUBJECT: Application of Enhanced Public Participation and
Stronger Combustion Permitting Requireme
PROM: Elliott Laws: istant Administr ? IJ
TO; Regional Administrators, I X
The Agency is proposing the “RCRA Expanded Public
Participation and Revisions to Combustion Permitting” rule.
This proposal represents. a major step in our efforts to enhance
public involvement in the R RA process, one of the key elements
of the Draft Strategy on Hazardous Waste Minimization and
Combustion, announced by Administrator Browner last May.
The principal goals of the proposed rule are:
to provide more opportunities for public involvement in
the RCRA permitting process, both early on and
throughout the decision—making process; and
to provide improved interim status combustion
permitting procedures.
In the spirit of the Administrator’s desire to increase
public involvement, I strongly encourage all EPA Regions to start
meeting the goals of the proposed rule as soon as possible.
Where EPA is the permitting authority, the Regions should begin
implementing those portions of the proposed rule that are to be
implemented by the permitting authority. Among such provisions
are proposals to: issue a notice upon receipt of a permit
application (proposed Section 124 .32); conduct permitting
activities in such a manner as to assure the opportunity f or
meaningful participation by all segments of the public, including
non—English speakers (proposed Section 124.30); and issue public
notices announcing the scheduled commencement and completion
dates of facility trial burns (proposed Section 270.62). I
believe the Agency has discretionary authority to implement these
provisions on a case—by—case basis before the Agency promulgates
the final rule.
[ 7 RecycledlRecyclabfe
T) (\ Punted with ylCatwia Irk On paper that
\ j C7 conwins St least 50% recvded fiber
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2
Where the State is the permitting authority, I would like
the Regions to encourage the States to implement these provisions
as well. Many State programs have such provisions already.
Where requirements proposed in the rule would fall on RCRA
permit applicants EPA cannot require applicants to comply.
However, I urge the Regions to encourage these applicants to meet
the enhanced proposed requirements where feasible. Among these
are proposed requirements to require RCRA permit applicants to
hold pre-application meetings (proposed Section 124 .31); the
provision -providing for an information repository in certain
instances (proposed Section 124.33); and the requirement that
interim status facilities submit proposed trial burn plans for
approval with Part B of their RCRA permit applications (proposed
Sections 270.19 and 270.74 (c)).
I am issuing this guidance in light of the rulemaking
procedures that we must follow. I anticipate a 60-day comment
period following the proposal, and then several more months to
respond to the comments. It, therefore, may be six to twelve
months before the rule in promulgated as a final rule. In the
interim, unless the Regions and States expeditiously begin to
implement the goals of the proposal, the public will not have the
expanded opportunities that the rule would afford.
As you know, the interim status universe of BIFs and
incinerators is the Agency’s top priority in RCRA permitting. We
believe that providing meaningful public involvement in the RCRA
permitting process and strengthening the combustion permitting
process for interim status facilities is consistent with the
Administrator’s objectives and fortifies -the RCRA permitting
process.
The proposal should be published in the Federal Register in
the coming weeks. copies will be sent directly to all Regions
and States to facilitate speedy implementation of the goals set
forth.
I appreciate your cooperation in promoting early and
effective public involvement for all RCRA facilities and a
stronger permitting process for interim status combustion
facilities. I urge you to consult with your respective Offices
of Regional Counsel on the application of these goals in
individual cases. If you need any additional information about
this proposed rule, please contact Victoria van Roden of my staff
at (703) 308—8623.
cc: Michael Shapiro
Matt Straus
Devereaux Barnes
Fred Chanania
Patricia Buzzell
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3
Larry Starfield, OGC
RCRA Branch Chiefs, Regions. I X
R RA Section Chief s, Regions I— X
.RCRA Public Involvement Network
RCRA ORC Branch chiefs, Regions I-X
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHiNGTON. D.C. 20460
DEC 20 L995
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
9505.1995(01)
MEMORANDUM
SUBJECT: Expanded Public Participation Rule
FROM: Elliott P.
Assistant
TO: Regional Administrators
Regions l-X
The Agency recently took a major step forward in its effort to promote public
involvement and environmental justice by promulgating the “RCRA Expande4 Public
Participation Rule” (60 EB 63417-34, December 11, 1995).
The final rule improves the RCRA perm tting process by: (1) providing earlier
opportunities for public involvement in the process and (2) expanding public access to
information throughout the permitting process and the operational lives of facilities. The rule’s
requirements include: a facility-led pre-application meeting; agency notice at application
submittal; agency notice of impending trial burns; and a provision for information repositories.
Immediate Implementation
While the effective date of the rul will not arrive until six months after promulgation, I
am recommending that all EPA Regions start mectiIig the goals of the final rule as soon as
possible. The Regions, in turn, should encourage the States and individual RCRA facilities to
meet these goals even as States are pursuing authorization for components (e.g., this rule, BIF
permitting, and corrective action) of the RCRA program.
Early implementation of the final rule will allow the public to benefit immediately from
the rule’s new.and important procedures. This early implementation will be useful for the entire
program and help the Agency fulfill its commitment to meaningful public involvement in RCRA
permitting.
Implementation of the
Psfnted on Rw,’cted Paper
-------
I would like to express my appreciation to the Regions for working to achieve these goals
since the Agency proposed the rule in June 1994.: We are encouraged by the positive reception
these new standards have received, aiid look forward tQ full implementation.
Guidance on Equitable and Flexible Public Participition
The development of the final rule involv$ a balance between broader, more equitable
public participation and flexibility for individual permit writers, facilities, and communities to
adopt the most appropriate, site-specific approaches.. Some of the principles underlying the final
rule would have been di cu1t to prescribe through regulation. We decided tbat instead of trying
to achieve these goals through regulatoiy language, the public interest would be served best by
encouraging permitting agencies and permit applicants to adopt these principles through
guidance.
Consistent with this approach, you should abide by the following princip1e in your
permitting efforts:
• - Using all reasonable means to ensure that all segments of the population have an equal
opportunity to participate in the permitting process and have equal access to information
in the process. These means may include, but are not limited to, multilingual notices and
fact sheets; as well as trans1ator , in areas where the affected community contains
significant numbers of people who do not speak English as a first language;
• Addressing environmental justice concerns, in part, by expanding access to information
(particularly in a multilingual format) and opportunities for public input (throuRh tools
such as information repositories); and
• Going beyond the regulatory requirements, where appropriate, to provide for a level of
public involvement that is commensurate with public interest in the permitting issue.
I also encourage State permitting agencies and permit applicants to adopt these principles in their
dealings with the RCRA program. These policies will improve the RCRA permitting program
and promote the Agency’s commitments in the area of equitable public participation.
We are providing further guidance for implementing the final rule and this policy
directive in our update of the 1993 RCRA Public Involvement Manual (EPA53O-R-93-006,
September 1993). We anticipate issuing the new guidance document in Spring 1996. The
revised manual will provide guidance to regulated facilities and affected communities, as well as-
permitting agencies.
.2
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If you need any additional information about the i ule, the policies in this memorandum,
or the upcoming guidance manual please contact Patricia Buzzell of my staff at (703) 308-8632.
cc: Michael Shapiro
Lind .Garczynski, OSPS
Matt Hale
Frank McAlister
Patricia Buzzell
red Ch nania
Paul Bangser, OGC
Hazardous Waste Management Division Directors, Regions I - X.
Hazardous Waste Management Division Branch Chiefs, Regions I - X
RCRA Public Involvement Network
Lance Miller, Permits Improvement Team
3
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This Page Intentionally Left Blank
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9520 - PERMITTING
PROCEDURES
Part 270
ATK1/1 104/4kp
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9520.1986(01)
RCRA/SUPERFUND HOTLINE MONTHLY SWO4ARY
FEBRUARY 86
2. The QI ibus Provision and Permits
An inter un status landfill contains reactive hazardous waste (DOG 3). The land.-
fill as a reçu.lated unit because it accepted hazardous waste after 3uly 26, 1982.
Since it is a regulated unit, the landfill is sub)ect to 40 R 264 post—closure
standards. EPA enforces 40 C R 264 post-closure sTandards by issuing a st—
closure permit. Prior to closure, the waste at the facility wall be treated
until it r longer exhibits the characteristic of reactivity. X permit writer
is concerned that during the post-closure period, waste residues will be reducec
anaerobacal1 to the point where the material u1d ain exhibtt the cMractenis—
tic of reactivity. The permit writer wants to require the er of the site to
perform hydrogen sulfide gas ncnitorang and sulfide detection during the post-
closure period to u asure the rate of anaerobic reactions. Can these iron itorz.rç
requir r*nts be included in the post-closure permit?
yes; the Mazardou and Solid Waste ner ents of 1984 (KSWA) sigruficantiy
increased the authority of the EPA when writing permits by ding an annibus
provision to the Solid Waste Disposal ?ct (S3005(c)(3)). This provision
states that • (e] ech permit issued . er this section shall contain sucn terms
and cu ditions as the ninistracor (or the Stats) determines ia essary to
protect h t &Lth the ewito 1 .int.. • The final c iticaticn rule
published in the July 15. 1985 Federal ister (50 FR 28702) in rporated
the .tatut y provision into 40QR 270. b)( ) of regulations. This
provision gives permit wrttrs the sut craty to inçcee permit standards in
edditicn to aplicable permit standards found in 40 Q R 264, as 1cr as the
permit writer can 3usufy the ed for the edthtioriel standards in terms of
protection of hiaian health and the .nviro ient. diticna .t standards can
u tified by basing the standards on .uch.* urcss as docis ntsd studies.
expert opinions, and published articiss.
Source: Lillian Bagus (202) 382—4691
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9521 - GENERAL
REQUIREMENTS
Part 124 Subpart A
ATKI/1104fl kp
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952 .19a4(Qj)
2-MAY 1984
MEMUXANDUM
SUbJECT: Inadequate Part b Permit Application
FROM: John H. Skinner, Director
Office of Solid Waste (WH—562)
Gene A. Lucero, Director
Office of Waste Programs Enforcement (WH—527)
TO: James H. Scarbrouyn, Chief
Residuals Management Branch, Region IV
You have requested guidance on whether the use of Section
3008 administrative orders Is appropriate to compel RCRA permit
appHcants to Submit ‘technically adequate’ Information after an
application nas been determined ‘complete.’
A determination that an application Is complete is not
necessarily a determination that the application Is free of
aeficiencies. Ouring the detailed review of the application and
tne drafting of permit conditions, it may become necessary to
clarity, modify or supplement previously submitted material
Defore progressing to a draft permit or a decision to deny.
.0 Tne regulations specifically provide the Regions authority
for gathering Information after an application has been determined
complete. “After the application is completed, the Regional
Administrator may request additional Information from an applicant
but only when necessary to clarify, modify, or supplement previously
submitted material. 40 CFR 124.3(c).
If applicants do not supply the requested information, the
Regions may compel them to do so. If tne Information is not
forthcoming, the Regions may deny the permit. ‘If an applicant
.. fails or refuses to correct deficiencies in the application, the
permit may e denied and appropriate enforcement actions may be
taken under tne applicable statutory provision including RCRA
Section 3008...’ 40 CFK 124.3(d).
You are correct in concluding that the enforcement guidance
dated September 9, 1983, speaks only to ‘late or Incomplete’
‘a
a
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..2.
applications. That 1 uldancs W45 Intended tO a eply to th. period
Defers tie application is determined coaplete. After the f1nd1n
that thi ppl1CatiOn is complete, su,ipleeental Infurmatlon may
be needed, You ii ve several options for oota1nln this additiHial
I nformat ion.
If yoi 1 i oslieve written or verbal attempts to .t additional
Information will not D I successful, you .11: Issue a warsin
letter (leading to a Section 3 1.103 administrative order), g.
•irectly to a Section 3008 order, or Issue a notice of Intent to
deny the permit. The specific mechanism used is an ares of
discretion and requires else by case judgments by Regional offices.
The Regions should select the administrative or enforcement
mechanisms that will lost efficiently ezped lte the developunt
of Information necessary for LCRA permit decisions. The office of
Waste Pr.grams Emfercesent Is currently wor 1ng on guidance which
will assist you In selecting among enforcement responses. This
guidance should be available midsummer.
cc: Branch Chiefs, Regloas 1.111, 14
Reglomel Directers RegIons 14
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9521.1984(02)
—z
MAY 11984
II
Dr. Rob.rt Srnst.in, C issionsr
TeXas Dspartnt of Health
1100 Wast 4 th Street
*ustin, Tezas 75756
Dear Dr. Hernst•inr
Thank you for your litter of April 4 expressing your
concern about EPA’s requirement that authorized Stat.. hold
a public hearing after issuance of a draft hazardous waste
prmit. I undrstand that ths Texas Dsparta.nt of Health is
c aittsd to as effective public participation progra. in
permit issuance, and I appreciat, your concern about U i.
regulatory agency appearing to have mad . up it. mind at the
tip, of the p.rmit hearing.
Section 7004(b) of *CRI requires EPA and authorized
States to publish notice of the Agency’s irit.ntion to issue
a permit andto hold a hearing if written notic. of opposition
La received. EPA and authorized States ar. thus required by
SCRA to publicly utotic their intention to issue a permit
prior to holding a hearing. The statute requires this approach
in order to allow the public opportunity to r•viev and provide
conments on the specific conditions which the Agency intends
to apply in the draft permit.
Nothing in RCRA or the EPA regulations precludes a State
from holding a public h.aring or meeting prior to issuance of
the draft permit, as long as an additional opportunity for a
hearing is provided following issuance of the draft permit.
we do, in fact, r.cognize the valu, and inportanc. of early
public involvement in the permit proc.ss. In our draft National
Permits Strstegy vs include Regional Office preparation of
facility-specific public participation plans anti suggest that
a public me.tirig be held prior to issuance of the draft permit,
in addition tO U i. hearing which is subsequently held.
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-2-
I vish to ccand the Itats of ‘Texas for it. wit iit to
v.lop a .cvnd hauard as waits aasag .nt proqr.a. Texas has
D..n in the forefront in pvrsslt of int.rt sad f teal author-
Lastien. plea.. 1st s know If I say be of farther assistance
Ii .c.r.ly yoar ,
/s/ Jss* I ZOGrw
Lee . Th ss
Assistant A iatstrator
so: Dick ittiaqten, P. S.. a.gios VI
Charles I. $ir, Texas partasnt of Witer ssurc.s
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9 521.1984(03)
9 JUL 1984
PwrP
Subject: Reporting Withdrawals as Final Permit Determinations
John H. Skinner, Dir.ctor/5/
Offic, of Solid Waste ( /
To: Hazardous Waste Division Directors. Regions I-X
Purpose
This memo is in respons. to your inquiries concerning bow to
report permit withdrawals in the Strategic Planning and Management
System (SPMS). It replaces all earlier guidance in this regard.
Peauirem.nts for a Withdraws] Final Determination
For SPMS pur oe.s, a permit aeplicatton is considered with-
drawn when Uk, or as authorised state, aporovee the closure
plan for the facilitY following en inspection, a public notice
of the plan, and resoonee to c ’iments . Termination of interim
status throuch oermit denial is not a prerequisite for counting
a withdrawal as a final determination, nor does it matter whether
th. Part reauest prectpttated the closure or whether the facility
voluntarily chose to close in the absence of a Part B request.
As discussed in previous guidance and in conversations we have
had, it is a regional and state decision whether to proceed to
d.ny a permit and terminate interim status for facilities which
request withdrawal. Note, if you deny a permit for facilities which
have withdrawn (as defined above), this permit denial should not
be reported as a p.rmit denial’ final d.t rmination in SPMS since
the ‘permit dental’ category is reserved for facilities which re-
quested a permit and were denied because they failed to submit an
adequate Part B and/or failed to show compliance with the Part 264
standards. We are developing separate guidance on how and when to
terminate the interim status of facilities.
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—2—
Protective Pliers
In no ease should the withdrawal of a orot.cttve filer b.
rP’ c,rt. as a final o.r tt det.r”iination. withdrawal is con—
sid.r.d a final d.t.r ination only if the facility aualtf led
for lriteri status , r.queste1 withdrawal (e.g., venT O’JtO
business, changed waste str.ai.s, moved to un r 90—day storage),
an inspection was conducted of the facility, land a closure plan
was appro’ee after public notice.
Less Than 90—day Storer .
.qarding 1... than 90—day storers, some regions have asked
vh.th.r closure plans should b. required and, if so, when such
plans should be implemented. We ar. also developing guidance in
this areas in the interim, you should report reversions to issa than
90—day storaqe as final determinatIons in SPPIS only if the proc.dures
outlined in this .s o are followed (i.e., inspection, public notice,
closure olan aonroval, etc.). Depending on our futur. guidance
on facilities which have become less than 0-day storers, we may
track activities related to actual closure of these faciliti.s
outside the !PM! syitem entirely.
W v Psellities Tiat Wltb4rav
Apritcatione withdrawn for new facilities viii net be counted
is final determinations in SPMS since ther. is no closure process
for tb. . ‘aellitles. P*w ’v.r, you •hfu1’ Indicat. these vit! rawel
in PP. r.r’ it action reetrd bee3use we do want a record of
th.sa aePions to assist us in evaluati’w rectorial workload. (If FPA,
or an autP orise1 state, drafted a perit (or a notice of intent to
dany • peri it) prior to the sitnlicant’s request for withdrawal, the
draft permit is counted in SPMS towards the region’s coa itment for
draft permit.).
HWtIMS Data £lem.nts
We r.coçnta. that you may need to ehanqe your procedures for
reporting final determinations in BWDMS to acco odate this guidance.
The OSW Information Management Task Force reviewed a draft of this
guidance during their meeting of June 19 and 20 and made recomnenda—
tioni for chancing the r.oorttno procedures to mini tzo the burden
in the r.c ions. The priiary chances involve redefining s se of the
codes under the Cll( (‘acuity status information). Ve
will be sendi ,wT a mei,orandw!i to you shortly r.cuesting your cor’sent
on the Ta fr Forces’ reco, enc’ations. flntll the final reoortinn
procedures for F D”S are developed, we will continue to verity ttc
nu’ P,er of withdrawal final g’. .ter iinattons o’er the phone wit! vct’r
staff before we forward this information for use in SPMS.
-------
If OU have any question. or o *nts pleas. contact
P.t.r Guerrero on S—382—4740 or Doug Ruby on $—382—4499.
Attacha.nt
cci Razardous Waite Branch Chiefs, Region. I—X
RW MS RPC)s, Regions I—X
Peter Guarrero
Steve LeVy
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9521.1985(01)
WASHINGTON. D.C. 20460
O ICE Oc
SEP 25 . SOLID WASTE ANDENERGENCY qESpoNs
MEMORANDUM
SUBJECT: Applicability of Post—Closure Permitting
Requirements to Non-Regulated Units -
FROM: Marcia E. Williams, Director
Office of Solid Waste
TO: Charles E. Finley, Director
Hazardous Waste Division, Region X
In your memorandum of May 20 (attached) and in phone
conversations with Jeff Webb of your staff, you requested
clarification on several points regarding closure for dispâeal
facilities that stopped receiving waste prior to July 26, 1982.
Outlined below is a discussion of those points.
We agree with your interpretation that land disposal units
that stopped receiving wastes prior to July 26, 1982 and closed
after January 26, 1983 are subject to the post-closure permit
requirements of 27O.l(c), but not ground—water monitoring
requirements of Part 264 Subpart F. We do not agree with your
conclusion, however, that such a permit-could require compliance
with Part 265 ground-water monitoring requirements. Part 265 is
applicable only to interim status units and cannot be incorporated
into a permit.
If the unit described above is the only unit at the facility
subject to permitting, issuanc. of a post-closure permit would
have litti. benefit sinc• ground-water monitoring requirements
cannot b .pplisd. The unit/facility in this case should be
closed und.r interim status, and thus subject to the general
closure performance standards of Part 265 and post-closure ground-
water monMering ( 265.ll7), as applicable. If the unit has
caused ground—water contamination, enforce’ nt action to compel
corrective action under 3008(h) should be initiated. Alternatively,
if the unit is located at a facility which has another unit(s)
requiring a permit, the 3004(u) correctivs action authority would
apply when th. permit is issued since the unit is a “solid waste
management unit.
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—2—
If OU have any further questiorie regarding this issue, please
contact Dave Fagan Acting Manager, Permits Policy Program at
382—4740.
Attachment
cc: RCRA Branch Chiefs
Permit Section Chiefs
-------
UNITED STATES E vIROi4MEi11AL ri v i flOM
9521.1986 (02 ,
R 2 4
Mr. C. dward Ashby, Jr.
Envirosafe Services, Inc.
115 Gibraltar Road
Horsham, PA 19044
Dear Mr. Ashby:
I am writing in response to your letter of February 25, 1986,
to the Administrator, in which you offered several observations
and raised specific concerns regarding the RCRA permitting process.
I appreciate your having taken the time to communicate these
concerns, based on your company’s particular experiences with
permitting of your hazardous waste facilities.
I agree with your general assertion that the RCRA permit
process is time consuming and resource intensive, and that there
may be regulatory and other changes which can be made to enhance
the efficiency of the permit process. without sacrificing environ-
mental. protection. In recognition of this, the Office of Solid
Waste recently established a task force to comprehensively examine
the problems of the RCRA permit program as it currently functions,
and to recomnmnd changes to improve the process. The results of
this tasli force effort should be available in the next several
weeks.
your basic observation regarding the fundamental differences
between the RCRA permit process and other EPA permit programs is
also well, taken. It is true that RCRA permits are quite compre—
hens iv. in nature, in contrast to other types of environmental
permits, such as NPDES permits. However, the RCM permit does not
cover a discrete discharg. from a well defined source, but rather
must address in a comprehensive way a n mber of design and qer-
ational aspects of a facility relevant to the management of hazardous
wastes. This is a reflection of the complex nature of hazardous
waste aanagsnt facilities, and the various means by which hazardous
wastes, if mismanaged, can cause enviror*nental damage. The objective
under RCBA is not to control pollutant levels at a specific emission
source, b L! rather to minimize potential threats to human health
and the environment from a variety of potential sources. This
requires a more comprehensive approach to permitting than is the
case with most other environmental permit programs.
In regard to your specific concerns over th. need to fully
characterize proposed nsii units in a Part B applicatiom. sad to
ha z fa 4L4Py (rt..iy ]j” f .i ij.• ‘l4ttI—I*’-th .
; . , . mt vi aucvsuiu 1I — ‘ ‘ 1 r thir I1 .e& tjUtv
-------
this re rd. The owner/onerator has the ‘ otion of permitting
oroposed y units as part of the Part B application, or
after the permit has been issued through a iiajor modification
to the permit. In either case, however, sufficient information
,ust he submitted to enable the Agency to deterr u.ne whether or
not the unit canplies with all applicable standards. Similarly,
the contingency elan for a facility must adequately address
‘ oteritial hazards from all oermitted units at the facility. U
ne it is added during the term of the permit fnich raterially
increases the motential for hazarr s,, or thartc es the res nse
nec essary in an emergency, the contingency plan ist also be
amended.
Your Letter also specifically expressed your concern
regar iing the current regulations for permit modifications,
contained in Subpart D of 40 CFR Part 270. The Agency recog-
nizes that the regulations as currently structured do ir pose
a substantial administrative xirden on both EPA and facility
owner/oT,erators. tt is our hope that a regulatory negotiation
effort which is now being organized will develop a more
workable ap,,roach to u difying RCRA permits. The regulatory
negotiation group for this effort has not been selected. I
ape reciate your offer to articioate in this important effort;
it will, certainly be considered.
I appreciate the c portunity to respond to your concerns
with the RCRA permit program. Please let me know if I can be
of any further assistance.
Sincerely.
Js/Ja4 s £ i
J. Winston rter
Assistant Administrator
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April 8, 1986 9521.1986(03)
Honorable William M. Thomas
House of Representatives
Washington, D.C. 20515
Dear Mr. Thomas:
Thank you for your letter of February 4 in which you raised
questions concerning the permitting process in the State of
California. Specifically, you inquired about the processes which
govern the award of permits for new hazardous waste land disposal
facilities and the use of local government permits to prevent
out—of—county wastes from being accepted for disposal.
States can be authorized under the Resource Conservation and
Recovery Act (RCRA) to operate their State hazardous waste
programs in lieu of the Federal program. In States that are not
authorized, hazardous waste disposal facilities are subject to
Federal requirements if the wastes they handle meet the Federal
definition of hazardous waste in 40 CFR Part 261. In those
States, EPA is responsible for reviewing and processing permit
applications in accordance with Federal regulations. In
addition, disposal facilities in unauthorized States must meet
any State requirement.
Generally, counties and municipalities may also separately
regulate or issue permits for hazardous waste facilities. Under
RCRA, political subdivisions of States are expressly authorized
to impose requirements, including those for site selection, which
are more stringent than those imposed by EPA regulations.
However, they may not impose less stringent requirements. State
law may also restrict the ability of localities to regulate
hazardous waste facilities and the intrastate transportation of
wastes. Questions concerning State law should be directed to the
State of California.
In your second question you solicited EPA’S views on a
possible prohibition by Kern County, California on the
importation of hazardous wastes generated outside the county.
RCRA provides that States and localities may impose more
stringent requirements on hazardous waste facilities than those
imposed by EPA regulations. However, not all more stringent
State or local requirements are valid. Courts have found that
certain more stringent requirements which significantly affect
out—of—state persons and threaten important Federal interests are
inappropriate for State or local resolution. For example, under
the Clean Air Act and Clean Water Act, courts have held that
State laws which control pollution which moves interstate can
significantly affect persons in other States. In some cases,
these restrictions have been held to be precluded by Federal
statute under the Supremacy Clause of the United States
This document has been retyped from the original.
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—2—
Constitution. In addition, courts have held that State waste
import bans violate the commerce clause of the Constitution and,
therefore, are illegal. Local requirements on transporters that
unreasonably burden or discriminate against waste generated in
other localities have been declared invalid for the same reason.
Also, where it is physically impossible to comply with both
Federal and State or local rules, the courts have held that
Federal rules prevail.
In addition, local regulation of hazardous materials
transportation may be preempted by the Hazardous Materials
Transportation Act administered by the U.S. Department of
Transportation (DOT). The Act provides a procedure whereby
States and localities may seek an advisory opinion on whether a
requirement is preempted. Your constituents may wish to contact
DOT for further information.
EPA opposes unreasonable restrictions on the free movement
of hazardous waste which are not related to legitimate health and
safety concerns. The Agency is concerned that barriers will
prevent shipment of hazardous wastes to the most appropriate
facility for treatment or disposal. Therefore, EPA discourages
the enactment of restrictions on the free movement of wastes, and
will not grant authorization to a State that bans the
transportation of wastes into or through the State.
If I can be of further assistance, please do not hesitate to
contact me.
Sincerely,
Lee M. Thomas
bcc: Deputy Administrator
Assistant Administrator, OSWER
General Counsel
Enforcement and Compliance Monitoring
Region IX
Regional Operations
External Affairs/Manson
Congressional Liaison
This document has been retyped from the original.
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95 21. L98 6 1 04)
____ UNITED STATES ENVIRONMENTAL PROTECTION AGE
WASHINGTON. 0 C 20460
rkE AQMINtSTRArOR
Mr. Alfred B. Devereaux, 3r.
Assistant Secretary
State of Florida Department of
Environmental Regulation r’— ’,
Twin Towers Office Building ;
2600 Blair Stone Road ULLL
TalLahassee, Florida 32301—8241
Dear Mr. Devereaux:
Thank you for your JuLy 7, 1986, Letter expressing
concern about the Environmental Protection Agency’s (EPA’s)
policy for expanding public involvement opportunities in the
Resource Conservation and Recovery Act (RCRA) ermitting
program.
EPA’s public involvement program is designed to piovide
information and uncover citizen concerns while there is
still opportunity to address them during the permit review
process. We encourage the States to integrate early public
involvement activities into the permitting process to ensure
responsive and effective permitting.
RCRA and the Hazardous and Solid Waste Amendments mandate
the Agency respond to citizens’ concerns and provide a defined
role for the public in the decisionmaking process. The
Guidance on Expanded Public Involvement in the RCRA Permitting
Proqram allows great flexibility to Regions and States to
provide such opportunity as appropriate in each community.
This guidance is relevant to both new and existing facilities,
whether it is for closure or operation.
The guidance does not state that every RCRA facility
must have an expanded public involvement program, but rather
that sp,c•tftc facilities be targeted for expanded public
involveusnt, and it provides criteria for targeting these
facilities:
— facilities that receive wastes from a Sup.rfund site;
— facilities that are environmentally significant;
— facilities that are already controversial or have the
potential to become controversial; and
— facilities for treatment and incineration, existing or
proposed.
-------
We believe that it is important for the States to aDply
this guidance in administering their permit programs. We
encourage the States to review the permit applications to
discover which are or may become controversial and develop an
expanded public involvement program for those permits. If
you have any further questions concerning the implementation
of this program, please contact Vanessa Musgrave in the EP
Peri its and State Programs Division, Office of Solid Waste, at
(202) 382—4751.
Sincerely,
Lee M. Thomas
.JH_ 562/MUSGRAVE/D.ZEtTLIN/sld/ 7 —23—8 6 /ContrOl No: AX601099
382—4651/Due Date: 7-28—B
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95 21. 1986 1 4A)
RCRA/SUPERFUND NOTLINE MONTHLY SWO y
APRIL 86
3. Appeal/Recourse Process for Permit Denial
An owner/operator (o/o) of an interim status facility is seekinq a final
RCM permit. If the 0/0 subnits a canpiete permit application, but
the state or region denies the permit, what procedural recourse or
appeal process may the 0/0 follow? It apoears that Part 124 Subparts
A and E both state procedures to follow for appealing a permit denial.
If the 0/0 of an interim status facility subnits all necessary
information, then a final decision to grant or deny the permit
can be made. An 0/0 wanting to appeal a permit denial would
follow the procedure in S124.19 of Part 124 Subpart A, which
addresses recourse for permit denial. This Subpart contains
procedures for informal hearir s. Briefly, the o/o has a 30—day
period in which he may request a review by serving a notice to
the Regional àninistrator.
On the other hand, Part 124 Subpart E outlines a n re formal apoea 1
process for permit or interim status terminations . Thus, if the
0/0 of an interim status facility fails to subnit adequate infor-
mation for a final permit application, then its interim status
could be terminated , and the gertcy would follow the appeal
procedures in Subpart E. Generally, the formal or evidentiary”
hearing of Subpart E is applicable to RCRA facilities only where
there has been a termination of a permit based upon a RCRA violat j: r1
or the termination of interim status based upon a failure to subil P
information necessary to make a final permit decision.
Sourceg Carrie c h1irq (202) 475—8067
Research: Margaret Kneller
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9521. 1986(5A)
RCRA/SUPE FTJND HOTLINE MONTHLY SU)O(ARy
MAY 86
2. InterIm Status and SOG5
A email quantity generator (SOG) has been treating hazardous waste on-site
in ccziçliance with 40 CFR 261.5(g) since May 1980. t)iring the nonth of
January 1986, the generator produced nore than 1000 kgs. of hazardous
waste, exceeding the quantity limitation for SOGs. Now, the hazardous
waste must be managed as large quantity generator waste according to 4O
CFR Part 262. The hazardous waste c ust be sent off-site or managed on-
site at a facility which is RCRAI permitted or in interim status. Since
the generator has been a SOG up to this point, the generator never
obtained interim status for his SQG waste treatnent facility. Can the
generator now obtain interim status in order to continue treating the
waste on-site?
According to Section 3005(e) of RCRA, any owner/operator Co/a)
may obtain interim status if the 0/0 fleets three requirements,
and has not already been denied a permit. The first requirement
the 0/0 n jst meet is to be in existence on November 19, 1980,
or on the effective date of regulatory changes which first
render the facility subject to the permit requirements. The
above mentioned generator meets this require erit because the
facility was treating hazardous waste on November 19, 1980
even though the 0/0 was not subject to substantive regulations.
The second requirement the 0/0 rrust meet is to caiply with
Section 3010 of SW . Section 3010 required the o/o of a
treatnent, storage, or disposal facility to subsit a
notification of hazardous waste activity form within 90 days
of the date when the hazardous waste first becane subject to
regulation. Because email quantity generators ware exempted
under 40 CFR 261.5 fran the 3010 notification requir nent,
this 0/0 need not have subsitted a 3010 notification in order
to obtain interim status per 40 CFR 270.70.
Finally, Section 3005(e) requires the 0/0 to subeit a permit
application. ere, as here, the facility becaies subject to
RCR permitting due to changes at the facility, not regulatory
action, 40 CFR 270.10 requires the 0/0 to subsit Part A of
the permit application within 30 days of the date the facility
first becanes subject to 40 CFR Parts 265 or 266.
Source: Carrie h1ing (202) 475—8067
Research: Ingrid sencrantz
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9521.1987(01)
AUG -7 981
MCflQRANDU*
Subject: Therss !nsrqy/Radian’s request for guidaitco on
the co l1ancs dates for submitting a Part B pernit
application, issuing or denying a $A p.r lt, and
co 1ytnq with the minimum t.chsological
reqvlrsmnts for surface i osandmsnts.
To: Michael J. Sanderson, Chief
1CM Branch
SPA Region V II
Susanos Rudsinsti. Chief
Ass i•tancs Branch
SPA Hsadquart•rs
On July 2, l $7 and July 10. l $7 fl.rmez ln.rqy/Badis*
r.qia.st.d guidance on the regulatory status ( i.•. , permitting
requirements) of Therm.z’s manufacturing and laboratory
facilities locat.d in Rall ll, an.as from !otb the Sansas
Department of Health and Bnvtronm.nt and SPA, respectively.
Specifically. Th.rm. /*adian has asked us to identity (1) the
minimum technology requirements ( T1) compliance dat. for
the thre. surface iapcunde.nts at the allavell manufacturing
facIlity: (2) the date Thermaz must submit a Part S application
for the thre. surface impoundments and task at th. laboratory
in order t prevent the loss of int.rim status: (3) the dat.
that th. Zansas Department of Isaith and Snvironnt must issue
a final permit or final permit d.niali and, (4) the date closure
of the three surface impous nts must b’ gin if a closure plait
is submitted by Nove r I, 1057.
Is rsspoos. to tbir first question, Section 300S(j)(l) of
the Issoures Conservatism and Recovery Act (RCRA) requires that
all surf ace t owid.snts either meet the minimum technological
r.qui& ..snts ( TR) of Section 3004(o)(1)(a) of 1CM by
ovs .r 5, lOU or stop receiving hasardous wastes.
S.ction 300S(j)($) of 1CM, however, specifies that any
surface impoundment brought into the hasardous waste manag.mnt
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system. as a result of the prceulgatioi of additional
h urdeus vast. listings or characteristics, shall have
four years fr the dat. of pXCnulgat Lou of a new hazardous
waste listing cttarsctsri .tic to either nest the 11TH or
stop receiving h.satdOU s vast... The revocation of Thsrnez’ s
temporary exclusion was pronulgatsd on July 17, 1986 (s. c
51 PR 25887). Aa a result of the revocation of ?hermez’s
taIn rary exclusion, Thermex’s Waste was brought back into
the hazardous waste management system. We agree with
Thern.x/Radian’s int.rprstation of Section 3005(j)(6) that
r.vocat ion of a temporary exclus ion has the same impact as
bringing a waste into the system by a new listing. As a
result, Thermex should have four years fron the promulgation
date of the revocation of its temporary exclusion and
final denial of it. delisting petition to either comply
with the M?R or to stop receiving hazardous wastes • The
dat. by which ?h.rm.z must either ecsply with the MTR or
stop receiving hazardous wastes, therefore, is July 17,
1990.
Th. ..cond question raised in Thermsz/Rad.taus letter asks
by what date must Thermex su it a Part B psrnit, application
for the impoundments (at the .az afscturing facility) and the
tank (at the laboratory facility) to prevent the loss of
interim status. RCRA Section 3005(e)(3) does not apply to
facilities having temporary exclusions. As long as Thermex
had originally filed Part A applications for their three surface
impoundments and for their tank and did not r odify their Part
A applications to delete the units handling the temporarily
excluded wastes, the faci lit.s have net lost interim status
and no futher action is required by the facilities. We note
that Part B permit applications for th. three surface
impoundments and the tank are not required until the State or
Region calls in the permit applications, however th. facilities
are subject to interim status standards until th. permit is
issued.
Their third qusstion asks by what dat, must the Kansas
Depsrtaent of Health and Environment (KVHE) issue a final
permit or final permit denial if Therm.z su its a permit
application for the Ballowell surface impoundments by
November 8, 1fl7. As indicated above. Therm.z Is not
required to sv it a Part I p.rnit application unless a
Part B p.mit application is called in by the State or
Region. S ld Thrmex, however, .uheit an application on
November 8. 1987. K 8E is not required to process the Part
B permit application for the Hallowell surface impoundments
by November 8. 1988.
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3
Thermex/Radjans fourth question asks us to identify the
date implementation of closure of the three surface impoundments
must begin after su iittal of a Closure plan on November 8, 1987.
Again, as stated in response number two. Thermex does not have to
subeit a closure plan or implement closure. If TherTnex voluntarily
su znitted a closure plan or stopped receiving hazardous waste,
they would, under federal regulations, be required to initiate
Part 265 closure within either 90 day. after the surface
impoundments stop receiving wastes or the closure plan is approved
by the State Director or Regional A Lnistrat.or, which ever is
later. Closure would then have to be Ccepleted within 180 days
(see 40 CFR Part 265.113). We note that the State Director or
Regional Administrator may extend the time period in which closure
must be implemented or completed if Thermex were to demons trate
the requirement. of 40 CFR Part 263.113(a) or (b), respectively.
We are not planning on responding directly to Therm.x on their
substantive issues, rather we are directing them back to the P:ansas
DHE. I trust you will be conveying our guidance on this issue to
the Kansas Bureau of Waste Management so that they can respond to
Thermex.
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2 Thermal tr ati1ent . You raised the Concern that generators
could conduct thermal treatment such as detonation or open burning
under section 262.34 and thereby avoid permitting for obviously
dangerous activities. Certainly, detonation and open i drning were
never intended to be allowed under Section 262.34. 7 1 explathed
above, a large part of the gency’s rationale in al1o ,ing treatment
under Section 262.34 was that the same standards would apply for
both treatment and storage. Thermal treatment is subject to Part
265, Subpart P; so in this case, the standards are not the same.
The regulatory language of SectiOn 262.34 is not clear on this
point, and OSW is considering promulgating amendments to clarify
applicability of the section.
If you have further questions in this area, please contact
Michael Petruska at FTS 475—8551.
CC: Waste Management Branch Chiefs,
Regions I, II, and IV-X
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UNITED STATES EP4VI ONME 4TAL PROTECTION AGENCY
9521.1988(02)
APR 9 i 88
MEMORANDUM
SUBJECT: Call-in of Storage and Treatment Applications
FROM: SylviaK.Lowrance, Director / j
Office of Solid Waste
TO: Waste Management Division Directors
Regions I—X
Section 3005(c) (2) (C) of RCRA provides a statutory deadline b
which interim status treatment and storage facilities must submit their
Part B permit applications or their interim status will terminate n
November 8, 1992 if EPA has not issued a permit. The deadline for’
storage and treatment facilities to submit their permit applications is
November 8, 1988.
You should be aware, however, that these deadlines apply only to
facilities and units that were in interim status on November 8, 1984. A
unit handling temporarily excluded waste on November 8, 1984 or a unit
added to an interim status facility after this date through a change in
interim status would not be subject to the 1988 application deadline or
the 1992 permitting deadline.
In order to give facilities subject to the 1988 deadline a full
six-month period to prepare and submit their applications (at least for
affected units), I urge you to send letters notifying these facilities
of the deadlines, and reminding them that they should submit a Part B
app1ication - — - -. - to continue operating atter
November I’’ t. facility (or unit) plans to close prior to
iould consider requesting a written confirmation
lieu of a Part B application. For closing
I useful to remind them that they must submit
their ci - .or approval at least 45 days prior to the date that
closure will begin. (Section 265112(d)(l) requires owner/operators to
submit closure plans 45 days before they begin final closure of a
facility with only tanks, container storage, or incinerator units.)
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—2—
These letters should be received by the regulated community on or
before May 8, 1988. In authorized States, the letters could
consolidate
the State and Federal permit application requirements so that the
permitting jurisdiction of the two agencies is clear. (Note that this
requirement to send letters to storage and treatment facilities is
referred to on page 2.1 of the Fl 1988 RIP.)
You should also expect facilities submitting Part B applications
by the 1988 deadline to make a good faith effort to provide complete
applications. I believe that there are good reasons to require
preparation of a complete application by the 1988 deadline. For
example, preparation of a complete Part B may initiate actions which
are environmentally beneficial. These actions include:
o Precipitation of decisions to close facilities that will
have difficulty complying with Part 264 regulations or
that do not intend to upgrade to meet permit standards;
and
o Stimulation of applicant decisions to begin improvements.
I am sensitive to the problems created when applications become
stale during the time they are awaiting processing. Some of these
problems might be alleviated if an additional letter is sent to
facilities several months prior to the scheduled date of permit
processing. This will give them an opportunity to amend and update
their Part B before processing begins. You may wish to consider
trying this approach.
Thank you for your cooperation in meeting this important deadline.
If you have any questions, please call Frank McAlister at FTS 382-2223.
cc: RCRA Branch Chiefs,
Regions I-X
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON. D.C. 20460
952 1.1988(03)
0 OFFICE OF
u SOLID WASTE AND EMERGENCY;
MEMORANDUM
SUBJECT: staying ESWA Permit Conditions , 7
FROM: Sylvia K. Lourance, Director
fice of Solid Waste (
TO: Allyn M. Davis, Director
Hazardous Waste Management Division, Region VI
This memorandum responds to your request of October 26,
1988 for clarification of certain issues related to the staying
of permit conditions. You asked us to address the applicability
of §124.16(b) (2) to HSWA/RCRA joint permits. In addition, you
asked whether the Region can and should postpone the effective
date of the RSWA portion of the permit in each of the following
cases:
a. Where both the HSWA portion and the authorized State
RCRA portion of the permit were appealed, the HSWA
issues have been resolved, but some time will elapse
before the State issues are also resolved and the
State portion of the R RA permit can become effective,
and
b. Where the State portion of the permit is appealed
without any appeal of the HSWA conditions.
You explained that your questions arose in the context of
appeals of facility permits in authorized States. We address
your questions below in that context.
I. Applicability of 124.16(b) (2).
Section L24.16(b)(2) provides that “(n]o stay of an
EPA- issued RCRA, UIC, or NPDES permit shall be granted based on
the staying of any State-issued permit except at the discretion
of the Regional Administrator and only upon written request from
the State Director.” In your memorandum, you suggest that
§124.16(b) (2) was promulgated before the enactment of HSWA and
was not intended to apply to the situation where an authorized
State is issuing its authorized portion of a R RA permit and EPA
is issuing the HSWA portion of that permit.
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2
We agree that §124.16(b) (2), along with its requirement for
a written request from the State Director, does not apply to
joint EPA-State issuance of RCRA permits in authorized States.
As you know, under our interpretation of the statute and
regulations, only one permit is typically issued to a facility
under the authority of Subtitle C. Because most authorized
States are not yet authorized for HSWA, however, the permit
usually consists of a Federal portion (issued by EPA pursuant to
HSWA) and a State portion (issued by the authorized State
pursuant to RCRA). The HSWA portion, in and of itself, is only
part of the RCRA permit. It would not qualify, therefore, as an
“EPA-issued RCRA...permit” under §]24.16(b)(2). A different
situation exists in unauthorized States, where EPA issues the
entire RCRA permit (HSWA and non—HSWA portions). Such a permit
would qualify as an “EPA-issued RCRA...permit” under
§124. 16 (b) (2)
II. Staying of HSWA Permit Conditions.
In your memorandum, you outline situations in which the
HSWA portion of a permit might become effective before
resolution of an appeal on the State portion. You express
concern about declaring the HSWA portion of a permit effective
because doing so might cause the facility to lose interim
status.
We recognize that problems might arise if facility interim
status were to terminate before a permit became fully
effective. However, issuance of the HSWA portion of a jointly
issued RCRA permit does not terminate the interim status of a
facility. Interim status ends when final administrative
disposition of the RCRA permit application occurs. Thus,
effectiveness of the authorized State’s permit decision is a
prerequisite for termination of interim status. This will be a
matter of Stats law (e.g., whether the State appeal stays the
State permit decision). If permit effectiveness is stayed
during an appeal as a matter of Stats law, facility interim
status most likely continues under State law until the entire
State portion of the permit goes into effect. We believe that
the Region will, in most cases, want to issue the HSWA portion
of the permit and begin corrective action as soon as possible.
This will not jeopardize a facility’s interim status should
non-HSWA State portions be appealed. Furthermore, corrective
action conditions can become effective when the permit is
“issued” (per the language in RCRA section 3004(u)), not
necessarily when a11 permit appeals are completed.
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3
If, for some reason, the Regional Administrator wishes to
delay the effective date of the HSWA portion, as your memorandu n
suggests, the ability to do so depends on the circumstances in
each case. We have, therefore, addressed the issue in the
context of each scenario you present in your memorandum.
a. Both the HSWA an&State RCRA portionof the permit are
ai ea1ed (undertPA and State procedures res ectively .
In the first scenario you describe, both the ESW portion
and the RCRA portion of the permit are appealed and Federal
resolution of the HSWA issues occurs before the State appeal is
resolved. We believe that, in the course of reissuing the HSWZ
portion after an appeal, the Regional Administrator has
discretion to postpone the effective date of the HSWA portion
under the procedures of §124.15(b) (1) and §124.19(f). It should
be noted that such a postponement may not be necessary in many
cases because we interpret §124.16(a) (2) to mean that
uncontested HSWA provisions that are inseverable from stayed
State provisions are also stayed.
b The State portion is apDealed and the HSWA portion is not .
Under your second scenario, the tate portion of the permit
is appealed without any appeal of the HSWA conditions. In this
case, the Regional Administrator does not have an opportunity to
delay the effective date under either §124.15(b)(2) or §124.19
because the Regional Administrator’s final permit decision has
been issued and become effective prior to advent of the permit
appeal.
This outcome is a function of the nature of the joint
RCRA/HSWA permitting process. In the case of an authorized
State, where issuance of the full RCRA permit is a combined
action, State procedures must be followed to issue the State
portion and the procedures of Part 124 must be followed to issue
the Federal portion. While there may be a joint proceeding, two
separate decisions must be made because the State has no
authority to issue the Federal portion or vice versa. These two
decisions can occur at the same or different times. In turn,
the State portion must be appealed through State procedures and
the MSWA portion through the procedures of Part 124. Where
there is no appeal of the uswa portion, no stay of the HSWA
portion occurs automatically par §124.16(a) (1.) as no appeal 1 5
taken under §124.19. Furthermore, the Regional Administrator’s
issuance of the HSWA portion will already have an effective date
specified, per §124.15(b). Hence, the Region will not have the
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4
opportunity to alter that date once the final HSWA permit
decision becomes effective, except via permit modification
procedures. However, the effective date of the HSWA provisions
could otherwise be delayed automatically under 5124.16(a)(2) if
they are inseverable from stayed RCRA permit conditions.
I hope this addresses all of your concerns. If you have
any questions, please call Barbara Foster at FTS 382-4751.
cc: Michelle Anders
Fred Chanania
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9521.1990(01)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
MEMORAMDUM
SUBJECT: Splitting a Federal RCRA Permit
FROM: Dev Barnes, Director
Permits and State Programs Division
TO: James Scarbrough, Chief
R RA and Federal Facilities Branch, Region IV
This memorandum is in response to your correspondence, dated
May 1, 1990, in which you requested guidance concerning the
proper procedure for “splitting” RCRA permits which were
originally issued for a non-authorized State, when the State has
subsequently become authorized and has issued a “base” permit
identical to the non-HSWA portion of the Federal permit. We
offer the following suggestions:
One procedure, which may have some advantages, would be for
EPA to modify the Federal permit and specify an accelerated
expiration date (e.g., 30 days hence) for the entire permit.
Simultaneously, EPA would modify the State permit to incorporate
explicitly the HSWA provisions which were originally in the
Federal permit. This portion of the State permit would remain
Federally administered. If the permittee requests the
modifications, both could be Class I modifications according to
40 CFR Part 270.42. Accelerated expiration is a specifically
listed Class I modification, and the addition of already existing
HSWA permit conditions to a State permit would qualify as Class I
under 270 • 42(d), since it would not constitute a substantive
change. Th advantage to this procedure would be that only one
permit would , thereby reducing any potential confusion.
Another possible alternative would be simply to modify the
Federal permit to allow for accelerated expiration of the non—
HSWA portion. The Region would have to be careful to make sure
that only the base portions of the permit were identified and
allowed to expire, and not the HSWA. elements. This would achieve
in effect the same result as the previous option. However, two
separate permits would continue to exist, at least until the
State is authorized for corrective actions at wbjc tj g t s —
Federal permit could be e iwt’* sarid
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
to incorporate a State-implemented HSWA portion.
Under either procedure, actual termination of the permit or
portions thereof, according to 40 CFR Part 124, would be
unnecessary. Although we believe there is a potential advantage
to using the first procedure (that is, having a single
consolidated permit), either option would be legally acceptable
and should be relatively straightforward administratively.
We have consulted with the Office of General Counsel
concerning this issue, and this memorandum reflects our joint
wisdom. If you have any questions, please call Dave Fagan of my
staff (382—4497) or Carrie Wehling of OGC (382—7703).
cc: Pat Tobin
RCRA Hazardous Waste Branch Chiefs, Regions I-Ill & V-X
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9521.1991(01)
UNITED STATES ENVIRONMENTAL PROTEC1 ION AGENCY
JB21 1991
MEMORANDUM
Subject: Potentially Conflicting Regulation of Infiltration
Galleries by the Office of Ground Water and Drinking
Water and the Office of Solid Waste
From: Sylvia K. Lowrance
Director
Office of Solid Waste
To: Frederick F. Stieh].
Enforcement Counsel for Water
This is in response to your July 26 memorandum regarding
potential conflicts in the regulation of infiltration galleries
by OGWDW and CSW as a result of our April 2, 1991 Federal
Register notice extending the Toxicity Characteristic compliance
date for certain injection wells. Apparently, since the
compliance date was not extended for infiltration galleries, our
discussion was construed to indicate that injection wells and
infiltration galleries are mutually exclusive unit types. As is
explained below, this was not our intention.
The intent of the extension was to provide relief to
operators of injection wells used in certain hydrocarbon recovery
operations. Since application of the TC would cause these Class
V wells to become Class IV wells, these beneficial cleanup
operations would be halted in cases where the Class IV wells do
not have TJIC permits and where the cleanup operations do not meet
the conditions of Section 3020 of RCRA. We believed that
owners/operators of these units were in an impossibility
situation-—that is, their operation would be in violation of
RCRA, but the continuation of the cleanup was ordered by the
State. Where the unit was not an injection well, this
impossibility did not ex ist, since they could continue to operate
the unit under interim status. For such units (i.e., units
other than injection wells), the extension was not provided. In
distinguishing between units to which the extension was
applicable vs. other units, we noted that if the infiltration
gallery met the definition of an injection well, then the
extension would apply. That is, we recognized that some of the
units identified by the industry as “infiltration galleries” may
meet the UIC program’s definition of an injection well and, if
they did, they were included in the extension. On the other
nana, certain units znaz coui A vdb1v b idenLiLieu
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
“infiltration galleries” (e.g., leaking surface impoundments)
were not injection wells and thus were not included in the
extension.
We believe that this approach is consistent with that of
CGWDW and the Department of Justice, as described it in your
memorandum. In order to clarify this matter, there are two
apparent options: we could either issue a clarifying memorandum
to the Regions or publish a short clarification notice in the
Federal Register. We would be pleased to work with you to
develop appropriate language to ensure consistency between our
offices. Should you wish to pursue either of these options, or
discuss another course of action, please contact Dave Topping of
my staff at 382—7737.
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9521.1991(02)
,(D tT4p
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
4’ ‘I I—
ALG 30 1991
OFFICE OF
$01.10 WAS1E AND EME AGENCY RESPONSE
) !EMORANDUI1
SUBJECT: Permit Status of Underground Injection Wells Used in
Certain Hydrocarbon Recovery Operations
FROM: Sylvia K. Lowranc A
Director W\d J” .
Office of Solid th
TO: James R. Elder
Director
Office of Ground Water and Drinking Water
On April 2, 1991, OSW promulgated a rule that extended the
compliance date for the Toxicity Characteristic until January 25,
1993 for groundwater that is reinjected through injection wells
during certain cleanup operations. More specifically,
application to produced groundwater from free—phase hydrocarbon
recovery operations at petroleum refineries, marketing terminals,
and bulk plants was deferred at the point at which the
groundwater is reinjected. Without this extension, most
reinjected groundwater from these operations would have become a
RCRA hazardous waste on September 25, 1990.
The basis for this compliance date extension was a
regulatory “impossibility” situation encountered at these
operations. In many cases, the cleanup/recovery operations were
mandated under State orders but would be banned under both RCRA
and UIC regulations unless they were, among other things, part of
a cleanup under either RCRA or CERCLA. The two—year extension
was intended to allow time for the Agency to develop a mechanism
to permit these wells (as Class IV) upon the January 25, 1993
compliance date of the TC. The purpose of this memorandum is to
ensure that our Offices work together to resolve this situation
before that date.
In a February 19, 1991 memorandum from Peter Cook to Jeffery
Denit (copy attached), it was stated that ODW’ s policy is that
Agency approval of these operations under RCRA or CERCLA
constitutes “authorization by rule” for the Class IV wells
involved in the cleanup. Since this may be. crucial to
establishing the mechanism to allow continued operation of these
operations, we should ensure that the affected programs are
comfortable with this policy and that it is legally defensible.
Pnnted on Recycled Paper
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Key issues include the meaning of “approved under RCRA or
CERCLA.” It must be determined whether this “approval” is in the
form of a permit, a written order, or some less formal
endorsement of the operation. Likewise, the scope of the RCPA
permit—by rule provisions of 40 CFR 270.60 (b), which afford a
RCRA permit to a UIC-permitted injection veil, should be
discussed and clarified. There are also procedural issues to be
addressed, including whether the policy has been subject to
sufficient public notice and comment.
Depending upon the resolution of these issues, one of
several options may be preferred. If additional notice and
comment is not required, an explanation of the policy could be
included in an upcoming TC clarification notice planned by OSW.
Otherwise, notice and comment requirements could be satisfied
through an OGWDW rulemaking to codify the policy into the tJIC
regulations.
We look forward to working with you on this issue to ensure
that the purpose of the compliance-date extension is realized.
The OSW lead for this project is Dave Topping, who can be reached
at 382-7737. Please have the appropriate member of your staff
contact him. at your earliest convenience.
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I0 SI p
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
P 0 ItG
9521.1994(01)
OCT I 1 1994
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
! 1ORANDUM
SUBJECT: Regulation of Fuel Blending and Related Treatment and
‘Stor e Act i ie
FROM: (r’1icn’ e . Shapiro, Director
Of fi, e of Solid Waste
TO: Hazardous Waste Management Division Directors
Regions I-X
The purpose of this memorandum is to address a number of
questions under the Resource Conservation and Recovery Act (RCRA)
regarding the regulatory status of hazardous waste fuel blending
activities. The memorandum is concerned primarily with
facilities that are commonly known as “fuel blenders,” although
the waste management activities of these facilities most often
include a set of integrated waste processing operations more
diverse and complex than just the fuel blending activities
themselves. A number of issues have been raised regarding the
applicability of the RCRA permitting requirements and the land
disposal restriction (LDR) requirements to these facilities. The
guidance provided below discusses these issues generally.
However, since many fuel blending operations are complex, there
may be some facility-specific regulatory concerns that are best
addressed on a case-by-case basis.
Permit Requirements
The RCRA program regulates hazardous waste storage,
treatment and disposal activities with the permitting
requirements of 40 CFR Part 270, and with unit-specific standards
and other substantive requirements of Parts 264-268. Hazardous
waste fuel blending facilities have activities that constitute
storage and/or treatment of hazardous wastes. Consequently, they
are subject to full RCRA regulation, including permitting, with
few exceptions as discussed below.
Fuel blending operations are addressed in Part 266.
Specifically, §266.101(c) states that, “owners and operators of
facilities that store hazardous waste that is burned in a boiler
or industrial furnace are subject to the applicable provisions of
Parts 264, 265 and 270 of this chapter. ..“ This provision
Printed on Recycled Paper
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further states, “These standards apply to storage by the burner
as well as to storage facilities operated by intermediaries
(processors, blenders, distributors, etc.) between the generator
and the burner.”
Some fuel blenders have asserted that, since their
activities are considered recycling, the blending operation is
exempt from permit requirements according to §261.6(c) (1).
Section 261.6(a) (2), however, clearly states that hazardous
wastes which are recycled materials and are burned for energy
recovery “...are regulated under Subparts C through H of Part 266
of this chapter and all applicable provisions in Parts 270 and
124 of this chapter.” This provision makes it clear that fuel
blending is not exempt from regulatory standards or permitting.
It is possible that fuel blending in tanks or containers
could be exempt from permitting, but only if the blending occurs
at the site where the wastes being blended are generated. The
permit-exempt management would have to meet the provisions of
§262.34, which requires the waste to be processed within 90 days
in units that comply with the technical standards of Part 265,
Subpart J (for tanks), and Subpart I (for containers). The
generator must also comply with specific emergency response and
personnel training provisions of Part 265. This permit exemption
is not available if the unit is classified under Part 265 as a
thermal treatment unit (Subpart P). Thus, fuel blending is
treated like any other treatment or storage activity for purposes
of qualifying for the ninety-day generator permit exemption.
There may be some recycling operations at a fuel blending
facility that are exempt from permitting, even though the fuel
blending process itself is not exempt. The exemption is only
available to units that are solely engaged in permit-exempt
recycling; if the reclaimed materials are sometimes sent for use
as a fuel, then the recycling unit would be subject to the
permitting standards. In States that are authorized for the RCRA
program, the State recycling exemptions must be as stringent as
the Federal program.
Atrnropriate Unit Standards
Most fuel blending facilities empioy unit operations that
are regulated under the tank standards of Subpart J of either
Part 264 or 265. However, some facilities are using other
devices such as shredders, grinders, filters, microwave units and
distillation columns in their hazardous waste management
operations. Depending on the specific configuration of these
operations, they are permitted as either tank systems (including
ancillary equipment) or as miscellaneous units under Subpart X.
Furthermore, additional permit conditions may be imposed using
the omnibus authority of RCRA Section 3005(c) (3) as necessary to
protect human health and the environment. Since these operations
2
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vary from site to site, the appropriate permitting authority (the
State or EPA Regional Office) must decide which unit standards
are the most relevant for each specific facility.
Air ission Standards
Another question that has been raised concerns the
applicability of the organic air emission standards for process
vents and equipment leaks (Subparts AA and BB, Parts 264/265).
These standards limit organic emissions from (1) process vents
associated with distillation, fractionation, thin-film
evaporation, solvent extraction, and air or steam stripping
operations that manage hazardous wastes with 10 parts per million
by weight (ppmw) or greater total organic concentration, and
(2) leaks from equipment that contains or contacts hazardous
waste streams with 10 percent by weight or greater total
organics. Due to the typically high organic content of the
hazardous wastes managed at fuel blending facilities, we would
expect the Subpart AA and BB requirements to be applicable.
The AA and BB requirements are also applicable to hazardous
waste recycling units if they are located at hazardous waste
management facilities that have other units subject to
permitting. Although some recycling units are exempt from the
unit-specific standards of Parts 264 and 265 pursuant to
§261.6(c), such units must comply with any applicable A and BB
requirements of those Parts. See §261.6(d).
On July 22, 1991 (56 33490), the Agency proposed unit-
specific air emission standards that would provide additional
controls on tanks, containers, and Subpart X units, among others.
When these standards are promulgated as final rules (promulgation
is scheduled for November 15, 1994), they will be applicable to
fuel blender facilities.
Transfer Facilities
Transfer facilities are those transportation related sites
including loading docks, parking areas, storage areas and other
similar areas where shipments of hazardous wastes are held or
repackaged during the normal course of transportation. Section
263.12 allows these facilities to store wastes in containers
without RCRA permits as long as specific packing requirements are
followed and the wastes do not remain on-site for more than
10 days. Transfer operations are limited to bulkirig and
consolidation of wastes. Selective blending of hazardous waste
fuels to meet a fuel specification at a transfer facility is not
an appropriate activity under §263.12; this would constitute
hazardous waste treatment requiring a permit.
3
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Land Disiosal Restrictions
Generators
Generators of prohibited hazardous wastes (i.e. hazardous
wastes required to meet a treatment standard before they can be
land disposed) must comply with certain notification,
certification, and recordkeeping requirements designed to assure
proper tracking of the waste and adequate notice to the treatment
facility of applicable treatment standards, as set forth in
40 CFR 268.7(a). (Note that if an offsite fuel blender/multi-
purpose facility treats or otherwise manages a waste such that a
new point of generation occurs, then the offsite facility becomes
a generator and is therefore subject to these generator
requirements.) These provisions apply whenever a generator ships
a prohibited waste to another entity for eventual land disposal,
and so apply when generators send prohibited wastes to fuel
blenders/multi-purpose treatment/storage facilities. Although
the wastes may be combusted, some residue (such as combustion
ash) would be land disposed and must meet the treatment standard
applicable to the combusted hazardous waste (as discussed at 58
FR 29872; May 24, 1993). Infonnation normally required to be
included in the notice are:
- EPA hazardous waste number
- constituents of concern
- treatability group
- manifest number
- waste analysis data (where available)
According to §268.9(a), these provisions also apply when
generators send characteristic wastes off-site. If the generator
treats the characteristic waste to make it non-hazardous before
sending it to a fuel blender/multi-purpose facility, a one-time
notice and certification must be placed in the generator’s files
and also be sent to the EPA region or authorized’State, according
to §268.9(d). This one-time notice provision applies only to
cases where wastes are hazardous by reason of characteristic
alone, (as discussed in 55 22662-63; June 1, 1990), and so
does not apply when a mixture includes a listed waste.
There are circumstances where an otherwise-prohibited waste
destined for combustion may not be subject to LDR requirements
(including the tracking requirements) because neither the waste
nor the re8idUe from treating the waste is subject to a treatment
standard when land disposed. This could occur where hazardous
wastes are going to be burned for energy recovery in a Bevill
device, such as a boiler or cement kiln. If the wastes are
burned for energy recovery in a Bevill device that processes
normal Bevill raw materials as well, and the Bevill device can
show that its residues were not significantly affected by its
hazardous waste-burning activities (the “significantly affected”
4
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test is found in 40 CFR 266.112), then the residues can retain
Bevill-exempt status and not have to meet LDR treatment
standards. Further, if the Bevill device produces a product that
is used in a manner constituting disposal (e.g., a cement or
light-weight aggregate kiln), and the hazardous waste is burned
for energy recovery rather than for destruction or as an
ingredient, then the product is not required to meet LDR
treatment standards: In these situations where neither residues
nor products are subject to LDR treatment standards, the original
generator’s waste would not be considered prohibited from land
disposal. According to §268.7(a) (6), if such a generator can
assure that the conditions discussed above are all true regarding
the disposition of its otherwise-prohibited waste, then the
generator is only required to prepare a one-time notice for its
facility records documenting this disposition and not to comply
with other tracking/notification requirements. If a generator is
not in a position to know that this is the case, then the full
notification/certification requirements under §268.7(a) would
apply.
Fuel Blending Facilities
According to §268.7(b), treatment facilities (e.g., fuel
blenders, BIFs, etc.) must also prepare a notification and
certification for prohibited wastes. These provisions ordinarily
apply to fuel blending operations because combustion residues are
ultimately land disposed and the combustion residue ordinarily
remains subject to LDR treatment standards. These treatment
standards would continue to apply to characteristic wastes that
no longer exhibit a characteristic when land disposed, according
to §268.40(e), so that de-characterized residues from burning
prohibited characteristic wastes are still subject to treatment
standards. (Note, that for DOOl wastes, combustion residues meet
the BDAT standard since these standards require a method of
treatment rather than treating hazardous constituents to a
specified concentration level.)
Because fuel blenders are intermediate treatment operations,
they must comply with §268.7(b) (6) (assuming the intermediate
treatment does not fully achieve the treatment standard).
Specifically, this section requires the fuel blender to prepare
the same notification and certification that is required for
generators, which in some cases will be the one-time notification
discussed for generators above and in other cases will be
applicable to each waste shipment. The notification and
certification would accompany the blended fuel when it leaves the
site to be transported to the subsequent treater (e.g., BIF).
If you have any questions on the applicability of the
regulations and permitting requirements for fuel blending
activities, please call James Michael of my staff at
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(703) 308-8610. Questions on the applicability of the land
disposal restrictions (LDR) on fuel blending activities should be
directed to Rhonda Craig of my staff at (703) 308-8771.
CC: RCRA Branch Chiefs, Regions I-X
RCRA Permit Section Chiefs, Regions I-X
Enforcement Section Chiefs, Regions I-X
Waste Combustion Permit Writers’ Workgroup
6
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bcc: Dev Barnes, PSPD
Frank McAlister, PSPD
Jim Michael, PSPD
Sonya Sasseville, PSPD
Jeff Gaines, PSPD
Fred Chanania
Bob Holloway, W vfl
Frank Behan, WMD
Mitch Kidwell, CAD
Larry Starfield, OGC
Steve Silvernian, OGC
Brian Grant, OGC
Susan O’Keefe, OECA
Kate Anderson, OECA
Jim Thompson OECA
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This Page Intentionally Left Blank
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9522 - GENERAL
INFORMATION
Part 270 Subpart A
ATKI!1 104156 kp
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON cc. 20460 O EJ POU 7 DIRECI1YE NO.
9522. OO 1
5
orcice OF
SOLID WASTE AND EMERGENCY RESPONSE
M EMORAN DUM
SUBJECT; Effect of Land Disposal Restrictions on Permits
LA
FROM: Marcia E. Williams, Director Li
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 restricc the disposal of certain solvents
and dioxins chat 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 S3004(e).) The land disposal
restrictions will apply to all land disposal facilities regard-
less of any existing permit conditions.
The HSWA land disposal restrictions supersede the S270.4
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 S270.4
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. tn addition, there is no need
to reopen or modify the existing permits to incorporate those
provisions. The Land disposal restrictions are fully enforceable
notwichstandir 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:
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OSWER POLICY OIRECTTVE ,
9522 .OO i
—2-
“SELF- IMPLDIENTING KSWA PROV IS IONS
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 new permits. This will clarify specific
activities at the facility and will simplify enforcement of
the land disposal requirements at permitted facilities.
Please feel tree to contact Frank McAlister of the Permits
Branch (FTS 382-2223) if you have any questions regarding this
matter.
CC: Hazardous Waste Branch Chiefs 1 Regions I-X
Bruce Weddle, OSW
Lloyd Guerci, OWPE
Carrie Webling. OGC
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CG Policy Directiv, 9522.00—3
4D PP,
j UN 1 TED STATES ENVIRONMENTAl.. PROTECTION AGENCY
WASHINGTON. D.C. 20460
pci 13 l9ff
o. ’ce 0;
SO iO WMT( APdO £MI GEP Cv ESP0flSC
M EMORA 1’IDUM
SUBJECT: Region ‘s Recommended Revision of 40 C.F.R. §5270.4(a)
andy 4 / / /
FROM: Gen Lucero, Direct r
Office of Waste Programs Enfor eq e t
.i 7 / 1 T
Marcia Williams, Director 4 ).,
Office of Solid Waste
/ I.
TO: Charles E. Findley, Director
Hazardous Waste Division
Region X
In your memorandum dated June 26. 1987, you identify
several potential enforcement problems in the RCRA permitting
regulations and in the corresponding language in the Agency’s
model permits. In addition, you present alternative language
that Region X intends to incorporate into permits to prevent
these enforcement problems. Specifically, you express concerns
with the language of 5270.4(a) (and similar language in
5270.32(b)(t)) which states:
Compliance with a RCRA permit during its term
constitutes compliance, for purposes of enforcement,
with Subtitle C of RCRA.
Several issues are involved in the consideration of this
permit shield’ provision. First, we aqree that this language
may be overly broad for some of the reasons you cited in your
memorandum. However, we do not believe that it presents a
serious impediment to enforcing the RCRA Subtitle C requirements
that are outsid. the permit’s scope. Although an argument can
be made that 5270.4(a) limits the enforceability of any RCRA
Subtitle C requirements not addressed by the permit, such an
interpretation would conflict with the intent of other RCRA
provisions. Many of the Subtitle C requirements are not designed
for, and are not appropriat, for inclusion as permit conditions,
namely Parts 260, 261, 262, and 263. An illustration of the
Agency’s intent to implement these Part 260—263 standards outside
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PoLicy Dixect .ve 9522.00—3
—2-
of the permit is S262.10(f) which applies the Subtitle C Part
262 generator standards to permitted facilities that generate
hazardous wastes.
Second, the regulations at S270.32(b)(l) indicate that a
permit should include conditions that incorporate the standards
specified in Parts 264, 266, 267, and 268. (Note, ho ever, that
the applicability of Part 267 has expired.) The purpose of
S270.32(o)(l) and the permit as a shield provision of S270.4(a)
is to assure the permittee that by complying with the permit, he
or sne is in compliance with the RCRA facility standards. Thus,
given 5270.32(b)(l), the permit shield applies in all cases to
the facility standards of Parts 264 and 266.
The relation of the permit shield provision to Part 268 is
more complex. As a result of HSWA. the self—implementing
facility standards imposed by statute and the Part 268 land
disposal restrictions apply to all permitted facilities despite
the shield provision of S270.4(a), except in those cases where
the self—implementing requirements have been incorporated into
the permit. (See the March 28, 1986 proposed amendment to 270.4,
51 FR 10715.) Consequently, if the self—implementing RCRA
provisions are incorporated into the permit, the permit will act
as a shield from these self—implementing requirements. EPA
maintains its position that it is generally preferable to incor-
porate the Part 268 and related statutory standards into new
permits whenever possible. At the same time, the Agency must
assure that the permittee is obligated to comply with new or
amended self—implementing provisions that occur after permit
issuance. Sample permit language is provided below to achieve
that effect.
Based on the two points discussed above, we believe that
S270.4(a) is not as serious an impediment as you suggest.
However, we agree with your concern that there is a potential
for confusion, and concur with your approach to modifying the
permit language to clarity th. effect of the permit for
enforcement purposes. We recommend a few changes to your
suggested alternative language to indicate more clearly which
40 C.F.R. Parts are shielded by the permit and those that are
not shielded. Thus, th. boilerplate language should read as
follows:
Complianc, with this permit during its term
constitutes compliance, for purposes of enforcement,
with 40 C.F.R. Parts 264 and 266 only for those
management practices specifically authorized by this
permit. The permittee is also r.quired to comply
with Parts 260, 261, 262, and 263 to the extent the
requirements of those Parts are applicable.
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3 0S4 PoliCy D _reCt.L’ e 9522.00—3
In ad iiti.on, one of the following conditions should be used
to reflect the applicability of the statutory and Part 26g
self—implementing provisions:
1. For permits that do not incorporate self—implementing
requirements:
The permittee must also comply with all applicable
self—implementing provisions imposed by the RCRA
statute or the Part 268 regulations.
2. For permits that incorporate self—implementing
requi raments:
Compliance with this permit constitutes compliance,
for purposes of enforcement, with Part 268 only for
those management practices and related standards
specifically authorized by this permit. The perrnittee
must also comply with all applicable self—implementing
provisions that take effect after issuance of this
permit, whether they are imposed by the RCRA statute
or the Part 268 regulations (including amendments)..
You may also add a general provision which states that compliance
with the permit does not constitute a d.fense against any action
brought under law to protect human healtn or the environment,
including other requirements not necessarily included in the
permit.
Thank you for bringing this matter to our attention. ‘Je
will. continue to reexamine the entire permit shield issue to
determine whether further changes to 5270.4(a) are warranted.
If you have additional cuestions or observations on this subject
please contact Frank McAlister of the Office of Solid Waste
(FTS 382—2223) or Susan Hodges of the Office of Waste Programs
Enforcement (FTS 475—9315).
cc: Waste Management Division Directors, Regions I—I)C
RCR& Branch Chiefs, Regions I-X
R.gLonal Counsels, Regions I-K
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
GENERAL COUNSEL
March 22, 1979
MEMORANDUM 9522.1979(01)
TO: Steffen Plehn
Deputy Assistant Administrator
for Solid Waste (WH-562)
FROM: James A. Rogers
Associate General Counsel
Water and Solid Waste Division (A-131)
SUBJECT: Applicability of the National Environmental Policy Act’s Environmental
Impact Statement Requirements to EPA’s Actions Under the Resource
Conservation and Recovery Act.
INTRODUCTION
You have requested a legal opinion on whether your office must comply with the
Environmental Impact Statement (EIS) requirements of Section 102(2)(C) of the National
Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §4321 83 Stat. 852 (1969),
when it takes actions under the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. §6901 q., 90 Stat. 2795
(1976). For the reasons set forth below, I conclude that there is no legal requirement for
your office to comply with the procedural requirements of Section 102(2)(C) of NEPA prior
to rulemaking, issuing permits to hazardous waste disposal facilities, or approving State
hazardous and solid waste programs. However, 1 conclude that Environmental Impact
Statements may be required before financing the construction of demonstration projects or
solid waste disposal facilities if such actions are “major federal actions significantly affecting
the quality of the human environment,” as that key phase is used in NEPA.
BACKGROUND
Section 102(2)(C) of NEPA, requires the consideration of environmental impacts,
alternatives, and commitments of resources for any “major federal action significantly
affecting the quality of the human environment.” Procedurally, this section requires the
responsible federal official to prepare an environmental impact statement in writing before
the action is taken, circulate it to other federal, state and local agencies, and make it
available to the public. Courts have enjoined federal actions because an environmental
impact statement was not prepared before the project was commenced or because it was not
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circulated for public comment.’ And many federal projects have been halted because not all
the environmental impacts were considered or because not all alternatives were considered. 2
Although one early case held that NEPA applied to agencies engaged in the protection
of the environment, 3 subsequent cases have stated in various fashions that EPA is exempt
from NEPA in the performance of its regulatory functions. This exemption is based on
functional equivalence between the actions of EPA in carrying out statutes designed to
protect the environment, and the requirements of NEPA.
THE FUNCTIONAL EOUI VALENCE TEST
The term “functional equivalent” was coined by the D.C. Circuit in Portland Cement
Assoc. v. Ruckelshaus. 4 Its requirements have been concisely summarized by the U.S.
District Court for Maryland in Maryland v. Train , 415 F. Supp. 116, 122 (1976):
where federal regulatory action is circumscribed by extensive
procedures, including public participation, for evaluating
environmental issues and is taken by an agency with recognized
environmental expertise, formal adherence to the NEPA
requirements is not required unless Congress has specifically so
directed.
Through application of this test, EPA has been found to be exempt from NEPA when taking
regulatory actions under the Clean Air Act, 5 the Federal Insecticide, Fungicide and
See. e.g.. Greene County Planning Board v. FPC , 455 F.2d 412 (2d Cir. 1972);
Hanly v. Kleindienst , 471 F.2d 823 (2d Cir. 1973).
2 See. e.g., Hanly v. Mitchell , 460 F.2d 640 (2d Cir. 1972); Natural Resources
Defense Council v. Morton , 459 F.2d 827 (D.C. Cir. 1972).
Kalur v. Resor , 335 F. Supp. 1, 12 (D.D.C. 1971) see Portland Cement
Association v. Ruckelshaus , 486 F.2d 375, 384 n.41 (D.C. Cir. 1973) (“Kalur was
dismissed as moot on appeal to this court ... and is of no precedential value.”)
486 F.2d 375 (1973), cert. denied 417 U.S. 921 (1974).
See. e.g., Appalachian Power Co. v. EPA , 477 F.2d 495 (4th Cir. 1973) (Section
110); Portland Cement Assoc. v. Ruckelshaus, supra (Section 111); International
Harvester Co. v. Ruckelshaus , 478 F.2d 615 (D.C. Cir. 1973) (Section 202); Amoco
Oil Co. v. EPA , 501 F.2d 722 (D.C. Cir. 1974) (Section 211).
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Rodenticide Act (FIFRA), 6 and the Marine Protection, Research and Sanctuaries Act
(MPRSA) :
APPLICABILITY OF THE FUNCTIONAL EOUI VALENCE TEST TO RCRA
To determine whether EPA is exempt from NEPA for actions taken under RCRA, it
is necessary to examine whether all of the requirements of the functional equivalence test are
met.
As a starting point, since the functional equivalence test applies only to regulatory
actions, some actions taken under RCRA are not exempt from NEPA. The funding of
demonstration projects 8 and solid waste disposal facilities 9 are not regulatory; therefore,
they are not exempt. However, this does not necessarily mean that environmental impact
statements are required. NEPA requires impact statements only for “major federal action
significantly affecting the quality of the human environment.” Existing regulations provide
procedures for reviewing research and development projects and fmancial assistance for solid
waste disposal facilities which can be used to decide whether impact statements are needed
for specific projects. ’°
RCRA also requires a number of studies and reports.” Although these activities are
not exempt as regulatory activities, it is unlikely that they would significantly affect the
environment. For all practical purposes, they can be considered to be exempt from NEPA.
There remains three major sets of regulatory actions:
(1) rulemaking,’ 2
6 See. e.g,, Environmental Defense Fund v. EPA (DDT) , 489 F .2d 1247 (D.C. Cir.
1973) (Section 6); Environmental Defense Fund v. Blum (ferriamicide) , 458 F. Supp.
650 (D.D.C. 1978) (Section 18).
Maryland v. Train, supra .
8 RCRA §8004.
RCRA § 4008(e)(1) and 4009(c).
10 40 C.F.R. Part 6 Subparts F and 0.
fag.. RCRA § 2005, 7007(c), 8002, 8003, 8005.
12 See. esp. , RCRA § 3002-04 (standards of performance for hazardous waste
generators, transporters, treaters, and disposers); 1008 (guidelines for solid waste
disposal methods); 4002 (guidelines for State solid waste plans); 4004 (criteria for
identifying open dumps); and 3006 (criteria for State hazardous waste plans).
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(2) permits for hazardous waste facilities 1 13
(3) approval of State hazardous and solid waste programs.’ 4
The threshold tests of the functional equivalence test; i.e., federal regulatory action...
taken by an agency with recognized environmental expertise....” are clearly met with respect
to these regulatory actions, but it must also be determined whether the regulatory actions are
“... circumscribed by extensive procedures, including public participation, for evaluating
environmental issues....” This is best done by comparing public participation and
environmental consideration requirements which have been found to meet the test in other
cases with the requirements of RCRA.
Public Participation
Public participation adequate to satisfy the requirements of NEPA can be achieved
through notice-and-comment rulemaking procedures or through public hearings. In Portland
Cement the court concluded that “although the rulemaking process may not impart the
complete advantages of the structured determinations of NEPA, it does, in our view strike a
workable balance between some of the advantages and disadvantages of full application of
NEPA.” 5 The court also conclude that the rulemaking process offered an opportunity for
other agencies to submit their comments and served to alert the public and Congress to
possible adverse impacts.’ 6
Public participation in the approval of State hazardous and solid waste programs
under RCRA § 3006 and 4007, respectively, is assured through required public hearings on
hazardous waste plans and through public participation in the development of both types of
plans as required by Section 7004(b).
The approval of State hazardous waste programs under RCRA and the approval of
State Implementation Plans under Section 110 of the Clean Air Act both require public
hearings on the development of the plans. t ’ Since the approval of State Implementation
RCRA*3005.
RCRA § 3006 and 4007.
486 F.2d at 386. But the court also pointed out that “an EPA statement of reasons
for standards and criteria requires a fuller presentation than the minimum rule-making
requirement of the Administrative Procedure Act.” [ citing Kennecot Copper Co. V.
EPA , 462 F.2d 846 (D.C. Cir. 1972)1. 4.
16 However, the court suggested that EPA or CEQ guidelines for the distribution of
impact statements be adapted to provide for circulation of statements of reasons and
supporting documents to other agencies. 486 F.2d at 386, p. 43.
Compare Clean Air Act §110(a)(1), 42 U.S.C. 1857c - 5(a)(1) Iib RCRA §3006(b).
Ths documeu has been retyped from the angina!
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Plans has been held exempt from NEPA,’ 8 I conclude that public participation in the
approval of State hazardous waste plans through public hearings satisfies the requirements of
the functional equivalence test.
RCRA does not specifically provide for public hearings on the approval of State solid
waste plans) 9 However, Section 7004(b) requires the Administrator to develop minimum
guidelines for public participation in the development and implementation of any program
under the Act. If public hearings are required before approval of State hazardous waste
plans, the requirements of the functional equivalence test will be met.
Although Section 3005 of RCRA does not provide for public hearings for the issuance
of permits for hazardous waste treatment, storage or disposal facilities, the Administrative
Procedure Act requires hearings on the issuance of licenses. 20 In four cases involving
actions similar to licensing or permitting actions, public hearing requirements were found
adequate to satisfy the functional equivalence test. 2 ’ It is not necessary that a hearing
actually be held to satisfy the functional equivalence test’s public participation requirement
for permit actions. Thus, I conclude that, if provision is made for public hearings on
hazardous waste facility permits, the public participation requirements of the functional
equivalence test will be met.
Consideration of Environmental Issues
The central requirement of the functional equivalence test is that the Agency’s
procedures provide for the consideration of environmental issues. In International Harvester
Co. v. Ruckelshaus, supra the court said that
we see little need in requiring a NEPA statement from an
agency whose raison d’etre is the protection of the environment
and whose decision ... is necessarily infused with the
18 Appalachian Power Co. v. EPA , 477 F.2d 495 (4th Cir. 1973); Duquesne Light Co.
v. EPA , 481 F.2d 1 (3rd Cir. 1973); Buckeye Power. Inc. v. EPA , 481 F.2d 162
(6th Cir. 1973); Anaconda Co. v. Ruckelshaus , 482 F.2d 1301 (10th Cir. 1973).
See RCRA § 4003, 4007.
20 5 U.S.C. §558(c).
2 1 Environmental Defense Fund v. EPA (DDT) , 489 F.2d 1247 (D.C. Cir. 1973)
(suspension and cancellation of pesticide); Wyoming v. Hathaway , 525 F.2d 66 (10th
Cir. 1975) (suspension and cancellation of pesticides); Maryland v. Train , 415 F.
Supp. 116 (D. Md. 1976) (ocean-dumping permit); Environmental Defense Fund v.
Blum , 458 F. Supp. 650 (D.D.C. 1978) (emergency exemption of a pesticide).
22 , Wyoming v. Hathaway, supra .
This document has been retyped from the original
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-6-
environmental consideration so pertinent to Congress in
designing the statutory framework of NEPA. To require a
“statement”, in addition to a decision setting forth the same
considerations, would be a legalism carried to the extreme.
478 F.2d at 650, n. 130. In Portland Cement the court held that EPA was exempt because
“... [ w]hat is decisive, ultimately, is the reality that, Section 111 of the Clean Air Act,
properly construed, requires the functional equivalent of an environmental impact statement.”
486 F.2d at 384.
The threshold test for environmental consideration is very low. For instance, EPA
has been held exempt from NEPA where the statute required the Administrator to determine
that the action was “essential to the public interest or the public health and welfare.” The
Administrator’s action in cancelling the registration of pesticides is similarly exempt from
NEPA. 24 The criteria for cancellation is whether the use of the cancelled pesticide
“generally causes unreasonable adverse effects on the environment” although FIFRA also
requires a study of the economic impacts of cancel1ation. Much the same type of
regulatory language is used in RCRA. For instance, the standards of performance for the
handling of hazardous waste must be such “as may be necessary to protect human health and
the environment.” RCRA § 3002 - 3004. Permits for hazardous wastes must insure
compliance with the standards in Section 3004; they therefore must protect human health and
the environment. RCRA §3005(c). The objective of Subtitle D is “to assist in developing
and encouraging methods for the disposal of solid waste which are environmentally sound
•...“ RCRA §4001. Similar considerations apply to other regulatory actions under RCRA.
Because the basis for exemption from NEPA is that the statute requires consideration
of the adverse impact of the proposed action on the environment, I conclude that all
regulatory actions under RCRA are exempt from the NEPA requirement to prepare separate
environmental impact statements. However, in the documentation for actions taken by your
office, you should indicate any consideration of environmental impacts or alternative courses
of action.
23 International Harvester Co. v. Ruckelshaus, supra .
24 Environmental Defense Fund v. EPA, supra; Wyoming v. Hathaway, supra .
25 FIFRA §6(b).
This document has been retyped from the original
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9522.1983(02)
- - I. I I
1EMORAN DUM
StJRJCCT: Deflnitl n of a or Handlors of azarctous Liasre
FROM: Lee M. Thowas t e . Thomas
ct1ng ?ssistant irIn s awr- -fcr
Solid waste and ergency Resronso
TO: Procrar Iu’ lerentation Guidance Aucressees
What definition will rovtdo consistency in the designation
by P PA and authorized States of rajor handlere of hazardous
was to P
DISCUSSION
Cowpliance with the 40 CFR Parts 270 and 271 requires certain
‘ azardous waste nandlers to be desagnatec as ‘zr.ajor. This desig-
nation is intended to identify, for adrinistrative rur oses, environ—
rentally significant hazardous waste handlers and to be used in
coocontrating ins ection, çeri ittinçj, and re crtang resources on
t ose handlers.
The original definition of a ‘rajor handler of hazardous
waste, which wa the subject of PIG-82—2 (May 14, 1982), was based
on inforwation avai1 ble to the Aqency at the the, including our
ex .erience with i*i inent hazard and Su;ertund sites. It was a
first step in ;rovidinq a unifors’, nationally consistent stanoard
to adentify ira or handlers to serve as a focus for liwited CRA
resources. As icre data have eco,re available, it hae becore
evicient that changes and clarifications to the existing definition
would rake it sore useful in the is’pl•rentation of RCRA. That
revision is identified b•l .
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The Static and £PA R.j ional Offices should jointly develop
updated lists of designated wajor handlers based on this
revised definition. The lists vi i ]. be used by authorized States
and the Regions for prograa iwplei’entation, budget decisions,
inspections, reporting, and perrit overview. The increased
attention which nust be directed to thes. facilities is resource
intensive. Thus, th. resulting lists of z!ajor handlers will be
considered in the budget .lannirtg process for allocations of
resources. The effective i l.irentation date for this definition
is October 1, 1984. The Regions and the States will develop
lists of rajor handlers on the basis of this definition during
FT 1984 for us. in F! 1985.-
DEC!SION
The foll ing hazardous waste handling activities are to
be designated as uisjors
I. All facilities subject to ground *ter I!onttoriny
and/or rot.ction requirezents
II. All incinerators
II!. Up to 10* of retaining TSDF’s
IV. Dp to 3% of generators and transporters
Percentages are to be based on the nuab.r of mown handlers in
iwD S as of October 1, 1983. €PA or the State ray add facilities,
generators or transporters to the list, subject to the 10% and 3%
ceilings, and shall notify the other party in writing. !lcwever,
tne deletion of any facility, generator or transporter ‘ust be
agreed to in writing by both parties. Th. list will be reviewed
and renegotiated at least annually,
Reporting r.quirei nts in 40 CIR 270.5 or in the annual
RC A Guidance which ret.r to jor handlers apply to the above
designated list. those jer handlers which corprtse categories
1,11, and I II are dssignat.d as jor facilities for EPA parD’it
ave rv ,
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9522.1984(01)
RCRA/SUPERFUND HOTLINE SUMMARY
— An interin status cont.ainer storage facility has a surface tçcunónen
without interim status. The surface i!Tçcunö ient is used for st age
of stor .iater run-off frcta the facility and par cing lot. The sludge
t. at has ac J! u1ated in the ixipcunóDent has bec e toxic due to
lead. Can the surface Tçoun ent qualify for interim status since it
was in existence on ove oer 19, 1980, and is nov generating a hazardou.s
waste? Does this i ndi nt meet the definition of ‘existing portion’?
According to the Nove ber 19, 1980, Federal Register , page 6633,
a facility that determined an August 18, 1980, that its solid waste
was not hazardous may retest that waste after Nov ’nber 19, 1980
and discover that the waste nov exhibits a Subpart C characteristic.
If the facility files Part A of the permit application within 30
days of discovering that the waste is nov )tazardous, the facility
s uld qualify for interim status. In this case , the facility
could revise its Part A to include the surface Uçcur&ent. Ibe
impourói nt meets the intent of ‘existing port ion and does not
need a liner since the inçcunó nt was in existence for waste
managenent befcre Novenber 19. 1980, and has received hazardous
waste pr ior p mir iss ar .
rce: Fred Lincsey, bbie b1pe, CS
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9 522.1984(02)
RCRA/SUPERFtJND HOTLINE MONTHLY SUMMARY
MAY 84
A Part B applicant has an ezisting storage surface iir oundment with a hiter.
Accorølng to 270.2(b)U) and 264.221(a), existlng surface ln oundments are not
required to install liners but are required to conform with all other design
and operating requirements In 264.221, as well as the ground water protection
requirements. Must the applicant describe the l ner In the Part B appli:ation?
The applicant is not required to describe the liner in the apphca:ion.
EPA h wever, reconvnends that the applicant include Such inforrnati n
In their Part B.
Source: Art Day
Research: Gordon Davidson
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9522.1984(03)
3o JUL 1984
M E4%ORMWCM
SUBJSCTs Issuance of RCRA P.raits to Facility Owners and Operators
V Mi John Sktnn.r
Director, Office of SOlid Waat• (WB—563)
TOt Regional Dt.is1ou Dtg.ctors, Regions l—Z
This Offic. continues to learn of RCRA praita being issued
only to facility operators in tttoss instances where th . facility
operator and the facility owner are diffsrent peopi.. Sction
270.1(c) requires that ‘owners and operators of buardous waste
aanag•sent units aiast ha ,. p.raita 6urtug the activ, life (inclucr-
isg closure) of the facility....’ In additios, 5270.10(b)
requires the operator to apply for tue p.rsit and the owner to
sign the application along with the op.rator wh.n th. facility
operator and owner are dtff.r.nt persons Cs.. 5270.10(b)).
Pleas. •naure in the tutur. that all RCRA peraits are issued
to both the owner and operator of the facility in those cases
where th. facility is owned by on. person and operated by another.
WH—563:cIlil ler:sad:S243:382—4692:7/23/84:Disk Chas 4 03
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9522.1984(04)
OCT 1 1 u4
C
SU 3.7k.CT: PA ROvj w of Craft Stat. PC 1A PerQits
I’POMz Brur R. Weddle
Director, Permits and State
Proçra s Division (WH-563)
TO: Jarias Scar Orougft, cnler
Residuals Pianaget ent Branch, R.gion IV
This nemorandu 1s LA response to your recent inquiry
concerr.ing th. ne’,d for the Re iona1. Ad tnLstrator’s signature
on tne transaiesion of co ents resulting from EPA’s review og
dract State FCRA p.r%its. As you pointed out, 40 CFR 271.19 and
271.134 provide that (t he Reqional Administrator may co ent -
on the permit apPLications and eraft permits as provioed in -the
ftv’ orandi of Agreement... (emphasis added). You also correctly
notsi that this authority has not been fori’ ally delegated to any
other EPA officialp i.e., it is not sp.cifical].y addrassed in
gPA’e Delegations Manual.
Wo have consulted with the C,ff to. of General Counsol and
concluded that it is not necessary toa end tPA . DeicQations
Manual to provide a formal, explicit reds1e atton of this
authority. Sufficient authority exist. within EPA’s regulations
to allow another EPA official to sign comments resulting from
EPA’s review of draft State por tta. for the explicit purposes
or 40 CFR P rts 270, 271 and 124, section 270.2 defines the terx
Regional dmtnistrator to include th. authorized representative
of the Pegionsi Administrator. - lie suggest that you ask your
Regional AdMnistrator to designate in writing either the Air and
waste Managei”ent Division Dirocte* or yourself, as appropriate,
as his authorized representative for transmittal of EPA’s conments
resulting r i draft permit reviews.
If you have any rurtner questions on this issue, 1eaze feel
free to contact Truett CeGoar. at ( ZS) 382-2210.
cc: Hazardous Wasto Management Divialon Directors,
Regions I — X
Peter Guerrero, osw
Gail Cooper, Osd
Susan $ch sdes, 05W
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4Q !P1 p
IC. , UNITED STATES ENVIROIIMENTAL PROTECTION AGENCY 9522.1985(01)
WASHINGTON, D.C. 20460
FEB
OFF’CE OF
SO O WASTE AND EMERGENCY RESPONSE
ME MO RAN DUN PIG-85-l
SUBJECT: Assignment of a Memorandum to the Program
Implementation Guidance System
FROM: John Skinner, Director
Office of Solid Waste (wH 1 12)
TO: Program Implementation Gui nce System Addressees
On January 25, 1985, the Offices of Water Enforcement
and Permits, Drinking Water, Federal Activities, and Solid
waste issued the attached memorandum to Regional Administrators.
The memorandum identifies the appropriate signatories for
Department of Defense permit applications. I think that the
guidance contained in this memorandum is of such value as to
warrant wider distribution and incorporation into our system of
Program Implementation Guidance. For future reference and ease
in filing, I have designated this memorandum as Program Implemen-
tation Guidance number ‘ ‘-
Attac hment
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UNITED STArES ENVIRONMENTAl. PROTECTION AGENCY
W*SH 1NGTON, D.C. 20410
JAN 2 5 19e5
MEMORANDUM
SUBJECT:
FROM:
TO:
Signatories to Department of Defense Permit Applications
Rebecca /1i’mner I rec , 1 t 1 -’- ’ f+ m . r,—. ..’i -__
Off I (EN-335)
Yictor inin, ui
Off ice of DrinP 5i(g Water (WH—550)
Office of Federal
Allan Hirsch, Director
John H. Skinner, Director
Office of Solid Waste
Regional Administrators
Regions I—X
Purpose
This memorandum identifies who must sign Department of Defense (DoD) permit
applications for four permit progranm:
o National Pollutant Discharge Elimination System (NPDES), 40 CFR Part 122
o Underground Injection Conrol (UIC), 40 CFR Part 144
o State Dredge or Fill 404 (404), 40 CFR Part 233
o Hazardous Waste Management (I4WM), 40 CFR Part 270
Exception
Goveriinent-Owned Contractor .Operated (GOCO) facilities that require permits
under any of the four permit programe listed above are not covered since they
present significantly- different Issues than were considered during the development
of this guidance.
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—2—
Development
This documeflt has been developed in conjunction with staff of DoD and the
four permit programs involved. Attachment A contains the regulatory language
for corporate and Federal signatories to permit applications. Attachment B
contains a discussion of the criteria used to develop this guidance.
Back ground
In compliance with a settlement agreement arising from litigation of the
Consolidated Permit Regulations, EPA modified corporate signatory requirements
and established requirements for Federal agencies under the NPDES, UIC, State
404, and HWM permit programs (48 FR 39611, September ii 1983; § 122.22, 144.32,
233.6, 270.11). In the preamble to the September 1 rule, EPA gave two examples
of how the signatory regulations were to be applied to Federal agencies. In
essence, the proper signatory level for Federal permit applicants is that compar-
able to EPA ’s Regional Administrator.
However, because DoD has no geographical division of responsibility that
parallels EPA’s Regional Administrators, the EPA Regional Offices are not clear
who they should accept as a proper DoD signatory. The confusion is compounded
because DoD lines of authority and responsibility for the management and budgeting
o environmental activities are complex and difficult to follow. This problem
first surfaced in regard to several permits In the HWM permit program, but applies
to the four permit programs.
Issue Resolution
The acceptable signatory for DoD permit applications is the Installation
Coimnander of a rank 0 f 06 or hi ’ier, if the Installation employs more than 250
persons and authority to sign permit applications has been assigned or delegated
to the Installation Coninander in accordance with applicable DoD procedures.
If an Installation Conrander does not meet these requirements, the permit appli-
cation must be signed by a superior officer who meets the requirements.
In addition, where a tenant Is present on the installation and has authority
or responsibility for any aspect of the regulated activity, the Tenant Conmiander
(rank of 06 or higher) must also sign the application. The Tenant Conrander
must also employ more than 250 persons and have been assigned or delegated authority
to sign permit applications in accordance with applicable DoD procedures. Again,
if the Tenant Coimnander does not meet these requirements, the permit application
must be signed by a superior officer meeting the requirements.
Nothing In this guidance precludes applicable delegated States from requir-
ing signatories to DoD permit applications to conform to more stringent State
requirements.
Implementation
EPA Responsibilities :
EPA will inform each of its Regional Offices and applicable delegated States
of this guidance.
Permit authorities will keep both the notification of changes in personnel
and the DoD directive discussed below in the appropriate rmit file.
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-3 -.
DoD Responsibilities :
DoD will inform all Installation Coninanders and Tenant Coninanders conducting
regulated activities of their responsibilities under this guidance.
In some situations, DoD has allowed low level officials to sign the permit
applications for existing permits. DoD will notify the permit authority of the
appropriate personnel, as identified in this guidance, to ensure that the proper
signatories are included in the existing permit file.
Since in the past, the authority and responsibility for all activities
required during the conduct of regulated DoD facilities (e.g., planning, manage-
ment, budget, and compliance activities) has been unclear, DoD will develop the
appropriate delegation procedures to Implement this guidance. This guidance
will clarify the responsible party or parties for conducting regulated activities.
DoD will furnish this delegation directive to the permit authority In order that
It may be appended to the permit file. DoD will delegate the authority and
responsibility to sign permit applications In accordance with DoD procedures
prior to future permit Issuance.
In addition, for any replacement of personnel at the Installation Conunander
or Tenant Conunander level during the term of the permit, DoD will notify the
permit authority of the change and furnish the name of the new person(s) respon-
sible for the regulated activities.
Attachments
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ATTACHJ’IEMT A
Corporate Signatory Language
40 CFR § 122.22(a)(1), 144.32(a)(1), 233.6(a)(1), 270.11(a)(1) reads:
‘ For a corporation : by a responsible corporate officer. For the purposes of
this section, a responsible corporate officer means: (I) A president, secretary,
treasurer, or vice-president of the corporation in charge of a principal business
function, or any other person ho performs slniilar policy— or decision—making
functions for the corporation, or (ii) the manager f one or more manufacturing,
production, or operating facilities employing more than 250 persons or having
gross annual sales or expenditures exceeding $25 million (In second—quarter 1980
dollars), if authority to sign documents has been assigned or delegated to the
manager in accordance with corporate procedures.
Federal Signatory Language
40 CFR ½122.22(a)(3), 144.32(a)(3), 233.6(a)(3), 270.11(a)(3) reads:
“ For a municipality, State, Federal, or other public agency : by either a principal
executive officer or ranking elected official. For purposes of this section, a
principal executive officer of a Federal agency Includes: (1) The chief executive
officer of the agency, or (Ii) a senior executive officer having responsibility
for the overall operations of a principal geographic unit of the agency (e.g.,
Regional Administrators of EPA). TM
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ATTACHMENT 8
SIGNATORIES TO DEPARTMENT OF DEFENSE PERMIT APPLICATIONS
Discussion
The Department of Defense (DoD) is headed by the Secretary 0 f Defense, a
Cabinet level appointment. Reporting directly to the Secretary are the Secretaries
of the three Military Departments (Army, Navy and Air Force). The Military
Departments are organized into varying numbers of Major Coninands that are functional
alignments rather than geographical divisions. Subordinate to the Major Comands
are the Installation Commanders; the numbers of installations in each Major
Command vary widely. In the DoD chain—of—command, the Installation Commander is
responsible to one Major Command. Each Installation Commander is expected to
establish the necessary organizational structure to fulfill the Major Command’s
function (I.e., training, air defense, etc.).
Also reporting directly to the Secretary of Defense are the Directors of
the 12 Defense Agencies. The Defense Agencies have varying management structures
—— some geographical and some functional. Defense Agencies do not have independent
installations; rather, Defense Agencies’ activities are tenants on installations
operated by the Military Departments.
Since the heads of the Military Departments, the Defense Agencies and the
Major Commands are centrally located within the Pentagon, they are not directly
responsible for the Implementation of systems necessary to gather complete and
accurate permit application lnfoni ation. In addition, the Major Corrinands are
far removed from the operation and management of day—to—day environmental activities
on individual installations.
Generally, the Installation Commander holds a rank of 06 which is a Colonel
(Army and Air Force) or a Captain (Navy). The Installation Commander is responsible
for operating pollution control facilities on the installation. He is also
responsible for planning and for anticipating the need for new pollution abatement
projects. However, some installations have tenants that share responsibility
for pollution control. One example Is the Defense Logistics Agency (DLA) that
shares responsibility for the handling and storage of DoD hazardous wastes with
the Installation Commander. The budgets for both the Installation Commander and
Tenant Commander(s) are subject to approval from their major coirrands, their
Military Departments and eventually the Congress.
DoD installations usually cover hundreds of acres and provide complete
support for thousands of civilian and military personnel and military families
living on the Installati on. The Installation Commander oversees, controls and
manages complete communities that consist of such things as housing, stores, gas
stations, utilities, waste treatment facilities, dining halls, fire and police
departments, warehouses, motor pools, runways and hospitals.
A review of the organization of DoD indicates that the Installation Commander
fulfills the literal requirement of the signatory regulation promulgated on
September 1, 1983. Defense installations are the principal geographic unit of
DoD and the Installation Convnander has responsibility for Its overall operation.
However, since DoD is not organized primarily into large geographic units similar
to EPA’s Regional Offices, ft is important to ensure that the overall Intent of
the signatory provision is applied.
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9522.1985(02)
RCRA/SUPERFUND/OUST HOTLINE
MONTHLY REPORT QUESTION
MARCH
1985
Part B Application
3. A facility’s Part B permit application is due after a Federal Register
announcement of a final rule affecting the facility’s hazardous waste
management activities but prior to the effective date of the final rule. Is
the permit applicant required to address applicable sections of the new final
rule in the Part B permit application?
Since the new final rule Is not effective when the Initial Part B
application is due, the permit applicant is not required to address
the new final rule provisions In the Initial Part B application.
However, all perinlts Issued must reflect all applicable Part 264
requirements in effect on the date of Issuance. Therefore, In most
cases, If the new final rule will be In effect prior to permit issuance,
the initial Part B application should be modified to reflect the new
rule. If the new final rule will become effective shortly after permit
issuance, the applicant may still want to address the requirements of
the new rule In the Part B application rather than go through a permit
modification at a later date.
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9524.1986(01)
RCRA/SUPERFUND/OUST HOTLINE
MONTHLY REPORT QUESTION
JANUARY
1986
4. C tainin0 Irtter]zn Status
A hazardous waste manag nent facility has received a final permit, pursuant to
Section 3005 of ICRA to store and treat hazardous wastes. The facility also
has solid waste manayen nt units (SWIU) on—site. !f the solid wastes in the
‘J4Us beca e RA hazardous waste because EPA lists then as hazardous wastes,
can the facility obtain interim status for these newly—regulated units?
Interim status, under Section 3005(e) of RAI, is granted to facilities .
Interim status is not granted on a unit-by-unit basis. Therefore, fully
permitted facilities may not receive interim status for newly regulated
units .
Fully permitted facilities will be all d to treat, store, or dispose of.
wastes vered by new hazardous waste listings if the owner/operator
guPi, 1 ta an arended permit application pursuant to 40 CFR 124.5 and the
peit has teen ncdified pursuant to 40 CFR 270.41 or 270.42.
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9527.1986(02)
RCRA/SUPERFUND/OUST HOTLINE
MONTHLY REPORT QUESTION
APRIL
1986
7. Corrective Action for UIC Wells
The owner of a hazardous waste underground injection well is
app1yir to his State for a UIC permit after November 8, 1985.
Section 3004(u), as amended by the Hazardous and Solid Waste
Amendments of 1984, stipulates that a RCM permit issued after
November 8, 1984 must require corrective action for all releases
of hazardous waste or constituents fran any solid waste management
unit at a treatment, storage, or disr,osal facility. Must corrective
action be addressed in the UIC permit?
Section 270.60(b), regardIng permit—by—rule regulations for
UIC wells was amended in the final codification rule (50 FR
28752) to require canpliance with corrective action regulations
under S264.101. The prcposed codification rule of March 28,
1986 restates that a UIC permit issued after November 8, 1984
is not a RCRA permit—by—rule until corrective action requirements
have been met for all solid waste management units at the
facility (51 FR 10714). A rnemorand rn dated April 9, 1986,
fran Michael Cook (Office of I inking Water) to the Regions
further clarifies this pint by stating that a UIC permit is a
RCRA permit-by—rule when corrective action has been addressed
for the entire facility.
Corrective action for the well only will be addressed in the
UIC permit. If there are other RCRA units at the facility,
corrective action for those units will be addressed in a RCRP
permit, when it is issued. If there are no other WRA units
requiring a RCRA permit, then corrective action for any other
solid waste management units will be addressed in the UIC
permit.
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9528.1985(02)
RCRA/SUPERFUND/OUST HOTLINE
MONTHLY REPORT QUESTION
JANUARY
1985
Reconstruction durin _ g Interim Status
5. An owner/operator of a hazardous waste 1manag nt facility operating under
interim status is considering expanding the facility to incorporate new
technologies. Section 270.72(e) states that changes to such a facility
cannot occur if the changes wcunt to reconstruction of the facility.
Section 270.72(e) further states that constructicm ocours when the
capital inves nt in the changes to the facility exceeds fifty percent
of the capital cost of a aJtparable entirely i hazardous waste managenent
facility. I es this fifty percent apply to each expansion at the facility
or to total expansion costs over the interUn status period?
The fifty percent of capital cost pertains to the total expansion
costs over the interim status period, not to each individual expansion.
Dcpansion costs zld include the cost of the land and construction,
but not design and engineering costs. Further infonnation on this
topic is contained in RILE *98 (Regulatory Interpretive Letter)
available through the Hotline.
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9522.19 85(03)
o ‘=
I
C?
a’
o CD
5JuL
Me. Patricia A. Petruff
Dy., Scott, & Deitrich, P.A.
P.O. Drawer 948
Bradenton, Florida 33506
Dear Ma. P.truff:
Thank you for your letter of Nay 1, 1985, on behalf or
Wenceel Tile Company of Florida, Inc. I apologize for the lack
of a timely response to your letter or February 22. We received
several hundred inquiries about the 4azardous and Solid Waste
Amendments of 1984 (HZWA) as a result of the December telecon—
tar.rtce and hay. not yet been abl. to respond to them all.
U’
Tour letter raises issues about the two requirements or
Section 213 of MSWA. As you know, Section 213 requires that,
for retention of interim statue, an application for a final
determination regarding the issuance of a permit and a eertifi— U’
cation of compliance with applicable ground—water monitoring
and financial responsibility requirements must be submitted for
all land disposal facilities by November 8, 19a5. The S201(k) CD
definition of land disposal is relevant to this provision.
Therefore, all landfill., surface impoundments, land treatment
facilities, and waste piles are subject to the requirements of CD
S213. In general, for the purposes of applying the RSWA, the
broader statutory provision prevails rather than that ot 1 0 CPR
260.10 because HSWA superc.des inconsistent RCRA regulations.
However, independent of HSWA, EPA has the authority to
request a permit application at any time before the statutory
deadline of November 8, 1985. Specifically, 40 CFR 270.1O(e)(l$)
requires a Part B to be submitted on the date specified by EPA.
In this case, Wemezel Tile must submit a Part B by the October 8
date spealfi.d by the EPA.
In addition, the company must satisfy the requireoent to
certify complianc, with applicable requirements by November 8,
1985, or interim etatus will be lost. ‘Certification of compli-
ance’ means that the facility is in compliance with Florida’s
ground—water monitoring and financial responsibility require nents
that are equivalent to EPA’s interim statue requirements. For
specific requirements for the Wenceel Tile facility, you should
contact Mickey artnett of EPA Region IV at (4OJD —P81—3067.
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9522.19 85(04)
pep’
( UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
J WASHINGTON, D.C. 20460
LIlt’ ‘20 OFFICEOF
DW V SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Partial Permitting
FROM: John H. Skinner
Director, Office f Solid Waste (WH—562)
TO: Harry Seraydaria r 1
Director, Toxics and Waste Management Division
In your memorandum of May 9 (attached) you requested our
response to your proposal for permitting of a new incinerator unit
at the Dow Chemical plant in Pittsburg, California. Outlined
below is a discussion of that proposal and our recommendations
regarding issuance of a separate permit.
We agree with your conclusion that issuance of a new
incinerator permit for the facility which is to be phasing out
its land disposal units is consistent with EPA’S policy of encour-
aging treatment alternatives to land—based waste disposal methods.
As you know, however, any such permit must address corrective
action for releases from all solid waste management units at the
facility as required by new section 3004(u) of RCRA. You proposed
that the preliminary assessment, site investigation and/or corrective
action for those land disposal units be addressed through a schedule
of compliance in a permit which could be issued for construction
of the new incinerator, but which would not otherwise cover the la. 1 d
disposal units at the facility.
The existing land disposal units at the facility are also
regulated units as defined in S264.90(a). As discussed in the
preamble to the HSWA final codification rule, (see discussion of
S3005(i)) regulated units are subject to existing standards under
Subpart P of Part 265 and Part 264 for gathering information on
releases to ground water. Permit schedules of compliance for
information gathering —— as provided for in S3004(u) for solid
waste management units —— cannot be used for investigating ground
water releases from regulated units. Consequently, the proposed
approach which you have suggested for permitting this facility does
not appear to be workable.
We can, however, suggest an alternative approach which would
expedite the issuance of the permit to the incinerator unit by
addressing any releases to ground water from the regulated units in
separate permits.
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—2—
Section 3005(i), as amended by HSWA, reaffirmed that ground
water releases from regulated units are subject to existing RCRA
regulations. This regulatory scheme encompasses not only the
substantive cleanup requirements in Part 264 Subpart F, but also
the procedural. permitting requirements in Part 270, and the
provision for partial permitting in 40 CFR 270.l(c)(4) in par-
ticular. We could, therefore, issue a partial permit covering
the new incinerator unit, all releases to media other than ground
water from the regulated unit, and all releases from non—regulated
units. A permit issued separately to the regulated units would
address any needed ground water corrective action in accordance
with Subpart F of Part 264.
We believe this approach is fully consistent with the
basic objectives of sections 3004(u) and 3005(i). If you have
any further questions on this issue, please call Peter Guerrero,
Chief, Permits Branch at 382—4740.
Attachment
cc: Regional Hazardous Waste Management Division Directors
Regional Hazardous Waste Branch Chiefs
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I 9 MAY I 5
Multiple RCM * .raits at A Single ?ecility
Orfglñal £lgT.d By
k1 rry Siraydarlari
Director, Tozics and Waste Management Division, R.gion 9
John B. Skinner
Director. Office, of Solid Waste (WH—562)
Issue z
Are the Regions precluded by statute, regulation or policy
from issuing mor. than on. RCRA p•rmit at a single hazardous
waste aanage ent facility? Zn particular, may we issue a
permit for a new incinerator at an existing land disposal
facility, deferring until a later dat. the issuanc, of a permit
for the land disposal units?
ou s
Although the subject of issuing several permits at one
facility has been discussed in the past with your staff, to
our knowledge no official policy postion was ever taken. Zn
19 2, unen only tank and container facilities could be permitted,
we had several discussions with 13eadquarters staff which led to
our understanding that we could begin to process permits for
tank/container units at facilities wntcn also had land disposal
or incinerator nits. Since we felt that this could ultimately
lead to a duplication of effort, we never followed this course
of action. By virtue of having only Phase 11 A authorization,
California has proceeded with izsuonce of tank/container permits
at sites also conducting lana disposal.
In a few recent case., we have been presented with
circumatar 4 cea which cause us to reexamine our policy of going
through the permit process only once at each facility. k hen
your etaff has been pres.nt.o with th iaaues, we have received
conflicting aovtce.
Perhaps the best exampl. of the situation we have in mind
is the Dow Chemical plant in Pitteburg, Calitornia. Dow has
existing tank/container, incinerator, and surface impounoment
units operating under int.ria status. In response to our
request, Dow submitted a Part 13 permit for it. existing units.
Due to com .lez ground water issues at the facility and trial
burn requireraent s, we do not eafect early issuance of a pert it
fur the Dow interim status units.
3652 — T—2—2/b ilson—grace: S/LlS/CS
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-2-
Recently w. received a permit application from Dow for a
new waste incinerator at. the pittiburq 4ant. Th, unit 1 . part
of Dow’s .f forts to upgrade its waste management practices and
discontinue land disposal both on—site and off—site. The new
unit, because of its large cost, can not be constructed under
interim status, and must receive a RCLA permit before coaaence—
meAt of construction, We ar. persuaded that expedited i suanc.
of a RCRA p.rait fur the new unit would be environmentally
responsible, for the following reasons.
1. It would be.corisistent with LPAS policy of
encouraging high technology waste disposal as an
alternative to land disposal.
2. kithough the incinerator would only dispose of
wastes generated at Pittsburg ano a few other small
Dow facilities, any reduction in the amount of waste
going to land disposal is an advance.
3. The installation of the incinerator (aria additional
on—site treatment facilities) is required for Dow to
close its surface impoundments. Lw. to t 8• lengthy
lead time required for incinerator construction, the
surface impoundment closure will b delaysu if the
incinerator is not permitted.
Re comnended Act ions
Tnt passage of the H3s(k has clearly led to co plicat1.ons
in the issuance of multiple permits at a sinyle racility.
Since the statute now requires that we adoress all releases
from Solid Waste Management Units (SINUs) in all RCWJ4 permits,
we must deal with this provision. In Dow’S case, the existisrig
itszarocus a te ianagemant Units (HWMU3) are, of course, also
SWMIS.
W. propose th. following course of action at Dow and other
facilities with similar circum tancea.
1. ‘Past—tracking’ the permitting of new, nigher
technology units by aduresoing them ir. a single—unit
permit.
2. Addressing corrective actions at S *Ws (including
awMis) tz rough permit conditioni that rc4uire the
continuation of preltiunary sssessi nt. site
inv.at sgatioft, ano/or corrective action in ç eneral
terms . The conøitiona will inclucc a compliance
bcheoule for completion of the r,e t pr;ase of the
corretive action process, depending en its status as
of the time of permit issuance.
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-3—
3. Continuation of interim status for other units at
t . facility until per tt issues can no resolved.
4, Major modification of t n t permit to incorporate All
other units at, the facility. At thic time, the
corrective action ptovi.ion woula De upoated.
Reçuested Action
Your review of our recommended course of action is
requested. Unless we receiv. objections within thirty (30)
days, we will assume that you tava none, and Vt will proceed
aa outlined above.
we also request that in d.velopinq regulations to codify
the I!ShA , you consider the CirC%WStaflCeG &bove, anø allow
anoquate flexiability br the Regions to proceeO with approval
ot new hi jh technology unit! t1Ot to resolution of ll issues
at an Lnd vadual fac l ty.
£hould questions arise in yo ar •veluet*on of this pro,osal,
3i11 hilson should be cor.tact•n at FT 45s—b391.
cc: Per lt Section Chiefs, Recion 1—B, ano 10
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9522.1985C05)
DEC 1 31985
Mr. eliot Cooper
Manager
Environmental Affair.
Waste—Tech Services, Inc.
445 Union, Suite 223
Lakewood, Colorado 80228
Dear Mr. Coopers
This letter confirms the information that was provided to
you in our December 3, 1985, eting r.gardin the RCRA p.rmitting
issues which were raised in your l.tt.r of October 21, 1985.
In that correspondence you presented three RCRA permit issues
regarding on—site treatment by fluidised bed incineration and your
intert retattons of those issue.. Our response to those issues are
as foilowez
Issue 1 , ‘Wast-’Tech services will oim and op.rate the incinerator
on the leased property of the generator. Waste—Tech Services will
be applying for .11 .nviroriuntal permits to be issued to Waste—
Tech Services.
Answers Under 40 dR 5270.10, both the owner and the operator
of the facility must sign the RCRA p.rmit and are subject to the
conditions of the regulation. Alt ugh Waste.Tech Services vi].1
he the owner and operator of the hazardous waste incinerator, it
is not the sole owner or operator of th. facility wsd.r RCBA. A
facility ’ i. defined under 1260.10 as ...all contiguous land,
and structures, other appurtenances, and improvements on the land,
used for treating, storing, or disposing of hazardous waste.’
Therefore, the generator’s property (including property leased
to Waste—Tech Services for the unit) viii be eonsid.rsd the
‘facility under Subtitle C of RCRA (5260.10) and the generator,
as own•r of the land, and Waste—Tech Services, as the operator
of the incin•ration unit, must sign the permit for the incinerator.
As a matter of general policy, the owner or operator of the
facility will includes the ownsr of the land, th. owner of the
structures (eq., the incin.rator unit) and th• operator of the
facility or unit (45 FR 33169, ay 19, 1980). The ownership
status of the prop.rtrtor purposes of ac p.rmit signatory
requirements will be determined based on State and Federal laws
aM -the terms .5 • ysement btween th. sartias- C1.rIfi. t1on
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-2—
of the issue of who is the ovner ’ of th. facility is provid.d
in the Regulation Interpretation Memorandum which was published
in 45 PR 74489, November 10, 1980. A copy of that memorandum is
enclosed.
Issue 2 : Waste—Tech Service’s incineration facility viii be
located on the generator’s property leased to Waste—Tech Services.
Waste viii never cross any public highway or leave the generator’s
property. Therefore, manif.sting of th. waste transferred fros
the generator to Wast—Tscb Services will not be required.’
Answers The issue, as stated, is correct. On—site treatment of
hazardous waste is excluded fros the manifest requiresents in
S260.l0.
Issue 3 : Wast.-Tech Services will be incinerating vast. materials
on—site at a generator’s facility. Waste—Tech Services contract-
ual relationship with th. generator r.quires that the generator
assume all responsibility for the proper treatment and disposal
of incinerator residuals, including bed material, ash, and scrubber
waste water sludge.’
‘Sinc, the generator already has inpiace a closure plan
that accounts for all the wastes that are g.nerat.d on site,
and assumes responsibility for all residuals resulting from
incineration of their waste, Waste—Tech Services closure plan
viii only address the costs necessary to decontaminate our equip-
ment and ensur. that our leased sit. has not been contaminated.’
Answers Issue 3 is directly related to the issue of permit
signatories which is discussed under Issue 1. Since both Waste—
Tech Services and the owner of the property must sign the permit,
they viii be jointly and severally responsible for all RCRA
requirements which include, but are not limited to, the treatment,
.torag&. and disposal of residue r.aultirsg from incineration,
since the residu, is a hazardous waste (S26l.3), and the removal of
incinerator residue from th. incinerator sit. for closure of the
unit (5264.3S 1).
The generator and Waste—Tech Services may us. a contractual
agreement to determine who prepares the permit application and
who carries out the conditions of the permit (e.g., performance
of closure plan). This agreement, however, does not eliminate
liability incurred by either the owner or the operator of the
facility. Although the contract may provide for a division of
responsibility and liability, EPA may, if necessary, bring
enforcement actions against all responsible parties involved
(45 FR 33169, May 19, 1980).
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—3-.
In conversatiors that you have had with members of my staff
you have indicated that you ar. considering usinq fluidizad bed
incinerators for mobile treatment of hazardous waste. I would
like to point out that my Division is presently conducting a study
to dev.lop procedures for facilitating the p.rmitting of mobile
treatment units and invite you to discuss any additional issues
on this subject with Nancy Pom•rleau at 202/382—4500. Technical
questions about the RCRA incinerator requirements should be
addressed to Robin Anderson at 202/382—4498.
Sincerely,
Bruce R. Weddle
Director
Permits and State Programs Division
Enclas urea:
FR Notice, November 30, 1980, 40 C?R Part 122
mmary of meeting with Waste—Tech Service, on D.cember 3, 1985
cc: Pet.r Guerrsro
Art Glazer
Robin Anderson
Nancy Pomerl.au
Carrie Wehling (LE—132S)
Hazardous Waste Branch Chi.fs, R.giors I—X
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IJNITED STATES ENVIRONNENTAL PROTECTION AGENCY 95221985(06]
DEC 28 1985
Mr. Kevin Rookstool
Environmental Chemist
Mineral By-Products, Inc.
27? Regency Ridge Drive
Suite 120
Dayton. Ohio 4?464
Dear Mr. RookStOOl:
Thank you for your letter of August 12, 1985, proposing
an a1ternat ive permitting process that will reduce the time for
granting a permit for small quantity hazardous waste treaters.
Under the Resource Conservation and Resourcy Act (RCRPI) the
Environmental Protection Agency (EPA) is responsible for regulating
the management of hazardous wastes in the United States. In
order to accomplish this task several guidelines and procedures
has been established to monitor and regulate the treatment,
storage and disposal of hazardous waste throughout the U.S.A.
Our major responsibility under RCRA is to protect the human health
and the environment from pollutants contained in hazardous wastes.
Because of this we must assure effective treatment of the wastes
through the submission of the data required in a Part B permit
application.
rhe use of lime, pozzolanics, cement, fly ash, etc. does not
by the very nature of the process assures adequate treatment of
the waste. It is because of this that a Part B permit application
is required for small or large scale hazardous waste treaters.
While your suggestion has many attractive features it does
not appear to provide the adequate assurance that Congress desired
for treatment of hazardous wastes. Therefore, EPA can not justify
such modified permit procedures at. this time.
Thank you for your interest and suggestions.
Sincerely yours,
Juan A. Baez-Martinez
Chemical Engineer
Treatment, Recycling and Reduction
Program
RCRA Permit Policy Compendium Documents
This has been retyped from the original document.
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This Page Intentionally Left Blank
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9522. 1986(01)
Mr. Ronald D. Conte
Operations Coordinator
Petroswill Chemicals, Inc.
2523 Hogadore Road
Akron, Ohio 44312
Dear Mr. Conte:
I am responding to your letter of June 27, 1986, which
requested clarification of the definition of several terms in 40
CFR 270.2.
The terms “holding” and “temporary period” are not
explicitly defined in the RCRA regulations. Holding in context
of these regulations means containment. Storage, as defined in
RCRA means “the containment of hazardous waste, either on a
temporary basis or for a period of years, in such a manner as not
to constitute disposal of such hazardous waste.” The term
disposal (the opposite of storage or containment) is defined in
RCRA (and in the RCRA regulations) as “the discharge,.. .leaking,
or placing of any waste into or on any land. . .so that
such...waste...may enter the environment.” The types of
“holding” devices (i.e. containers, tanks, surface impoundments,
and waste piles) are defined in the regulations.
The term “temporary period”, although not explicitly
defined, is indirectly limited in the regulations by the closure
plan and financial responsibility requirements. These require
the facility owner/operator to specify up front the operating
period (closure time) and the maximum amount of waste in storage
at any time and at closure. This defines the extent of the
“temporary period” and storage activity. At closure, the waste
must be removed from all storage units.
All hazardous waste storage units, including storage units
at recycling facilities, are regulated by the RCRA rules unless
exempted in Part 26]., 264, or 265. Items associated with storage
units that are used to transfer hazardous waste, such as pipes,
funnels or hoses, are regulated as part of the storage unit.
This document has been retyped fro the original.
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—2—
I understand that you recently met with staff in EPA’S
Region V to discuss these definitions as well as the
applicability of the requirements in 40 CFR Parts 264, 265 and
270 to your facility. Since implementation of our regulations is
the responsibility of our Regional offices I urge you to continue
working with Region V. However, if you need additional help
please feel free to contact me.
Sincerely,
Marcia Williams, Director
Office of Solid Waste
cc: Y.J. Kim, Region V
Lisa Pierard, Region V
This document has been retyped from tI original.
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9522.1986 C02A)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
OCTOBER 86
6. Post-Closure Permits
A storage and dis sa1 facility has a surface impx ndrrent. The facLlity stop d
receiving waste on January 25, 1983. 1 r,ever, the facility did not get
certification of closure until Se nber 10, 1984. Is this facility required
to have a st—closure rnut?
Yes; Permits covering the st-c1osure care riod are currently required
for all disrx sal units that close after January 26, 1983 (S270.1(c)).
Units are closed once certification of closure is received not when the
unit stop receiving waste. 50 FR 28712 n. 14 (July 15, 1985).
Section 3005(i) of RCRA, which was added in the 1984 arren&rents requires
that any landfill, surface lit ur&ertt, land treatnent unit, or waste—
pile unit which qualifies for the authorization to og rate under interim
status and which receives hazardo.is waste after July 26, 1982 xttist eet
applicable p ruiit standards concerning gr indwater itcnitoring, unsaturated
zone iicnitorirç, and corrective action under Section 3004.
In order to bring S270.1 rmitting requir Tents in line with NRA
Section 3005(i), EPA rop sed on March 28, 1986 to anend its regulation
generally to ensure that all landfills, surface im n tents, waste piles
and land trea ent units that received waste after July 26, 1982 will be
reviewed for npliance with tjie rmitting standards for grcundwater
rr ,rtitoring, unsaturated zone n nitoring, and corrective action. EPA’S ire-
ferred alternative for conducting this review is the issuance of a p st—
closure rmit.
Sa. rce: Matt Bale (202) 3a2—4740
Research: Carla llergert
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____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9522.1986(03)
WASHINGTON. D.C. 20450
OFFICE OF
NtYV 2 0 io SCUD WASTE AND EMERGENCY R(SPQp
MEMORANDUM
SUBJECT: Applicability of Post—Closure Permit Requirements
FROM: Marcia Williams, Director
Office of Solid Waste
TO: David Wagoner, Director
Waste Management Division, Region VII
In your mencrand nt of October 30, 1986, ycu reqt sted clari-
fication as to the applicability of post—closure permit r uirenente
to the Arzi o Steel facility in Kansas City, Missouri. Based on our
understanding of the facts of this particular situation, wa offer
the following guidance.
The basic question posed by Armco is % hether or not their
facility requires a post—closure peri t under current regulations,
based on the facility’s having ceased receiving h ardcue wastes
at their landfill on January 25, 1983, and having certified closure
of the landfill in September 1984. Armco’s interpretation that the
facility is not required to obtain a post-closure peri .t, based on
the fact that waste was not received after the Jarziary 26, 1983
effective date, is incorrect. Th. r.quir.nmnt to obtain a post—
closure permit ( 270.](c)) is tied to the te on whith the unit
is closed. The concept of clo.ur.u in this centelt is discussed
in the preemble to the July 15, 1985 Pinal Codification Rule, as
follows:
...c1oeure...do.s not mun simply ceasing to place waste in a
unit. Closur.. as a r.gulatory concept under these rules, is
a proceeding aring whid EPA determines, after p 1ic review,
that th. facility has an ad.quat. closure plan and that the
facility implements that pLan. Thu. closure is not cospl.ete
under the harard as wait. regulations until a certification
of closurs has been given und.r 40 CFR 265. 115.R (SD PR 28712
n. 14)
Clearly, since the Aru o landfill did not certify closure until
after January 26, 1983, the facility is required to obtain a past-
closure permit.
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—2—
The language in the preamble to the proposed codification
rule (51 FR 10715), which is cited by Armco as supporting its
contention that the facility is not subject to a post-closure
permit, has been misinterpreted. This pre nble discussion, parts
of which are quoted in Armco’s letter of June 11. 1986, expLains
the §3005(i) provision of RCRA, and the proposed approach for
codifying it. As explained in the preamble, the applicability of
post-closure permits is tied to the date of closure of regulated
unite ( 270.1(c)], while the applicability of Subpart F require—
ntents is tied to the date of last receipt of haxardcus stes
( 264.90(a)]. The March 28 proposed rule would have created a
consistent test for applying post-closure permits and Subpart F
requiren nte: i.e. • receipt of .tes after July 26, 1982. It
should be understood that the March 28 proposed rule would thus
have changed the test for post—clcswe permit applicability from
the current requirenents. Not. that under either situation, the
Arn o facility would be subject to the post-closure permit require-
ment, since wastes re received after July 26, 1982.
Because poet—closure permit requirenents are explicitly
spelled cut in the July 15, 1985 rule and elsewhere. do not
believe it is necessary at this point to publish a Federal Register
notice clarifying these requirenents. However, • — will address
the question specifically in the rule finalizing the March 28
proposal. In addition, ‘ ar. sending a copy of thi, memorandum
to RCRA Branch and Section ti.f. in the other regions.
If you have any further questions, plea.. contact George Faison
at FTS 382-4422.
cc i RCRA Branch Chiefs, Regions I-X
RCR.A Permit Section tiefs, Region. I-X
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4 • Corrective ACtion in permits
9 521.1986(6A)
Section 3004(u) of A requires owners and operators Cob) of
disrx al facilities seeking a permit to conduct corrective action for
all releases of hazardous waste or constituents frait any solid waste
manag nt unit (S $ U) at the facility. Are there any situations in
which an interim status facility could avoid corrective action
requiren nts under S3004(u)?
Any facility that is not reauired to obtain a permit under
Section 3005(c) of RCPA will not have to neet Section 3004(u).
Interim status units that continue operating will generally have
to obtain permits.
— H ver, a permit would not be required for an interim status
facility where all units containing hazardous wastes are
tanks or containers, if it continued to erate after converting
to generator status and net the accunulation standards in
40 CFR 262.34.
Permits will also be required for sate facilities that close
under interim status. Under 40 CFR 270.1(c), saie surface
iinpounc ients, waste piles, land treatment units, and landfills
(Uland disçx al units) Ii ist obtain poet—closure permits.
> .
— No permit would be required for a closing interi.m status
facility that has no lard disposal units. Units sud as
tanks, containers and incinerators do not require post-closure
permits.
— The current version of 40 CFR 270.1(c) requires post—closure
permits for all facilities with land disposal units that
close after January 26, 1983. To in lenent new Section 3005(i)
X of RA, EPA recently proposed to thange this requirement to
require post-closure permits for all land disposal units that
received waste after July 26, 1982 (see 51 FR 10706). EPA is
considering a further revision to require post-closure permits
o for facilities with land disposal units that received waste
after July 26, 1982 or closed after Jar jary 26, 1983.
Facilities that would not be required to have post-closure
permits under these criteria will riot be subject to Section
3004(u).
Although Section 3004(u) i uld not apply to closing units that
fall, in these three categories, EPA could use authorities under
the closure regulati and Section 3007 of A to investigate
U the facility for releases fran the closing hazardous waste
units. This investigation could also extend to other potential
sources of contaninaticn at the facility, especially if information
about edditional sources were needed to determine whether the
clcei ng hazardous waste units ware the sources of any contanination
found. This investigation could be very similar to the RCM
Facility Msessient (RFA) required under Section 3004(u) for
permitted units. If EPA found a release of hazardous waste, or
hazardous constituents fran hazardous or solid was, it could
order corrective action under the interim status corrective
action order authority in Section 3008(h). Section 3008(h)
orders may be issued both before and after closure.
Contact: Tins Kareen (202) 382—7706
Research: Kevin Weiss/tharlotte M ney
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9522.1987(02)
RCRA/SUPERFUND HOTLINE MONThLY SUMMARY
DECEMBER 87
3. Mixture Rule - Discharges to Wastewater
Incidental spills, onto a cement slab, from the norrial
handling or transfer of virgin solvent into cieaning
tanics. are collected :n an underlying surip. The
contents of the sump are at times diluted and
eventually discharged to art on-site wastewater
treatment system meeting the exemptions under 40 CFR
S264.1(g ) 6 ), 5265.].(c)(LO), and S270.L(c} (2)(v) and
regulated under S402 of the Clean Water Act. The
cleaning operation is at a manufacturing site. Will
the wastewater qualify for the S261.3(a) ( 21 (iv) D)
mixture rule de mini.inis losses” exemption?
Yes, although the material spilled is not a
chemical intermediate used in a production process
or a raw material used in a production process. r
is a discarded commercial chemical product which
has been spilled during normal material handling
operations at a manufacturing site and is disposed
of via drainage to the wastewater treatment
process. The amount of material would not be
counted against the 1 to 25 ppm exclusion levc l
for spent solvents mixed with wastewater see
footnote 37, 46 ER 56587, flovember 17, L981.). In
this case. what is being discarded is not a cpent
solvent, but an unused commercial product and bilk
meet the requirements of 5251.3(a)(2 (iv) (D) de
minimis losses.
Source: Mike Petruaka (202) 382-4765
Matt Straus (202) 475—8551
Research: Craig Cam ell
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RCRA/SUPERFUND HOTLINE MOWFHLY SUHNARY 9522.1988( 1)
FEBRUARY 88
3. Clean Closure of Interim Statue Surface Impoundment and Waste
Pile
A waste pile and surface impoundment, both interim status,
were clean closed in 1985 per Section 265.228 and Section
265.258. Closure was certified as per Section 265.115. Will
the waste pile and surface impoundment site require ground-
water monitoring?
According to the December 1, 1987, Codification Rule (52
FR 45788), owners/operators of surface impoundments and
waste piles that received waste after July 26, 1982, or
certified closure after January 26, 1983, must have
post-closure permits unless they demonstrate that the
mclean cloaureu met Part 264 standards (Section
270.1(c )).
Sections 270.1(c)(5) and (6) outline the procedures for
determining if the closure met Part 264 standards (i.e.,
equivalency determination). If equivalency is shown,
then the surface impoundment and waste pile will not be
required to have a post—closure permit. If, on the
other hand, the Agency decides equivalency was not met,
a post closure permit will be required. The post
closure permit would have to address applicable Part 264
Ground-water monitoring, unsaturated zone monitoring
corrective action and post-closure care requirements.
These requirements also apply to landfills and land
treatment units.
Source: Sharon Frey (202) 475-6725
Research: Cheryl McNabb
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHiNGTON D.C. 20460
MAR 7 BB
9522 .1988 (02)
OFFICE OF
SOUD WASTE AND EMERGENCY RESPONSE
Mr. Dic Olsen
General Operations Manager
Fenton Company, Inc.
Worth Beckley
1 ncaster, Texas 7 134
De - Mr. Olsen:
Thank you for your letter of Pe uary 5, 1988, in which you
re9uested :- on
of a wast’ewate*’ tr átment
acuity.
Your understanding of the requirements in 40 CFR 270.1(c) (2) (v)
is correct. Sludge dehydration equipment is excluded from the
Environmental Protection Agency’s (EPA’S) hazardous waste regu-
lations provided the equipment meets the definition of wastewater
treatment unit as defined in 40 CFR 260.10 and actually is used to
evaporate water from the sludge. The definition of wastewater
treatment unit includes the requirement that the device meets the
definition of a tank. We believe that most sludge dryers do meet
the definition of tank. One such example would be a sludge dryer
integrally equipped vith a feed hopper that contains ar accumu-
lates waste. It is, however, important to note that the exclusion
provided by §270.1(c) (2) (v) does not apply to conventional incin-
erators. Such devices are subject to Subpart 0 of Parts 264 or 265
even when part of a wastewater treatment system.
As we have discussed in recent telephone conversations, there
is some !tf1xsion regarding the regulatory status of direct-fired
dryers. While direct—fired dryers may meet the current definition
of incinerator, EPA did not intend to regulate dryers as incinera-
tors. As we have discussed, EPA is developing a Federal Register
notice That iU clarify the regulatory status of sludge dryers and
propose to revise the definition of incinerator to exclude sludge
dryers specifically. We are also proposing a new definition for
sludge dryers that would cover both direct and indirect-fired
units.
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2
This proposal, soon to be published in the Register ,
viii clarify that all sludge dryers meeting the criteria in 40 CFR
270.1(c) (2) (v) are eligible for the wastewater treatment exclusion
provided the equipment meets the definition of wastewater treatment
unit in 40 CFR 260.10. sludge dryers not eligible for the waste-
water treatment exclusion, including direct and indirect-fired
units, would have to comply with the interim status standards of
Subpart P of Part 265 or the permit standards of Subpart X of Part
264 (52 FR 46946, December 10, 3987).
If I can be of further assistan e, please don’t hesitate to
contact me at (202)382—7935.
Sincerely,
i
Mary Cunningham
Chemical Engineer
!v aste Treatment Branch
cc: Toe Carra
Dave Bussard
Bob Dellinger
Bob Holloway
Sonya Stelmack
Steve Silverman
RCRA Hotline
Incinerator Permit Writers’ Workgroup
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9522.1988(03
UPs .D S1’ATE3 ENVIRON NTA . PROTEC7._4 AGENCY
APR 2 8
MEMORANDUM
SUBJECT: Review of Shell Oil’s Wood River Manufacturing
Complex - Minimum Technological Requirements
Waiver Petition, Section 3084(o) (2)
FROM: James Michael, Chief
Land Disposal PAT Section (WH—563)
TO: Kevin 3. Moss
RCRA Permitting Branch, IL Unit
Region V
In response to your March 18, 1988 memorandum, the Eand
Disposal Permit Assistance Team (PAT) has completed its reviem.
of the petition submitted by Shell Oil for its Wood River
Manufacturing Complex for a modification of the minimum
technological requirements (MTR) under Section 3 004(o) (2) of
RCR.A.
Our review indicates that the alternative design and
operating practices as presented by Shell Oil, together with
location characteristics will not prevent the migration of
hazardous constituents into the ground water or surface water as
effectively as the double liner and leachat. collection system
outlined in Section 3004(o)(l)(A)(i) of RCRAS
Shell Oil has argued that the impoundment for which it is
seeking the waiver is situated within a larger, engineered
ground-water managemant system beneath th. entire Wood River
Manufacturing Complex that prevents the migration of
contaEnsats beyond the property boundary. Essentially the
engine system consists of an on—site well field that creates
a co r.ssion to contain and collect any hydrocarbon
produc as and soluble contaminants emanating from the
bottom of th. impoundment. rh. waiver petition attempts to
provid, a detailed description of the ground—water flow pattern
and demonstrate that the well field will Indeed provide
effective containment.
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—2—
Section 3004(o) (2) authorizes a waiver of the double liner
and leachate collection system requirements only upon a
demonstration that a proposed alternative will “prevent the
migration of any hazardous constituent into the ground water or
surface water” at least as effectively as a double liner and
leachate collection system. Shell Oil’s proposal, however,
specifically allows migration of hazardous constituents into the
ground water . The term “ground water” in Section 3004(o) (2) is
not qualified by the phrase “beyond the property boundary”. Nor
is there any evidence of Congressional intent that the term
“ground water” means only ground water beyond the property
boundary. Surely if Congress had intended such a test for
waivers of the double liner and leachate collection system
requirement, it would have stated so clearly. To the contrary,
in amending Section 3004 of RCRA, Congress devised a threefold
scheme to ensure protection of human health and the environment
for hazardous waste treatment, storage and disposal activities.
The first “line of defense” is the requirement of a liner
and leachate collection system to prevent the escape of
hazardous constituents from landfills or surface impoundments.
The second “line of defense” is the requirement for ground—water
monitoring to detect any failure of such containment device.
The third “line of defense” is the requirement to take
corrective action to clean up any problems resulting from such
failure. Containment with collection and removal of leachate
within the unit to prevent leakage to ground water, as the
intended purpose of the liner and leachate collection system
requirement, is supported both by the language of Section
3004(o) (2) in authorizing waivers of such requirements only for
methods equally effective at preventing migration to ground
water , and by the language of Section 3004(o)(5)(B). That
section provides that the liner requirements of Section
3004(0) (1) (A) (i) can be satisfied pending issuance of
regulations by construction of a liner system “ . . .to prevent
the migration of any constituent through such liner . . .“ Any
system, therefore, that only controls constituent migration
after it enters ground water cannot meet the equivalency test of
Section 3004( 0) (2).
The sttvation outlined by Shell Oil in its petition fully
allows migTatlon of hazardous constituents to the ground water
beneath th. unit and therefore does not prevent the migration of
hazardous constituents “into the ground water.” Moreover,
because migration of hazardous constituents freely occurs with
respect to such ground water, the Shell Oil control scenario
cannot be “as effective as” a double liner and leachate
collection system in preventing migration to the ground water.
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—3—
We are, therefore, unable to conclude that the proposed
alternative would be as effective as the liner and leachate
collection system requirement in preventing migration of
hazardous constitutents into the ground water. Should you have
questions regarding the content of our response please contact
Chris Rhyne at FTS 382—4692.
cc: Bruce Weddle
Suzanne Rudziriski
Chris Rhyne
Karl Bremer, Region V
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9522.1988(04)
c D SPqj
F UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
4,
- i 2 988 OFFICE O
SOLID WASTE AND EMERGENCY RESPONS
Mr. Ronald T. Taritas
Environmental Technology Corporation
1124 Morse Avenue
Schaumburg, rt 60193
Dear Mr. Taritas:
This is in response to your letter of September 19, 1988 in
which you raise several questions about permit recuirements as
they relate to on—site treatment and wastewater treatment unit
exempt ions.
CJnder Subtitle C of the Resource Conservation and Recovery
Act (RCRA), the scope of the RCRA permit requirements are
detailed in 40 CFR Section 270.1(c). A RCRA permit is required
for treatment, storage, or disposal of any hazardous waste.
Treatment, storage, or disposal of hazardous wastes are defined
as hazardous waste activities in 40 CFR Section 260.10.
Specific exclusions to the RCRA permit requirements are
found in 40 CFR Section 270.1(c)(2). Generators that
accumulate hazardous waste on—site in compliance with 40 CFP
Section 262.34 are exempt from the reauirement to obtain a RCRA
permit, as specified in 40 CFR Section 270.1(c)(2)(i). The
Agency currently interprets this regulatory exemption from
permitting to cover storage and treatment activities in a
generator’s accumulation tanks or containers. The reasoning
behind this policy can be found in Office of Solid Waste (OSW)
memoranda dated June 17, 1986 and December 15, 1987 (copies
enclosed), and preamble language in 51 10168, March 24,
1986.
As I understand your letter, you are interested in applying
the on-site treatment exemption for generators to the ribbon
blender unit that stabilizes the listed F006 sludge, and
possibly to the filter press. as well. It is important that
you understand that this response is only dealing with a
theoretical situation since the final determination as to
whether and which RCRA regulations apply is facility—specific
and, thus, must be made by the appropriate EPA Regional Office
or authorized State. In the following discussion, I will deal
with your Generators A and B separately.
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—2—
Generator A
Your description of Generator A did not include enough
detail to determine which RCRA regulations are applicable. One
possibility is to assume that every unit at the facility meets
the definition of a wastewater treatment unit per 40 CFR
Section 260.10. If this is the case, the on-site treatment
exemption for generators is not relevant since Part 264
standards (i.e., Subpart J——Tank Systems) and Part 270 permit
reauirements do not apply to owners and operators of wastewater
treatment units, in accordance with 40 CFR Sections 264.1(g)(6)
and 270.1(c)(2)(v), respectively.
For the above assumption to be correct, however, Generator
A’s wastewater treatment plant must be subject to reaulation
under either Section 402 or 307(b) of the Clean Water Act. In
addition, each unit at the facility must either treat or store
hazardous wastewater or hazardous wastewater treatment sludge
(listed waste F006) and each unit on—site must meet the
definition of a tank in 40 CFR Section 260.10. If material
entering the filter press from the .wastewater treatment plant
is identified as a wastewater, rather than a wastewater
treatment sludge (listed waste F006), the wastewater must
exhibit a characteristic of a hazardous waste, such as EP
toxicity for lead, cadmium, or chromium, to be identified as a
hazardous wastewater. The Agency defines wastewaters as wastes
that contain less than 1% total organic carbon and less than 1%
total suspended solids (i.e., total filterable solids).
See 53 FP 31145, August 17, 1988.
Another possibility is to assume that Generator A’s
facility is not subject to regulation under either Section 402
or 307(b) of the Clean Water Act. If this is the case, no
units on—site are eligible for the wastewater treatment unit
exemption. AL ]. units not meeting the definition of a
wastewater treatment unit could be regulated as generator
accumulation tanks or containers, depending on when the
wastewater is identified as a hazardous waste. If the
wastewater can be identified as a hazardous waste at its point
of generation, the 90—day accumulation time period begins when
the wastewater first enters the first unit (90—day accumulation
tank or container) at the facility. Shipment of the stabilized
(as specified in your letter) hazardous waste from the ribbon
blender must take place within 90 days of the beginning point
mentioned above.
A final possibility is to assume that all units on—site can
be identified as wastewater treatment units except for either
the filter press or the ribbon blender. This conditior could
only exist if either the filter press or the ribbon b1er ier
does not meet the definition of a tank (e.g.. container) in 40
CFR 260.10. This scenario becomes much more complicated and
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—3—
would best be answered by the apDropriate EPA Reaional Office
or authorized State based on the specific facility design and
operating parameters.
In any case, all tanks or containers at the facility must
be in compliance with Subparts 3 or I, respectively, of Part
265 and Generator A must also comply with Subparts C and 0 of
Part 265, as well as Section 265.16, as specified in 40 CFR
Section 262.34. In other words, Generator A must be in
compliance with all the time-frames and technical requirements
outlined above and detailed in Section 262.34 to utilize the
on—site treatment exemption for generators.
Generator 8
Based on the information provided in your letter, the
treatment of the listed waste K061 in the central accumulation
tank would not require a RCRA permit provided the following
conditions are met. First, from the moment Generator B places
the K061 in the central accumulation tank, the K061 must be
shipped off—site within 90 days. Second, the accumulation tank
must be in compliance with the technical standards for
hazardous waste tanks in Subpart 3 of Part 265. Third,
Generator B must comply with Subpart C. Preparedness and
Prevention and Subpart 0, Emergency Procedures, of Part 265.
Finally, all other regulatory requirements in 40 CFR Section
262.34 must be met by Generator B.
I want to reiterate that the above discussion addresses a
theoretical situation. Facility—specific determinations as to
the applicability and extent of regulation under RCRA must be
made by the appropriate EPA Regional Office or authorized
State. As you know, an authorized State may have more
stringent regulations than those of the Federal government.
If you have further questions or need additional
clarification, please contact Steve Cochran at (202) 475—8551.
Sincerely.
/t •
Sylvia K. Lowrance
Director
Office of Solid Waste
Enclosures
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9522.l98 Q5)
itP S74
( UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
t
OFFICE OF
NOV 3 0 1988 SOwO WASTE AND EMERGENCY RESPONS
Mr. Ron 1d B.L. Jones
Environmental Consulting
15 Hollow Road
Watertown, Connecticut 06795
Dear Mr. Jones:
In your letter of October 24, 1988, you requested information
on the December 1, 1987, Codification Rule (FR 45798 and 45799),
as it applies to interim status surface impoundments and waste
piles that had “clean closed.” The following information should
answer each of your specific questions.
o The time period during which a RCRA Part B post—closure
permit must be obtained for a unit that received hazardous
waste after July 26, 1982 and has closed under Part 265
rules:
The EPA Regional Office or the State Agency responsible
for the Subtitle C program, if authorized for this aspect
of the program, will request you to submit a RCRA Part B
permit application for these units. This is done on a
priority basis, with the units at facilities that pose
the greatest environmental risk being reviewed first. An
application for a post-closure permit must be submitted
to the agency within 6 months of the request.
o The time period during which an owner or operator of a
waste pile that “clean closed” under Part 265 may petition
the Regional EPA Administrator for an equivalency waiver
to the Part 264 clean closure requirements:
The procedures for such a petition are described in 40 CFR
270.1(c) (6), a copy of which is enclosed. The owner or
operator who wishes to submit an equivalency demonstration
is urged -to do so before the Part B permit application is
requested, since submitting this demonstration will not
exempt the owner/operator from having to submit the
requested RCRA Part B post—closure permit application.
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—2
Since processing an equivalency demonstration and
reviewing the data submitted to support the demonstration
may be-time consuming, it may not be possible for the
responsible agency to make a final determination on the
petition during the six month period prior to the date
that the permit application is due. The owner or operator
should not therefore await such a determination prior to
initiating the required permit application when requested.
o Does EPA have any guidance on equivalency demonstrations:
At the present time, my staff is preparing a policy
directive that will explain in more detail what we will
expect from an owner or operator who submits a petition
to demonstrate equivalency with Part 264 clean closure
requirements. I expect to have a completed policy
directive by early January 1989. When it is available,
you can receive a copy by contacting the Regional EPA
Waste Management Division office.
o How can I obtain a copy of the “Surface Impoundment Clean
Closure Guidance Document”:
The draft document is under internal review at this time.
Therefore, it is not available for public distribution.
We will announce the availability of this guidance when
it is completed in the Federal Register .
I hope the above information has adequately answered your
questions. If there is any further information that you may
need, please call tea Otte of my staff at (202) 382—4654.
Sincerely,
I ,
“ -I --
Sylvia K. tourance
Director
Office of Solid Waste
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o5& /- U
9522.1990(01)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
L
JAN 2 6 iggo
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSI
John A. King, Director
Washington Programs
Tricil Inc.
1155 Connecticut Avenue, N.W.
Suite 300
Washington, D.C. 20036—4306
Dear Mr. King:
In your letter of November 15, 1989, you inquired about the
administration of Federal and State permits issued to the Earth
Industrial Waste Management facility in Tennessee. As you stated
in your letter, in September 1984 EPA issued a RCRA storage
permit and in January 1985 the state of Tennessee granted a state
storage permit to the facility. Tennessee received RCRA
authorization in February 1985. You asked several questions
about the enforcement and administration of the permits, which
are answered below.
In your first question, you ask what effect the Federal
permit has in an authorized state. The Federal permit remains in
effect even though the state was subsequently authorized. In
fact, it is only the Federal permit which gives the facility the
authority to operate under RCPA; the state-issued permit was
issued prior to the state being authorized for RCRA, and
therefore does not satisfy the RCRA requirements. Therefore, it
would be inadvisable to terminate the EPA permit until Tennessee
has a RCRA permit in place. EPA encourages states to take over
the responsibility for the administration of existing RCRA
permits after states are given RCRA authorization. There are
several ways the state can become the sole responsible agency for
the facility’s permit, and there is existing EPA policy on this
matter. You should discuss such transfer of permit
administration with the state of Tennessee and the EPA Regional
office in Atlanta.
Secondly, you ask about the specific state and EPA
enforcement responsibilities for permit conditions. EPA enforces
the conditions contained in the Federal RCRA permit. The state
of Tennessee enforces the conditions contained in its state-
issued permit. Obviously, this means that the facility is
subject to dual permits which are, for the most part, identical.
Although in such cases EPA and the state agree on a sharing of
their respective enforcement responsibilities in order to avoid
duplication of effort, it is preferable for the state to take
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—2—
over all of the permit responsibilities, as discussed above.
Finally, you asked about incorporating some of the interim
status operations at the site into the state permit. We
recommend that if the state plans to add such operations to the
permit that it first take whatever action is necessary to give
the state administrative authority for the RCRA permit. Then any
subsequent permit modification by the state will satisfy both the
state and Federal requirements.
I hope that this response has addressed your concerns.
Please contact Wayne Roepe of my staff at 202-475-7245 if you
have further questions.
Sinc r ly yours 1’
,— ‘1 •‘‘
yI a,’K Lwra1 c ’, Director
Of$ce of Solid Waste
cc: Wayne Roepe, OSW
Wayne Garfinkle, U.S. EPA Region 4
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9522.1992(01)
ciD S?ai ,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
____ WASHINGTON, D.C. 20460
6 i992
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
Mr. Thomas I. Cervino, P.L
Colonial Pipeline Company
Lenox Towers
3390 Peachtree Road, N.E.
Atlanta, GA 30326
Dear Mr. Cervino:
This letter is in response to your August 9, 1991
correspondence requesting a clarification of the conditions under
which waste water treatment units qualify for an exemption from
RCRA permitting requirements. In your letter you explained that
Colonial Pipeline Company has several locations that generate waste
waters that are basardous under the toxicity characteristic, and
you asked whether a RCRA permit would be required for a new
treatment unit that you are considering.
The primary reason for the waste water treatment exemption is
to avoid imposing duplicative requirements pursuant to both a NPDES
permit and a RCRA permit for the same unit. As you are aware, in
order for a unit to qualify for this exemption contained in 40 CFR
§264.1 (g) (6), it “ u $ :
(1) Be part of a waste water treatment facility that is
subject to regulation under either Section 402 or 307 (b)
of the Clean Water Act;
(2) Receive, treat, or store influent vastewater; or
generate, accumulate, treat, or store a vastevater
treatment sludge; and,
(3) Meet the definition of tank or tank system in 40 CYR
§260.10.
The main question that you raised concerns the first crit.ria:
i.e., which units ar. considered subject to the Clean Water Act.
As you are aware, the Agency provided some discussion of this
requirement in 53 FR 34080 (September 2, 1988) which states that i
“the wastewater treatment unit exemption ii
intended to cover only tank systems that are
part of a wastewatar treatment facility that
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(1) produces a treated wastewater effluent
which is discharged into surface waters or
into a POTI sewer system and therefore is
subject to the NPDEB or pretreatment require-
ments of the Clean Water Act, or (2) produces
no treated wastewater effluent as a direct
result of such requirements”.
It is important to note that it is not necessary that the Clean
Water Act permits actually be issued for the units to be eligible
for the RCRA exemption; it is sufficient that the facility be
subject to the requirements of the Clean Water Act.
Based on a review of the information provided, EPA has
determined that any of the treatment systems (including the
proposed treatment unit) at the Colonial Pipeline facilities which
are currently permitted, were ever permitted, or should have been
permitted under NPDEB, all meet the first test of the Section
264.1(g) (6) exemption. The key issue is whether the treatment
system ever had a discharge to surface water, and thus was ever
permitted (or should have been permitted) under NPDEB. If there
was never a discharge to surface waters, then the exemption
criteria ‘ not satisfied. You also mentioned that some of your
faciliti . employ waste water treatment systems which are regulated
in accordance with other applicable state laws, rules, and
regulations. without more specific information regarding these
state requirements and permits, EPA cannot address whether these
facilities would qualify for the exemption. Rowever, as discussed
above, the exemption in the federal regulations would only be
available if the state requirements stem from the identified
sections of the Clean Water Act.
With regard to the question of a “zero discharge” facility,
EPA would like to clarify the difference between a facility that
produces no treated wastewater as a direct result of Clean Water
Act requirements and units that are not required to obtain an NPDES
permit because they do not discharge treated effluent. In the
first case, the facility would have had a surface water discharge
at one time, but has since eliminated the discharge as a result of,
or by exceeding, WPDE S or pretreatment requirements. Such facility
would qualify for the waste water treatment unit exemption under
RCRA. In the second case, the facility never had a surface water
discharge, and therefore was never subject to NPDEB permitting 0’?
‘ an Water Act requirements (53 34080). The RCRA exemption is
not available in these cases. we should point out that th.
1an iage you referred to on Page 2 of the Hay 22, 1984 memo on zero
discharge has been further refined and clarified by recent program
policies and interpretations.)
There is another management option that my staff has discussed
with you on the phone. That approach would be to treat your waste
water in tank units pursuant to the generator accumulation
exemption of 40 CPR §262.34. This provision allows generators of
hazardous wastes to treat or store such wastes in tanks or
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containers for short periods of time (i.e., 90 days) without
obtaining a RCRA permit, provided that all the conditions of
§262.34 ar. met, including compliance with specified tank or
container standards in 40 CPR Part 265. In many cases air
strippers may be considered tank units under RCRA and might be
eligible for this exemption. Of course, as long as the treated
waste water meats a hazardous waste listing description or exhibits
a hazardous waste characteristic it must continue to be managed as
a hazardous waste.
If you have facility-specific questions, please contact
individuals in the appropriate EPA Regional Offices. For Region
III (Philadelphia), contact Ks. Susan Sciarratia at (215) 597—7259
and for Region IV (Atlanta), contact Ms. Beth Antley at (404) 347—
3433. Should you have further questions about this letter, please
contact Glenn Strabs of my staff at (202) 260—4782.
/
0 ce of Sol d Waste
cc: Kathy Nan, OGC
EPA RCRA Branch Chiefs, Regions I-K
Barbara Simcoe, ASTBWMO
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9522.1993(01)
(O
i UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
- 4 1993
Mr. Edward 3. Ciechon, Jr.
Chief Counsel
Sun Company, Inc.
Ten Penn Center 1801 Market Street
Philadelphia, PA 19103—1699
Dear Mr. Ciechon:
Thank you for your December 10, 1992, letter requesting the
contin ’at - of the existing Toxicity Characteristic (TC)
compliance date beyond January 25, 1993. This extension had been
given to facilities reinjecting produced ground water as part of
state-authorized cleanup activities. After that date, if
hazardous waste is generated during site clean up activities, the
reinjection operation can only be performed in underground
injection wells that are permitted under the RCRA regulations or
in the Class IV injection wells permitted under the UIC program.
EPA requires that nort-UST hydrocarbon recovery operations not
meeting these two conditions but expecting to continue
reinjection, must submit a RCRA Part A permit application and
obtain interim status, within 30 days after the January 25, 1993
deadline (see 40 CFR 270.10(e) (1) (ii)).
The Agency has been aware of the shut—down of some
reinjection operations since the expiration of the TC compliance
date extension and we are considering alternatives.
Sincerely,
Dir ctor
Office of Solid Waste
Pnnted on Recycled Paper
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9522.1993(02)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
APR 26 1993
OFFICE OF
SOL.ID WASTE AND EMERGENCY RESPONSE
Edmund W. ICelso, Jr.
Chief
FBI Bomb Data Center
Quantico, Virginia 22135
Dear Mr. Kelso:
This is in response to your letter of March 3, 1993 to Matt
Hale, in which you discussed the applicability of 40 CFR
270.1(c) (3) to immediate response activities relating to the
removal, transportation and/or treatment of bombs or other
explosive devices. Specifically, you asked for confirmation that
the bort - noval activities would constitute an immediate
response to a discharge, or an imminent and substantial threat of
a discharge, which are exempt from the RCRA permitting and other
substantive requirements. In addition, you indicated that you
would like to develop an agreement that would permit the public
safety bomb squads to safely perform their mission while
conforming to environmental standards.
In EPA’s view, bomb squad activities in response to an
immediate, or imminent and substantial threat of a discharge of
hazardous waste are not required to have a RCRA permit. These
would include the five activities you identify in your letter, as
long as they were taken in response to an immediate or imminent
threat: (1) the response to a bombing and recovery of
undetonated explosives or improvised explosive devices (lED’s);
(2) the neutralization and/or rendering safe of an lED; (3) the
service of a search warrant on an improvised bomb factory or
illegal explosives manufacturing facility; (4) the recovery of
explosives illegally stored in a residential neighborhood; and,
(5) the recovery of deteriorated explosives unsafe for storage
transportation.
The two interpretative letters you noted in your letter
(S.R. Lowrance to Fred Smith) explain our current policy in
addressing immediate response activities. However, the Agency
has developed other interpretative letters that better relate to
the bomb removal scenarios you provided. They are enclosed for
your information. Take particular note of the letter to the Law
Enforcement Department of the Bureau of Alcohol, Tobacco, and
Firearms. It includes the scenarios of storage during analysis
and law enforcement proceedings.
Printed on Recycled Paper
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Another important aspect for you to consider is the
regulation of your activities by States, States can be
authorized by the USEPA to operate in lieu of and in a manner
which is consistent with and no less stringent than the Federal
RCRA program. These criteria do not prevent the States from
operating a more stringent or broader-in-scope hazardous waste
program. Therefore, you should consider appropriate State
standards for possible additional requirements.
I believe the enclosed letters are a good starting point in
developing an agreement on the management of explosives by bomb
squads. Matt Hale is available to meet with you and discuss in
more detail the Federal and State RCRA requirements per 40 CFR
270.l(c)(3). He can be reached at (703) 308—8704.
cc: Matt Hale, PSPD, OSW
Director
Enclosures
-2—
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
s:p 2 6
OFFICE OF
SOLID WASTE AND EME QENCY RESPONSE
MEMORANDUM
SUBJECT: HandLing of Explosives by Law Enforcement Agencies
FROM: Joseph S. Carra, Director VY .2
Permits and State Progra 7 $ visiOn (OS—343)
70: Regional HazardouS Waste Branch Chiefs
Regions I—X
Attac’ ed for your information, is a copy of a recent letter
to the Bureau of Alcohol, Tobacco, and Firearms (BATF). The
letter describes the Agency’s guidance on handling of explosives
that are an immediate safety threat, or secured for analysis and
possib.e use in law enforcement proceedings.
Much of the gu:dance stated in the BATF letter has, in the
past, eeri informally communicated by phone to the Regions,
regulated co unity, and law enforcement agencies. Since
inauirles cor . inue in this area, I believe it prudent to share
this . r tten guidance with you. Please feel free to .,rovide it
to your States nd encourage them to follow the same approach.
If you have any ques:ions or would like to discuss the guidance
please call Elizabeth Cotsworth {8—382-3l32 or Chet Oszman
Attachment
c: Regional Hazardous Waste Section Chiefs, Regions t—X
Susan Bromm, OWPE
crank Mcklister, OSW
Mitt Male, OSW
red Chanania, 0CC
TSS staff
:p3 staff
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iID P 4
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I WASHINGTON. D.C. 2O O
k lM9B8
Ou:cE 3
SCUD W S?E IND EMHCSNCY ISPC
Mr. Phillip C. McGuire
AGsuc.iate Director, Law Enforcement
Department of the Treasury
Bureau of Alcohol, Tobacco, and Firearms
Washington, DC 20226
Dear Mr. McGuire:
This letter is in response to the issues raised recently by
the Bureau of Alcohol, Tobacco, and Firearms (BAT!) with respect
to compliance with the Resource Conservation and Recovery Act
(RCRA). Specifically,, your ataff has requested EPA guidance for
two situations: (1) when a BATF agent is called to a location
where there is an immediate safety threat, and (2) when
explosives or explosive related materials that do not-present an
immediate safetr threat are stored in MT! secured lockers for
analysis and possible use in l iv enforcement proceedings.
The guidance given below for these two situations is based on
the federal RCRA program as administered by EPA pursuant to 40
CFR Parts 260—271. In authorized States (which are 43 in
number), EPA has delegated the hazardous waste program to the
States pursuant to statutory provisions in RCRA. Although each
authorized State program must be consistent with and at least as
stringent as tne Federal program, a Stats s fres to bs more
stringent. Hence any guidance given below must be followed up
by a BAT!’ analysis of any differ.nt provisions that an authorized
state may have chosen to enact.
1. xbthaivea That Pr.aent an !mmediate Safety Threat
According to our discussions,, this scenario involves
identification by a trained ‘BAT! agent of explosives that create
a.n immediats safety threat, removal of those explosives fro. the
original location to a safe area (often a local law enforcement
agency’s b b disposal sits or a nearby military installation).
and immediate destruction, normally by detonation or open
burning.
Under current RCRA regulations (40 CTR Sections 264.l(q $i.
265.l(.)(lHi), and 270.ltc)(3)), all activities taken in
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immediate response to a discharge of hazardous waste, or an
imminent and substantial threat of discharg. of a hazardous
waste, are exempt from the RCRA permitting and substantive
requirements. Since the explosives in question would be
hazardous by virtue of their reactivity and ignitabi]ity, any
SATF actions taken to eliminate the imminent and substantial
danger would qualify under this exemption. If the response
actions involvs transportation to a remote sits for destruction,
then the transportation as well as the destruction would be
exempt. However, the transportation is exempt only to the extent
necessary to respond to the immediate threat. Hence, we expect
the transportation would normally cover a relatively short
distance.
Should there be any question about the exempt or nonexempt
Status of the BATT action, the RCRA emergency permit regulations
(Section 270.61) can be used for destruction activities. Al
these regulations provide, an emergency RCRA permit can be issued
by an PA Regional Office or by an authorized State official via
teleptons or in writing. These permits may be issued when the
Region or State finds that an imminent and substantial
endangerment to human health or the environment exists, according
to the requirements of Section 270.61. This permit can address
both treatment and storage of hazardous waste. (Under RCRA, open
detonation or burning of explosivss waste qualifies as thermal
treatment.) If necessary, transportation can also be authorized
by a provisional identification number 1 obtainable by telephone.
To reiterate, howev•r, no permit is necessary when a BATT agent
determines that an immediate safety threat exists.
2. ExDløaives Material Stor&ae nurin Analysis and Law
Enforce t.nt Proceedings
When a hazardous material (such as explosives and certain
types of explosives—related material) is discarded, it becomes a
hazardous waste and therefore subject to RCRA. Although the
situation may vary, we believe that explosives and explosive
material become waste when the court (or BATT) no longer has any
use for the. (i.e., when no longer needed for evidence, referred
w U 1 judiciai. forfeitures by your staff in our discussions .
When explosives sri stor pending judicial proceedings, they are
not subject to the hazardous waste regulations. However, when
they are to be discarded, they become waste. At that point, RCRA
requirements pertaining to waste generation, transportation, and
treatment, storage, and disposal (40 CP’R Parts 260—271) become
applicable.
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Under 40.CTR Section 262.11, generators of solid waste must
determine if their wastes are hazardous 1 Generator’ is defined
by person and by site. Thus, for example, each of your storage
locker areas would be a generator sit.. Except for generators
who meet the conditional exemption in Section 261.5, generators
of hazardous waste are subject to all applicable Sections Of Part
262. (In the case where a BAT? field office generates less than
100 kilograms (kg) per month, Section 261.5 allows the disposal
of the explosive waste at a permitted or interim status hazardous
waste facility, or at a facility permitted, licensed or
registered by a State to manage municipal or industrial solid
waste.] Among other requirements, generators of hazardous waste
must have EPA ID numbers (40 CTR Section 262.12). Each BATF
field office must apply for an EPA ID number for each site at
which hazardous waste is generated in excess of 100 kilograms per
calendar ,to’ th. This is a simple process involving the submittal
of one short fo m for each generator site. These rorm.e can be
obtained from EPA Regional Offices or we at Headquarters will be
glad to supply them to you.
We not. that, under 40 CFR Section 262.34, hazardous vast.
may b• stored in tanks or containers without a permit for up to
90 days. So, even after a material becomes a waste (i.e., an
intent to discard is present), the generator has 90 days to make
necessary arrangements for transportation, treatment, or
disposal, according to applicable regulations in 40 CFR Section
262.34, and Parts 264, 265, 266, 268, and 270. As a general
matter, we believe the Bureau should consider a policy that would
require removal of •xplosive material stored in BATF lockers
within 90 days from the time the material becomes a waste.
Otherwise, RCRA storage permits may be required.
BAT? may transport hazardous waste explosives themselves, or
may Mr• a transport.r. In either case, the transportation Is
subject to the requirements in 40 CFR Parts 262 and 263.
Transportation of hazardous waste of f the site of generation Is
subject to manifest requirements (40 CTR Section 262.20). The
generator ist designate on the manifest a facility that has tile
proper BA permit or interim status to receivs the waste.
In general, destruction of explosive waste by open
detonation/open burning is thermal treatment that must be
conducted at a RC A interim status or permitted facility In
compliance with Parts 264, 265, 270. In tha event that the
destruction is bsing done under court Order 0? under direct ions
from the U.S. Attorney’s office, RCRA is not automatically
waived. he Bureau should therefore locate facilities nearest •
its field offices that have the appropriate RCRA permits or
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interim status for open detonation/open burning of explosives
wastes. Some of the military facilities already used by the
Bureau may have the necessary permits or interim status, and
these facilities may accept BATF explosives wastes, under the
terms of their permit or under the provisions of Part 270,
Subpart 0 without any special permission from EPA. Other
facilities with RCRA permits or interim status could handle the
open detonation/open burning of MT! explosive materials via
permit modifications (Section 270.41—270.42) or changes during
interim status (Section 270.72). In those cases where a permit
modification or,change during interim status is needed by a
facility that agrees to manage BAT! wastes, these must be
approved by the appropriate State agency (or EP Regional office)
in advance of the initial receipt of the MT.? wastes.
Finally, we understand that stored explosives material
sometimes deteriorates to the point where a safety hazard
exists. In this type of situation, the discussion on emergency
response activities in Section 1., above, would apply.
I trust that this letter provides you with guidance helpful
to the Bureau’s efforts to comply with RCRA requirements. I
understand that my staff has provided BAT? with a list of
facilities that may have the appropriate permits or interim
status and a list of EPA Regional contacts for your field
offices. If you need additional assistance, please do not
hesitate to call me or have your staff call Michael Petruska
(475—,888).
Solid
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tO
T
w ‘ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
a 1 WASHINGTON. D.C. 20460
4 4. ..S
Mark Hansen OFP ICE
Facilities Manager SOLID WASTE A’JD EMERGENCY RESPONSE
Corporate Office
Environmental Products
& Services, Inc.
P.O. Box 315
Syracuse, NY 13209—0315
Dear Mr. Hansen:
Thank you for your letter of September 28, 1992 in which you
ask about the transportation and disposal of shock sensitive or
explosive mater. c. Specifically, you requested EPA guidance on
how to handle materials like picric acid and ethyl ether while
removing old laboratory chemicals.
Under EPA’s RCRA regulations (40 CFR 270.1(c) (3)), all
activities taken in immediate response to a discharge of
hazardous waste, or an imminent and substantial threat of
discharge of a hazardous waste, are exempt from the RCRA
permitting and substantive requirements. Since the chemicals in
question would be hazardous by virtue of their reactivity, any
actions you take to eliminate the imminent and substantial danger
would qualify under this exemption. If the response action
involves transportation to a remote site for destruction, then
the transportation as well as the destruction would be exempt.
However, the transportation is exempt only to the extent
necessary to respond to the immediate threat. Hence, we expect
the transportation would normally cover a relatively short
distance and would occur in special transportation equipment sucn
as bomb trailers.
Should there be any question about the exempt or non-exempt
stat s of removing a certain chemical, the RCRA emergency permit
regulations (40 CFR 270.61) can be used for destruction
activIties. As these regulations provide, an emergency RCRA
perr:t can be issued by an EPA Regional Office or by an
authorized State official via telephone or in writing. These
permits may be issued when the Region or State finds that an
imminent and substantial endangerment to human health or the
environment exists, according to the requirements of 40 CFR
270.61. This permit can address both treatment and storage of
hazardous waste. If necessary, transportation can be authorized
at the same time the emergency permit is authorized by obtaining
a provisional identification number. To reiterate, however, no
permit is necessary when the safety official determines that an
immediate safety threat exists.
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The guidance given above is based on the Federal RCRA
program as administered by EPA pursuant to 40 CFR Parts 260—271.
In authorized States, EPA has delegated the responsibilities of
the hazardous waste program. Although each authorized State
program must be consistent with and no less stringent than the
Federal program, a State is free to be more stringent (e.g., some
States may not offer emergency permits). In the end, you should
check with the authorized State where your facility is located to
ensure that there are no additional (more stringent) management
standards.
I trust that this letter provides you with guidance helpful
to your efforts to remove old lab chemicals. If you need
additional assistance, please call Chester Oszman of my staff at
(202) 260—4499.
Sincerely,
Director
Office of Solid Waste
cc: Chester Osaman, OSW
I en Gigliello, OWPE
RCRA Permit Section Chiefs, Regions I—X
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9523 - PERMITTING
APPLICATIONS
Part 270 Subpart B
A11(1/1104157 kp
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3
I UNiTED STATES E? VIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
t ’
9523.00—11
DEC 10 IL
OrF CE OF
SOUD*ASTE AP4D £MIRGENCV flESPOI
f ! ORANDUM
SUBJECT: Denial of RCRA Operating Permi
FPO : Marci a Williams, Directo/ ’j
Office of Solid Waste
TO: Hararda.zs ste flivision Di ectors
Regions I-X
A number of Regions have raised the question of whether they
can deny a perm .t for the active life of a facility, while
deferring a final decision on poat—clcaure conditions. The
concern of these Regions is that, once a per t application has
been denied, a poet-closure permit can no longer be rsuired.
Alt iough EPA s peri tting regulations envision only one
approval or denial decision on a permit application, they do not
prohibit the peri .tting authority fran dividing this decision
into t,o parts, one applying to the active life of the facility
and the other to the post—closure period. Conseq utly, EPA or
an authorized State (unless it has more stringent require ents)
may deny the active portion of a perzm .t application, pending a
decision on x,st—cloeure conditions. After denial of the eratin;
portion, the facility would be required to cease receiving
hazardo.is ste and begin closure.
If a Region or an m thorized State ad ts this approath with
respect to a particular facility it should make it clear in its
tentative decision that it is denying the permit only with respect
to the active life of the facility and that the facility is
still required to obtain a post-closure permit. We recn end
that y a include th. following inforuation in the Notice of
Intent to Deny with respect to s rh a facility.
Th. tentative decision to deity the psriitt application runs
to the active lif, of the facility only. The permit denial
will not, affect the requireunt that th. owner or operator
obtain a permit covering the applicable post-closure care
period with respect to the hazard zs ste i anagenent units
for which the permit is denied, in accordance with 40 CFR
170.1(c).
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A comparable statenent should be include& in the final notice of
denial
We will also be pr osing to rend §270 .1(c) of the pernitting
regulations to clarify EPA ’s authority to divide pernd.t decisions
in this ‘sy. The pr osal is scheduled for publication in Febnzary.
Before this clarification is issued, yoa should include the
statrent cited above in arty Notices of Intent to Dew.
If yci have any questions on this issue, please contact Matt
Hale of the OSU Permits Branth.
cc: RCRA Branch Chief, Regions lax
Bruce Weddle, 034
?latt Hale, OSW
Carrie Webling, OGC
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON D.C. 20460
OSWER POLICY DIRECTIVE
No. 9523.00—12
M R3O
OFFICE OF
SOLID WASTE AND EMERGENCY RESPOp .S
MEMORANDUM
SUBJECT: Summary of Permit Assistance Team (PAT) Comments
FROM: Bruce R. Weddle, Director
Permits & State Programs Division
TO: Hazardous Waste Management Division Directors
Regions I-X
Attached is the second in a series of periodic reports
which summarize major issues that PAT members have addressed
in their reviews of specific Part B applications, permits, and
closure plans. (The first PAT Summary Report was issued on
March 14, 1986.) These reports cover issues that are of generic,
national interest rather than strictly site—specific interest.
The attached report includes reviews conducted by the Land Disposal
PAT in the first half of 1986. In order to ensure that the
report reflects current EPA policy and guidance, we obtained
review comments from all divisions in 05W and from the Office of
General Counsel.
We are in the process of preparing another series of
documents which will summarize PAT reviews of proposals for
Alternate Concentration Limits (AcLe). These “AcL Fact Sheets”
will describe the setting, issues, and recommendations at sites
where the PAT reviews AcL pr oea1s. The first ACL Fact Sheet
was issued by Ken Shuster on December 4. 1986. The Fact Sheets
are being prepared in response to the ACL Implementation Strategy .
For mor. information, contact Mark Salee at FTS 382-4755.
We hop. that the r.com ndations provided in this document
will be helpful for permit writers encountering similar situations
at other RCRA faciliti.s. By sharing the PAT’S suggestions from
a few sit.., we hop. that permit decision—making will be somewhat
easier and faster at many more sites nationally. We encourage
you to distribute this Report to your staff and State permit
writers. To make that easier, I have enclosed multiple copies of
the report.
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OSWER POLICY DIRECTIVE
No. 9523.00—12
Attachment A to the report lists the facility names, Regions,
PAT Coordinators, and dates for the reviews summarized in this
report. Attachment B provides a list of guidance documents and
directives used in preparing the PAT reviews. Attachment C is a
current roster of the members, expertise, and telephone numbers
of the Land Disposal PAT staff.
If you have any questions, comments, or suggestions on the
PAT Summary Report, please contact Terry Grogan at FTS 382—4692.
Attachments
cc: RCRA Brands Chiefs, Regions I-X
Permit Section Chiefs, Regions I-X
Winston Porter
Jack McGraw
Tom Devine
Marcia Williams
Jeff Deriit
Bruce Weddle
Susan Bromm
Joe Carra
Sylvia Lowrance
Mike Gruber
Tina Parker
Suzanne Rudzinski
PAT staff
Jim O’Leary
Paul Cassidy
Lee Otte
Jon Perry
Barbara Pace
Lloyd Guerci
Mark Greenwood
Matt Hale
George Garland
Art Day
Bob Tonetti
Jim Bachmaier
Ken Shuster
Sue Moreland (ASTSWMO)
Carrie Wehling
Tina Kaneen
Dov Weitman
Art Glazer
Myles Morse
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SLM4 RY ‘ PEPZIIT SSISTN E TEN’! (PPa’) t€N’rs
Exeiption Requests from Minizm. m Technology Require nts
1) Exex ption Request der H3JA §3005 (j)(2)
n existing facility applied for a waiver from the surface in.ind nent
dcuble liner requirenent of §3005 (j) (1) der the exen t ion provided in
§3005 (j)(2). The waiver was requested for a ldirig basin constructed
by excavating a depression in natural, 1 t permøability (1.0 x 10
cu/sec or less) site soils. To receive a waiver under §3005 (j)(2), a
surface ix çoundi nt must have at least one liner that is rxt leaking
and i eet certain other requiren nts. The facility contends that the
itt unditient’s native soil f indation cu titutes a liner for purposes of
satisfying §3005 (j)(2).
Section 3005 (j)(12)(A) of HSJA defines “liner” for purposes of the
§3005 (j)(2) waiver as foll3vs:
A liner designed, ccnetructed, metalled aid erated
to prevent h ’ ardcus waste fran migrating beyond the
liner to ed)acent subsurface soil, grazd-water, or
surface water at any ti during the active life of the
facility.
A literal interpretation of §3005 (j)(12)(A) precl .des the use of a
native soil foundation as a liner because sud a liner is neither
“metalled” nor “ccetructe1”. This reading is supported by the
legislative history indicating that the liner ist satisfy EPA’s
current regulatory standards. See 129 ( ng. Rec. H8142 (daily ed.,
Oct. 6, 1983). Based upon the above statutory language aid legislative
history, only facilities with an “metalled” liner will be eligible
for this exeiption aid no “in-eitu” liners will be permitted (note that
a liner co atructed by en lacing aid re zçactirg excavated native
soils my n et this definition if it prevents migration during the
active life of the facility).
Land Treat t Facilities
1) Ccs atibility Test r Crvrh ined Waste Disp eal
A d tration of c çatibi1ity is r uired wxler §264.282 for any
ne waste that is to be added to an existing lard treatment unit.
This requite it applies even if the n waste has been treated to
render it r -hazardais prior to placenent in the lard treatment
unit. des . traticn of cce atibility n st de trate that the
n waste will r ithibit the lard trea nt unit fran transforming,
degrading or ii ir bilizthg the waste currently being applied per 264.273(a),
j iiA4 ticn to al Mng successful treatment of aiy rily applied hazardous
waste in the presence of existing wastes. See guidance reference 7.
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2) Waste Minimization R uir ients
Sludge applied to lard treatn nt units aiist conform to the waste
minimization r uiresents of H3IA. For sludge, waste minimization
usually r uires de iatering. The c tiu iin cperation of units located
in arid climates, h iever, may r uire the application of sludge
with re water than normally remains after dewatering. Since the
oiiner/cperator Itust coiiçly with the H3 A waste minimization require-
rents only to the extent ecor uically practicable, the PAT has interpreted
this to itean that the c iner/cperator nust dewater sludge only when the
water ax tent is in excess of that required for c tizaim eration of
the land treat ient unit. The water fraction, once it has been reix,ved,
auvng cther cçtions, can be delisted (if derived fron a listed waste),
or tested against the characteristics, or treated and discharged via
a ‘I S permitted system.
3) Principal Hazarda s Constituents
When identifying Principal Hazardo.is Constituents (PHC) of lard
treated wastes, which may be required for unsaturated zone ncnitoring
under 264.278(a)(2) , it is inçortant to identify all ccx stituente
that may enter the hazardcxis waste stream(s) to be land treated.
This is particularly true at petroleum pror. sing facilities where
solvents used in cleaning process equipeent may enter the waste streams
to be lard treated. Solvents used for equipnent cleaning can vary
siderably within a facility aid between facilities; the selection
of RiCa for individual nonitoring programs slxxzld reflect these
differences, based on actual solvents used. Trichioroethylene, a
o ’ n solvent, can be of particular ern due to its high nobility.
4) Lard Treatsent Unit Performance
The performance of a lard treatnent unit is neasured in large part
i its ability to degrade, transform or i bilize all hazardcus
wastes applied. For wastes containing both organic aid inorganic
hazardcus constituents, performance cannot be determined based solely
u n the ability to iin rbilize heavy uetals. The ability of the
unit to degrade a id treat organic constituents nhlst also be iicnitored,
aid the analyses sl .ild include all the principal organic stituents
in the waste. The Lard Treatment Descretrat ion Guidance (reference 7)
can assist in deterel ning lard treatment unit performance.
5) Unsaturated Zone Pb i toring— Soil Pore Liquid Sanpling Frequency
The pzpose. of a lye meter system at a lard treatment unit are
(1) early detection of the transport of constituents or degradation
pr Iucts thro.4 the unsaturated zone to the grand water. a id
(2) to help itor the effectiveness of the treat t process. If
hamardais co tithente are migrating aat Cf the treatw t zone,
the waste treatent system parameters, typically including waste
application ratics, need to be corrected.
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Guidance on Unsaturated Zone Monitoring (reference 8) is avajlal,le.
A suggested approach for scheduling the sarpling of soil pore liquid
at land treatn nt tt its is to saziple one or two we cs after signifi-
cant rainfall events based upon the long term, site—specif’ c neteor—
ol y. Alternately, because the timing of sarpling is critical, a
better approach is to use a tensioneter to identify the arrival of
the wetted front created by the rainfall or waste application. This
instrunent can be used with the actual lysin ter system. As water
ncves thro.zgh the soil profile, a tens i ter located next to the
lysineters will indicate when the wetting front is at the depth of
the lysineters. Sanpies &culd be collected at this tine to ensure
that the sarple is of water and waste constituents noving thr gh
the soil profile and r t st nant soil pore water.
Grc and-Water t titoring
1) Screening of Monitoring Wells
The pr er screening of nonitoring wells is critical in order to
determine the presence of containinat ion. Heavier constituents tend
to migrate and acoiirulate in the l r parts of an uifer. Sanp-
ling and well design nust be able to detect this condition. Clay
and silty clay layers in the saturated zone siculd also be nonitored
since studies have s1 n that sone organic constituents can migrate
in sone types of clay soils. The R .A Gr ind-Water Monitoring Tech-
nical Enforcenerit Guidance cuzzent (reference 9) is finalized and
c ,ers nonitoring well design and c%xetruct ion.
QA/QC Methodologies
1) Mditiona.1. Verification by GC/t .S
QA/OC netlc blogies are crucial to assure that the analytical data
collected for land treatient d trat ions are as aco.irate as poss-
ible. See guidance reference 7. ten pr aring a QA/OC plan for
organic principle hazardois constituent analysis by the alternative
meticd which uses a gas d ranatograpby/flare ionization detector
(OC/FID) instead of the GC/PE netbod, the laboratory or o ner/cper-
ator sbould verify a certaLn percent e (e.g., 10%) of the initial
r zi (and future n s, as necessary) by GC/I . This approach will
coru rate aid justify the use of the OC/FID.
2) C truct ion Quality Assurance Plans
A rigorais c zitruction quality assurance plan s) ild be develc ed
aid i lesmitecI to insure that a c spleted hazardais waste facility
nests or ceeds all design oriteria aid specifications. Draft
Guidance ii available for construction qtial (ty assurance for land
disposal. facilities (reference 1).
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y zcçcsed plan should describe 1 the r uirad limits of permeability
will be achieved and maintained during the construction of clay
layers in liners and cBps. The guidance recannEnds the tructjon
of a test fill using the soil, uipment, and procedures to be used
jg the final construction of the clay layer in order to assure that
permeability limits will be met. The construction of the test fill
nust be as stringent as the actual liner for the facility.
Each construction quality assurance plan sl ld identify who will
ca uct (i • a., oversee and perform) the quality assurance measures.
It is iu rtant that the person Cs) be qualified and independent of
the c truct ion contractor to eneure prc er placement and representative
saspling of the liner during placement.
Chemical Cor atibility Testinq
1) Metlx d 9090
The Method 9090 chemical o atibility test exp ees the m w ra.r
liner materials to the waste or leachate being managed at a facility
and emulates the corditions expected during the actual use of the
liner material. After exposure, the liner material mist be ccxpared
to an uriexposed sample of liner material, using the physical testing
described in Met]xxl 9090. The parameters being pared Include
changes in thickness, mass, area, and hardness, and the retention
of physical pr ertiee such as tear resistance and tensile pr ertiee.
The ccmparison sloild eddress any change in the prcperties of the
liner material when caipared to the unex eed sample.
Methd 9090 was originally devel ed to test only liner material;
h ever, it is important that all other man—made materials that
c in ttact with waste or leachate be sit ected to the 4 ’prs ion
test portion of Metlul 9090. Other materials that potentially coma
in tact with waste or leachate are geotextiles. ge rid and piping
used in the leathate llectIon systerm. Directive 9480.00-13
(reference 10) ed esses Method 9090 aid provides references for
the individual tests that these other materials mist uz rgo after
the irui rs ion test.
2) tainirq a id Maintaining Representative Leathate
Ha1ogm sted orgenice are ons of the t de1eteri ie chemical families
to hi density polyethylene (FiDPE). ra en performing ocm et bi1ity
testing i I PE, the QrJnsrfccerator mist deinmatrate that the sample
of waste or 1eathat. used is representativ, of the waste or leachate
fr their facility and that the prcçc.ed methodul y is capable of
maintaining the ca centrations of ha1c enatad aid other volatile organics
actually f d in a facility’s laathiate thra4 1t the test.
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Because these organic npcxinds are volatile, care s) i1d be taken
riot to aerate the leadiate sas 1e. Since Metlcd 9090 requires long
ex * e time (120 days), ices of volatiles may occur. This thange
in waste c iTt O8itiofl my require the waste or leathate to be replaced
at least sonthly in order to maintain rapreBentative corklitions tc i jt
the e çceure period. (Replacement of leadiate does riot trigger the
beginning of the 120-day period again.)
Waste Pile Liner Equivalency
1) The Use of a Concrete Pad as a Liner
A facility maintains that a concrete pad under a waste pile meets
the definition of “equivalent protection” under H3JA §3015(a) ar
can be substituted for the liner requirement. A icrete pad,
h vever, fails to meet this definition aid the performance requirements
of §264.251. Concrete is not impervicus. It has a calculable
permeability axxi cperations on the pad will, likely degrade any
relatively impermeable coating that may be applied. Concrete has a
tendency to expand aid crack, a1l ir the escape of leachate.
Also, the chemical crr tibility of leadiate with the icrete niist
be denonstrated. Certain ],eathate constituents (e.g., sulfates,
acids) may be corrceive to concrete.
Landfill Design
1) Final Cover S1q e
Final er with slq)es that exceed the re .rn. rded grade may exper-
ience eroeion probleme and slc e instability. If the design sl e
exceeds 3-5%, the applicant &øild denoretrate that soil eroeion will
riot exceed 2 tons/acre using the L DA tkiiversal Soil Lces !quat ion
a id nay be required to perform sl e stability analysis. (See
reference 3 for slcçe guidance.)
2) Waste Settlement
When calculating settlement of a lardf ill for final cover design,
all nces mist be made for the settlement of the waste itself.
t .t t waste materials settle aid da xu oee at a greater rate than
natural . i1. used in the final c r. Organic deo ,osition will
ccx oli te waste layers regardless of cçerational tethniques.
3) Flm {bl. M w Lrane Liner in Final Cover
M interim sta as facility r osee to us. a flexible ‘ rane
liner in the final cover of a landfill with stew_s1 e. approaching
2:1 aid a waste d th of several hundred feet in places. M brane
liners are unstable ien used as a it of a final r system
on steq slq es aid nay fail cateatr hically under seismic aid
other stresses in such situations. Mditionally, this uriisual].y
de landfill is rnbject to extr aettlenant that will effect
rt? ra1s tears in any axw ttiaial f1ø ih1e rane liner.
—5-
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Therefore, a flexible wj fle liner is re iun.rxied under
these xittiais. Given the site—specific climatic and ge hysj aj.
it jone, an edequately des ignal and ccr tructed soi i-only cover
sha.i].d be used for ciceure of this facility under §265.310.
4) Fo.zndaticn Layer of the Final Cap
A facility pr osed a final cap design with a la’s permeability
layer corstructed a t of either itaminated or clean soil. Since
this layer ITust provide long term minimization of the migration of
liquids, it nust be cerefiilly designed and c tructed. Assurance
of a consistently l v permeability soil requires that the soil be
relatively irncgeneais. Soil contaminated with hazardcxis constituents
will likely not be uniformly l in permeability. In order to ac±tieve
and maintain ccrsistent l3v per” ability, clean soils s1 iid be used
in this layer.
5) Leadtate Collection System Design
In order to satisfy the requirements for landfill design specified
in §264.301(a) • the leathate o,llect ion system design shaild generally
be besed upon realistic infiltration rates Chased upon actual daily
precipi tat ion data for the area), not the annual average rate of
infiltration. This is because landfill cell. are pen depressions
during their active life.
6) Geotextile Materials
When geogrid and geotextile materials are specified as pert of the
leathate collection system in place of conventional drainage material,
they slo.ild be evaluated to assure that they have the equivalent drainage
capacity of a one-foot layer of caiçacted sand.
7) Use of Berm Material fran Manufactured Slag
A facility wishes to construct berne fran manufactured slag. This
material sha.ild be investigated for the presence of hazardcxas
constituents. Based on the design presented, if any hazardais
ca tituents are faind, the facility s1 uld be dieca.iraged fran
using this material. These consitituents may be detected in the
gro. - ter ncnitorirq system, ohacuring any releases fran the
estes in the tmit.
8) Use of a o.it. Primary Liner
Several facilities have pr osed using a “c çoeite M primary liner.
Directly bel the pri.ry synthetic liner, these facilities have pro-
pceed adding an additional layer of either clay or thalk. This add-
ition is not specifically required r the Mthiu Tethnulogical
Requir ents of §3004(o)(1) of I 4A nor is it rs erded in the
“Th ible Liner Gaidance” (reference 6). The extra layer has the
advantage of providing a reduction in lea iate vesent and extra
long-term reliability. Since the extra layer is not d ibited, it
can be allQ ed to remain in the design.
-6—
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Closure
1) Closure of a Lard Treatment Unit with Vegetative Cover
riers or c erators of lard treatment units mist eke their best
effort to establish a vegetative er. This can involve the use
of soil conditioners, fertilizers and irri tlon to supply the
necessary gro irq corditione. If the unit is closir under §265.280
r uirenents and the iner or cçerator can s that they have
tried to in 1ement the vegetative Fer witi it success, they are
justified in the use of another closure proce&re (e.g., clean
closure or dition of another er soil) for the site.
2) Extended Closure Period
A facility has r uested an extended closure period so that the
facility can continue to receive non-hazardois solid waste in order
to brirç the disposal area up to design grade. Extended closure
periods may be approved if: (])(i) the partial or final closure
activities will, of necessity, take longer than 180 days to cx lete;
or (ii)(A) the h rdais waste management unit or facility has the
capacity to receive additional hazardais wastes and (B) there is
reasonable like lilx d that the a.rtner/cçeratcr or another person
will recan ence eration of the hazard e waste manegement unit or
the facility within one year, and (C) closure of the haz*rdc s
waste management unit or facility ild be inccmçstlble with contir ed
c eraticn of the site: and (2) the otmer/c erator has taken and will
oontiriae to take all stqs to prevent threats to human health and
the environment from the unclosed 1t not erating baz rri is waste
management unit or facility, including cos lianoe with all applicable
interim status r uiresients ( 265.l13(b)).
The facility in question bee i meet the criteria in §265.113(b);
extending the closure period for the purpose of receiving additional
non-hazardois waste is z necessary to proceed with closure nor
will it provide any environmental benefit.
Exposure Informat ion and Evaluation
1) Role of the gsncy r xic S .tstanoes and Disease Registry (J(1’ R)
The rol, of is to evaluate human pcçulat ions with 1 n or
suspected sur., not to determine if a release has ocoirred and
has migrated to potential_human exposur. points. It is r necessary
to refer a facility to P unles, a release bas o irred and human
exposure is either suspected or axifir . All referrals to . —• -
for health - assessments tz er R A §3019 suit be W 1ed by Headquarters .
C ndidates for ref erral s ild be forwarded with the ap cçriate
st ry rq ort as described in r.fer ios 2. osn provid, l..
formal tedu iical assistance or consultation as also described in
refer 2.
—7—
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2) Exposure Inforn tion R orts (Es)
In order to & tely revia i a facility’s EIR, the Part B applica-
tia ar any other dooin nts pertaining to possible releases s1 iJ.d
be exa in . The objectives of these revierie are I.) to identify
hun n exposure to releases which may r uire P ST involvenent and
2) to identify tential human exposure to future releases which
may be miti ted thr 4 permit c ,nditions. Therefore, the E
revie i process sluild be closely inte rat with cz oing RCRA Facility
Assessmants (RFAS). Guidance (reference 2) describing the
pro ure for reviedng EIRs is available ath s uild be ult 1.
-8-
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Attach nt A
PAT Reviews Includ in This Sunwary
Facility _ L PAT C rdinator Review Date
Az x Nickel VI Chris Rhyrie June 1986
Chris Rhyne 1 cember 1985
Bobs Hoii Service VII Chris Rhyne January 1986
Casmalia Resources DC Chris Rhyne ril 1986
II Chris Rhyne ce±er 1985
Chemical Waste Man&gement I V Chris Rhyne January 1986
Environmental Waste Ca trol V Ro rt Kayser Dace±er 1985
For essy V David Eberly April 1986
Hess Oil Virgin Islands Corp. II Nestor Aviles February 1986
Mirphy Oil tEA. Inc. V I Nestor Aviles Marth 1986
Rz’rr Pr erties, Inc. VIII Robert K yser April 1986
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Attad nt B
List of Guj e I cun nts Used in Preparing the P Reviews
1. c n truction ality Assurance for Hazardais Waste Land Dis eal
Facilities, October, 1985, EPA/530—Sw-85-02]..
2. Procedural Guidance for Reviewing Exp eure Inormation
under RCRA §3019, Septeiiber, 1986, Directive Nu±er 9523.00—2A.
3. Draft R .A Guidance 1Xo.in nt: Landfill Design--Liner Syst s and
Final Cover (Q apter E only); July, 1982.
4. Criteria for Identifying Areas of Vulnerable H r eo1o y Under
the Res irce Conservation and Recovery act—Statutory Interpretive
Guidance (July 1986, Interim Final) NTIS ,. PB—86-2 24946.
5. Interim Status Surface I ir lvw ts, Retrofitting Variances, July 1986,
brr ls . PB—86—212263.
6. Minimum Ted nology Guidance on D ible Liner Syst ne for Landfills and
Surface Inçcziridn nts —Design, Construction and Operation, Draft
May 1985, EPA/530-3J-85-013.
7. Permit Guidance Marual on Hazardc is Waste Land Treat nt Den trat i ,
July 1986.
8. Permit Guidance Mamal on Unsaturated Zone Monitoring for Hazar is
Waste Land Treatnmnt Units, April 1986.
9. RCP.A Gra.ind-Water Monitoring Tethnical forceii nt Guidance, October 1986.
10. Supplenmntary Guidance on Determining Liner/Lead ate Collection
Syst Ca çatibility, Effective Dete 8/7/86. Directive Nu±er 9480.00-13.
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Attachment C 2/27/87
Land Disposal Permit Assistance Team (PAT)
Current Organization and Staff
Assistance Branch
Suzanne Rudzinski, ChIef (382-4761)
Land Disposal Permit Assistance Section
Terry Grogan, Chief (382—4692)
• Chris Rhyne (Civil Engineer, 382—4695)
— Disposal Design & Operating Stds
(liners, leachate collection)
— Liner Compatibility
— Closures (clean—up standards)
• Bob Kayser (Chemist, 382—4536)
— Exposure Assessments
— Chemical Analysis
— Appendix VIII Monitoring
• Janette Hansen (Geologist, 382—4754)
- Ground-water Monitoring
- RPA Technical Assistance
— Corrective Action Technologies
• Mark Salee (Environmental Scientist, 382—4755)
- ACLa
— Risk Assessments
- Ground-water Protection Regulations
• Dave Eberly (Civil Engineer, 382—4691)
- Disposal Design & Op.rattng Stds
— Construction QA; Liquids in Landfills
- Closures (caps)
• - Surface Impoundment Retrofitting and Waivers
• Amy Mills (Geologist, 382—3298/4692)
- Ground-water Monitoring
- Corrective Action
- RcRA Technical Ground-water Staff Meetings
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öSWER PoliCy OtRECT1YE NO.
4
( - UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/ WASHINGTON. D.C. 20460
4 L
M R 14
O CE O
SOLID WASTE ANO EME GE cy RESPOPISE
M MOR AP4DUM
SUBJF.rT: Sumriary of Recent ‘ermit Assistance Team
(PAT) mments
t’ROM: 4 e Program Manager
Land ‘)isoosal PAT Program
TO: Permit Section Chiefs
Regions I — ‘C
The OSW Permits Branch plans to provide a s ni-annual report
summarizing major issues that PAT members address in their reviews
of specific Part B applications. These reports will cover issues
that are of national interest rather than strictly site-specific
interest. The attached report is the first in this series; it
summarizes generic issues addressed in PAT comments prepared for
nine ].and disposal Part B applications reviewed during 1985. we
hope the recomitmendatioris provided in this summary of recent PAT
comments will be helpful for permit writers enc antering similar
situations at other RCRA facilities. Therefore, encourage you
to share this report with your staff and State permit writers.
Since this report is the first attempt to derive written
national suggestions fran site—specific PAT comments. w are
very interested in yo z reaction. Please let me ) now if the
report and current format ar. useful. Is th. level of detail
provided here adequate? Would you like to see the ori .rtal
PAT comments for specific sites or scm. other form of guidance?
Attachment A to the report lists the facility names, Regions,
and PAT rewiew.r, for each application included in this report.
Attachment B provides a current rostsr of the members and expertise
of the LaM Disposal PAT staff.
cc: Marcia WilLianLs
Bruce Weddle
Jack Lehman
Eileen C].aussen
Lloyd G rci
Peter Gu.rrero
Truatt DeGars
Ken Shu.t.r
Jerry Kotas
Sylvia Lowrance
Mark C eenwood
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.... i ECT E ‘ .
9523.00-i 4
SUMMARY OF RECENT PERMIT ASSISTANCE TEAM (PAT) COMMENTS
Sampling Procedures
I) Filtering Ground Water Samples
The practice of filtering ground water prior to analysis can
remove contaminants sorbed onto particulates which can give
misleading indications of ground water quality. The
August 1985 Draft RCRA Ground—water Monitoring Technical
Enforcement Guidance Document recommends that ground water
samples collected for metals analysis should be split into
two portions. One portion should be filtered through a 0.45
micron filter and analyzed for dissolved metals. The
recommended approach for the second unfiltered portion is to
use a mild acid digestion method (e.g., Method- 3010, SW—846)
to yield total recoverable metals. Any difference in
concentration between the total and dissolved fractions may
be attributed to either the original metals content of the
particles or to the migration of dissolved metals onto
the particles.
2) Bailers
The composition of bailers is important when iionitoring for
certain types of constituents. For example, brass bajiers
should not be used when sampling for metals because brass can
introduce metallic ions into the samples.
The Use of Models
1) Unusual Ground Water Situations
Xn situations where aquifers ar. composed of highly
stratified sediments or have other unique features, t st
current mathematical n dels may not accurately predict
aquifer characteristics. Therefore, the i del used should
include a trial—and-error phase, in which computed drawdowns
are matched with observed field drawdowne. A recommended
reference is: Land, Larry F., 9itilizing a Digital Model tO
Determine the Hydraulic Properties of a Layered Aquifer
Ground Watir v.15, no. 2 pp 153—159 (1977).
Applying HSWA Corrective Action Requirements to Releases
from Process Areas
1.) Interpretation of SWMU
A facility is underlain by contaminated soils and ground
water resulting from prior releases from process areas.
Draft policy guidance (January 30, 1985) int•rprets the term
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OSWER PC iCy EC7l’i
4
—2—
“solid waste management unit” (SWMU) to exclude accidental
spills from production areas. Kowever, the contamination at
this facility appears to be the result of routine,
deliberate, and systematic discharges from the process area.
Such deliberate deposition qualifies the process area as a
de facto SWMU.
Request for a Liner Exemption
1) Liner Exemption Based on Design Concept
A facility applied for an exemption from the landfill liner
and leachate collection and removal system requirements of
§264.301. The owner/operator claimed that the landfill
unit will not result in migration of leachate from the unit
due to its intergradient design. The unit is located
within the uppermost aquifer and the net migration of water
is into the unit. Theoretically, migration of contaminants
out of the unit will be prevented since this is counter to
the inward flow of water. However, this design does not
qualify for a liner exemption, which requires that the unit
prevents the migration of hazardous constituents into
ground or surface water at any future time. Although the
net flow of ground water is into the proposed facility,
under certain conditions (i.e., when the waste reaches
saturation) constituents can be expected to migrate out of
the waste and eventually out of the unit.
Stabilization of Bulk Liquids
1) Acceptable Chemical Stabilization Techniques
To treat bulk hazardous liquids, owner/operators must
demonstrate that th. ‘treatment’ applied to the liquid is
not absorption. Chemical stabilization is one treatment
alternative for bulk hazardous liquids. Stabilization
technologies co’ only used include Portland cement-based
process.. and other pozzolanic processes using lime
products and materials such as fly ash, ground slag, and
cement kiln dust.
2) Demonstrations of Stabilization
After chemical transformation has occurred, the end product
should pass the Paint Filter Liquids Test finalized on
April 30, 1985 (50 FR 18370). In addition, the own.r/
operator ast demoni€rate that the waste has been
adequately stabilized. EPA is in the process of
recommending a performance standard to help owners!
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OS t ER L CY OE VE 3.
9523.00-1
-3—
operators and permit writers determine whether a process
is chemtcal stabilization” (as opposed to absorption).
This standard uses an urtconfined strength test to make
the determination. The owner/ operator has the option
of proposing a different methodology as long as adequate
stabilization can be demonstrated.
Corrective Action
1) Regulatory Status of Contaminated Ground Water
John Skinner’s memo of December 26, 1984, states that
contaminated ground water collected and derived from a
listed waste or hazardous due to presence of..a
characteristic is a hazardous waste and subject to
Subtitle C regulations. Therefore, owner! operators
proposing a corrective action such as counterpumping
must manage such collected ground water as a hazardous
waste. The Part 3 application must Include the
procedures used to manage ground water so that they can
be evaluated.
2) Removal of PC? by Activated Carbon
Passing contaminated water through activated carbon
usually works well, for most organic chemicals. However,
the applicability of this method for PC? (pints—
chiorophenol) may be questionable. The phenolic group
in PC? is weakly acidic (pK 5 • 4.7) and PC? will ionize
in neutral water. In the ionic form, the compound Is
highly wat•r soluble and its affinity for carbon
severely reduced. Specific data must be provided
(e.g., from bench or pilot studies) that demonstrate
the applicability of activated carbon in removing PC?.
3) Permit Specifications
Corz’.ctiv. action programs, when warranted for regulated
Land disposal units. must be sp.cif ted as part of a
facility’s permit. The permit should include the basic
measures to be taken for th. corrective action, and
predict when the goals of the corrective action plan will
be met. Any future changes in th. specifics of the
corrective action program would entail a permit modif
ication. It is important that the owner/operator
adequately defin, the zone(s) of contamination, aquifer
hydraulic charactsristic s, and th. hazardous constituents
in the groundwater. The owner/operator should conduct
pilot pump teats to verify the performance of any counter ’
pumping installation if necessary.
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OSIJER POItCI 0 ZT ’4 .
9523.00 - 1 4
—4—
ACLS
1) Use of Acceptable Surface Water Limits
When the only exposure to ground water contaminants is via
surface water, then it is possible to base the ACts on
acceptable surface water limits for the contaminants
present in the ground water and to use a surface water
dilution factor to derive the ACts. The dilution factor,
however, must be sufficiently conservati ’e relative to the
assumed stream flow. In general, the owner/operator should
assume a 7—day, 10—year low flow. The dilution
calculations should only consider mixing within some
State—approved zone and will depend on the ground water
loading to the river.
Owner/operators intending to use surface water dilution in
an ACt application must prepare a surface water analysis to
determine the cumulative impact on the river. The analysis
should incLude upstream, downstream and point of discharge
sampling for the Appendix VIII constituents present in the
ground water.
The actual ground water discharge to a surface water body
must be verified by appropriate ground water delineation
methodology. It is not sufficient to assu that all
ground water disâharges to a surfac. water body. It must
be demonstrated that ground water flow does not go under
and beyond the surface water body.
2) Potential Point of Exposure
In an ACL. submission, the applicant must address the on—
site use of ground water as well as any use downgradient of
the facility. Ground water exposure is assumed to be at
th• facility’s waste management boundary unless there are
use r.strictton. on—site. The fact that ground water is
not currently used is not sufficient evidence to assume no
potential exposure. If ground water use restrictions,
i.e., deed restrictions, are implemented on-site, then the
property boundary is asaui d to be th. potential point
of ground water exposure. If the point of exposure Is at a
surface water body, ground water use restrictions should be
in effect from the wast• management boundary to the point
where ground water discharges tO surface water.
When calculating exposure through surfacs water in order to
detex ins an ACL. surface water exposur. should be based on
exposure immediately outside the mixing zone. Applicants
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OSW R OL1C
9523.00-i 4
—5—
cannot assume that water consumed will be treated prior to
consumption because the criterion is not technology—based
and exposure must be estimated adjacent to the mixing zone.
For surface waters, the potential point of use is at the
shoreline or area of the waterbody where contaminated
ground water discharges. The requirement that the point of
exposure is at the edge of the mixing zone is primarily for
the protection of the environment, as the ACT.. guidance
stresses the importance of protecting the environment as
well as human health. Aquatic toxicit ’ data Should be
compared with human toxicity data to determine limiting
effects of the constituents of concern. Information should
be submitted on aquatic habitats adjacent to ground water
discharges to the surface waterbody. Special attention
should be placed on bioaccurnu].ation of hazardous
contaminants by benthic organisms and fishery resources.
3) Modeling Information Required for ACL Demonstrations
Modeling degradation and attenuation of constituents
between hazardous waste management units and a potential
point of exposure is a valid method for developing ACLs.
However, all modeling must be substantiated by sufficient
information and sampling. Model documentation is necessary
for most AC! proposals. For example, applicants must
provide the full name of all, models used as well as
documentation on why and how the model was applied.
4) Grouping of Toxic Contaminants
Grouping can mask th. effects of individual chemicals.
In addition, degradation products can be lost in grouping
schemes. Nevertheless, the ACLI guidance allows grouping of
hazardous constituents in order to simplify the ACL demon—
stratiori. Th. burden of proof that a grouping of
constituints is appropriate is on the own.r/operator.
Exposure pathways and metabolic endpoints for each
constituent must always be considered when determining
appropriate groupings. Th. fat• and transport mechanism,
not concentration and volume, sri th. most important
factors for choosing the most mobile constituents within
a grouping.
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OSW R POUCY OIRECT vE NC
9523,00..i 4
Attachnent A
PA2 Reviews Included in This SUnmery
Facility qicn PAT Coordinator
Allied Qtemicai III Amy Mills
hen Waste I V ( ris Rhyne
Manage !ent
Ciba-Geigy IV Ri Steimle
Catort Corp V AmJ Mills
G.E. Waterford II Amy Mills
Hytek X Amy Mills
International VII ‘ rnon Myers
Pai*r
Permapcst X ert Kayser
CJSKI Vt rt Kayser
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OSWERPCUCY DIRECTIVE
9523 .00- 14
Attachment B
OSW permits Branch
Land Disposal perit it Assistance Team (PAT )
° Terry Grogan, Manager (382—4740)
Current Stan :
° Chris Rhyne (Civil Engineer; 382—4695)
- Disposal D & 0 Standards
(liners, leachate collection)
- Closures (caps, etc.) -
— CERCLA sites
Rob Ka.è’ser (Chemist; 382—4536)
- Appendix VIIt Monitoring
— Waste Analysis
— Exposure Assessments
• Nestor Aviles (Chemical Engineer; 382—2213)
— Land Treatment
Jartette Hansen (Hydrogeoloqist; 382—4754)
— Groundwater Monitoring
— Corrective Action
— PA/SI Field Test and Training
° Mark Sa3ee (Environmental Scientist; 382—4740)
- ACLS
— Exposure/Risk Assessments
Dave Eberly (Civil Engineer; 382—4691)
— Disposal Standards
• Vacancy (Geologist)
Othsrs :
• Mickey Hartnett (Environmental Engineer; 382—4755)
— On detail from Region tV to develop program
£oc Corrective Action technical assistance.
• Rich Steimle (Hydrogeologist; 382—7912)
— On detail to Ground Water Task Force.
° my Mills (Geologist)
— On academic leave until 1/87.
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UNITED STATES EN VI ONMENTAL. PROTECT ION AGENCY
WASNINmYONI D.C. 20450
9523.00—15
uftD 30 g
IT.” - IaIMS G NC
MEMORANDUM
SUBJECT: Summary of Permit Assistance Team (PAT) Comments
FROM: Sylvia Lawrence, Director (.
Office of Solid Waste (Wfl— 62
TO: Hazardous Waste Management Division Directors
Regions I—X
Attached is the third in a series of periodic reports which
summarize ma3or issues that PAT members have add;.ssed in their
reviews of specific Part B applicatiens, permits and closure
plans. (The first and second PAT su.ry reports wets issued
on March 14, 1986 (OSWER Policy Directive Ho. 9523.00—14) and
March 30, 1987 (OSWER Policy Directive No. 9523.00—2.2),
respectively.) These reports cover issues that are of generic
national interest rather than strictly site-specific interest.
The attached report includes reviews conducted by the Land
Disposal PAT from September 1986 thru April 1987. In order to
ensure that the report reflects current EPA policy and guidance.
we obtained review comments from all, divisions in OSW and from
the Office of General Counsel.
We hope that th. recommendations provided in this document
will be helpful for permit writers encountering similar
situations at other RCM facilities. By sharing th. PAT’s
suggestions from a few sites, vs hop• that permit decision-
making vi i ]. be somewhat easier and faster at many more sites
nationally. We encourage you to dlstribbte this report to your
staff and Stats permit writers. To make that easier I have
enclosed multiple copies of the report.
Attac t A tO the report lists the facility names,
Regions, PII coordinators, and dates for the reviews summarized
in this rspoEt. kttacha.nt B provides a list of guidance
documents and directives used in preparing the PA? reviews.
Attachment C provides information en user access to the
Hydrologic Evsluatiofl of Landfill Performance (HELP) Model.
Attachment D is a a morandum addressing the RCRA regulatory
status of contaminated ground water.
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Ve No. 9523.oo. .i5
—2—
If you have any questions, co ents, or suggestions on
the PAT s” ry Report, please contact James Michael at
FTS 382—2231.
Attachments
cc: RCRA 8ranch Chiefs, PAT Staff
Regions I—X Paul Cassidy
Permit Section Chiefs, Lea Otte
Regions I—X Art Day
3. Winston Porter Jon Perry
Jack McGraw Jim Bachmaier
Torn Devine Elaine Stanley
Jeff Denit Lisa Fridman
Bruce Weddle Tina Kaneen
Susan Brornrn Fred Chanania
Ken Shuster Matt Hale
Joe Carra George Garland
Mike Gruber Terry Grogan
Ji O’Leary Tom K.nn.dy (ASTSWMO)
Suzanne Rudzinski
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Q9 Policy Dirctive No. 9523.00
StJ!4QRY OP PAT P2VtE :
TABLE 0? T! rrS
T ic
Gr ind—Water Monitoring 1
t ndfi13. Desi 3
Land Treatment Units 6
Peru it issuance 9
Corrective Actia’t 10
Miscellaneous Tcoi 13
Atta hment A: List of PAT Reviews
Attaehalent B: List of .iidance and
References
Attact’ !ent C: Access to HELP Model
Atta -IJMnt D: Regulatory Status of Con aPlinatId Ground ter
-------
Policy Directive No. 9523.00
5IMY 0? P!PPCT assrs’r ce TEAM (PAT N fl 1 S
Ground-water Nonitorin
1) Well Devel mient
An ner/ocerator indicated in his/her permit a licatton that
extractina the recuired well volt ies by bailing prior to sai lina,
rmnoved fine materials that were ‘tr ed during well installa-
tion’. This sanple extraction that occured over a year of itcnit-
oririg resulted in additional veil devel çaent.
Proner well devel Rent, as described in the R Ground-Water
Monitor in Technical Enforcenant Qaidance octmient ( )
(Reference U), r iires that the wells be clay and silt free.
Turbid ground water prceotes biochesical activity and possible
interference with ground-water sa le auaiity. Turbidity
readin over 5 nephelceetric turbidity units ( 1.T.U.) may be
qrounds for reiecting sasplee frce a monitoring well. T b
provides a decision chart for turbid ground-water aa plea.
The quality of arty monitoring data that was obtained fraa
tuproperly developed veils is cuestionable.
2) A ropriate Well Construction Materials
Several facilities have used colyvinyl chloride (PVC) as
monitoring well construction material in the saturated zone.
vc is not an Inert material and constituents such U phthalate
and tetrahydrofu can in ground-water samolee have been attributed
to well casing or pL o . solvents. YJC materials can be
used, h vsr, in u osite well struction where PVC or
other non-inert material is used above the saturated zone while
inert materials are used in the saturated zone . The TE
(Reference 11) provides a uu lete description of a rooriate
w tortiq well construction materials.
— a facility has already installed wells with t.rtala that
set mast the TSGb r uir ita, it is not necessary that the
.oMtcring systes be reDlaced and the data discarded.
ps sr1y istructed and located . N arta0n wall can be installed
and s lsd. C srison of data fres the -_ - well with the
existing data will determine if constituents c1et ’cted in the
older wells, such as phthalate are dee to the WC materials or
to contastinatian of around water tres other sources.
3) Calculation of Purge Voiwim
A 4IL nly encountered error in saeDUng procedures involves the
calculation of the evacuation voitses prior to sasç ltnq. The correct
calculation should include the volisw of water in the gravel ck
as well as the vol .rm of water in the casing. With a i ll dia ter
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Policy Directive No. 9523.C
ing (e.g. 2 inches), the actual boring mey be iiud larger. The
water in the gravel pack can reøresent a St ificant percentage of
the well volume and should be ret ved in order to aan ie the
a zifer correctly.
4) A endix IX
In the July 9, 1987, Federal Re iseer , EPA prceulget.d a new list
for around—water monitoring, A ndiz IX to Part 264, which will
replace the Appendix VIII monitoring reauiresent. Existing sw—846
methods are adecuate for the cu ounds listed on Appendix IX.
[ See Reference 4 for the final Appendix IX list)
Appendix IX is a list of chanicals taken fros Appendix VIII for
which it is feasible to analyze in ground—water aaivçles. In
addition, Apoendix TX contains 17 chanicala routinely monitored
in the Superfund pr ran.
5) Use of Accelerated Monitoring Sth.&lee
A facility which was deficient in the ground-water iicnitorii
sect tan of their Part B Application was re iested to isprove their
monitoring netwark by drilling more walls and developing th
properly. ce these deficiencies ar, corrected, an accelerated
ground-water monitoring schedule, s ling four time. within taut
months, was recomeended.
This rec ieiendation, which was deeicmed to bring a facility into
c liance as a n as possible, is in accordance with the re send-
ations in the R A Ground-water Monitorir Cct’liance Order G.iidance
(Reference 1 .0). imen scheduling the accelerated monitoring, the
facility could schedule one s ling event after a si ificant
rainfall, the second event after a dry period and the reietning t
events can be interspersed within the four month time fr . At the
site in austtcn, this saii ling sch should ally data representativ
of the sit, to be obtained cuickly. Note h v.r, that this type
of an accelerated saspling scheme me -not be appropriate for all
f liti in tl locations.
6) M lJL( Of Ground-water Monitoring Nst rks
uwatIr monitoring netwarki that will be used during th. life
the facility and its closure period, will need at least s e
Lntsnmncs in order to assure that representative s lee are being
obtained. Often the maintenance needed will be rad.vel çieitt of the
monitoring well. Th inttel perfortence of a wall mould be deteris-
med and anyi st tficant changes over time may indicat, the need
for osriodic redev.l s ant or a esintence asssssnt. In other
cases, m ach as after severe damage by accidental or nitural occur-
rences like floodtn , well replacuint may be warranted.
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_ Policy Directive o. 9523.00
? i itingency plan should be prepared by the facility addressinc
the proposed course of action should the integrity of the ‘a itortng
de1ls b. damaged. The re zlatione (S264.310(b)(3)) clearly
r $re the .ner/operator of a landfill to methtath their na itoring
wall net rk durinq closure period. fl ver, aporopriate language
should be included in the permit to nmke ad aate maintenance of the
s ten during the life of a unit and its closure period a permit
condition. I’ø,ile not absolutely necessary for enforce snt, further
elaboration of the recuirecients will clarify the duties of the
ner/ocerator.
Landfill Destan
1) Definition of Replacement Unit
A reolacec nt unit, as defined in the preerbie to the Final Cad-
ification nile, Bazardous I ate 14anag nt System (50 28706,
July 15, 1985) is a Nunjt that is taken out of service and tied
by reiovtng all or substantially all the waste f rem itu prior
to being reused. P facility planned to dm ter half of an interim
status surface tiçoun mnt that is bisected by an underwater dike
and to route all incoming waste to the southern portion. The
northern section was schedu led to receive consolidated waste
f rem several other iz oundamnts and to close as a landfill.
The northern section, ha ver, meets the criteria of a ‘replace—
ment unit’ since the deposition of the original waste imaterial
has stopped, substantial d tering ii planned and placement
of waste f rem other units is to oe ir prior to closure.
Under S3015(b) of flS , feetlities authorized to operate under
530 85(e) shall be subject to the i’iniru.a technological reauir nts
of 3 0 84(e) for each replacement or lateral expansion of an existing
landfill or surface ixpoundeent. The north section suet be retro-
fitted to satisfy these r iir nts before the deposition of the
waste f rem other units can begin.
The southern unit, as an existing surfce is m nt, bec ,ea
subject to the ainiait technological r. airements and suet be
retrofitted if it continues operation after Nov er 8 . 1988
pea $3005(1), unless a waiver ii obtained.
2) 11 Li ivec Petitions
Another facility reouseted a waiver frem the double liner r.q ire-
mint for a nmi unit based upon Section 3004 (o) (2), i id all ’s
for an ex tion to the double liner re atr nt if alternate
design and operating practices, together with location characteristica,
will, prevent t) migration of any hazardous constituents into the
ground water or surface water at least as effectively as auch
liners or isachate collection systesu.
3..
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Policy Directive No. 9523.C
proposed bottom liner design is a 2—ft layer of -
t.d terial with S x 10-6 Vaec permeability. This bott3n
liner design is substandard because it does not meet the r uirai nt.
of section 264.221(c) (3—foot layer of recos acted clay of at
least 1 x avi/sec cermeebility). Since the design does not
meet the requirenents of 5264.221(c), location characteristics
or c eratir practices nust corpensate for the deficiency, as
a11 under 5264.221(6). This unit is to receive wat sludges and
an unusually large lount of leachate is expected. The ner/
operator did not present any operational reason to grant the
oetitiort. Similarly, the location of the unit u1d not prevent
mtaration of hazardous constituents to the ground water because
ground water is tvoically near or at the surface. ‘therefore,
the PAT saw no im *Uing evidence that hydrogeologic conditions
uld favor a variance.
Since this alternate double liner design did not satisfy the
5264.221(d) criteria for preventing migration to ground water
at least as effectively as a double liner ystes under 5264.221(c),
and location characteristics and operational pra ticse did
not ccivç’ensate for the liner design, the P re i ded that the
petition for a double liner waiver not be granted.
3) Determination of uivalent Liner Design
The PAT reviewed a proposed double liner design in order to
verify that it meets the general mini technology reqiiresent
set forth in Section 3004(o)(li(A)(i). The liner design was
ccxpered to the interim statutory design found in Section
3004(o)(S)(B) of N 1A and codified in 5264.301(c).
The cosparison was conducted on a layer by layer basis. The pro-
posed primary leachate collection systas, th top liner and
the secondary leachate collection systes for the facility ware
either identical or exceeded the ency’s rec usnded specifications
for the interim statutory design. Th. secondary liner syst, h-
ever, varies significantly fres the -inieria statutory design which
may be satisfied by at least 3 feet of IO7 ca/sec &ctad_clay
or other natural material. The proposed bottom liner will con-
of am SO all hL density polyethylene (nfl) liner to be
i llsd Ldiately aver an existing ethylene propylene rubber
( lii.r and an existing leak detection syst. Before tnstal —
I*lam of the bottom liner, the PtN linr will be cleaned and
the . 1w tested for leaks. Th SDP! liner will form a ression
fit aver the existing liner and its s.a will be constructed
perpendicular to the existing Liner’s
The interim statutory design requires that a bottom liner be
designed, operated and constructed to prevent the migration of
any constituent throi4 such a liner during the operating and post—
closure monitoring period (53004(o)(S)(B)). The PAT concluded
that a carefully constructed redundant bottom liner hould
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R Policy Ditectivq No. 9523. ’
r ’lt in a liner that controls migration as well as, or better
than , 3 feet of 1 x 1Cr’ om/sec clay. As long as waste/liner
ci’çetibility is clearly deiionstrated, a syste t constructed of the
proposed ccrçcnents was determined to be uivalent to the interim
statutory design.
4) Calculation of Leachate Vol s e for Collection SySt % Design
An engineer tot a facility desicned the lead ate oullection system
for their new landfill based upon leachate volliM estimated from
calculations using Moore’s Nouation (see Permit Writers’ Guidance
Manual Hazardous Waste Lard ? r.a t ,
Facilities , Reference 7). While the use of this iition is ac—
c!eptable, the e iation best applies to a long term, steady—state
imoinge!nent rate and not to short—term storm events. In order to
most accurately consider variations in rainfall data such as
storm events, the HELP (Hydrologic !valuaticn of Landfill Perform-
ance) model is preferred. This model is available to any e ineer
or technically trained individual for evaluatii the design of
leechate collection systeM. See Attadimaiit C for information on
obtaining the user guide aid software package.
5) Cap Design Modifications
A facility proposed several modifications to th.ir cap design spec-
ifically to reduce erosion potential. ma soil layer was increased
from t feet to three feet. The increased soil depth, plus the
presence of a drainage layer aid geotexttl. material, mitigntes
the ifiçacta of frost action.
The facility also proposed to use roughened PE rane as the
synthetic liner over the clay layer in order to reduce the potent-
ial for sliding. The friction angle between th. roughened i rane
and the clay is 29 degrees, a significant increase over the
friction angle between a ma xeth rane and the clay layer. A
potential_problem with the use of rc 4ened HDf i’ rane is its
limited yucial availability at thi ti.
r tronobes have also been proposed to tie m the liner,
f1 and drainage layer material for the pirposs of increasing
a ot ility . me trenches act as drainage onndutts as well,
4r T 1 ’g the efficiency of the drainage system.
6) e of ö st Plot to pport an Alternate Cover Design
A facility proposed a cap design that is significantly different
from the recosesnded design criteria specified in the July 1982
Draft Guidance ct nt: Landfill Dest —LiflSt Final
Cover (Reference 2).
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G Policy Dir.ctiv, NO. 523
f na1 cover, based upon the guidance, should have t or iiøre
fist of ‘soil capable of sustaining plant species’. The_facility
proposed that the cap will be a rçrised of 24 indies of acted
Ponce clay, 18 inches of içacted caliche arid 6 indies of veget-
ated, I cted calithe. Caitche is a limestone deposit that
is found in arid regions This soil., when in contact with moisture
could harden like concrete and may not sustain vegetative gr th.
The proposed plant specie, eping lovegrus, is not indigenous
to the area and has roots up to 18 inches in length, which is
1or er then the 6 inch vegetative layer could aipport.
The best alternative for this facility uld be to redesign their
cap to conform to the specifications in the guidance. H ver,
they can use cap c cnents which differ fros the re ,nended
desion if the facility constructs a test plot in order to den xi —
strati that the proposed material will support a vegetative cover.
7) Potential for HDPE Failure
An engineering report prepared for a landfill 11,nsr desi t indicated
that the material to be used as a sub-base under an OE liner
sh .ed differential sett1 uut of up to 1.5 feet aver a hori ntal
distance of 2 test.
The engineering report ummied that the P! ie’t rane could tolerate
such aettleient, but research has shc in thit nuPS liners usually
fail along a narrov area. Stretching a localized IWerfectian,
audi as a sha1l , scratch, over the 1 • 5 fist differential settle-
ment could result in a hole in the liner.
The facility should prepare a stable base under the liner as
r uired in S264.301 (a)(])(ii).
Land Treatment Units
1) Maste Characterization/Mast. Analysts Plan
A petrol.Ia refinery is undertaking a -Land trmst t d nstratton
but has not ad aate1y characterized iti sts. mite analysis
pla pcspsred sooordirq to the r air.a.hta of 5g264.271(b) and
214.272(c)(l)(t) sust include tasting for Appendix VU! constit—
- i that are reasonably expected to be in or derived fros the
- - The $ts analysis plan for refinery imitas should
Lno2a tasting for the PA approved si sst of App idiz VI!!
stituenta f xid in petrole a atas (e.g., the ‘ inosr List’).
The Permit Gaidance Manual on Hazardous Masts Lend Trea It
Dei nstrat Loris (Reference 5) should bs referred to for a 19?1ete
discussion on the dev.l 4m.& t of ste analysts plans. appendix D
in reference S provides a copy of the list of A ridix VI I I
ristituints that may be found in pstrole * tas.
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Policy Directive Ho. 9523.00.
2) tration of Land Treatebility
A facility based its land treatment de cnstration on the degradation
of the oily fraction of the wastes and on the iieithilization
of lead and thrcetium in the soil. They did not account for the
t!eatment of any other Appendix Vizi constituents detected in
their waste. This same facility only conducted the feasibility
test pr ram using leachate col avn tests. These tests will
provide information on the loading rate of the soil, but will
not be able to determine the site/sot] assimilative capacity.
Section 264.272 re iires that the c mer/operator aist denon—
st rate that hazardous constituents in the waste can be coeplete-
ly degraded, transformed or tiaobilized in the treatment zone.
A properly conducted deicnatration should evaluate all the pro.
cesses involved in a land treatment unit including degradation,
transformation and iasc biltzation. A toxicity study, which
identifies toxic lcadii rates and evaluates the ispact of the
wastes on indigenous soil microorgeniaM, should 1 be conducted.
transformattcn/detoxificaticn study, which is also a necesw-
part of the denonetration, should provide information on the
dcrease in toxicity of the waste/soil mix to soil aicrcorgani
over time. Reference S provides_c lete information or the
e xçonents of a good land treatment d nstration.
3) Control of Soil Moisture
1 saturated land treatment unit is unable to accept sludae with
a high iantity of water since these conditions wauld prceote
anaerobic conditions in the treatment zone. These conditions
uld lead to a decrease in microbial degradation of organics
and the migration of run-off containing large unts of hazard-
ous constituents. An aner/operator at a facility where satura-
tion of the unit is possibile, ian during a portion of the
year, should conduct studies to , are and control soil moisture.
A water balance for the facility that a w ts for seasonal
changes should be part of such a study.
4) Selsotice of Principal Hazardous Constituents (PHC)
P US defimed in S264.278(a)(2) as “hazardous stituents
in the wait.. to be applied at the imit that are the
difficult to treat, considering the ociimed effects of
degradation, transformation and l—.I’ilization’. Therefore,
the PHC- for any land treatment unit can only be selected after
the c letion of an adet 3ately designed land treatment denjn-
stration (see previous iten 2). PH are those hazardous con-
stituents that have the l st site/soil assimilative capacity.
Constituents selected should also have a ice to soderate vapor
pressure so they will not volatilize frea the t. shortly
after application. The criteria for the selection of PH is
covered in Reference 5.
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C Policy Directive No. 9523.00-:
5) Permitting of Land Trea nt Units
After several years of an cr-going land treatment danonstrat ion,
a facility still has not proven that their unit can degrade,
transform and inmiobilize the hazardous constituents in their
waste. A satisfactory land treatment demonstration will re iire
more effort, time and a large investment by the applicant.
The land ban restrictions for the ‘California List’ or ‘first
third’ waste constituents will, affect most of the arrent land
treated wastes. .ie to the potentially short Life of certain
land treatment units, the mer/operatore of units that have
not danonstrated satisfactory treatment should be requested to
consider closure of their land trea nt unit. As stated in
CSI Policy Directive 9466.00—2 (Reference 6), any Part B defic-
iencies should be addressed quickly. Only one Notice of Deficiency
should be necessary for the applicant to eubelt a lete applic-
ation. If they are unable to aicIcly correct the deficiencies,
the Region should consider permit denial.
6) Presence of High 1 ter Table in Limited Areas of Unit
Durino a land treatment demonstration, a land treat t unit was
observed to have t central areas that had a seasonal high water
table within 3 feet of the treaUa t zone. The facility pr ed
to use a pmping system to l r the water table.
While the treatment zone in any land treatment unit, per S264.271
(c)(2), must be at least 3 feet above the seasonal high water
table, a costly pusping system is not the only alternative to
achieve this standard. The facility mey clean up the areas with
a high water table and discontinue their use for the treatment of
waste. Clean up entails the removal of soil frem these areas and
plaomaeiit of the soil in the active treatss t unit. New soil should
be reolaced in these areas arid the areas should be fenced off. In
effect, this land treatment unit zld be operated as t 11er
units separated by the high water table arias.
7) t.ms of an diate Full-scale Facility Permit
k .lity with an existing interim status Land treatnt unit
tt.d a carefully prepared, e late land trssts nt d natra-
ties — pert of their permit application. The d.a stration
addressed ail the requirements of Sibçisrt N — land ?rea nt,
identifed all the potential prcbl encountered at the unit and
provided measures that will be is lemeiited to correct these problese.
Because the ducnstratian addressed all Agency r air nts, the
issuance of a full operating permit was r.coumeadsd instead of a
t —phase permit.
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ai Policy Directive No. 9523.00—.
Permit !asu
1) Joint Permitting by EPA and a State
Facilities located in a State which has been authorized for the
R A ‘base program’, but not the . ‘JA provisions, may currently be
issued joint State and Federal Dermita which together constitute
the WRCRA permit. The State prepares the portion of the permit
coveriria non—H9iQA matters. EPA should incorporate the HSWA provisions
into the State issued permit or, if necessary, EPA may issue a
separate permit for R IA r uiret ents. In instances where a new
facility has a joint permit, the permittee im at be informed that
construction cannot begin until both the State permit and the EPA
H i1A permit are issued (either jointly or separately).
2) t e of H fA r ibus Provision to Incorporate Land Disposal Restrictions
in Permits
A Region prepared a draft permit in which they i eed the ‘aimibus pro .
viaion’(53005(c)(3)) to incorporate proposed lar d disposal rmatrtcticn
as a permit condition. The ‘cemibus provision’, as stated in the
prean le to the Deceu er 1, 1987 final codification rule (52 FR 45788)
gives EPA the authority to iaçose permit conditions above andte!yond
existing rei a1atory r iiresenta if the current r airssenta are
inade iate to protect h n health and the enviri uaeiit.
The self-inplenenting H provisions, such as the land disposal
restrictions, supersede the 5270.4 provision (i.e., permit as a
shield) which states that e 4iance with a R A permit constitutes
cji liance with ibtitle C. Therefore, the land disposal restrictions
apply regardless of whether or not they are included in the permit.
Policy Directive No. 9522.00—1 (Reference 3) clarifies the self—
iii 1 ntthg reguiramants of H .
To sii 1ify enforcassnt and to clarify the duties of the mer/
operator, P ver, th PAT re tnde that permits issued after land
ban or other o.lf-is lenenting fl 1A re ilat ions incorporate the
rs zirwts of those r alations, as they apply to the specific
fa 11(ty. t the ces . under discussion, since the restrictions rule
—_ 1y at the tima, th PAT rec uuended that the
[ —t contain cific conditions for these restrictions due
I . likelihood of changes in the rule.
3) editing of Permit ntent prior to Issuance
Several Regions have prepared draft permits with unedited ortions
of the permit application appended to the permit. 1neditsd attach-
ments may not correspond with the imrdlng in the body of the permit
and s e sections may be contradictory or confuse rm iires nts in
the permit. Permit conditions nesd to be precise.
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policy Directive No. 9523.00-
A ndirq Part B sections that are not relevant to the permit nay
mean that any operational changes affectinq subjects Within those
sections, h ever insignificant, may recuire a permit u dification.
The PAT re merids that all. portions of the permit be revi d for
‘applicability, inçortance and clarity.”
4) Permit Language
A permit Drepared for a container storace area stated that the
permittee can “store a naxiimsn of 600 dr n in the container storage
area”. Because the permit is an enforceable doc nt, the permit
language iaist be precise. This statseent isplies that the only
containers to be stored at this facility will be dr m . The language
should reflect all the types of containers to be stored at this
site.
5) Methods for Establishing Background
The use of the minigiuii detection limit (MDL) to establish background
as a ground-water protection standard is an acclptable method.
N ver, the permit should reference the appropriate analytical
methods in -B46 (Reference 13) and specify target detection
limits. The n list of appendix I X to Part 264 includes . ested
methods and practical cuantification Limits (See Reference 4).
6) Permit Condition for Corrective Action Site Investigation
A facility has several abandoned waste disposal ponds ( MDs)
fran a previous amer. Based on the results of the R A Facility
Asseswnent, the unita to be evaluated in the facility’s R A Facility
investigeticri (RFI) should be specified as a permit condition.
Any ccewnents re aired in the RFI, such as the characterization of
the nature and extent of contaiitnaticn, th. definition of pathways
for migration, the identification of areas threatened by releases and
the evaluation of interim measures, &iould also be specified in the
permit. Th. draft docus nt. R A Pac*IitY Investi ttcn (R?I)
July 1987 (Reference 9) should be sult
A sita investigation could identify.a release that does not r uire
i i*te ridial measures because it is not currently a threat tO
) - health or the .nvircwwrarlt, but hIS the potential to be Ia a
threat in the future. Corrective actions under 93004(u) should not
be limited to releases that already pos. a threat. The nitortng
of such a release for a reasonable period of time i uld be an
approor late permit condition.
Corrective Action
1) Location of the Point of Coeçliance 1 11a
Under Subpart?, OflCl ground-water contseinaticfl is detected from
any regulated unit, the mer/operstOr Is rq. ired to establish a
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Policy Directive i . 952300 . :
ground-water protection standard as described in 5264.92. The point
of wlianCe {POC) must be established directly d mgradient of the
regulated unit(s).
?or corrective action progr te under H A, however, specific i cnitor-
ing wells, which were installed as pert of the site investigation,
may be designated as POC wells. The POC wells for non-regulated solid
waste managenent units should be identifed th the H A portion of
the permit.
2) Treatn nt Reouir nts for Ground 1 ter Resoved During Corrective Actioft
Permits including corrective action conditions for ground-water
treatment progr& must not only include pmpirq and rem val reouire-
ments but must specify treatment standards or methods of handling
contaminated around water. Although ground water itself is not a
hazardous waste, ground water that itaina hazardous west. leachate
must be mariaqed as if it were hazardous waste since the leachate
is sub ject to regulation under btitle C. the ground water
is treated such that it no longer contains a hazardous waste, the
water is no longer subject to Sibtitle C regulation. See the ‘ u’-
randian fr t o 1 to Region IV, R A Regulatory status of nteainated
Ground Water, Nov ter 13, 1986 (Attacheent D).
3) Selection of Appropriate Treatment Technologies
A facility proposed a corrective action pragres where contaminated
ground water was treated by air stripping. e of the organic con-
taininants, methyl isobutyl ketone (PITh ), is eztrsi 1y soluble in
water and mey not readily volatilize fros ieous solutions.
The degree to which a cont uiinant leaves the water phase and enters
the air phase is dependent on the design of the gystee e 1oyed and
on a thation of physiochamical characteristics. A substance’s
solubility in water and its vapor pr . Ir. are key factors for
determining whether a s tancs is mnable to sir stripping. MI
tends to r fn in the water_phase instead of being released into
the itt phase. Therefore, NI y not be a good candidate for reicval
frea gr water by the air etri pthg method prswted by the auiner/
proposed technology that is approved as part of the corrective
rs at a facility must be based upon the typ, of cont—inanta
f iund , the level of contamination, and the techno1 ’ s ability to
met the trea nt standard.
4) Evaluating Air issiors tros Treatment Units
S I* treatment technologies do not destroy cont inants but re cve
thea trca one eadt , such as ground water, and then release then into
a second mediisn, such as air. Air asisetons fros tres rtt units.
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Policy Directive Mo. 93.00-
perticu3.arly those resulting fr air stripping and other air release
ts ologiea, should be iisidered by th. permit writer before approvi
a cocrective action plan. The ner/operator should be requirel to
dstsrmjne stack enisajort rate estimates as wail as perform dispersion
modeling in order to determine if air enission controls are necessary.
While volatile organics released to the air via air stripptr are not
hazardous waste, releesei of hazardous constituents to the air frai’
hazardous waste managatient or solid waste managenent units are subject
to corrective action authorities. The permit (or a 3008(h) order) shc
address contanination of both the around water and the air resulting
fran waste managenent at the facility as necessary to protect htmert
health and the environment.
5) Use of Field Studies in Approving b.rging ‘l chnolngies
A facility proposed to clean up corttaninated soil with an tn—situ
bio-reclaaation technology. Wr en a facility proposes to use an
anerging technology, such as insitu treatment, which depends
upon site specific conditions, it is best to require a pilot scale
field study which is separate fran any laboratory teat. Experience
at Superfund sites has sham that methods that rk wall in the
laboratory may not t rk well in the field. The reverse may also be
true. I tt lieu of any specific ?qency guidance, the PAT will be able
to provide assistance when evaluating the result. of field ruAie..
6) Verification Monitoring
Until R ’IA corrective action policy on monitoring ii established,
around-water monitoring to verify that the ground-water protection
itandards determined for hazardous tatituenta released from 3*IUs
have been achieved under a H (A corrective action should be similar
to existing monitoring re aireaents for lisnce with ground-water
protection standards at regulated units. This monitoring should
include quarterly sa, ling and analysis of the 9CC wells for all the
contseinints specified in the ground-water protection standard. Flex-
ibility. haisver, can be included in the fl9 I corrective action permit
After the first few years, for .x l., a different monitoring athena
may be appropriate.
i * permit —T also include re aLras&nta for monitoring of Appendix
titumats r.asonably expect.d to be in or derived from the
_____ is the The fre ency of such monitoring (e.g.,
I1y) shaild be included in the permit.
7) Termination of rrective Action Progr
c rrecttve action progreas for releases fran regulated units can be
terminated whirl the ground-water protection standard has not been
exceeded for three c ecutive years ($2$4.1O0(t)). This approach
can also be applied in corrective action permits. Th H Oi
permit, h Yer, say also include a technical fwsthittty clause.
When the maxima possible reduction of conteninanta from the ground
water has been achIeved and the media (ground water) protection
— 12 -
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Policy Directive ISo. 9523.00—
standard is still being exceeded, further use of that tethnol y s y
not be required. At that point, if no other technology or QJr jnatton
of t.chnolagiea will achieve any additional reduction in contaminant
levels, the corrective action program could be terminated.
Miscellaneous Twice
Disposal of Non—hazardous waste in R A Regulated Units waiver ReOuest
for t iquid in tandfill Restrictions
A facility wished to dispose of non—hazardous dredge eaterial in a
landfill that was undergoing closure after the loss of interim
status. The facility sought a waiver under S3004(c)(3), contending
that there is no alternative di x eel site and that the liquid
condition of the dredge meterial will not present a risk of contam-
ination to any underground source of drinking water.
The mer/operatOr did not meet the reouireaient of S3004(c)(3)(A)
which reguires the dei nstraticn that no reasonably available altern-
ative exists other than plac ii nt in their closing landfill. The
facility based their contention of no available alteinative, on the
refusal of neighboring states to accept the dredge material wttt it
dewatering. The facility did not adequately investigate all altern-
atives, such as the deposition of dredge material in a sanitary land-
fill, which is considered to be an available alternative based upon
the statutory Interpretative Guidance çj 1986 (Reference 12).
The determination of ‘reasonably available’ also involves technical
and engineering considerations. A dewaterirq ticn was never
thoroughly evaluated. If the dredge material could be dewatered to
pass the Paint Filter r4quids rest, the restriction in 53004(c)
uld not apply. The disposal of nonhazardous waste in a landfill
that has lost interim status, h ver, is discouraged by Agency
policy. As stated in Gene Wcero’s a orandta of cea er 20, 1985
(Reference 1), the receipt of non—hazardous waste is acceptable
only if it does not delay closure.
Criteria for the Referral of Facilities tO the Agency for T zic Substances
and Disease Registry (Ai&l ) under 53019
Thxea facilities, each in different Regiam, have grow d-water
cmat Mticn that has migrated off—site. Releases at tvo of these
f 1itiea have contasthated residential walls. At the third
f 1ity wbils direct exposure to cont thsted ground water has not
been do nt.d, p3blLc concern about potential exposure is extreme.
- to the history of canteathation at these sites, the off-site
migration, and the promixity of the public, the assistance of
the Agency for 1 zic Substances and Disease Registry (AISDR) is
warranted.
These sites ware referred to A1 R for a ‘health consultation’.
A health consultation by the ATSDR enables a Region to determine
what information should be gathered (e.g., during a R A Facility
Investigation) to ail the ATSOR to undertake a sore detailed
— 13 —
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Policy Directive No. 9523.00 —1
t lth seia t at a later date. This consultation could
eddr releases fran all land disposal units (e.g. IIUs) with
off—sit., migration, not just regulated units. See ference
• for detai].a on the 3019 process.
— 14 —
-------
Policy Directive No. 9523.00
— Facility
American Cyanamid
Ashland Chemical Co.
B.F. Goodrich
Dow Chemical
Fondessy Landfill
G.E. Waterford
Highway 36
IT Corporation
Lion Oil
Attachment A
PAT Reviews Included In
Region
II
V
IV
V
V
II
VIII
IV
V
IV
VI
II
V
x
I
II
VI
V
thIs Suimnary
_ PAT Coordinator
Chris Rhyne
Janette Hansen
Robert Kayser
Robert Kayser
Chris Rhyne
Chris Rhyne
Mark Salee
Dave Ebony
Janette Hanssiv
Janette Hansen
Robert Kaysar
Chris Rhyn.
Nestor Avilos
A ’ Mlfls
Janette Hansen
Robert Kayser
Chris Rhyne
Mestor Aviles
Robert Kayser
Dave Eberly
Janette Hanson
Dave Eberly
Review Date
January 1987
January 1987
November 1986
March 1987
November 1986
December 1986
November 1986
March 1987
January 1987
February 1987
September 1986
February 1987
March 1987
February 1987
April 1987
Apr11 1981
February 1987
March 1987
International Paper Co.
I4cDonnell -Douglas
Mills Services
Ross Incineration Services
Shell Oil
United Technol ogles!
Hamilton Standard Sits
Union Carbide
U.S. Pollution Control, Inc.
U. S. Steel
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C 1 ( Policy Di Ct1v. No. 9523.00—1
Attactment B
List of Guidance Used in the PAT Revjews
1. “Accepting Nonhazardous Wastes After toeing Interim Statuse,
Met rand .in Gene Lucero, DeceTber 20, 1985.
2. Draft Guidance D mient: Landfill Design—Liner Syster. d
Final Cover, (CP apter E only), July 1982.
3. Effect of Land Disposal Restrictions on Permits, Effective
Date 9/15/86, Directive No. 9522.00—1.
4. Federal vol. 52, 25942.
5. Permit Guidance Manual on Razardous Waste Land Treatment
Denonetrations, July 1986.
6. Permitting of Land Treatment Units: k Policy ‘and Guidance
Manual on Land Treatment Demonstration, Effective Date 9/17/86,
Directive 9486.00.2.
7. Permit Writer’s Guidance Manual for Bazardous Waste Land
Treatment, Storage and Disposal Facilities, October 1983.
8. Procedural Guidance for Reviewing Dposure Inforeation under
RCRA Section 3019, Sspte er 1986, Directive No. 9523.00-2k.
9. R A Facility Investigation (U I) Qaidame, Draft, April 1987.
10. R A Ground-ister Nenitoring O 1iance Order Guidance, Au ist
1985.
11. R A -*tsr nitorirq Technical for isant Guidance
DocTasat .. sr 1986, tms No. P 7—1O775l.
12. Stat*ztoay’ esprstatLvs Guidance of April 1986, April 1986.
13. Xest Nstho for evaluating lid Waste, 9446, March 1987.
-------
- . _ policy Directive No. 9523.00
Attachment C
Access to HELP Model User Guide and Software
User Guides
HydrololC Evaluetion of Landfill Performance, Vol. I NTIS P985-100—840
Hydrologic E aluat1on of Landfill Performance, Vol. II NTIS P985—100-832
Software
c/a Dr. Paul Schroder (601) 634—3709
Envi ronmental Laboratory
Waterways Experiment Station
P.O. Box 831
Vicksburg, MIss. 39180
Send 6 formatted blank discs
-------
CSW DLrectLve o. 9523.00—17
iO 3P4
? UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
4,
4 10 it
SEP — 2 I 88
SOLID WASE tilO EME G C ES ’.S
MEMO RAND UN
SUBJECT: Summary of Assistance Branch Permitting Comments
FROM: Sylvia Lowrance, Director.. \,
Office of Solid Waste (O 3b0)
TO: Hazardous Waste Management Division Directors
Regions I-X
Attached is the fourth in a series of periodic reports
which summarize major issues that Assistance Branch members
have addressed in their reviews of specific Part B applications,
permits and closure plans. (These reports were formerly called
the “PAT Summary Reports”; previous reports were issued in
March 14, 1986 (OSWER Policy Directive No. 9523.00—14),
March 30, 1987 (OSWER Policy Directive No. 9523.00—12), and
March 30, 1988 (OSWER Policy Directive No. 9523.00—15)). These
reports cover issues that are of generic national interest
rather than strictly site—specific interest. The attached
report includes reviews conducted by the r isposal and
Remediation Section and the Alternative Technology and Support
Section from January 1987 to March 1988. In order to ensure
that the report reflects current EPA policy and guidance, we
obtained review comments from within OSW and from the Office of
General Counsel.
We hope that the recommendations provided in this document
will be helpful for permit writers encountering similar
situations at other RCRA facilities. By sharing the Assistance
Branch’s suggestions from a fe sites, we hope that permit
decision .aking will be somewhat easier and faster at many more
sites nationally. We encourage you to distribute this report to
your staff and State pernit writers. To make that easier, I
have attached multiple copies of the report.
Attachment A to the report lists the facility names,
Regions, coordinators, and dates for the reviews summarized in
this report. Attachment B provides a list of guidance documents
and directives used in preparing the reviews.
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OSW Directive No. 9523.00-17
—2—
If you have any questions, comments, or suggestions on the
Summary of Assistance Branch Permitting Comments, please contact
James Michael at FTS 382-2231.
Attachments
cc: R RA Branch Chiefs DRS Staff
Regions I—X ATSS Staff
Permit Section Chiefs Paul Cassidy
Regions I-X Los Otte
3. Winston Porter Art Day
Jack McGraw Jim Bachmaier
Tom Devine Elaine Stanley
Jeff Denit Lisa Friedman
Bruce Weddle Tine Kansen
Susan Bromm Fred Chanania
Ken Shuster Matt Hal.
Jo. carra George Garland
Jim O’Leary Tom Kennedy (ASTSWMO)
Suzanne Rudzinski
Elizabeth Cotsworth
Jim Michael
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OSW Directive No. 9523.00—17
S arv of Assistance Branch Permitting Comments
Table of Contents
Topic Page
Issue Resolution 1
Ancillary Equipment on Tank Systems 1
New Tank Systems 2
Variances for Classification as a Boiler 3
Incinerators 6
Land Disposal Expansions 6
Waiver Petitions for Minimum Technology Requirements 8
RD&D Permits 9
Recommendations 11
Tank Systems 11
Incinerators 11
Ground—water Monitoring 13
Ground—water Modeling 14
Landfill Design 15
Permit Conditions 16
Availability of New Guidance 17
Attachment A — Staff Reviews Included in this Summary 18
Attachment B - List of Guidances Used in the Summary 19
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OSW Directive No. 9523.00-17
SUPO(ARY OF ASSiSTANCE BRANCH PERMITTING CO1’OWNTS
January 1987 - March 1988
This is fourth in a series of docuaents summarizing some cf
the comments provided to Regional permit writers by staff of
OSW’s Asssistance Branch on permitting. It was formerly called
the “PAT Summary Report”.
This summary is organized into three sections. The first
section, Issue Resolution, provides examples of issues that have
been raised at one or more facilities. This section covers
special situations where regulations or policy decisions were
applied to actual circumstances. The second section,
Recommendations, addresses comments routinely made to answer
questions on items often overlooked or poorly understood, and to
convey technical information 1 This section should be generally
helpful to the permit writer. Finally, there is a section
describing new guidance that may be of interest to the Regions.
ISSUE R.ESOLZflION
Ancillary Eaui ment on Tank Sy tems
1) Secondary Containment for Flanges and Joints
Threaded joints and flanges used in tank system piping vary
widely. Frequently, the Assistance Branch staff is asked
to clarify if a specific design is exempt from the
requirement for secondary containment.
An owner/operator asked if a joint consisting of a flange
bolted to a second flange is required to have secondary
containment. Bolted flange joint., that are above ground
and inspected daily, are not required to have secondary
containment; however, the completed and installed system
must be tasted for tightness prior to use.
Secondary containment is intended to apply to any threaded
joint system, including threaded joints fabricated of
special material, such as teflon or plastic. Any joint
where waste may come in contact with the thread must have
secondary containment.
2) Secondary Containment for Ancillary Equipment
A facility submitted a design for a secondary containment
system for th. waste lines entering a neutralization tank.
Th. proposed secondary containment system was an existing
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OSW Directive No. 9523.00—17
—2—
trench that conveyed non-hazardous wastewater to the same
neutralization tank. The Assistance Branch was asked to
determine if the existing trench was acceptable as
secondary conta irunent.
The hazardous waste pipe was to be suspended over the
existing trench which was adequately sized to contain both
the flow in the pipe, should a leak occur, and the maximum
volume of wastewater. Secondary containment, however, must
be dry in order to detect any leaks from the hazardous
waste line. Once a release is detected, any waste must
then be removed. The proposed system, therefore, was not
acceptable.
Th• facility modi ied its proposal to include a dry trough
below the hazardous waste pipe. The second proposal met
the full intent of the secondary containment requirement
and was deemed acceptable.
New Tank Systems
1) The Status of New Tank Systems at Facilities Permitted
between the Promulgation and Effective Dates of the New
Tank System Regulations
Any tank system installed after July 34, 1986 is, by
definition, a new tank system. About six months fall
between this date and the effective date of the revised
Federal regulations (January 12, 1987). For tanks subject
to RCRA standards but not HSWA, this tim. lapse is even
more pronounced in States that had pr.—HSWA authorization
and have additional time to adopt equivalent tank system
regulations. Can permits issued during this time lag
reflect the intent of the revised tank regulation?
In the case of a State-issued permit, the permit must
reflect the State statutory or regulatory requirement in
effect prier to final permit disposition. If a State has a
regulation analogous to Section 270.41(a)(3) (Reference 5)
the Director can modify a permit in order to include new
statutory requirements or regulations applicable to the
permit upon the effective date of the legal authority.
Thus, a permit issued for a tank system can be modified to
reflect the revised standards when they go into effect.
After the permit modification, any tank system installed
after July 14, 1986 would be considered a “new” tank system
which must have secondary containment. Th. phase-in period
allowed for ‘existing’ tank systems would not apply.
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05W Directive No. 9523.00-17
—3—
The State Director has the option to use a State law
analogous to the “omnibus provision” (Section 270.32(b) (2))
to reflect the requirements of the regulations during this
lag time. OSWER Policy Directive *952300—15 (Refer ence
11) clarifies when to use the (Federal) omnibus provision.
It should be noted that new underground tanks are regulated
under MSWA. At this time, no States are authorized to
apply these requirements.
Variances for Classification as a Boiler
The Assistance Branch was requested to determine if
specific units which do not meet the definition of boiler
were eligible for a variance to be classified as a boiler
under Section 260.32. Two proposals were reviewed and the
following issues were specifically addressed. An
evaluation of all the applicable criteria, however, was
conducted in each case prior to making the final
determination. At both facilities, the inability of either
unit to meet any of the criteria for classification as a
boiler supports the final determination that these units
are not eligible for a variance.
1) Integral Boiler Design of the Combustion and Energy
Recovery Sections.
In order for a controlled flam. combustion unit to meet the
definition of a boiler given in Section 260.10, the
combustion chamber and the energy recovery section must be
of integral d.sign. Two facilities have units which they
refer to. as “post-combustion chambers” located between the
combustion section and the energy recovery section. The
post-combustion chambers ar. insulated flow passages
between the main combustion chamber and th. heat recovery
section. Th, owners of these units requested variances.
They contend that these paasages are not ducts or other
Connectors which, as stated in the regulations, are not
prmissibl. as components between the combustion and energy
recovery sections in units which meet the integral design
requirement of a boiler.
The owners assert that additional thermal oxidation of
wastes occurs in the post-combustion chambers, providing
high hazardous waste destruction, and that combustion
therefore continues until the gases reach the energy
recovery section.
The oxidation of additional waste products, however, does
not mean that combustion occurs. Combustion, as defined
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OSW Directive No. 9523.00—17
—4—
in Webster’s New Collegiate Dictionary, is a specific
process which is “accompanied by the evolution of light and
heat”. In fact, information on the performance of these
units showed a net loss of heat over the length of the
chamber instead of a heat gain as would occur during
combustion. The conditions in the chamber that promote the
oxidation of trace organics is part of a good incinerator
design. The Assistance Branch found that these units do
not meet this criteria for a boiler.
2) Integral Boiler Design Based Upon the Operation of a
Control System Between the Combustion and Energy Recovery
Sections
49 CFR Section 260.10, which defines boilers, provides an
example of units that do not meet th. integral design
requirement as units “in which the combustion chamber and
the primary energy recovery section(s) are joined only by
ducts or connections carrying flu. gas...”
owner/operator maintained that his unit was a boiler•
because the combustion section was ‘connected to the energy
recovery unit not only by a duct but by a control system as
well. The Assistance Branch evaluated the owner’s
contention that his unit was a boiler.
The control system in this unit does connect the steam
raising portion with the combustion chamber. The control
system, however, was designed for safety purposes to reduce
th. risk of explosion and other unsafe conditions. Under
unsaf. conditions this type of automatic control system
would shut th. unit down.
True boilers have control systems designed to regulate
steam output. Boiler control systems would typically
provide at least a 3 to 1 turn down control on steam
production by varying the fuel, air and water. When
evaluating the appropriateness of any unit to meet the
definition of a boiler, the common and customary usage of
similar units is important. The lack of steam control by
this unit’s control system is typical of incinerators. The
Assistance Branch noted that the lack of a true boiler
control system supported the denial of the boiler petition.
3) Variance Petition under Section 260.32 for Classification
as a Boiler Based upon Innovative Design of the Unit
An owner submitted a petition for classification of his
unit as a boiler. us maintained that the innovative
techniques employed during the construction of hi. unit
should be a factor in the evaluation of his petition since
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OSW Directive No. 9523.00-17
-5—
the boiler classification variance was meant to allow for
new or unusual units which EPA did not have the opportunity
to consider when developing the boiler definition. During
the review of the petition, the Assistance Branch evaluated
the performance of the innovative component in order to
determine if it was significantly different from that of
the current technology.
The inhovative component was the insulation around the
post-combustion chamber. The insulation was constructed of
8 inches of compressed refractory material installed by a
unique, soon to be patented process. The owner of the unit
and the designer of the process stated that the use of this
material was innovative.
The performance of the insulation was both theoretically
and practically evaluated. Actual performance was
considerably less than what was anticipated from the
theoretical calculations. Based on the theoretical heat
transfer calculations, the performance of the innovatively
applied insulation was not significantly better than that
for insulation designed and installed according to current
incinerator industry standards. While the installation
technique for the insulation may be “innovative”, the
insulation process did not provide any improvement over
current practice. Thus, even though the insulation was
different from the type normally used, the difference was
deemed insignificant since it achieved results similar to
conventional insulation.
4) Thermal Efficiency Requirement for Boilers
Section 260.10 states that any “boiler” must “maintain a
thermal energy recovery efficiency 0 f at least 60 percent”.
As part of &: demonstration to support a waiver petition
for classification as a boiler, a unit was described as
operating with a 65% energy recovery. The Assistance
Branch evaluated this claim.
The unit in question is not abl. to measure the fuel flow
rate and the waste addition varies by 50 percent. Without
appropriate documentation, the thermal efficiency data is
unsupported. The determination of boiler efficiency should
be conducted under controlled conditions following one of
the methods certified by the American Society of Mechanical
Engineers.
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OSW Directive No. 9523.00—17
—6—
Inc irt.ratarm
1) Us. of Thermal Relief Vents
Design drawings in a permit application for a new
incinerator included a thermal relief vent between the
combustion chamber and the air pollution control
equipment. The Assistance Branch was requested to
determine if the use of a vent to bypass the air pollution
control equipment should be allowed.
The thermal relief vent was proposed to protect th. air
pollution control equipment from excessive heat during
emergency situations such as failure of power and water
cooling systems. OSWER Policy Directive *9488.00—3
(Reference 1) discusses the acceptability of these vents in
new incinerators. Indiscriminate us. of relief vents is
deemed to be a violation, however, EPA has recognized that
they may occasionally be needed to protect employees and
air pollution control equipment. Thermal relief vents,
therefore, are al6oved in the design of new incinerators.
The permit, however, should require the design to include
th. necessary backup systems to reduce the use of these
vents. The system should have interlocks such that the
vent can only open after th. waste feed has been cut of f.
Th. operating plan should include a list of parameters and
cut-off points at which the vent may be used. A review of
the peraittee’s operating plan should be mad . to identify
and eliminate the use of the thermal relief vent in
situations where it may not be absolutely necessary.
Minimum TechnelocY Reouirements for Vertical and Lateral
1) Application of Minimum Technology Requirements to Vertical
Exmanaiona.
A facility planned to expand its landfill vertically.
During the public comment period on their draft permit, the
applicability of minimum technological requirements to such
an expansion was raised. The Assistance Branch was
requested to evaluate th. issue.
The facility opened the landfill trench in question in 1978
under a TSCA permit. Currently the unit accepts RCRA waste
under interim status. The proposed vertical expansion
would not exceed the capacity of the unit stated in the
Part A application, and there are no limits in the
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OSW Directive No. 9523.00—17
-7—
existing permits on the elevation of RCRA wastes placed in
the unit. The proposed expansion will extend 21 feet
vertically above the original grade limitation for TSCA
wastes; however, no waste will be placed beyond the
existing lateral boundaries.
The Assistance Branch found that the proposed vertical
expansion is permissible without meeting the minimum
technological requirements because: (1) The proposed
vertical expansion does not exceed the unit boundaries; and
(2) The landfill was in use and operational prior to the
date of the enactment of HSWA, therefore, the above-grade
expansion does not fit the definition of a new unit.
May 1985 guidance (Reference 4), however, states that a
vertical expansion beyond any hazardous waste permit
capacity or elevation limits affects the operational status
of the unit. If the operation of the unit was limited on
November 8, 1984, a subsequently proposed vertical
expansion would constitute a “new unit” and is subject to
minimum technology requirements. This facility has no
vertical RCRA hazardous waste permit limits; therefore, the
minimum technology requirements do not apply to this
vertical expansion.
2) Lateral Expansion During Closure.
After a RCRA Facility Investigation (RPI), an
owner/operator planned to close several solid waste
management units by consolidating the waste from two waste
soil piles with the rssidue in a surface impoundment
regulated under interim status. The volume of the
resulting vast, mixture is estimated to exceed the existing
capacity of the impoundment. The Region was concerned that
the proposed closure plan would not be permissible.
The consolidation of waste material is an acceptable
closure activity. If the proposed consolidation
necessitates th. placement of any hazardous waste beyond
the boundary of the regulated unit or beyond any limits
imposed by a RCRA permit since November 8, 1984, the action
results in a lateral expansion which must meet the minimum
technological requirements. Moreover, if the consolidation
into the surface impoundment occurs after November 8, 1988,
th. surface impoundment must meet minimum technology
requirements. Finally, if waste from any of the units
being placed in the impoundment are subj.ct to the land
disposal ban, than the waste may not be placed in the
impoundment unless it is treated in accordanc. with 40 CFR
268 Subpart D or the owner/operator has sucessfully
petitioned under 40 CFR 268.6.
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OSW Directive No. 9523.00-17
-8—
Waiver Petitions from Minimum Technoloaica]. Requirements -
3004(0 ) (21
A facility may petition for a waiver from minimum
technological requirements under Section 3004(o)(2) if
their alternate design and specific operating practices,
when viewed in combination with the characteristics of the
sit. location, will prevent the migration of hazardous
constituents into ground or surface water as effectively as
the required design. The Assistance Branch is often asked
to evaluate facility specific factors to se. if they meet
the conditions of the waiver. During two recent
evaluations, the following issues were raised.
1) Minimum Technology Waiver Petition due to Alternate Design
and Operational Factors
An owner/operator of an existing surfac. impoundment
proposed to install a liner system consisting of a 36—mi
hypalon sheet over a 1eachate collection system constructed
two existing 4-inch layers of bentonite separated by a
drainage layer. The owner contends that this design is at
least as effective as th. minimum technology rsquirements
(MTR). The MTR specify a 36—inch clay layer because a
liner of such thickness would be constructed by the
placement of several clay lifts. Discontinuiti.. in an
individual lift would be unlikely to occur in the same area
on subsequent lifts. Th. existing 4—inch layer is applied
in one lift and doss not provide any safeguard over any
irregularities that might allow leakage.
While the new design alone was insufficient, the
owner/operator also planned to use operational factors
which he claimed would make the alternate design as
effective as the minimum technology requirements. The
impoundment has a limited life span with planned closure in
1989 which makes th. unit a short-term operation. The
leachata system does not show any evidence of a leak, and
no ground-water contamination has been found. If a leak
were to occur, the owner plans to drain the impoundment.
While the liquids stored in the impoundment are listed
hazardous wastes, they do not exhibit any of the
characteristics for which th. wastes were listed. The
Permit Assistance Staff recommended that th. waiver be
granted contingent upon the short-term operation of the
unit.
2) Waiver Petition Demonstrating Design and Operating
Practices which Prevent Migration
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OSW Directive Mo. 9523.00—17
—9—
A facility petitioned for an alternate design and operation
approach that prevents the migration of contaminated ground
water from under the unit. The Assistance Branch was asked
to determine if the proposed design met the intent of the
3004( 0) (2) waiver provision.
The owner of the surface impoundment proposed to install
intragradi.nt cut-of! walls downgradient of their surface
impoundment. The collected, contaminated ground water
would be removed from behind the walls and treated.
Migration of contaminated ground water beyond the waste
management area, therefore, would be prevented.
Section 3004(o) (2) allows a waiver only if the owner can
demonstrate that the proposed alternative will “prevent the
migration of any hazardous constituents into the ground
water”. The term “ground water” is intended to mean any
ground water and not ground water beyond th. waste
management area. In order to meet the equivalency test
required by this waiver, the alternate liner design must be
as effective as the minimum technology requirements for
liner design in preventing the migration of any constituent
through the liner. The Assistance Branch recommended
denial of this waiver request.
RD&D Permits
1) Qualifying for a RD&D Permit for an Incinerator
Research, development and demonstration permits, regulated
by Section 270.65, were intended to be available for
processes and units which treat hazardous wastes with
innovativ, technologies. Several Regions have received
applications for RD&D permits for technologies already
established for treating hazardous waste and which are
specifically regulated elsewhere under RCRA. The
Assistance Branch was askea to determine if incinerators,
in particular, could be eligible for a RD&D permit and
under vbat circumstances they would qualify.
Th. purpose of RD&O permits is to produce data on technical
or economic feasibility of experimental processes or
technologies; however, existing treatment methods may
qualify if the permit is intended to allow treatment of
waste streams not previously treated by this type of unit,
or if the operating conditions would be modified for
different or expanded uses of the technology. The
Assistance Branch, after discussion with the Of fic. of
General Counsel, clarified that incinerators are eligible
for RD&D permits (Reference 3) if they further the
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OSW Directive No. 9523.00—1.7
—10—
knowledge on treatability, design and/or combustion
research through experimental (but not commercial) research
applications.
In on. such instance, a research facility applied for an
RD&D permit for an incinerator and they proposed to conduct
a study on the products of incomplete combustion (PICs)
from incinerators. They also proposed to produce a
biological system study on the fat. and transport of PICs
in the environment. The results of thes. proposed studies
would add to the body of information en the characteristics
and quantity of residuals emitted from incinerators. Based
upon the proposed study of the effects of PICs on
biological systems, the proposed incinerator was detsrzuined
to be eligible for a RD&D permit.
2) Operating Time for RD&D Permits
Section 270.65(a) (1) states that an RD&D permit can be
issued for up to 365 days of operation. A particular
facility wishes to continue operation under its RD&D permit
for longer than one calendar year. A Region asked the
Assistance Branch for appropriate wording on the permit.
While RD&D permits are limited to 365 days of actual
operation, many experimental units operate sporadically for
a few days and ar. than shut down for longer periods while
the results ar. evaluated. In some cases, 365 days of
operation may extend over numerous years. In order to keep
track of the units operation, guidance (Reference 3)
suggests that permit writers may include a calendar-based
expiration dat. in RD&D permits in cases when warranted.
RD&D permits may be renewed up to three times. The
appropriateness of th. justifications for an extension
should be considered with any future permit renewal
applications. Tb. application will be evaluated based upon
the initial results of operation, the need for more data,
any abang.. in operating conditions and the occurrence of
any enforcement actions.
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OSU Directive No. 9523.00—17
—11—
RECOMMENDATIONS
Tank Systems
1) Applying Regulations Promulgated Under Two Authorities
The universe of hazardous waste tank systems currently affected
by the July 14, 1986 regulatory amendments varies from State to
State. The tank system regulations were promulgated under two
authorities. Those applicable to RCRA tank systems are now in
effect only in States that do not have authorized R RA base
programs. States authorized for the base RCRA program must
amend their programs before the regulations become effective.
Those provisions applicable to HSWA regulated tank systems are
effective in all States. The Assistance Branch is often asked
to clarify which provisions apply universally and which apply
only in unauthorized states.
The following requirements apply in all States:
- interim status requirements applicable to small quantity
generator tank systems (Section 3001(d))
- leak detection for all new underground tank.. that cannot be
entered for inspection (Section 3004(o) (4))
- permitting standards for underground tanks that cannot be
entered for inspection (Section 3004(w))
Regulations applicable to above—, on—, in—, and enterable
underground tanks currently apply only in unauthorized States.
Authorized States have until July, 1988 (if only regulatory
changes are needed) or July, 1989 (if statutory changes must be
made) to amend their programs to reflect the Federal
requirements. Further information is provided in the
Implementation Strategy for Tank Systems (Reference 12).
Incinerators -
1) Selection of Principle Organic Hazardous Constituents
(POHCs)
Current research by the University of Dayton Research Institute
has led to a new incinerability ranking of Appendix VIII
compounds based upon thermal stability data (Reference 9).
Until now, incinarability ranking of Appendix VIII compounds has
been based upon a compound’ s heat of combustion.
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OSW Directive No. 9523.00-17
—12—
Guidanc. is being developed to reflect the new ranking of
compounds. A Regional Office proposed to specify at least one
POHC based on each of these rankings as an interim approach.
The Assistance Branch agreed that this approach is acceptable,
and suggested additional criteria, such as chemical structur.,
toxicity and concentration, which may also be used.
2) Use of Surrogate Wastes During a Trial Burn
Surrogate wastes ars mixtures of chemicals comb med to exhibit
the characteristics of the actual waste mat.rials and to contain
the same hazardous chemicals expected to be burned by an
incinerator. Surrogate wastes are often proposed by facilities
for use during th. trial burn. Simulating the burning
characteristics of any individual waste, however, is very
difficult. As a result of this difficulty, facilities should
use actual wastes during the trial burn if they are available.
In cases where the principle organic hazardous constituents
(PONC) concentrations in the actual waste are not high enough to
determine the destruction and removalefficiency (DRE), the
wastes may be spiked.
If the facility cannot modify its plan to burn actual wastes,
such as in the case of a commercial incinerator, the
owner/operator should provide justification for the use of
surrogates. If any facility must us. surrogate wastes, the
surrogate waste should be as much like the actual waste as
possible. If an incinerator is planning to burn solid waste,
surrogat. solids should be mixed with the POUC feed.
3) Destruction and Removal Efficiency (DRE) Calculations
A facility planned to include in their DRE calculations the POHC
input into the system from city water used to prepare a lime
slurry for removing acid gases by their scrubber. During a
review of the trial burn plan, the Assistance Branch evaluated
their methodology for the DRE determination.
According to Section 264.343(a) (1), th. mass feed rate of PORC
input used for OR! calculations must equal the mass feed rate in
the waste stream only. In order to complete the determination,
all the POHCs in the exhaust gases must be included in the
calculations. Any additional POMCs volatilized from the slurry
used in th. scrubber system must be included if they are
released with th. emission gases.
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OSW Directive No. 9523.00—17
—13—
4) Sampling-During a Trial Burn
In their trial burn plan, a facility proposes to obtain one grab
sample per test run for residue analysis. The proposed
frequency of sample collection is inadequate for the co1lectiâi
of a representative sample from any test run. An acceptable
plan would be to collect grab samples at frequent intervals over
th. entire test period. These samples should be coaposited
befor. analysis.
5) Use of Sampling Trains in Modified Method 5 (1QC5)
Several facilities planned to use a single O(5 train to sample
for both particulates and semi-volatile POHCs during a trial
burn. This approach is incorrect. The drying of the filter for
the particulate analysis results in the potential loss of
semi-volatile compounds. Th. correct procedure involves the use
of two separate trains, one for particulate sampling and one for
the sampling of semi-volatile organics.
Ground—water Monitor irig
1) Confirming Ground-water Contamination
A draft permit condition for a detection monitoring program
required three sampling events to confirm ground—water
contamination. Under Part 264 Subpart F, only on. confirmatory
sampling event is necessary to trigger a complianc, monitoring
program.
The Subpart F requirement for triggering a compliance monitoring
program is based upon en. sampling event and one confirmatory
sampling. A slug of contamination detected in th. initial
sampling could pass the compliance point during the tim. it
takes to obtain results from additional confirmatory sampling
events.
2) Disposal of Purged Water.
Th. ground-water sampling and analysis plans at many facilities
hay, no procedures for handling purged water. Purged water from
monitoring wells should not b discarded onto the ground because
the purged water could contain hazardous waste. It should be
tested for hazardous characteristics in order to determin, an
appropriate disposal method, particularly if previous sampling
events indicated the presenc. of hazardous constituents.
Alternately, collected purge water can be disposed back into
surface impoundments that are permitted to receive any
constituents expected in leachate or contaminated ground water.
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OSW Dir.ctiv. No. 9523.00-17
Ground-water Model j g
1) Determination of Site—specific Permeability for Application
in a Model.
A facility proposed to use a model to support their no-
migration waiver petition. They obtained several soil samples
in order to determine a soil permeability factor. A mean value
was calculated for input into ths model.
Modeling efforts to determine the potential for migration of
hazardous constituents to or in ground water should use the
worst—case value measured representative of a site in ord.r to
incorporate a margin of safety. Th. applicant was asked to
re-run the model using the highest value of th. coefficient of
permeability.
2) Selection of Critical Constituents for Use in a Transport
Model
A waiver applicant planned to demonstrate no migration into
ground water by selecting critical constituents for use in their
modeling effort. Inputs included halt-life and retardation
factors. The applicant selected acro]ein and acrylonitrile
based upon their relatively long half-lives in ground water.
However, the high retardation factors which indicate slow
movement, make the selection of these two chemicals
unrepresentative of the worst case. The most appropriate
constituent(s) for modeling must be based on an evaluation of
all relevant factors. Concentration of the constituents in the
waste and their retardation factors should be evaluated along
with half-life when selecting constituents with the greatest
potential to aigrat.. The Assistance Branch recommended that
other constituents be chosen in this case.
3) Use of Appropriate Models based upon Sit. Characteristics
A waiver applicant proposed to us. a one-dimensional model to
demonstrate no migration of hazardous constituents into ground
water. The hydrogeological and soil characteristics of the site
displayed several non-uniformities and could be described as a
fairly complex system.
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OSW Directive No. 9523.0011
—15—
A on .-di*ifl iOfl4l model, as proposed by the applicant, can be
very limiting. Th* attributes of the model must reflect the
conditions observed at the site. Also, data representative of
the whole site should be collected for input into th. chosen
model. Given the complexities of the site, a more sophisticated
model, such as a 2— or 3-D model, would be necessary to support
a demonstration of a ‘no migration’.
Landf ill DesicTn
1) Composite Bottom Liner Equivalency
A facility proposed to install a 60—al high density polyethylene
(HDPE) liner over a compacted clay layer with a permeability not
exceeding i. x io 6 cm/sec as the lower liner for a new cell.
The Assistance Branch was asked to determine if the proposed
liner was equivalent to the curre t requirement under Section
264.301(c) for a 3 foot compacted claTonly liner with a
permeability not greater than 1 x 10 centimeters per second.
The staff felt that a composite liner with a clay component of 1
x i0 cm/sec permeability was equivalent to a clay liner with
lower permeability. Regulations proposed on Xarch 20, 1986
(Reference 6), when they become effective, will be more
restrictive. They will require a composite bottom liner
consisting of a flexible membrane li 9 er over a 3 foot clay layer
with a permeability net more I x 10 . Until then, the clay—
only liner requirement is the standard applied to evaluate liner
equivalency.
2) Evaluation of a Steep Slope Using the Universal Soil Loss
Equation
A facility proposed to install a cover with a slope that
significantly exceeds the recommended 3-5% grade. The owner
maintains that the annual soil Loss, based upon the Universal
Soil Loss Iq ation, would be just less than the 2 tons/acre/year
limit rmccnded by EPA. The Assistance Branch was asked to
review the facility’s calculations.
The five factors used in the soil loss equation are subjective
and selected based upon the site engineer’s best judgement. If
slightly larger factors were applied than the ones selected by
the applicant, the soil loss would be substantially greater (as
much a. 33 tons/acre/year). In order for the Assistance Branch
to accept the applicant’s predicted soil loss, the anticipated
los, should be significantly less than 2 tons/acre/year so that
any underestimation of the selected factors would not result in
an actual loss of more than the soil loss limit. The Assistance
Branch requested additional documentation from the applicant.
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0 6W Directive No. 9523.00—17
—16—
3) Demonstration of Material Durability
An applicant conducted a demonstration of material durability by
using polyethylene tanks to perform th. compatibility testing on
their HDPE liner components. The polyethylene tank material
absorbs the same kinds of chemicals as the MDPE samples, thereby
reducing the constituent level in the teat leachat.. This could
lead to an unrealistic strength data after immersion testing.
The Assistance Branch recommends that glass vessels be used for
immersion testing.
4) Minimum Technological Requirements for Secondary Soil Liner
A facility planned to construct a side slops liner by scarifying
and remolding the exposed soils prior to placement of the
synthetic membrane. Section 264.301(c) require. that this liner
be constructed “with at least a 3 foot thick layer of
recoapacted clay or oth,r natural material with a permeability
of no more than 1 x 10 cm/sec.” Scarifying and remolding
alon, do not meet the requirements for recompaction.
Permit Conditions
1) Specification of an Adequate Number of Emergency
Coordinators
Assistance Branch review of a Part B application addressed the
contingency plan for th. facility. This facility had only on.
emergency coordinator designated in their plan.
The regulations in Section 264 • 55 require that an emergency
coordinator be available at all times. At the minimum, one
additional employs, must be designated and trained as emergency
coordinator to provide around-the-clock and vacation coverage.
At this particular facility, the Assistance Branch recommended
that two emergency coordinators be designated in order to
provide adequate coverage.
2) Requirement for Additional Testing as a Permit Condition
In a draft permit, a State required that all stabilized wastes
that have passed the paint filter test also be subjected to an
unconfin.d compressive strength test at 50 psi. While a Region
can specify permit conditions for additional testing, the
current Federal policy and the proposed rule on containerized
liquids ar. less stringent than th• draft Stats permit
condition. The Stat. is allowed, however, to be more stringent
than the EPA. Not. that under the Federal policy, the
compressive strength test is necsssary only if the Region is
unsure that true chemical stab ii izat ion has occurred.
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0 5W Directive No. 9523.00 .17
AVAIlABILITY OF NEW GUIDANCE
Tank Svstesa
PA guidancs document, “Cospilation of Persons Who Desigi,,
Test, Inspect, and Install Storage Tank Systs a’
(EPA/530-SW—88-019) is now availa l.. The document
provides a list of individuals and fires who provide the
services of an independent, qualified, registered
professional engineer, corrosion expert, or qualified
installation inspector as required in the July 3.4, 3.986
regulations for hazardous waste tank systems.
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OSW Directive No. 9523.00—17
—18—
Attachment A
Assistance Branch Staff Reviews Included in this Summary
Facility Name Region Staff Coordinator Reviesr t ate
Buckner Barrel I I Cheater Oszman May 1987
Ciba-Geigy II Chris Rhyn. June 1987
(Glen Falls, N.!.)
Ciba—Geigy II Chris Rhyn. March 1988
(Quesnsbury, N.Y.)
Port Barton Industries I Sonya Stelmack February
1987
General Dynamics I Soriya Stalmack Jun.
1987
General Electric II Chris Rhyme February
(Wat.rford, N.Y.) 1988
Eli Lilly and Company V Chester Osaman June
1987
Envirosafe Services X Amy Mills February
(Grand View, Idaho) l98
Nemt.k Corporation I Nstor Avilsa January
1987
Monsanto VI Dave Eb.rly April
(Chocolate Bayou, TX) 1987
Moors Business Forms and VI N.ator Aviles May
1987
National Eutituts of III Nutor Aviles February
Health ( ) 1988
SCA Chemical Services II Chris Rhyn. Decerther
1987
SOR IO V I Chris Rhyns October
1987
Union Carbide Agriculture III Chris Rhyns July
Products Company 1987
U.S. Ecology IX Chris Rhyn. February
1988
USPCI VIII Dave Eb.rly January
1988
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05W Dirsctivs No. 9523.00—17
Attachment B
List of Guidances Used in Preparing the Assistance Branch
Reviews
1 “Acceptability of Thermal Relief Vents on Hazardous Waste
Incinerators’, OSWER Policy Directive #9488.00—3.
2. Compilation of Persons Who Design r. .t, Inspect, and
Install Storage Tank Systems, February 29, 1988,
EPA/530—SW-88-019.
3. Guidance Manual for Research, Development, and Demonstration
Permits under 40 CFR Section 27065, July 1986, EPA/530
SW—86—008, OSWER Policy Directive #9527.00—lA.
4. Guidance on the Implementation of the Minimum Technological
Requirements of HSWA of 1984, Respecting Liner. and Leachate
Collection Systems; EPA/530—SW-85—012.
5. 9lazardous Waste; Codification Rul. for the 1984 RCRA
Amendments” 52 FR 45788, July 15, 1985.
6. “Hazardous Waste Management System; Proposed Codification of
Statutory Provisions”, 50 PR 10706.
7. 9iazardous Waste Management System: Preambl, to the Final
Codification Rule”, 50 FR 28706.
8. “Incinerator Eligibility for RD&D Permits” Memorandum from
Susan Broma, Acting Director, Permits .& States Programs
Division, March 8, 1988.
9. “Predicting Emissions from the Thermal Processing of
Hazardous Wastes” Hazardous Wastes and Hazardous Materials,
June 30, 1986.
10. Questions and Answers Regarding the July 14, 1986 Hazardous
Waste Tank System R.gulatory Amendments, August 1987,
EPA/530 —SW—87-012.
11. “Summary of Permit Assistance Teas Comments” 1988, OSWER
Policy Directive #9523.00—15.
12. “Implementation Strategy for the Hazardous Waste Tank
System Regulations”. EPA/530-SW-87—028. May 1987.
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OSWER Directive No. 9523.00-48
IO
I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
______ WASHINGTON, D.C. 20460
4 989
I SOLiD wASTE 0 EMERGE Cv 5P ’
MEMO RANDOM
SUBJECT: Summary of Assistance Branch Permitting Comments
FROM: Sylvia K. Lowrance, Director ,)tk “
Office of Solid Waste (OS—3ø ’
TO: Regional Waste Management Division Directors
Regions I-X
Attached is the fifth in a series of periodic reports
which summarize tajor issues that Assistance Branch staff
have addressed in their reviews of specific Part B applications,
permits, c’osure plans and in their responses to site—specific
situations . These reports cover issues that are of generic
national interest rather than strictly site—specific interest.
The attached report includes reviews conducted by the Disposal
and Remediation Section and the Alternative Technology and Support
Section during April and May, 1988. To ensure that the report
reflects current EPA policy and guidance, we obtained review
comments and concurrences from within OSW, from the Office of
Waste Programs Enforcement, and from the Office of General
Counsel.
We hope that the recommendations provided in this document
will be helpful for permit writers encountering similar situations
at other RCRA facilities. By sharing the Assistance Branch’s
suggestions from a few sites, we hope that permit decision-making
will be somewhat easier and faster at many more sites nationally.
We encourage you to distribute this report to your staff and State
permit writers. To make the distribution easier, I have attached
multiple copies of the report.
‘iThese reports were formerly entitled “PAT Summary Reports”:
previous reports were issued on March 14, 1986 (OSWER Policy
Directive No. 9523.00—14), March 30, 1987 (OSWER Policy
Directive No. 9523.00—12), March 30, 1988 (OSWER Policy
Directive No. 9523.00—15), and September 2, 1988 (OSWER Policy
Directive No. 9523.00—17)
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OSWEP Direct ve o. 523. -18
S ’ ry of Assistance Branch Peraitting Comnents
Table of Contents
Top.ic Page
Issue Resolution
Popping Furnaces 1
Subpart X — Miscellaneous Units 2
Closure 5
RCRA Corrective Action
Recommendations
Popping Furnaces
Liner RequirementS 11
Hazardous Waste Stabilization 13
Permit Issuance 13
Staff eviews Included in This Surrunary Attachment A
ist of Guidances Used in This Summary Attachment B
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OSWER Directive No. 9523. ø-l8
SUMMARY OF ASSISTANCE BRANCH PERMITTING COMMENTS
April 1983 — May 1988
This report is the fifth in a series of documents
summarizing some of the comments provided to Regional perlu.t
writers by OSW’s Assistance 8ranch. The report is organized
into two sections. The first section, Issue Resolution,
provides examples of issues that have been raised at one or more
facilities. This section covers special situations where
regulations or policy decisions were applied in actual
circumstances. The second section, Recommendations, addresses
comments routinely made to answer questions on items often
overlooked or poorly understood, and to convey technical
information. This section should be generally helpful to the
permit writer. A contact person has been listed for each item
to answer additional questions.
ISSUE RESOL.UTION
Popping Furnaces
1) Automatic Waste Feed Shut-off
The Army is in the process of applying for permits for
their munitions deactivation (popping) furnaces that
are located at about a dozen Army facilities around the
nation. These “popping furnaces” are hazardous
incinerators where the waste material is obsolete
munitions that must be exploded in the incineration
chamber during the incineration process. The explosive
nature of the waste poses specific problems unique to
these units in meeting Subpart 0 requirements.
Section 264.345(e) requires that “an incinerator must
be operated with a functioning system to automatically
cut off waste feed to the incinerator when operating
conditions deviate from limits • • .‘. Explosive
wastes in the “hot zone” near the furnace cannot be
safely stopped before the incinerator chamber due to
risk of explosion outside the unit. A design was
proposed at an Army facility that meets the requirement
for an automatic waste feed cut-off without
compromising safety. The proposed design consists of
two conveyors. The first conveyor feeds waste
munitions onto a second conveyor which, in turn, feeds
the munitions in the “hot zone” into the feed chute.
The automatic control would stop the first system in
the event of deviations from permit operating
conditions, while the waste in the “hot zone” would
continue safely into the unit.
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OSWER Directive No. 9523.ø -18
—2—
Attachment A to the report lists the facility names,
Regions, revrew coordinators, and dates for the reviews
summarized in this report. Attachment B provides a list of
guidance documents and directives used in preparing the reviews.
tf you have any questions, comments, or suggestions on the
Summary of Assistance Branch Permitting Comments, please contact
Jim Michael, Chief, Disposal and Remediation Section, OSW at FTS
382—2231.
Attachments
cc: RCRA Branch Chiefs
Regions I—X
Permit Section Chiefs
Regions I-X
Jon Cannon
Jeff Denit
Jim O’Leary
Joe Carra
Matt Hale
Ken Schuster
Suzanne Rudzinski
Elizabeth Cotsworth
Alex Wolfe
Jim Michael
DRS Staff
ATSS Staff
Art Day
Les Otte
Ken Skahn
Susan Bromm
Steve Heare
Scott Parrish
Lisa Friedman
Tina Kaneen
Fred Chanania
Bob Dellinger
Tom Kennedy (ASTSWMO)
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OSWER Directive No. 9523.00-18
—2—
The Assistance Branch reviewed the proposed waste feed
system and concurs that this system meets the
regulatory requirements under Section 264.345(e) for an
automatic waste feed cut—off.
Contactr Sonya Stelmack 202 or FTS—382-4500
2) Fugitive Emissions
Fugitive emissions are characteristic of popping
furnaces during the explosion of the munitions waste in
the incinerator chamber. Section 264.345(d) requires
that fugitive emissions from the combustion zone be
controlled by keeping the combustion zone totally
sealed; or by maintaining a combustion zone pressure
lower than atmospheric pressure; or by an alternate
method which can be d nonstrated to provide fugitive
emissions control equivalent to the maintenance of
combustion zone pressure lower than atmospheric.
An Army facility proposed to maintain lower than
atmospheric pressure in their combustion zone; however,
they could not do so continuously. They requested that
the permit be worded so that a specific number of
positive pressure excursions would be allowed. The
Assistance Branch concluded that allowing positive
pressure excursions would not meet the regulatory
requirement for fugitive emission control. The
ssistance Branch informed the Army that their other
proposed option of providing a totally enclosed system
where the collected fugitive emissions would then be
returned to the incinerator with the air intake would
be acceptable. A more recent Army proposal to enclose
the furnace retort in a negative—pressure shroud rather
than totally enclosing the system will also be
considered, provided the Army submits adequate
supporting data.
Contact: Sonya Stelmack 202 or FTS-382—4500
Subpart X — Miscellaneous Units
1) Units Regulated under Subpart X
A facility has ten units that the owner/Operator
maintains are miscellaneous units which should be
regulated under Subpart X. The owner/operator
describes these units as pits. Wastewater containing
reactive waste enters the unlined pits. The liquid is
first allowed to evaporate or percolate out of the
units. The owner/operator then ignites the remaining
residue after the liquid is removed.
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OSWER Directive Mo. 9523.Gg—1g
—3—
The Region contends that these units are surface
impoundments and should be regulated under Subpart .
The Assistance Branch was asked to evaluate the nature
of t hese units and identify the applicable regulations.
Surface impoundments ay be used to store, dispose o
treat hazardous waste. The process occurring in these
units is the treatment of wastewater (which does not
have the potential to detonate) by dewatering with the
subsequent open burning of the residue. Additionally,
Section 260.10 specifically includes pits as an example
of surface impoundments. Therefore, all requirements
applicable to surface impoundments, including land
disposal restrictions, November 8, 1988 retrofit
deadlines, and minimum technology requirements, apply
to these units. Subpart X is intended to cover units
not regulated elsewhere and will not replace or
supercede any restrictions or requirements contained in
another Subpart. Units that are containers, tanks,
surface impoundments, waste piles, land treatment
units, landfills, incinerators, boilers, industrial
furnaces and injection wells are specifically excluded
from Subpart X.
If the Regional dministrator feels that the Subpart K
standards do not provide adequate protection during the
burning phase of the treatment process, additional
permit conditions may be based upon the HSWA omnibus
provisions in Section 3005(c) in order to protect soil
and air.
Contact: Chet Oszman 202 or FTS—382-4499
2) open Burning/Open Detonation (OB/OD) Unit Requirements
Non—military waste explosives can be open burned/open
detonated if the waste has the potential to detonate as
stated in Section 265.382. If the waste explosives,
including wastes consisting of part solvent, do not
hav, the potential to detonate, the waste cannot be
d.stzoyed In OB/OD units. Solvents contaminated with
explosives to the extent that they have the potential
to detonate may be open burned provided that the unit
qualifies under either 264, Subpart X or 265,
Subpart Q. The open burning and detonation of waste
explosives is considered to be a treatment process
rather than waste disposal, and therefore the land
disposal deadlines and restrictions do not apply.
Treatment residues, however, may be sub3ect to such
restrictions.
Contact: Chet Oszman 202 or TS—382-4499
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OSWER Directive No. 9523.90-18
—4—
3) Permit Requirements for Waste Explosives
The Assistance Branch was asked to clarify the
circumstances under which the disposal of explosives
would require a pernit and to define the point at which
unused explosives become a waste.
A Subpart X permit or interim status is necessary for the
non-emergency open burning/open detonation of waste
explosives. The immediate response provisions of
Sections 264.l(g)(8), 265.l(c)(l1), and 270.l(c)(3) allow
an exception to the pernit requirement to be made in
situations where the threat of explosion (i.e., the
discharge or threat of discharge of a hazardous waste)
presents an emergency situation. If immediate action is
not required, but the threat to human health and the
environment persists, the Director may issue an emergency
permit under Section 270.61(a), bring an imminent hazard
action under RCRA Sec tion 7003, or perform a removal
action pursuant to CERCr 4 P Section 104.
When explosives are fulfilling their normal use pattern
and there is no intent to discard them, they are not
hazardous waste nor are they subject to Subpart X.
However, damaged or Leaking explosives or other
undetonated explosives that, for safety reasons, cannot
be used (such as expired shelf life) are waste, and can
be hazardous waste.
Contact: Chet Oszman 202 or FTS—382—4499
4) Applicability of Subpart X Permits to Fire Training Exercises
Fire fighters routinely train by extinguishing blazes set
as part of a training exercise. Often various types of
fuel are used to ignite the training structure. The
Assistance Branch was asked to determine if these
exercises and training areas require Subpart X permits.
The burning of commercial fuel in fire training exercises
is within the normal use of that fuel product. However,
verification must first be made to establish that the
material to be burned is actually commercial fuel. Once
the material is verified as commercial fuel, burning in
fire fighter training exercises does not constitute a
RCRA regulated activity. If the material to be burned is
not a commercial fuel but any other ignitable hazardous
waste such as used oil or spent solvents, this type of
open burning is prohibited.
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OSWER Directive No. 9523.00—18
—5—
Even when commercial, fuels are used, there is the
potential for ignitables or hazardous constituents to
be released to the surrounding soil and surface water.
The individuals responsible for conducting the exercise
should be advised to prevent any such releases. In
situations were releases do occur and these releases
may pose a threat to human health or to the
environment, a variety of Federal and/or State
enforcement/cleanup authorities may be called upon.
Contact: Chet Oszman 202 or FTS—382—4499
Closure
3.) Use of Soil Background Levels for Clean Closure
Several Regions requested clarification on setting soil
cleanup levels at facilities that plan to achieve clean
closure. As stated in the preamble to the March 39,
1987 final regulations, verified reference doses (RfDs)
and Carcinogenic Potency Factors (now correctly-called
Carcinogenic Slope Factors, or CSF) can he used to
determine cleanup levels for contaminants when they are
available. In cases where no Agency-recommended levels
exist, the soil cleanup level may be based on either
baokground levels or data developed by the
owber/operator to support a health-based limit.
Background levels can be determined in two ways. Soil
samples can be taken from uncontaminated areas of the
facility and at representativ, depths. The background
samples must be taken in areas that are not
contaminated from spills or by the operation of the
waste management unit or in some cases, by the
operation of any manufacturing processes that may be
present. The second approach uses published literature
as the sourc. of naturally-occurring levels in similar
soils to establish background levels.
At one facility the chemicals of concern were lead and
cadmium. At that tine, the Office of Research and
Dev.Lopment CORD) was evaluating data on the toxicity
of both of these substances. While the toxicological
information for lead and cadmium was undergoing current
review, the RfD for cadmium (0.0005 mg/kg/day) was
likely to be approved and could be used to set a soil
cleanup level. after applying the appropriate exposure
assumptions, the RfD translated into a cleanup level of
9 mg/kg of cadmium. The cadmium level proposed by the
owner/operator for the closure of their land disposal
unit was acceptable as it was based on the proposed
RfD. (The RfD of 0.005 mg/kg/day was approved on May
25, 1988.)
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OSWER Directive No. 9523.00-19
—6—
The RfD for lead is undergoing revision as a result of
new information on the neuro-behavioral effects of
lead. The RfD workgroup is not expected to reach a
decision on the new level in the near future. Lead is
also undergoing evaluation to determine if it acts as a
potential carcinogen via oral exposure. The
determination of a CSF is expected to take a while;
therefore, soil cleanup levels for lead should be based
on background Levels.
Contact: Chris Rhyne 202 or FTS—382—4695
2) Redesignating Unit Type during Interim Status
An owner/operator wishes to redesignate a unit that has
been operating as an interim status surface impoundmer t
as a landfill. The owners propose to stabilize the
waste, retain the stabilized waste, redesignate the
unit as a landfill and continue operations. The bottom
liner system of the unit does not meet the minimum
technology requirements. As a surface impoundment, the
owners must either retrofit or stop receiving wastes by
November 8, 1988. If the unit stops receiving waste,
it must close in order to comply with Section 3005(j)
requirements.
Under Section 270.72(c), changes in process can be made
during interim status only under the following two
circumstances:
(1) It is necessary to prevent a threat to human health
or the environment because of an emergency situation,
(2) It is necessary to comply with Federal regulations
or State or local laws.
The Region concluded that neither criterion could be
satisfied for this facility.
In this particular situation, however, the authorized
State regulations which are analogous to Section
270.72(c) also allow for a change if “proposed changes
are d sonetrated to result in safer or environmentally
more acceptable processes.” In order to comply with
the State condition, the owner would have to
demonstrate that a landfill operating with less than a
minimum technology liner is safer or environmentally
more acceptable than a closed or retrofitted surface
impoundment. The Assistance Branch did not believe
that such a demonstration is possible and that the
facility could not, therefore, meet the State
requirement. The State, however, ultimately would be
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OSWER Directive No. 9523.ØO-i.3
—7—
responsible for deterrnining if the demonstration
satisfies the condition for a more acceptable process.
Note that if the unit conversion were allowed to take
p].a e, the unit would be an existing landfill unit, and
not a new unit subject to MTRs.
Contact: Dave Cberly 202 or FTS—382-4691
RCRA Corrective Action
In order to set cleanup standards at a facility
undertaking corrective action to remediate releases from
their solid waste management units, a Region asked the
Assistance Branch to clarify the Agency policy on
determining cleanup levels, compliance points, timing of
corrective action and the use of institutional controls.
1) Cleanup Standards
Promulgated standards should be used as cleanup standards
when they are available. Maximum contaminant levels
(MCI.s) , established under the Safe Drinking Water Act
(SOWA) , are available for some contaminants and should be
used for a cleanup standard for ground water that is or
potentially can be a source of drinking water. When
promulgated standards are not available, Agency
health-effects data should be used to derive the cleanup
level.
EPA’s Integrated Risk Information System (IRIS) provides
current Agency health assessments and regulatory
decisions on many chemicals. When setting cleanup levels
for carcinogens based upon the Carcinogen Slope Factor
(CSF) , he risk range should fall between 1 X lG and
]. X 10 .
Standard exposure assumptions for drinking water should
be used for setting cleanup levels based upon verified
reference doses (RfDs) and CSFs in ground water used, or
potentially used, for drinking. Cleanup levels in soil
should be based upon exposure assumptions corresponding
to the potential land use. For example, if children can
play in the area after cleanup and the soil contamination
is surf icial, the potential for children to ingest soil
must be considered. Guidance on specific exposure
assumptions and exposure scenarios is currently being
developed.
Contact: Reid Rosnick 202 or FTS—382—4755
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OSWER Directive Ho. 523.00—18
—8—
2) Compliance Points for Soil and Ground Water Cleanup
The objective of corrective action to ground water is
to restore beneficial use if possible. In cases where
ground water is or has the potential to be used for
drinking, cleanup should be throughout the plume.
However, there are circumstances, such as when the
waste is left in place or the unit is still operating,
that preclude cleanup throughout the whole plume. In
such situations, the compliance point is at the edge of
the waste management unit.
The compliance point for soils is any area that may be
available for direct contact with the soils. In cases
where subsurface soils are contaminated to the extent
that ground water contamination is or has the potential
to occur, soil cleanup levels should be set to protect
the ground water.
Contact: Reid Rosnick 202 or FTS—382-4755
3) Timing of Cleanup Activities and Monitoring of the Site
At this time, the proposed corrective action
regulations will not establish a time frame for
attaining cleanup levels. A number of factors should
be evaluated prior to setting a schedule for a
particular facility. These factors are: (1) the extent
and nature of contamination; (2) the practical
capability of the remedial technology to meet the
objectives; (3) the availability of treatment or
disposal capacity for wastes; (4) the use of emerging
technologies; and, (5) potential risk to human health
and the environment from exposure prior to the
attainment of cleanup levels. In general, expeditious
cleanup, particularly of off—site contamination, is the
goal.
With respect to ground water corrective action under
Subpart F (Section 264.100), the owner/operator is
r.quired to monitor ground water during the compliance
period (resume compliance monitoring) after cleanup
activities have ended to demonstrate that the
ground-water protection standard is being achieved. If
corrective action is ongoing at the end of the
compliance period, corrective action cannot be
terminated until the ground water protection standard
is not being exceeded for three consecutive years.
While this time frame has been applied to corrective
action from SWMUSI it is often difficult to demonstrate
reliably that the standard has been achieved for three
years in all hydrogeological. settings.
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OSWER Directive No. 9523.90-18
—9.-
The Agency is proposing Section 3004(u) corrective
action regulations that determine the timing for
demonstrating compliance based on a case-by-case
bask -s. When selecting the length of time appropriate
to determine compliance, the Region should consider the
following: (1) the extent and concentration of the
release; (2) the behavior of the hazardous constituents
in the affected medium; (3) the accuracy of monitoring
techniques; (4) the characteristics of the contaminated
media; and, (5) any environmental, seasonal or other
pertinent factors.
Contact: Reid Rosnick 202 or FTS—382—4755
4) Use of Institutional Controls in the RCRA Program
Institutional controls may be used to limit exposure
during cleanup; however, they should not be viewed as a
substitute for cleanup. In some cases, the presence of
institutional controls may allow final cleanup to be
deferred if the owner/operator can assure that there is
no potential for exposure. Institutional controls may
also be used in situations where technical limitations
prevent compliance with cleanup standards.
Institutional controls may be engineered features that
prevent exposure such as fences or barriers. They may
also be non—engineered controLs that prohibit access to
ground water or limit use, such as deed restrictions.
Contact: Reid Rosnick 202 or FTS—382—4755
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OSWER Director No. 9523.aa-l8
R COMMENDAT IONS
Popping Furnaces
1) Conductf g Trial Burns Prior to the HSWA DeadUne for
Permitting Interim Status Incinerators
Because it usually takes one year to issue a permit
after a trial burn, interim status facilities should
schedule the trial burn prior to November 1988 in
order to meet the November 8, 1989 deadline for
permitting interim status hazardous waste
incinerators. The Army has proposed that the data
collected from the trial burns conducted at one
facility be applied to other popping furnaces. The
only circumstances where an owner/operator can use
data from one incinerator in lieu of conducting a
trial burn at another is when the two units are
similar in all significant respects including unit
type, combustion chamber size, dimensions of major
components and operating conditions. In addition, the
wastes burned in the other units must be adequately
represented by the wastes burned during the trial
burn. This means that the types and concentrations of
organic hazardous constituents and metals must be
similar. The incinerability, form, and ash content of
the waste must also be comparable.
The Assistance Branch feels that the use of data from
a trial burn at one facility in lieu of trial burns at
the other facilities will not be acceptable for all
Army popping furnaces because the units were built by
different manufacturers, are of different ages, have
worn differently over the years, and have had
different modifications made to them.
An alternate proposal by the Army is to conduct “base t ’
trial burns at each facility using the wastes that the
facility will most often burn after permitted. A
‘large scale” trial burn would also be conducted with
a broad range of wastes at one facility to represent
the worst-case waste to be burned in any of the units.
The Assistance Branch and the Incinerator Permit
Writer’s Workgroup agreed that this type of approach
could be acceptable for setting a more flexible range
of permit conditions for the popping furnaces provided
that the “large scale” trial burn is conducted at 3 or
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OSWER Directive No. 9523.00-18
—11—
4 facilities. Furthermore, the results from each
facility that conducted a “large scale” trial burn r ust
be consistent to allow the ata to be used in lieu of
large scale trial burns at . l1 popping furnaces. If the
results are not consistent, pernit conditions must be
based on the individual facility trial burns.
Contact: Sonya Ste].mack 202 or FTS—382—4500
2) Evaluation of Part B Applications for Popping Furnaces
The adequate evaluation of a trial burn plan for a
“popping furnace” involves additional criteria beyond
that required for the evaluation of most incinerators
since the explosive nature of the waste will affect the
combustion process and ash carryover. For example, in
typical hazardous waste incinerators, the ash content of
the waste is the major variable along with the
efficiency of the air pollution control equipment that
affects the release of particulate matter from the
stack. In the case of popping furnaces, the explosive
content of the waste must also be evaluated because of
the potential effect on particulate formation and
entrainment. For popping furnaces it is possible that
there are several “worst-cases” that must be evaluated
during a trial burn. The waste burned in the trial burn
should be selected for the “worst-case” with respect to
incinerability of Appendix VIII compounds, particulate
and metals emissions.
The Assistance Branch has also been encouraging that
metal limits be set to adequately protect human health
and the environment under the authority of the omnibus
provision (Section 3005(c)(3)).
Contact: Sonya Stelmack 202 or FTS—382-4500
Liner Requirements
1) Use of In—place Hydraulic Conductivity Testing during Liner
Installation
The requirement to perform in—place hydraulic
conductivity testing on the soil liner of a test fill
was a condition of the final permit for one facility
The owner/operator of the unit objected to the
requirement and requested clarification of current EPA
policy on the use of in—place versus laboratory
hydraulic conductivity testing.
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OSWER Directive No. 9523.00—18
—12—
The current EPA policy was adopted in Kay 1985 in the
“Draft Minimum Technology Guidance on Double Liner
Systems for Landfills and Surface Impoundments --
Des-ign, Construction, and Operation” (see Reference 3,
Attachment B) . The Agency maintains that in-place
hydraulic conductivity testing is “the most accurate
means of consistently determining the actual hydraulic
conductivity of a constructed soil liner.” The guidance
recommends that the in-place hydraulic conductivity test
be performed on a test fill using the same equipment and
techniques that will be used during the construction of
the actual liner.
EPA policy was reinforced by OSWER Policy
Directive $9472.003 (See Reference 5, Attachment B),
which was issued in October 1986. This document
presents further support to the Agency’s position that
in-place testing is superior to laboratory testing.
This does not mean that laboratory testing is not a
significant component of a construction quality control
program. Research, however, has shown that laboratory
permeability tests often produce results that are one to
three orders of magnitude lower than the actual
hydraulic conductivity present in the field. A
satisfactory in—place hydraulic conductivity test does
not have to determine the specific hydraulic
con9uctivity but must document that it is less than I X
10 cm/sec.
An unofficial survey found that the majority of Regions
consistently implement the policy requiring in-place
hydraulic conductivity testing.
Contact: Chris Rhyne 202 or FTS—382—4695
2) Freeze-Thaw Concerns with Clay Layer in Final Covet
A facility located in a northern state proposed to
install the clay liner portion of the final cover on
their landfill only 24 inches below the surface. In
this section of the country, frost penetration was 36
inches.
The Assistance Branch was asked to evaluate the proposed
design. Based on EPA guidance (See Reference 3,
Attachment B), we recommended that the clay layer below
the flexible membrane layer (FML) be completely below
the average frost depth. It is permissible to allow for
snow cover in the frost depth calculations. At this
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OSWER Directive No. 9523.00 —lB
—13—
location, 6 inches of snow cover is typical; therefore,
we recommended that the soil, layer above the clay Liner
need be increased by only 6 inches instead of one foot.
Contact- Chris Rhyne 202 or FTS—382—4695
Hazardous Waste Stabilization
1) Use of Natural Material in a Waste Stabilization Process
A facility that planned to close its interim Status
surface impoundment needed to develop a site—speclfLc
process that would sufficiently stabilize its highly
organic and oily waste material. The facility engineers
proposed to use cement kiln dust as the pozzolanic
component in the process. They also proposed to use
caliche, a locally occurring form of calcium carbonate,
as an absorbent in the process.
In order to demonstrate that stabilization has occurred,
the waste must be shown to have undergone chemical
change. The engineers conducted a series of laboratory
and field tests with various proportions of the chemical
additives. They monitored soluble organic carbon (SOC)
levels in the leachate. Based upon data showing that
lower SOC levels were found in the leachate of
stabilization mixtures containing cal.iche as well as the
cement kiln dust, the engineers demonstrated that
caliche was a necessary component in the stabilization
process. Considering these results and the increased
strength of this stabilized material over time, the
Assistance Branch concluded that stabilization was
occurring.
Contact: Dave Eberly 202 or FTS—382—4691
Permit Issuance
1) HSWA Permit Preparation
A Region prepared a draft HSWA permit for a facility by
using the RCRA Corrective Action Plan (CAP) (See
Reference 4, Attachment B) as a guide. The Region asked
the Assistance Branch to comment on this approach and
the permit language.
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OSWE Directive No. 9523.00—la
—14—
While the Assistance Branch agreed that the CAP was the
best currently available guide for Regions to use to
prepare HSWA pernits, the CAP is more in the nature of a
checklist, from which soecific permit conditions can be
developed. Incorporation of general CAP requirements
directly into a permit is likel ’ not to be specific
enough. (Please note that the Module for Corrective
Action for Solid Waste Management Units of the Model
Permit, distributed for review and use on November 30,
1988, is also an appropriate guide for using Sections
3004(u) and (v).)
Further, there are several points that the permit writer
must keep in mind when applying this reference. First,
the CAP was designed to cover all possible corrective
action requirements including interim status corrective
action orders under Section 3008(h) as well as permit
requirements under Section 3004(u). The permit writer
must select the applicable Section 3004(u) requirements
from the “menu” of requirements presented in the CAP.
Certain CAP requirements related to Section 3008(h) are
not appropriate for permits.
Second, the permit writer must, for any individual
facility, identify the information already available in
the Part B application and collected during the RCRA
Facility Assessment (RE’A). It is not necessary to
require information that has already been provided
elsewhere. Based upon this information,
facility-specific permit conditions can be developed
using the CAP as a checklist, but not as a mode]. for the
actual permit condition language.
Contact: Dave Eberly 202 or FTS—382—469].
2) Authority to Implement Subpart X Standards in RCRA Authorized
States
The Agency is using the authority under Section
264.1(1) (2) to implement the regulations for
miscellaneous units in all States at the same time,
regardless of their authorization status. This authority
exists independent of HSWA. Section 264.1(f) (2) applies
specifically to the regulation of units not covered by
any Federal permit requirements at the time that an
individual state program was authorized. This authority
was created to avoid the situation that no permits (such
as Subpart X permits) could be issued in an authorized
state for several years after permit standards were
promulgated by the Agency (i.e., until the state
receives Subpart X authorization). Therefore, Subpart X
requirements will be implemented by EPA in all
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OSWER Directive No. 9523. 10-18
—15—
states at the saflte time. See OSWER Policy Directive
$9489.00—2 (See Reference 1, Attachment B) for further
clarification.
Contact: Chet Oszman 202 or FTS—382—4499
3) Permitting Deadlines for Subpart X Facilities
The permit application deadline of November 8, 1988 and
the permit issuance deadline of November 8, 1992
promulgated in Section 3005(c) of HSWA, are relevant to
Subpart X facilities that had interim status as of
November 8, 1984. The permit applications due in 1988
need only address those units which were listed (or
should have been listed) in a facility’s Part
application as of November 1984. Any permit issuance
made in 1992 need address only those units subject to
the 1988 application deadline (although it can address
other units as a discretionary matter). This may mean
that permit issuances in 1992 will be partial permits
since only units with interim status before November 8,
1984 must be addressed. Regions are encouraged to
notify interim status facilities in order to give them
the opportunity to meet the November 1988 deadline.
Contact: Chet Oszman 202 or FTS—382—4499
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OSWER Directive No. 9523.00-18
Attachment A
Assistance Branch reviews included in this swrtmary
Facility Name ______ ___________
Burnham Corporation
Foundry
CSs I
Hawthorne Army
Ammunition Plant
IBM
Morton Thiokol
SCA
(Model City)
R&D
Fabricating
Sinclair Oil
Tooele Army
Depot
Umatilla Army
Depot
Union Carbide
(Ponce, P.R.)
Union Carbide
(Sisterville, WA)
Region
V
Coordinator
Review Date
Mark Salee
May 1988
X
Chris Rhyne
May 1988
IX
Sonya Stelnack
May 1988
I
Amy Mills
April 1988
VII I
Chet Oszman
May 1988
II
Chris Rhyne
April 1988
VI
Chet Oszman
May 1988
VI
Dave Eberly
April 1988
VIII
Sonya Stelmack
3im Michael
April 1988
May 1988
X
Sonya Stelmack
April 1988
II
Dave Eberly
April 1988
III
Dave Eberly
May 1988
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tDSWER Directive No. 9523.00-19
Attachment B
List of Guidance Documents used in Preparing the Assistance
Branch Permitting Comments
1. “Issues Relating to Miscellaneous Units,” OSWER Policy
Directive $9489.00-2 (April 26, 1988).
2. “Hazardous Waste Miscellaneous Units; Standards
Applicable to Owners and Operators,” Final Rule,
Federal Register , Vol. 52, No. 237. p. 46946.
3. Minimum Technology Guidance on Double Liner Systems for
Landfills and Surface Impoundments —— Design,
Construction, and Operation , DRAFT, EPA
530—SW—85—014, (May 24, 1985).
4. ‘ t RCRA Corrective Action Plan,” OSWER Policy Directive
#9902, (November 14, 1986).
5. Technical Guidance Document: Construction Quality
Assurance for Hazardous Waste Disposal Facilities , EPA
530—SW—86—031, OSWER Policy Directive #9472.003,
(October 1986)
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