&EPA
United States
Environment*! Protection
Agency
Office of
Solid Watte and
Emergency Response
DIRECTIVE NUMBER: 9234.1-06
TITLE: Applicability of Land Disposal
Restrictions to RCRA and CERCLA Ground Water
Treatment Reinjection Superfund Management Review
Recommendation No, 26
APPROVAL DATE: December 27, 1989
EFFECTIVE DATE: December 27, 1989
ORIGINATING OFFICE: Superfund
J0 FINAL
D DRAFT
STATUS:
REFERENCE (other documents):
OS WER OS WER OS WER
DIRECTIVE DIRECTIVE Dl
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Undid StAtes Environmental Protection Agency
Wu t&ngton. DC 20400
&EPA OSWER Directive initiation Request
1. ore, Numbe
J 9234.1-06
2. OriQinator Information
Nsm ot Ccritact Pirson Mail Code IOfl ca
B. VanEpps, SDC OS-240 OERR OPMI MSDS
Telepfløn. Cod.
475-8864
3. ru.
Applicability of Land Disposal Restrictions to RCRA and CERCLA Ground
Water Treatment Reinjection Superfurid Management Review: Recommendation
No. 26
4 Summary of Oirective (include bnef slaterriettt of purpose)
This memorandum explains EPA t s interpretation of whether the LDRs are
applicable or (under CERCLA response actions only) relevant and
appropriate to such reinjections or to the remediation as a whole.
5. Ke ovds
6a. Does This Directive Supersede Previous Directrefa)?
No Yes What directive (number, title)
b. Does It Supplement Previous Directive(s)?
No Yes What directive (number, tlU)
7. Draft Level
A - Signed by AAIDU B - Signed by Oftice Director C - For Review & Comment 0- W Ouvent
la Document tobe distributed to States by Headquarters? E Yes No
This Request Mist, OSWER Directives System Format Standards.
9. Signature of Lead 0111cc Directives Coordinator
Date
Betti VanEpps, Superfund Document Coordinator
December 27, 1989
10. Name and This of Approving OfNcial
Don R. Clay, Assistant Administrator
Office of Solid Waste and Emecgency Response
Oats
.
December 27, 1989
EPA Femi 1315 -Il (Rev. 5-87) Previous editlans are obsdlets.
OSWER OSWER OSWER 0
VE
DIRECTIVE
DIRECTIVE
DiRECTIVE
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iO S?i,
I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON. D.C. 20460
,RO tc
OFFICE OF
SOUD WASTE AND EMEFGENCV RESPONSE
27 OSWER Directive * 9234.1—06
MEMORANDUM
SUBJECT: Applicability of Land Disposal Restrictions to
RCRA and CERCLA Ground Water Treatment Reinjection
Superfurid Management Review: Reconunendation No. 2
FROM: Don R. Clay, Assistant Administrato -/(
Office of Solid Waste and Emergency Response
TO: Waste Management Division Directors
Regions I - X
Regional Counsel
Regions I - X
Purpose
There has been some question as to whether ground water
contaminated with restricted RCRA hazardous wastes, which is
extracted during a RCRA corrective action or CERCLA response
action, must meet the best demonstrated available technology
(BDAT) identified for that waste under the RCRA land disposal
restrictions (LDRs) prior to each reinjection, in a pump-and--tre -tt
reinjection remediation system. ( RCRA sections 3004 (f), (g)
and (in), and 40 C.F.R. Parts 148 and 268.) This memoranc]uin
explains EPA’s interpretation of whether the LDRs are applicable
or (under CERCLA response actions only) relevant and appropriate
to such reinjections or to the rernediation as a whole.
Backaround
RCRA LDRs prohibit land disposal of restricted RCRA hazardou’;
wastes that do not meet treatment standards after the effective
date of the restrictions. Treatment standards for RCRA hazardous
wastes are based upon the best demonstrated available technology
(BDAT) identified for that waste. See 40 C.F.R. 268. Because
placement of hazardous waste into underground injection wells
constitutes “land disposal” under LDR (see RCRA section 3004(k)),
and the ground water undergoing reinjection may contain a
restricted waste, the issue has been raised as to whether each
reinjection of contaminated ground water should meet BDAT duririj
response or corrective actions.
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Separate from the restrictions found in RCRA LDRs, an
independent provision of the statute, RCRA Section 3020, bans
hazardous waste injection into drinking water formations (Class tV
injection wells), unless the conditions in subpart (b) are met.
Subpart (b) permits reinjection of contaminated ground water that
has been treated if: U) the injection is a CERCLA response action
or a RCRA corrective action, (2) the contaminated ground water is
treated to substarttiallY reduce hazardous constituents prior to
each injection, and (3) the response action or corrective action
is sufficient tO protect human health and the environment upon
completion. ( RCRA section 3020(b).)
Resolution
For the reasons specified in the attachment to this
memorandum, LDR is not applicable to these activities. Instead of
LDR, RCRA section 3020 applies to reinjectiOn of treated
contaminated ground water into Class IV injection wells during
CERCLA response actions or RCRA corrective actions. Moreover, for
CERCLA response actions where the goal is to clean up ground water
to drinking water levels, the Agency believes that health-based
drinking water standards (e.g. MCLs) -- rather than LDRs -— will
generally be the relevant and appropriate cleanup standard. See
the attachment.
Until guidance addresses the issue, what is required to
“substantially reduce” hazardous constituents prior to each
injection in a CERCLA response action or RCRA corrective action
should be determined on a case-by-case basis. RCRA and CERCLA
program policies and guidance should be reviewed to determine
protectiveness upon completion of the action.
Attachment
cc: CERCLA and RCRA Branch Chiefs
Office of Drinking Water
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RAT IONALE
Ground water restoration under RCRA corrective actions and
CERCLA response actions often involves withdrawal, treatment of
the contaminated water, and reinjection of the treated water into
the ground. The land disposal restrictions (LDR) Of the Resource
Conservation and Recovery Act (RCRA) prohibit land disposal of
restricted RCRA hazardous wastes that do not meet treatment
standards after the effective date of the restrictions. Treatment
standards for RCRA hazardous wastes are based upon the best
demonstrated available technology (BDAT) identified for that
waste. 40 C.F.R. 268. Because placement of hazardous waste
into underground injection wells constitutes “land disposal” under
LDR ( RCRA section 3004(k)), and the ground water undergoing
reinjection may contain a restricted waste, the issue has been
raised as to whether each reinjection of contaminated ground water
should meet BDAT during response or corrective actions. 1
Section 3020 of RCRA [ previously section 70102] specifically
addresses waste injection in the context of CERCLA and RCRA
cleanups. RCRA section 3020(a) bans hazardous waste disposal by
underground injection into or above an underground source of
drinking water (within one-quarter mile of the well). However, -
RCRA section 3020(b) exempts from the ban all reinjections of
treated contaminated ground water into such formations undertaken
as part of a CERCLA section 104 or 106 response action, or a RCRA
corrective action. To qualify for the exemption, the following
three conditions must be met: (1) the injection is a CERCLA
response action or a RCRA corrective action, (2) the contaminated
ground water must be treated to substantially. reduce hazardous
constituents prior to such injection, and (3) the response action
or corrective action must be sufficient to protect human health
and the environment upon completion.
Although RCRA section 3020 and the LDR provisions at RCRA
sections 3004(f), (g) and (m) arguably can address the same
activity, RCRA section 3020 specifically applies to all CERCLA and
1. CERCLA remedial actions are required to meet Federal
requirements and standards at completion of the remedial action if
the Federal: standards are applicable or relevant and appropriate
requirements (ARARs), absent invocation of a statutory waiver.
See CERCLA section 121(d). Agency policy and the proposed
National contingency Plan (NCP) require the Agency to comply with
all ARARs pertinent to the action during the course of a remedial
action, as well as upon its completion. See the proposed NCP
(published at 53 Fed. Reg. 51,394 (Dec. 21, 1988)(to be codified
at 40 C.F.R. 300.435(b)(2)), and CERCLIA Compliance with Other Laws
Manual: Part I , 1—8 (OSWER Directive number 9234.1-01, AugUst 8,
1988).
2 RCRA section 3020 was section 7010 in the Hazardous and
Solid Waste Amendments of 1984, but was re—numbered in 1986.
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RCRA ground water treatment reinjections into Class iv injection
wells. 3 Consistent with traditional principles of statutory
construction. RCRA section 3020 -- which is directly focused on
injections of treated Contaminated ground water into Class IV
wells during cleanups -- should be controlling for such
injections; a contrary reading would render section 3020(b)
meaningless. Where Congress has provided two potentially
applicable statutory provisions, a choice between them is both
necessary and appropriate, and within the discretion of the expert
agency. Accordingly, EPA construes the provisions of RCRA section
3020 to be applicable instead of LDR provisions at RCRA sections
3004(f), (g), and Cm), to reinjectiOnS of contaminated ground
water into an underground source of drinking water (USDW), which
are part of a CERCLA response action or RCRA corrective action.
As a result, the three conditions of RCRA section 3020(b)
must be met during response or corrective actions involving
ground water treatment reinjection into or above underground
sources of drinking water. Failure to meet these conditions bans
the activity under RCRA section 3020(a). 4 First, the injections
must be part of a CERCLA response action or a RCEA corrective
action. Second, each reinjeCtiOn has to be treated to
“substantially reduce hazar 3uS constituents prior to such
injection...” (RCRA section 3020(b)). Until guidance is prepared
addressing the issue, steps necessary to “substantially reduce”
hazardous constituents during a RCRA corrective action or a CERCLA
response action should be decided on a case-by-case basis. Third,
the response or corrective action upon completion must “be
sufficient tO protect human health and the envirorunent” (RCRA
section 3020(b)). RCRA and CERCLA statutes, regulations and
policies should be reviewed to determine protectiveness.
The issue may also arise under CERCLA as to whether LDRs are
relevant and appropriate requirements when treated ground water is
reinjected into Class IV wells as part of a CERCLA response
action. In order to be considered to be both “relevant” and
“appropriate,” a requirement must address problems or situations
similar tO the circumstances of the release or remedial action
contemplated, and be well-suited tO the site. A key factor in
determining tile potential relevance and appropriateness of a
3 class iv injection wells are used to inject contaminated
ground water into or above an underground source of drinking
water. 40 C.F.R. 146.5(d). In most situations, ground water
treatment reinjectiOn involves only Class iv injection wells
because treated ground water is recharged back into an
underground source of drinking water (USDW) during pump-and-treat
activities, not beneath it. Other classes of wells are not
subject to section 3020’s special provisions.
Note, however, that an RARs waiver may be appropriate in
certain cases for actions taken under CERCL .A.
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requirement is to compare the CERCLA response Objective with the
purpose and objective of the requirement. “CERCLA Compliance
with Other Laws Manual” at p. 1-65 (EPA, August 8, 1988); proposed
NCP, 53 FR at 51436 (Dec. 21, 1988) (proposed section
300. 400(g)(2)).
The ultimate purpose of treating and reinjecting ground water
into Class IV wells is to restore the formation to drinking water
quality. EPA believes that standards that have been specifically
developed to establish drinking water quality levels (such as
MCLs 5 ) are particularly well-suited to the accompljs ent of that
purpose. Although LDRs also prescribe treatment levels, those
levels were not specifically developed to achieve drinking water
quality (although they may often have that result). Thus, where
drinking water standards are available, the Agency believes that
they will generally be the relevant and appropriate requirement to
use in setting treatment standards for CERCLA cleanups of drinking
water formations.
In situations where no drinking water standard has been
promulgated for the contaminants to be treated, the Region should
consider potentially relevant and appropriate requirements
(including any available health-based standards, LDR treatment
standards, etc.) and attain the standard, if any, that the Agency
finds is “relevant and appropriate under the circumstances of the
release” (or justify a waiver). 6 EPA guidance sets out a number
of factors for deciding if a requirement is relevant and
appropriate under the circumstances of the release. See CERCLA
Compliance with Other Laws Manual, at p. 1-67.
NOTICE: The policies set out in this memorandum are intended
solely for the guidance of Government personnel. They are not
intended, nor can they be relied upon, to create any rights
enforceable by any party in litigation with the United States.
EPA officials may decide to follow the guidance provided in this
memorandum, or to act at variance with the guidance, based on an
analysis of specific site circumstances. The Agency also reserves
the right to change this guidance at any time without public
notice.
5 see the discussion of MCLs and MCLGs in the proposed and
final NCP.
6 If no such standards are relevant and appropriate, TBCs in. y
be used as cleanup levels; use of a TBC should be explained and
justified for each specific case.
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