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DIRECTIVE NUMBER: 9502.00-7
TITLE: Use of Corrective Action Authorities at
Closing Facilities
APPROVAL DATE: March 8, 1988
EFFECTIVE DATE: March 8, 1988
ORIGINATING OFFICE: office of solid waste
Q FINAL
D DRAFT
STATUS:
REFERENCE (other document*):
A- Pending OMB approval
B- Pending AA-OSWER approval
For review &/or comment
In development or circulating
headquarters
DIRECTIVE DIRECTIVE L
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United States Environmentai Protection Agency Ii Directive Number
Washing’on DC 20460
r&EPA OSWER Directive Initiation Request 9502.00-7
2. O’i fnator In1orm on
Code 1 Oftic e IT& 1 0 Code
3Th1e
- WH—563 OSW (202) 475—6725
Use of Corrective Action Authoritj at Closing Faciljti
arne of Contact Person
Sharon Frey
4 Summary of Directive (include bnef statement of purpoj
The purpose of this m randum is to provide guidaric on the use of Section 3008 (h)
authorities and rost-closu permits to address corrective action at closing
interim status facilities.
Keywor is
Closure / Corrective Action / Post-Closure
5a Does This Directive Supersede Previous Directive(s) ,
b Does It Supplement Previous Directive (sp
iI
No Yes
What directive (number title)
What directive (number, title)
OS
WER Os
WER OS
VE
DIRECTIVE
DIRECTIVE
WER
DIRECTIVE
7 Draft Level
A - Signed by A.AIDAA 8 - Signed by Office Director
C - For Review & Comment 0 -(n Development
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OSWER Directive No. 9502.00-7
ST 4
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON. D.C. 20460
P O1
M R 8 I’18
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: )4se of §3008(h) Orders or Post—Closure Permits At
(c losing 1 F ci ities ’
— 1hY9 —A 1
FROM: WinS on ortet/, ssistant Administrator
(I /
TO: JRegional Administrators, Regions I - X
StJMMA.RY
The purpose of this memorandum is to clarify the use of
§3008(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 §3008(h) order or a post-closure permit with
§3004(u) and §3004(v) conditions.
I. BACKGROUND
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: §3008(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 §3008(h) order to
compel corrective action at interim status facilities or
facilities that have lost interim status.
*The Environmental Priorities Initiative (EPI) provides a
priority-setting mechanism for identifying and evaluating
environmentally significant facilities.
**Two other RCRA corrective action authorities, §3013 and
§7003, may also be available. Additionally, Superfund
authorities may also be applicable. Furthermore, these
authorities may be used in combination.
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u wti ulrective No. 9502.00-7
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A. Section 3008(h )
Section3008(h) authorizes EPA to issue corrective action
administratfve 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 §3008(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 media. 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 §3008(h) is
provided in a December 16, 1985 memorandum from J. Winston
Porter.)
B, Section 3004(u )
Section 3004(u) requires every treatment, storage or
disposal facility that is seeking a RCR.A 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
act ion.
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 §264 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
*Interjm 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.
§270.1(c)).
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OSWER Directive No. 9502.00-7
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recoriunend that a RCRA Facility Assessment (RFA) be completed
and a §3008th) 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 §3008(h) order may, of course, be
made part of the post-closure permit, as appropriate.
II. Considerations in Selecting c3008(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), §3008(h)
orders are the appropriate corrective action authority. In
many cases, how ver, 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) conditions
in an operating or post-closure permit. 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
§3008(h) order in the case of a willing owner/operator. A
§3008(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 more appropriate to determine at the outset to use a
post-closure permit instead of 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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r rc ui eccive u. uz.uu—i
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o A §3008(h) order may be more appropriate where a prompt
action is necessary and where a post-closure permit is not soon
scheduled tp be issued.* This is because §3008(h) orders allow
more flexibility in both timing and scope than permits. For
example, a §3008(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 §3008(h) order may be more appropriate than a
post-closure permit where there is concern that releases are
coming from sources other than SWMTJs. 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 §3008(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 §3008(h) order and a
post—closure permit (with or without additional §3004(u)
conditions added) remains an important option.
*If an imminent and substantial endangerment to health or
the environment exists, a §7003 order may be appropriate.
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