UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
UVASWIPUfiTnu r%/. „«.,..: W"*MVjtr'LY
WASHINGTON. D.C. 20460
OFFICE OF
r,'-~" 97 '-'^ ncMPD ^ SO"-"* WASTE AND EMERGENCY RESPONSE
-'.-• £ I '^z OSWER Directive tt 9234. 1-06
MEMORANDA
SUBJECT: Applicability of Land Disposal Restriction* *n
RCRA and CERCLA Ground Water Treatment Re nje?tion
Superfund Management Review: Recommendation'NO 22
FROM: Don R. Clay, Assistant Administrator ,j-^n
Office of solid Waste and Emergency Response
TO: Waste Management Division Directors
Regions I - x
Regional Counsel
Regions I - x
Purpose
IWIJAI identified for that waste under tne RCRA land
22" " »sar,
date of the restrictions. Treatment standards for R?RA
" -
i
of,ha"^ous waste into urgound Injection wel f
" disP°sal" und" LDR '«e RCRA sect Sn 3004(v,,
,
anS t^"»rn ^"d disP°sal" und" LDR '«e RCRA sect n 3004(v
r2lr »9I "ater untierqoing reinsertion may contain a
restricted waste, the issue has been raised as to whether earl,
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RATI ONALE
Ground water restoration under RCRA corrective actions and
CERCLA response actions often involves withdrawal, treatment of
the Contaminated water, and reinjectjon of the treated water into
the ground. The land disposal restrictions (LDR) of the Resource
Conservation and Recovery Act (RCRM 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. See 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 d 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 RCPA [ 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 reinjectjons 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 (in) 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. the proposed NCP
(published at 53 Fed. Reg. 51,394 (Dec. 21, l988)(to be codified
at 40 C.F.R. 300.435(b)(2)), and CERCLA ComDLiance 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 reinjectjons 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
app1jc 1e 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 (in), to reinjectjons 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 RCRA corrective
action. Second, each reinjectjon has to be treated to
“su.bstantia l ly reduce hazarc 3uS Constituents prior to such
injection...” (RCRA section 3020(b)). Until guidance is prepared
addressing the issue, steps necessary to “substantiaiiy 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 environjnentt ’ (RCRb
section 3020(b)). RCRA and CERCLA statutes, regulatjon and
policies Should be reviewed to determine protectiveness.
The issue may also arise under CERCLA as to whether LDRs are
relevant and appropriate requiremen 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 the 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. See 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 ARARs waiver may be appropriate in
certain cases for actions taken under CERCLA.
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requirement is to compare the CERCLA response objective with the
purpose and objective of the requiremefl . “CERCLp. 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. 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.
* * *
See the discussion of MCLs and MCLGs in the proposed and
final NCP.
6 If no such standards are relevant and appropriate, TBCs n.iy
be used as cleanup levels; use of a TBC should be explained and
Justified for each specific case.
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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 iv
injection wells), unless the COndItjoi in Subpart (b) are met.
Subpart (b) permits reinjecti of COntaminated ground water that
has been treated if: (1) the injection is a CERCLA response action
or a RCRA corrective action, (2) the contaminated ground water is
treated to subStantially reduce hazardous constituents prior to
each injection, and (3) the response action or corrective action
is Sufficient to protect human health and the envjrofljnent upon
completion. RCRA section 3020(b).)
Resolution
For the reasons specified in the attachj ent to this
memorandum LDR is not applicable to these activities Instead of
LDR, RCRA section 3020 applies to reinjectjon 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.
Attachj ent
cc: CERCLA arid RCRA Branch Chiefs
Office of Drinking Water
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STATE iy IM. PRO ThCTg A E y
OSWE Directive i 9234.1-. )6
SUBJECT: App1jcaJ)iJ.i , of Land Disposal Restrictions to
RCRA and CERCLA Ground Water Treatment Reinjection
SuperflJ1 d Manageme Review: Recommendation No. 26
FROM: Don R. Clay, Assistant Adl Uflistrator
Office of Solid Waste and Emergency Response
TO: Waste Nanagemen Division Directors
Regions I - X
Regjona Counsel
Regions i - x
P rDo
There has been some questj as to whether ground water
Cont inated with restrjct RCRA hazardous wastes, which is
extracted during a RCRA corrective action or CERCI 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_treat
reinjection remnediation System. (See RCRA sections 3004 Cf) 1 (g)
and (m), arid 40 C.F.R. Parts 148 and 268.) This memorandUm
explains EPA’S interpretation of whether the LDRS are app 1ic 1e
or (under CERCLA response actions only) relevant and appropriate
to such reinjectjons or to the remedjation as a whole.
CJC r
RCRA LDRS 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 baseij upon the best demonstrated avaj1 1e technology
(BDAT) identified for that waste. See 40 C.F.R. 268. Because
placement of hazardous waste into undergrO 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 during
response or corrective actions.
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