United States       Solid Waste and     EPA/530-R-97-004G
Environmental Protection  Emergency Response    December 1996
Agency          (OS-343)

RCRA Permit Policy

Compendium
Volume 7
9460.1980-9482.1996

Transporter Standards (Part 263)
• General
• Manifests/Recordkeeping
• Discharges

Treatment, Storage & Disposal Facilities
(TSDFs) (Parts 264 & 265)
• General
• Standards
• Preparedness & Prevention
• Contingency Plan
• Manifests/Recordkeeping
• Closure/Post Closure
• Financial Responsibility

TSDF Technical Requirements
(Parts 264 & 265)
• Groundwater Standards
• Management of Containers
                             ATKl/3590/08 kg

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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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Transporter Standards (Part 263)

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9461 - GENERAL
STANDARDS
Part 263 Subpart A
                    ATKl/1104/3kp

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                                                             9461.1983(01)
                       RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                                         JANUARY  83
   QUESTIONS/ANSWERS - RCRA

\t  Question:      Can a transporter consolidate manifested shipments of hazardous
                  waste at a transfer facility by transferring wastes in driros
                  to a tank truck "for bulk delivery to a TSDF?  All of the
                  drums contain wastes with the same DOT shipping description.

   Answer:        If the transporter were ca.ibinirv; waste with different DOT
                  shipping Descriptions into a single container, fc-je transporter
                  would be mixing wastes and must comply with the Part 262
                  regulations.  Since in this instance no n»ixir>j of different
                  DOT waste types occuirs, there is no requirement for a n-.-»-
                  manifest.  (The preamble to the Dec. 31, 19dO, interim final
                  rule on storaje by transporters at transfer facilities solicited.
                  cgiments on whether regulatory controls over the consolidation
                  of shipnents and mixinj of hazardous waste  by transporters is
                  <: •-      ': i.   If the containers are enpty accorciryj to section
                  26i.,,  tr»c-y are not subject to further RCRA rejulations.

                  Source:     Carolyn Barley, Rolf Hill,  and Claire helty
                  Research:  Irene Homer

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                                                    9461.1985(01)
September 19, 1985
Mr. G. Thomas Manthey
Operations Manager
G W Inc.
P. 0. BOX 379
Cedarburg, Wisconsin  53012

Dear Mr. Manthey:

     This is in response to your letter of August 30, 1985, which
concerned the bulking and consolidating of compatible wastes with
different EPA hazardous waste codes.  We recognize that
transporters sometimes pick up waste from several generators in
order to send full loads to treatment, storage, and disposal
facilities.  These transporters also may consolidate different
bulk waste shipments in a tank truck or pump the contents of
drums containing different EPA waste codes into a single tank
truck.  You asked whether this method of handling hazardous waste
constitutes treatment.  It is our interpretation that incidental
changes in the characteristics of the waste that occur from
consolidating shipments going to treatment, storage, and disposal
facilities for handling under RCRA regulations would not be
considered treatment.

     Treatment as defined in §260.10 "means any method,
technique, or process...designed to change the physical,
chemical, or biological character or composition of any hazardous
waste ... to render such waste non-hazardous, or less hazardous;
safer to transport, store, or dispose of....11  Mixing listed
waste does not render the wastes non-hazardous (40 CFR 261.3(c)
and (d)).  Mixing hazardous waste that is identified in 40 CFR
261 Subpart C on the basis of characteristics renders the waste
non-hazardous if the waste no longer exhibits those
characteristics after mixing (40 CFR 261.3(d)(1)).

     Although characteristic wastes mixed by transporters may
exhibit fewer hazards, this incidental reduction of hazard is not
considered treatment if the wastes are still sent to treatment,
storage, or disposal facilities.  The basis of this
interpretation is found in the definition of treatment in Section
1004 of the Hazardous and Solid Waste Amendments, which states:
"...'treatment1...includes any activity or processing designed to
change the physical form or chemical composition of hazardous
waste so as to render it nonhazardous."  The type of
transportation you describe does not appear to be designed to
        This has been retyped from the original document.

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                               -2-

render the waste nonhazardous.  This is the basis of our
interpretation that the bulking is not regulated as treatment
under RCRA.

     You should be aware that the blending of wastes by
transporters is addressed by two other regulations.  In
particular, §263.10(c)(2) requires transporters to comply with
generator requirements  (e.g., issue a new manifest) when
transporters combine wastes with different Department of
Transportation  (DOT) shipping descriptions in the same container.
This occurs when combining two shipments of RCRA ignitable waste,
when one is a DOT combustible and the other is a DOT flammable.
Combining different RCRA waste streams that are both classified
by DOT as "hazardous waste solid, n.o.s." would not require a new
manifest.  You can obtain the proper DOT shipping descriptions in
49 CFR 172.101 or contact DOT's Hazardous Materials Standards
Division at  (202) 426-2075.

     The policy of bulking and consolidating waste shipments is
also addressed in the preamble to the December 31, 1980, Federal
Register on transfer facilities  (45 FR 86966).  At transfer
facilities, "shipments may be consolidated into larger units or
shipments may be transferred to different vehicles for
redirecting or rerouting."  Transfer facilities can store
manifested waste shipments in DOT packages for up to 10 days
without complying with  §264 or §265 storage requirements, as
described in 40 CFR 263.12.  "These amendments relieve
transporters who own or operate a transfer facility of the
necessity of obtaining  a RCRA permit and of complying with the
substantive requirements for storage for the holding of wastes
which is incidental to  normal transportation practices  (45 FR
86966)."  Furthermore,  this preamble later states, "These
amendments do not place any new requirements on transporters
repackaging waste from  one container to another (e.g.,
consolidation of wastes from smaller to larger containers) or on
transporters who mix hazardous wastes at transfer facilities (45
FR 86967)."  In other words, this issue concerns storage, not
treatment.

     The transfer facility preamble also requested comments on
whether transporters need to have a regulation similar to §265.17
for handling ignitable, reactive, or incompatible wastes to
prevent ignition or reaction.  Prudent waste management practices
would probably  include  voluntary compliance with many of these
standards.
         This has been retyped from  the original document.

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                               -3-

     If you have any other questions about these issues, please
contact Irene Horner of my staff at (202)  382-2550.


                                   Sincerely yours,
                                   Marcia Williams
                                   Director
                                   Office of Solid Waste (WH-562)
        This has been retyped from the original document.

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                                                               9461.1986(01)


                              A?R I 0 i986
Ms. Virginia Eastwood
Director, Hazardous Waste  Division
St. Joseph Motor Lines
5724 New Peachtree Road
Atlanta, Georgia  30341

Dear Ms. Eastwood:

     I am responding to your letter of inquiry dated March 31, 1986.

     As you stated correctly in your letter, the "10 day" regulation
for storage in transit of  hazardous waste does not apply to the
period of time that such waste is actually in transit between the
pick-up and delivery points.

     This interpretation  is consistent with the appropriate
regulatory provision contained in 40 CFR Part 263 - Standards
Applicable To Transporters of Hazardous Waste.  More specifically.
40 CFR 263.12 states:  "A  transporter who stores manifested
shipments of hazardous waste in containers meeting the requirement*
of $262.30 at a transfer  facility for a period of ten days or less
is not subject to regulation under Parts 270, 264, and 265 of this
chapter with respect to the storage of those wastes."

     Thus, the "10 day" regulation only relates to storage at a
transfer facility.

     Furthermore, "transfer facility" is defined in 40 CFR 260.10
as follows:  "Transfer Facility means any transportation related
             facility  including loading docks, parking areas,
             storage areas and other similar areas where shipments
             of hazardous waste are held during the normal course
             of transportation".

     I hope that these regulatory citation's provide you with the
information wfcich you requested.  You must, however, remember
that individual State  hazardous waste regulations may be more
stringent tha* these Federal requirements.

                                   Respectfully,
                                    Bernard J.  Stoll
                                    Program Manager
                                    Financial Responsibility and
                                      Assessment Branch

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                                                            9461.1987(03)
                                01 30 667
MEMORANDUM

SUBJECTi   Generation of Aid* to navigation (ATOH)
           Batteries and RCRA Requirements

FROM:      Marc1m E. Williams, Director
           Office of Solid Wast*  (WB-562)

           Gene A. Lucero
           Office of Vast* Program* Enforcement (WH-527)

TOs        Kenneth D. Feigner, Chief
           Waste Management Branch (HW-112)
           EPA Region X


     This is in response to your June 30, 1987, memorandum in which
you requested clarification as to how the RCRA rules apply to ATON
batteries.  Th« answ«r* to your specific questions are as followsi

     1.    We agree with you that the entire battery is counted
           in weight calculations;

     2.    The points of waste generation are, as you suggested,
           each ATOH unit service area (either landbased or the
           tender vehicle).  Each area is subject to the quantity
           determination of |261.5, except when several areas are
           on one site; then the entire quantity of hazardous waate
           generated at the site is counted.

     3.    The location to which the spent batteries are taken
           wovld normally be a Y8DF, provided the waste is received
           frejsi one or more ATOM units which generate greater
           tlMsi 100 kg/no, of hacardous waste.  You should note,
           however, that 40 CPU f263.12 provides that properly
           packaged and labeled hasardous waste containers nay
           be held for 10 days or less at a transfer facility
           without having to comply with Parts 264, 265, or 270.

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                               -2-
     4.    The satellite accumulation area provisions of $262.34 (c)
           do not apply to the ATOM locations because they are
           not all on one site, but rather are each distinct
           sites surrounded by water.

     5.    we believe that the batteries removed after tender
           servicing do require man! feet ing, as well as those
           removed fro» land-based vehicle servicing.  The loca-
           tion where a battery is removed £ro» service is the
           waste generation site.  The generator Bust manifest
           the batteries to a TSDF provided they are not a condi-
           tionally exempt generator.  Am indicated above, the
           batteries may be held for up to 10 days at a transfer
           facility under §263.12.

     Please feel free to contact Michael Petruska at 475-6676 if
you have any further questions.


ccs  Waste Management Division Directors, Regions I - IX
     Solid Waste Branch Chiefs, Regions I - X


WH-562B/MPetruska/bc/7/15/87/475-6676/R242/RSCC-8701

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                                                                9461.1987(04)
             RCRA/SUPERFUND HOTLINE  MONTHLY SUMMARY

                               JULY 87
2.  Denestic Sewage Exclusion

     A RCRA hazardous waste is teanspoeted tty  track accompanied  by Uniform
Hazardous Waste Manifest to a  publicly-owned  treatment works  (POIW).  Does
the domestic sewage exclusion  apply to this hazardous waste if it mixes with
domestic sewage prior to treatment?  Is the sludge generated  from treating
the SCRA hazardous waste and the  domestic  sewage  a hazardous  waste due to the
"Derived-From Rjle" (40 CFR 261.3(c) and (d))?

   The Domestic Sewage Exclusion  ("the exclusion" or  "the exemption")
   found in RCRA Section 1004(27) and codified at 40 CFR 261.4(a)(l)(ii)
   applies to "domestic sewage and any mixture of domestic sewage and
   other wastes that pass through a. sewersystem  to publicly-owned
   treatment works fot treatment.   'Domestic sewage1 means untreated
   sanitary wastes that pass through a sewer  system"  (emphasis added).
   These wastes 'ate not considered to be solid wastes and therefore  cannot
   be classified as a RCRA hazardous waste.  The  exemption does  not  extend
   to wastes which are transported to the  POTW by way of truck/  rail, or
   dedicated pipe and which do not mix with domestic  sewage.  The POTW
   would be operating under a  NPDES permit and is subject to  regulations
   under the RCRA peKnit-by-rule  provisions (see  40 CFR  270.60(c)).

   Even if the hazardous wastes which were transported from off-site were
   mixed with the influent domestic sewage before any treatment  occurred,
   the exclusion would not apply.  As discussed in  the May  19,  1980
   Federal Registe* (45 FR 33097), EPA has interpreted that  the  intent  of
   Congress was that the exemption extend  only to wastes which enter the
   system at or near the point of generation  and  actually  "mix with
   sanitary wastes in a sewer  system leading  to a POTW"  (emphasis added).

   As discussed in the June 22, 1987 Federal  Register (52  FR 23478), if
   any listed RCRA hazardous wastes denoted in 40 CFR 261  Subpart D are
   manifested to a POTVi, the resultant treatment  sludge  would retain the
   listing per the "Derived-Fran Rule" (see 40 CFR 261.3(c)(2)(i )>.  If
   the waste is characteristically hazardous under 40 CFR 261 Subpart C,
   the sludge would be considered a hazardous waste only if  the sludge
   exhibited any one of the characteristics of hazardous waste.

Source:    Dov Weitman       (202) 382-7700
Research:  Deborah McKie

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                    rlOlXINE MONTHLY SUMMAJ
                                              9461.1987(05)
                   SEPTEMBER 87
DOT Manifest  Requirements

     When filling out z  hazardous waste manifest,  imst
the  generator  include the  EPA  hazardous  waste
identification  number and hazardous substance  reportable
quantity  under  the Department of Transportation  (DOT)
shipping  description?

     In the  November 21, 1986 Federal Register  (51 FJ?
     42175),  DOT's  Research and  Special  Programs
     Administration  (RSPA)  issued  final  hazardous
     materials  regulations  which incorporated  CERCLA
     hazardous substances as  DOT  hazardous  materials.
     In a later Federal Register dated  February 17,  1987
     (52  FR_ 4824), the RSPA published corrections to the
     November  21,  1986  regulations.   Together,  these
     regulations  amended  49 CFR  Parts 171 and  172 by
     placing additional  information requirements on
     shippers  of  hazardous  waste (i.e.,  generators).
     Section  172.02  of  the  new DOT regulations requires
     the  shipper  (hazardous waste generator) to identify
     EPA  waste  streams  by the EPA identification number
     and  for  wastes  which exhibit an EPA  characteristic
     of ignitability,  corrosivity, reactivity  or EP
     toxicity,  by  the  letters  "EPA"  and  the  word
     "ignitability"  or  "corrosivity" or "reactivity" or
     "EP  toxicity", as appropriate.  Section 172.203 and
     Section  172.324  of these regulations  require the
     notation "RQ" on the shipping papers  in association
     with the proper  shipping description  when a  package
     (i.e., container) contains a reportable quantity or
     more of hazardous  waste.   However,  the  new DOT
     regulations  do  not  require  the "numerical
     reportable quantity"  to  be  on the  manifest  (see
     November 21,  1986 Federal Register (51 FR 42175)).

Source:   Paul  Mushovic   (202) 475-7736
Research: Joe Nixon
                      -4-

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                                        9461.1988(01)
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C. 20460
                                                         OFFICE OF
A] !<;  0 |  ~'-*                                       SOLID WASTE AND EMERGENCY RESPONJ
f~.^-. •  O
  Richard A. Svanda, P.E.
  Director, Hazardous Waste Division
  Minnesota Pollution Control Agency
  520 Lafayette Road
  St. Paul, Minnesota  55155

  Dear Mr. Svanda:

       This is in response to your July 20, 1988, letter  to
  Jeffery Denit, concerning regulation of hazardous waste
  recyclers.

       The responses to your questions are attached.   Please note
  that the responses address the Federal regulations  for
  generators of over 100 kilograms of hazardous waste,  or 1
  kilogram of acute hazardous waste.  Most of the generators that
  responded to the July 1987 survey conducted by the  EPA  Small
  Business Ombudsman, referenced in your letter, were actually
  conditionally exempt generators under 40 CFR Section 261.5.  As
  you know, regulation of this conditionally exempt waste,
  including regulation of recyclers who accept such waste, is a
  State matter.

       Please contact Michael Petruska at  (202) 475-9888  if you
  have any questions on this response.
                                     Sincerely,
                                     Sylvia K.  Lowrance
                                     Director
                                     Office of  Solid Waste
  Attachment

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                            ATTACHMENT

l.  Q:   Can incoming listed hazardous  wastes  be  stored at  [a
        recycling]  site for up to ten  days  and then be moved  [on
        the same site]  to the recycling  process, where recycling
        begins immediately?  What distinction is drawn between a
        transfer facility located on contiguous  versus
        non-contiguous  property in relation to the recycling
        operation?

    A:   The transfer facility provisions of 40 CFR Section 263.12
        apply to holding of waste in the normal  course of
        transportation.   Arrival of the  waste at the  designated
        facility constitutes completion  of  the transportation
        phase, so the 10 day limit is  not applicable  at  the
        recycling facility.  If waste  is off-loaded from vehicles
        directly in recycling equipment  at  the facility, however,
        this off-loading area is not a storage facility.   Each
        recycling facility has to be evaluated on  a case-by-case
        basis to determine whether storage  is in fact occurring.

        The distinction which is drawn between a contiguous
        transfer facility and a non-contiguous one is best
        described by stating that the  Section 263.12  regulation
        was promulgated to account for normal transportation
        practices.   A transporter who  ships to a piece  of
        property contiguous to a recycling  facility has
        technically completed the transportation phase  if  no
        further "transportation" (as defined in
        Section 260.10—movement, by air, rail, highway,  or water)
        is to be conducted.  Thus, a piece  of property  contiguous
        to a recycling facility must meet the definition of a
        designated facility.  A piece  of property  that  is  not
        contiguous to the recycling facility technically could be
        a transfer facility provided further movement by air,
        highway, rail,  or water will occur.  There is potential
        for a transporter to deliver hazardous waste to a site
        close to the recycling facility, and still qualify for
        the transfer facility exemption; however,  in an
        enforcement situation, this activity may not qualify for
        the exemption, which was intended to cover situations of
        limited in-transit storage.


2.  Q:   Is this (Question #1) a transfer facility as defined in
        Section 260.10?

    A:   As explained above, designated  facilities cannot  have
        transfer facilities on their property.  The  recycling
        facility may or may not need a  RCRA  storage  permit,
        depending on the factual situation at the facility.

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3.  Q:  How should the definition of "storage"  be interpreted?
        Is there a specific time limit on storage for this
        situation?

    A:  The Agency has interpreted conveyance into a recycling
        unit as not regulated, while holding of hazardous waste
        for a matter of a few hours is a site-specific
        determination, and may or may not constitute storage.
        Each recycling facility that attempts to claim an
        exemption for their storage activities  will have to be
        evaluated individually, and the owner or operator must
        maintain all supporting documentation under Section
        261.2(f).


4.  Q:  What has been the EPA's and other State's practice  for
        addressing this issue for containerized hazardous wastes?

    A:  Based on discussions with four authorized states, three
        of four stated that any storage prior to recycling  is
        regulated.  One stated that a recent policy was developed
        in which hazardous waste received from off-site and
        placed into the recycling unit by nightfall of the
        calendar day it was received at the facility would  not  be
        considered stored.


5.  Q:  Would such a facility be exempt from the hazardous  waste
        permitting requirements (i.e., can the facility operate
        under transporter, transfer facility and generator
        requirements) ?

    A;  Such a facility could not operate under transporter and
        transfer facility requirements, although they may qualify
        as a designated facility under Section 260.10 if they
        recycle without prior storage.  As explained above,
        however, holding of drums for a few hours may not be
        storage.  Further, the facility could be constructed so
        that the conveyance to the recycling unit is the only
        holding which occurs prior to recycling, so that there
        would be no RCRA storage area.


6.  Q:  If a hazardous waste storage permit  is required, this
        type of operation will most likely not continue, and new
        prospective recycling operations will be discouraged from
        starting.  What other methods of encouraging recycling of
        hazardous waste could you suggest?

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    A:  EPA is currently evaluating how its regulatory structure
        affects recycling.   You should note that a number of
        exclusions (i.e.. . Sections 261.2(e), 26l.4(a)(6), (a) (7),
        (a)(8)), exemptions (i.e,f Section 261.6 (a)(3)), and
        variances (i.e.. Section 260.30) are available for
        recyclable materials.   We are considering whether
        additional such mechanisms should be established, and
        whether some broader mechanism, such as a special
        recycler permit (perhaps similar to the one created by
        Congress for used oil under RCRA section 3014(d)) might
        be appropriate.

    You should be aware that a number of recycling facilities
that provide storage of hazardous waste on site prior to
recycling the waste have complained that their competitors are
circumventing the spirit of our regulations by recycling directly
from the transportation vehicle and not obtaining a RCRA storage
permit.  They have encouraged EPA to modify the regulations to
state that such practices constitute storage and should be fully
regulated under RCRA.

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              UNITED STATES ENVIRONMENTAL PROTECTION AGEMCY       9461.1989(01)
                             JAN 3   1989
MEMORANDUM
SUBJECT: Regulation of Hazardous Waste Transfer Operations

FROM:    Sylvia K. Lowrance, Director
         Office of Solid Waste  (OS-300)

TO:      B. G. Constantelos, Director
         Waste Management Division  (5H-12)
         Region V


    We have evaluated the issues raised in your October 31, and
November 9, 1988, memoranda regarding the need to regulate
containers transferring waste directly to incinerators, boilers,
or industrial furnaces.

    You expressed concern about the Agency's policy that trans-
port vehicles are not considered storage vessels when located
on-site for short periods during the transfer of hazardous waste
fuel directly to a combustion device.  Apparently, a number of
facilities have used this policy to avoid obtaining a storage
permit.  Your concern is that, without a feed storage tank to
enable continuous mixing and, if necessary, heating of hazardous
waste fuels, steady-state combustion conditions cannot be main-
tained.  You suggest that we include in the proposed boiler and
industrial furnace rules a provision requiring a fuel blending
and storage tank.

    We agree with you that a blending and feed storage tank can
be a useful approach to solving problems associated with
assessing a- uniform feed.  We are not sure, however, that a
blending tank is needed in every case irrespective of the
unloading time and properties of the waste fuel.  Moreover, the
trial burn should be used to determine if a facility can comply
with the emissions performance  standards without a feed storage
tank. Nonetheless, we will request  comment in the proposed boiler
and industrial furnace rule on whether blending and storage tanks
should be required to ensure a maintain uniform feed and a steady
state operation of the waste combustion facility.

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                               - 2 -


    Notwithstanding where we end up on that issue,  we encourage
you to establish-permit conditions as necessary to protect public
health and the environment using the omnibus authority of
Section 3005(c)(3) of RCRA.  Controls may be needed to address
the potential for spills, fires, and explosions during the
transfer operations.  Thus, it may be appropriate to apply the
storage facility standards to the transfer operation.  We will
discuss in the preamble to the boiler and industrial furnace rule
the use of the omnibus authority to address the hazards posed by
transfer operations.

    If you have questions or comments, your staff can contact
Mr. Dwight Hlustick at (202) 382-7926.


cc: Incinerator Permit Writers' Workgroup
    Dave Bussard
    Joe Carra
    Dev Barnes
    Carrie Wehling

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                                            9461.1989(02)
            RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                             APRIL 89
A. RCRA

  1. Generator Standards Applicable TQ Transporters

  Are transporters considered generators when they mix wastes of different DOT
  descriptions?

     No.   Transporters who mix wastes of different DOT descriptions are not
     considered generators of the waste, however, they must comply with 40 CFR
     Part 262,  "Standards Applicable to Generators of Hazardous Waste" (Section
     263.10(c)).  The transporter does take on some of the responsibilities  and
     duties of a generator when he mixes wastes that are in his custody, including
     making sure the wastes remain properly manifested in the manner required
     by Parts 262-263. When transporters combine  similar wastes, this act does not
     "generate" a new waste.  It might, however, necessitate a new manifest or an
     amendment to the manifest when the act  of  mixing  wastes changes the
     accuracy of the information on the manifest, by altering the container types
     and/or volumes contained or by changing the chemical or physical nature of
     the waste, so that the DOT proper shipping name on the original manifest is
     no longer accurate. If a new manifest is necessary, previous manifests  must
     be attached to, and conveyed with, the new manifest.

  Source:        Emily Roth  (202) 382-4777
  Research:      Joe Nixon  (202) 468-1487

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                  »• \f £S ENYi*ONM£*TAL PROTECTION AGENCY
                                                          9461.1989(03)
                 18 AUG 89
William L. Bider
Manager - Environmental Protection
Trans World Airlines, Inc.
P.O. Box 20126
Kansas City International Airport
Kansas City, Missouri   64195

Dear Mr. Bider:

     This letter is  in response to  your  letter of July 18, 1989.
You ask if TWA's St. Louis Airport  facility requires one or more
EPA Identification numbers.  The  determination in this case must
be made by State and EPA Region personnel. However, we can provide
you with a general  description  of  the relationship between the EPA
ID  number and a facility location, or  "site" requiring  such a
number.

     Generators and transporters of  hazardous waste must obtain an
EPA identification number from the  EPA Administrator before they
treat, store, dispose of, transport, or  offer for tranportation,
hazardous waste (40 CFR Section 262.12).  The numbers are obtained
by  submitting a  notification form,   EPA  Form  8700-12,   to  the
Administrator.  The numbers are issued to each generator on a by-
site basis.  Therefore, if TWA has  facilities in various locations,
each facility, by site, must have an EPA ID number.

     The  definition  of  "on-site"  as  referenced  by you  in your
letter and as  found in 40 CFR 260.10, may  be  helpful in determining
if  TWA's St.  Louis Airport  facility constitutes  one  or more
"sites."  "'On-Site' means the same or geographically contiguous
property which may be  divided by public or private right-of-way
..."   From your description it appears  that all of your  airport
facilities are  on  a single  property.    It  ia unclear,  however,
whether there are any rights-of-way to which the public has access.
If there are,  the entrance and  exit  between  the properties must be
at a cross-roads intersection, i.e. vehicles may  not carry

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amnanifested waste along the public right-of-way.  The information
you gave us  thus seems to show  that  under EPA's regulations you
would only  need one  identification number.   However,  as stated
previously/ the State is the appropriate authority for making this
determination.  Also,  you  should be aware that State regulations
may dictate a different result.

     If you have any  further questions in regard to this letter,
you may contact Emily Roth of my staff at  (202) 382-4777.

                         Sincerely,


                         Devereaux  Barnes, Director
                         Characterization  & Assessment
                           Division
                         Office of  Solid Waste

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                WASHINGTON, D.C. 20460

                                                                        OFFICE OF
                                             SOLID WASTE AND EMERGENCY RESPONSE

July 20, 1989
                                                                         9461.1989(04)
Karen M. Wardzinski
Freedman, Levy, Kroll & Simonds
Washington Square
1050 Connecticut Avenue, N.W.
Washington, D.C.  20036-5366

Dear Karen:

       I am writing in response to your letter of May 24, 1989. You asked me to confirm that a
transporter may move waste from a large container into smaller containers at a transfer facility
without obtaining a RCRA permit.  Under the federal RCRA regulations transporter may operate a
transfer facility without a permit if he complies with 40 C.F.R. 263 including 263.12.  As EPA
explained in the preamble to the transfer facility regulation:

              These amendments do not place any  new requirements on transporters
              repackaging waste from one container to another (e.g. consolidation of
              wastes from smaller to larger containers) or on transporters who mix
              hazardous wastes at transfer facilities.

45 Federal Register 86967 (December 31, 1980).  The reference to repackaging from smaller to
larger containers in the above discussion was simply an example and was not intended to limit the
repackaging of wastes to  such situations.  Therefore  a transporter may repackage wastes into smaller
containers without obtaining a permit.  Of course a transporter may not treat the waste as a part of
this operation.

       As you know state regulations may be more  stringent than federal regulations on this issue. If
you need further assistance please call me at 382-7706.

                                                 Sincerely,
                                                 Diane Regas
                                                 Attorney
                                                 Solid Waste and Emergency
                                                  Response Division (LE-1328)
                             This document has been retyped from the original.

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                                                   9461.1990(01)
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON. D.C.  20460
                           JUN   T 1990
                                                          OF
                                             SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM

SUBJECT:            Transportation Regulations

FROM:               Sylvia K. Lowrance/, Bdkreefoar
                    Office of Solid w*ate

TO:                 Robert L. Duprey, Director
                    Hazardous Waste Management Division
                    Region VIII


     Thank you for your memorandum of February 26, 1990,  in  which
you describe a situation of concern related to hazardous  waste
transportation.  In the situation you describe (and described in
the accompanying letter from the state of Utah) a hazardous  waste
transporter appears to be transporting hazardous waste
unnecessarily through numerous transporters to "buy" time in
which to accumulate a quantity of hazardous waste sufficient to
fill a tank truck.  The events as described raise the possibility
that this chain of shipments is not consistent with a "normal
course of transportation" as described in the Federal Register
notice of December 31, 1980  (45FR86966) .  Our response is based
upon, and limited to, the facts as you have described them.

     In developing the hazardous waste transportation
regulations, EPA differentiated between the storage of hazardous
waste (requiring the obtaining of a RCRA permit.) and the  holding
of waste for short periods of time during the course of
transportation.  EPA specifically stated that transporters who
hold hazardous wastes for a short period of time in the course of
transportation should not be considered to be storing hazardous
wastes, and should not be required to obtain a RCRA permit or
interim status and comply with the standards of Parts 264 or 265.
EPA allows transporters to hold wastes at a transfer facility in
the course of transportation for up to 10 days.  This regulatory
relief measure applies to the holding of wastes which is
incidental to normal transportation practices.  If the waste is
held for more than ten days at a particular location, a RCRA
permit is required, and the transporter must comply with  the
applicable storage standards and permit requirements.

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     Violations of the transportation regulations may be occuring
in situations where State or EPA Regional enforcement authorities
determine that a transporter has held waste at one location for
longer than 10 days, or has held waste in a manner which is not
consistent with the normal course of transportation.  Two
examples of activities which ordinarily would be inconsistent
with the normal course of transportation are: (1)  waste not
being transported from a site at all, but rather, possession of
the waste is changing from one transporter to another while the
waste remains at one site, or, (2)  waste is routed to the same
geographic location more than once during the course of
transportation.

     Furthermore, the act of simply routing hazardous wastes to
numerous transporters for extended periods of time may, at some
point, no longer be consistent with the normal course of
transportation.  EPA noted at the time of promulgation of the
transfer facility requirements that the transportation industry
had indicated that shipments of hazardous waste normally take no
longer than 15 days, including both on the road time and
incidental temporary holding.  While circumstances may
occasionally justify periods significantly longer than 15 days,
the 49-day chain identified in the documents from Utah strongly
suggest that the intermediate purported transfer facilities were
not holding the waste incident to the normal course of
transportation.

     Of course, our interpretation of the situation you describe
is based upon, and limited to, what you have documented in your
letter, and does not mean that there cannot exist additional
circumstances not described in your correspondence that would be
material to any determination of a violation.  We cannot discount
the possibility that, sometimes, under particular circumstances,
activities such as those described above may be consistent with
the normal course of transportation.  The enforcement authority,
either the State or EPA Region, must determine, based on the
factual situation, whether the circumstance* involved are in
keeping with a normal course of transportation.

     We are planning to consider the other question you raised
(regarding re-manifesting of wastes received from multiple
sources by transporters) as we discuss outstanding manifest
issues as part of a project recently begun by a working group of
states under an agreement between EPA and the National Governors'
Association.  This project will evaluate the current manifest
system and provide input on potential improvements.  SPA staff
met in March of this year with the state manifest coordinators
group to kick off the project.  For information  on  this project,
please contact Russ Brodie of the National Governor's Association
at (202) 624-5305.

     Thank you for bringing this transportation  situation  to my
attention.  If you have any questions regarding  this memorandum,
please have your staff contact Emily Roth, at PTS 382-4777.

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                                                        9461.1990(02)
                  UNITED STATES ENVIRONMENTAL PROTECTION AGENO
                               WASHINGTON, D.C.  20460
                                       OCT30 1990
                                                                      O=«:lCE Or

                                                          SOLID WAST. AND EMERGENC>
 MEMORANDUM

 SUBJECT:         Transfer Facility Regulation Interpretation

 FROM:            Sylvia Lowrance, Director
                    Office of Solid Waste

 TO:                David Ullrich, Acting Director
                    Waste Management Division (5H-12)


       Thank you for your memorandum of July 19, 1990, requesting an interpretation of
 the regulations pertaining to "transfer facilities" in relation to designated facilities and
 permitted and interim status facilities.

       The first issue you raise concerns whether a permitted or interim status treatment
 and storage facility can function as a transfer facility and temporarily store hazardous
 waste destined for another facility (the designated facility) for processing. The answer to
 this question depends on whether the transfer facility is also the "designated facility"
 indicated on the manifest. A permitted or interim status facility that has not been
 designated on the manifest as the "designated facility" may serve as a transfer facility for
 shipments of waste awaiting  further transportation to the designated facility.  The
 limiting conditions are the definition of "transfer facility," itself (Section 260.10) and the
 provisions of Section 263.12, i.e., storage not  to exceed 10 days, and containers must
 meet DOT requirements.  A permitted or interim status treatment and storage facility
/that is the "designated facility" for a particular shipment of waste cannot function as a
 transfer facility with respect  to that waste. "Designated facility" is defined in 260.10 as a
 hazardous waste treatment, storage, or disposal facility that is permitted or has interim
 status, that is regulated under 40 CFR  261.6(c)(2) or Subpart F of 40 CFR Part  266, or
 another facility allowed by the receiving State to accept such waste and that has been
 designated on the manifest by the generator pursuant  to 40 CFR 262.20.   [See 55 FR
 2353, January 23, 1990 for recent EPA statement on the designated facility issue.]

       The term "transfer facility" is defined  in 40 CFR 260.10 as "any transportation
 related facility including loading docks, parking areas, storage areas and other similar
 areas where shipments of hazardous waste are held during the normal  course of trans-
 portation." The  key part of  this definition is  the phrase "during the normal course of
 transportation."  Arrival of a manifested shipment of wiste at the "designated facility"
 constitutes completion of the transportation phase, sucu that  the transfer  facility
 provisions will no longer apply. That is, the manifested shipment cannot be stored for
                                                                           Printtd on

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10 days or less under 40 CFR 263.12 once it arrives at the designated facility.  This issue
is discussed in the attached letter dated August 31, 1988 from Sylvia Lowrance, Director
of the Office of Solid Waste, to Richard Svanda, of the Minnesota Pollution Control
Agency.

     The second issue you address is the consolidation of wastes by a transporter at a
transfer facility.  Wastes are routinely combined at transfer facilities;  often
containerized waste is transferred to a tanker truck. However, you are correct that the
December 31,1980 Federal Register as well as subsequent notices on the topic of
transportation do not place any additional requirements on transporters that consolidate
wastes at transfer facilities.

      There are no  EPA Federal standards or requirements that apply specifically to
transfer facilities other than the storage time limitation of 10 days and other provisions
of 263.12. There have  not been any new policy or guidance documents on the topic of
transfer facilities since  the regulations were promulgated. However,  you should note
that transporters who store hazardous waste at transfer facilities must comply with  all
applicable requirements of the transporter regulations of Part 263 (e.g., Subpart C,
Hazardous Waste discharges).

      Under certain circumstances, transporters are required to comply with the
requirements that apply to generators of hazardous waste. A transporter who mixes
hazardous wastes of  different Department of Transportation (DOT) shipping
descriptions by consolidating them into a single container must comply with 40 CFR Part
262, Standards Applicable to Generators of Hazardous Waste (40 CFR 263.10(c)(2)).
The Agency does not intend to encourage transporters to combine wastes  of different
DOT descriptions. On the contrary, the imposition of the generator requirements
should provide sufficient cause for the transporter to avoid such waste combinations
whenever possible. The transporter who mixes hazardous wastes of different DOT
descriptions is obligated to remanifest the waste.  For example, a change in the DOT
"proper shipping name" or hazard class would require the completion of a new manifest.

      The act of combining wastes may also result in changes in containers.  Therefore,
the container designations on the manifest would need to be changed as well.  In a
situation involving only one or two minor changes, such as container changes, the
original manifest could be marked to reflect  the  changes. In other cases such as the
situation mentioned  above involving a change in shipping description, a new manifest
would have to be initiated.  In any case, whether a new manifest is initiated or not, the
waste may only be delivered to the designated receiving facility as indicated ojithe
original manifest bv  the original generator of the waste.  In other words, transporters
would not be able to combine waste (resulting in a DOT description change), and
remanifest the waste to a designated facility that was not indicated on the original
manifest by the original generator as the designated facility.

      In regard to the compatibility of wastes being mixed, I refer you to the document
entitled "A Method for Determining the Compatibility of Hazardous Wastes," order
number 600/2-80/076,  available from EPA's Office of Research and Development ((513)

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569-7562).  An individual consolidating wastes in containers should also refer to
Appendix V of 40 CFR Part 264. This appendix groups materials according to their
potential incompatibility.

     With respect to your questions regarding notification, several issues require
clarification.  Under Subpart D of 40 CFR 266, facilities which qualify as marketers or
burners are required to notify the Agency of their hazardous waste fuel activities, even if
they had previously obtained an EPA identification number.  See 40 CFR 266.34(b) and
266.35(b), respectively.  Marketers are defined as generators who market hazardous
waste fuel directly to a burner,  persons who receive hazardous waste from generators
and produce, process, or blend  hazardous waste fuel,  and persons who distribute but do
not process or blend hazardous waste fuel.  If the service centers fall  into any of these
categories,  they are considered  marketers of hazardous waste fuel and are required to
renotify to  identify their hazardous waste fuel activities.

     You are correct that the EPA identification number is location-specific.  Under 40
CFR 263.11, a transporter is prohibited from transporting hazardous wastes without
having received an EPA identification number.  Currently, this number is assigned to the
transportation company as a whole; all of the individual transporters (trucks) in a given
shipping company have the same EPA ID number, the number that the transportation
company was issued and which  is issued to the company's headquarters location.

     Your final question concerns the  identification number that should appear on the
manifest accompanying the waste at the transfer facility.  Regardless of whether the
transfer facility is acting as a transfer facility or a regulated storage facility, the
identification numbers appearing on the manifest would be the EPA identification
numbers associated with the generator of the waste, all the transporters who transport
the waste, and the designated facility.

       In the situation you describe, in which one company transports waste to and from
a transfer facility it operates, and the waste remains under the control of the transporter,
no separate EPA ID number need be  entered on the manifest specific to the transfer
facility. However, you should note that waste must remain under the control of a
transporter as designated on the manifest while at a transfer facility.  As described in
detail in the regulations, a transporter may only deliver wastes to: (1) the designated
facility listed  on  the manifest, (2) an alternate designated facility, (3)  the next designated
transporter or, (4)  a place outside the United States designated by the generator (40
CFR 263.21).  Until the signature of the designated  facility or subsequent transporter is
obtained, the waste is considered to be in the custody of the transporter who last signed
the manifest (45 FR 12739; February 26,1980).

       As mentioned briefly above, transporters must comply with the generator
standards of 40 CFR Part 262 when they mix wastes of different DOT descriptions (40
CFR 263.10(c)(2)).  They must  remanifest the waste to accurately reflect the
composition of the waste.  Although they may indicate on the manifest in box 15  the
name of the original generator(s) of the combined waste, they must represent themselves
as the  generator of the new waste.  Although by creating or generating a new waste they

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have taken on some of the generator requirements, the transporter should continue to
manifest the waste to the designated facility as indicated on the original manifest by the
original generator.

     I realize that this letter contains an abundance of information.  If you would like to
discuss any of the topics  further, please have your staff contact Emily Roth of my staff at
FTS 382-3098.
Attachment

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                         RCRA/SUPERFOND HOTLINE MONTHLY  SUMMARY

                                         NOVEMBER 1991
2. Transfer Facility as Central Collection
   Point

   A company generates small quantities of
hazardous waste at several separate field
locations. The company does generate more than
100 kilograms of hazardous waste per month at
each separate field location. May the company
use a transfer facility as a central collection point
to consolidate waste from these field locations?
   Yes. A company may consolidate waste from
several locations or generation sites at a central
point provided that certain requirements are met.
First, each generation site must have an EPA
Identification No. and meet all applicable
requirements under 40 CFR Pan 262. In
addition, each shipment of hazardous waste mu>t
be accompanied by a hazardous waste manifeM
       transporter must also have an EPA
   The transfer facility provision under §263 1 2
may be applied to a situation such as this one
under the following conditions. According to
§260.10, a transfer facility is defined as "any
transportation-related facility including loading
docks, parking areas, storage areas and other
similar areas where shipments of hazardous » jsi
 are held during the normal course of
 transportation."  The transfer facility is the
 place where transporters consolidate shipments
 or transfer shipments to different vehicles in
 order to redirect them; this activity usually
 takes place over a short period of time. (45 EEL
 86966; December 31,1980) Section 263.12
 allows a transporter to store manifested
 shipments of hazardous waste at a transfer
 facility for up to 10 days without obtaining a
 permit. During this time the hazardous waste
 must be held in containers which meet
 Department of Transportation (DOT)
 packaging requirements. As long as the central
 collection point meets the definition of a
 transfer facility, the company may use it to
 consolidate shipments of hazardous waste from
 different generation locations.  Note that if a
 transporter  mixes hazardous wastes of different
DOT shipping descriptions, §263.10(c)
requires compliance with 40 CFR Part 262,
Standards Applicable to Generators of
Hazardous Waste.

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                 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                               WASHINGTON, D.C. 20460
         HIM •«  «Wi                                                        OFFICE OF
         JUI 11  «KW                                                 SOLID WASTE AND EMERGENCY
                                                                          RESPONSE


                                                                   9461.1994(01)

Mr. Kevin Igii
Environmental Management
Chemical Waste Management
3001  Butterfield Road
Oak Brook, Illinois 60521

Dear Mr. Igli:

      Thank you for your letter of January 11, 1993, regarding the temporary holding of
hazardous waste at transfer facilities while enroute to a designated facility.   In addition,
you requested a  written interpretation on the use of multiple transfer facilities as part of
the "normal course of transportation".

      Nothing in EPA's regulations specifically prohibits the use of multiple transfer
facilities when they are used in the normal course of transportation.  Determinations of
what activities are  "in the normal course of transportation" must be made on a case-by-
case basis.   However, we recognize that there may be exceptional situations where
several days of unplanned shutdowns at the receiving facility or considerations of
transportation efficiency would make the use of multiple transfer facilities part  of the
normal course. Of course hazardous wastes  in this case  could only be held for 10 days
or less at any one transfer facility (otherwise a storage permit is needed as per  §263.12).

     • In addition, to be considered in the normal course, transportation should be
completed  in a timely manner.  As you know, 40 CFR 262.42 recognizes that  most
hazardous waste deliveries to a TSDF are completed within 45 days.1  This  requirement
helps ensure that the waste will not be held for lengthy periods by transporters and that
the transport process will be completed in a timely manner. EPA, in a June 7, 1990
memo to Region VIII, provides further clarification of what constitutes timely shipment (a
copy of the memo  is enclosed). The memo discusses a case in which waste was being
    'According to 40 CFR 262.42, a generator must contact the owner or operator of the
designated facility within 35 days if a copy of the manifest is not received.  If, after 45 days,
a copy of the manifest still is not received, the generator must file an Exception report.
~1  <\
V  \(~7
                                                                 Recycled/Recyclable
                                                                 Printed with SoyCanola Ink on saw \*x
                                                                 contains at least 50% recycled doer

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passed through numerous transporters to allow enough time in which to accumulate a
quantity of hazardous waste sufficient to fill a tank truck.  To summarize, EPA noted that
at the time of promulgation of the transfer facility rules, the transportation industry cited
15 days as generally the maximum amount of time required to transport waste to a
destination in the U.S..  The Agency acknowledged, however, that circumstances
occasionally justify periods significantly longer than 15 days, noting that determinations
as to whether waste is being held in a manner inconsistent with the normal course of
transportation are to be made on a case-by-case basis by the appropriate State or
Regional office, based on the facts surrounding the individual circumstance.

      Please be aware that the transporter remains responsible for the waste while it is
at the transfer facility, and Part 263 transporter standards, including Subpart C pertaining
to hazardous waste discharges, continue to apply during this period.

      Thank you for your interest in the safe management of hazardous waste.  Should
you have any questions about this letter, please contact Ann Codrington in the
Regulatory Development Branch at (202)260-8551.
                                                  Sincerely^ yours

                                                   lichaelPetrusra, Chief
                                                  Regulatory Development Branch
Enclosure

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               UNITED STATES ENVIRONMENTAL PROTECTION AGEN:Y
                         WASHINGTON, D.C. 20460


                                                   9461.1994(02)


                           AUG ) T 1994                   OFF1CEOF
                                               SOLID WA !TE AND EMERGENCY RESPONSE

Charles Dickhut
Chemical Waste Transportation Institute
4301 Connecticut Avenue, NW
Suite 300
Washington, D.C.  20008

Dear Mr. Dickhut,

     Thank you fofc your letter of June 3,  1994, in wiich you
request that EPA clarify and  reaffirm  its  interpretations and
policies regarding the storage' of hazardous waste at  transfer
facilities, the authorization of states  for provisiois  regulating
this storage, and the preemption of such provisions :>y  the
Department of Transportation  (DOT) under the Hazardous  Materials
Transportation Act  (HMTA).

     In-your letter you request that EPA reaffirm specific
previous interpretations of the 10-day storage  limitation for
transfer facilities.  RCRA regulations at  40 CFR  263.12 state
that "a transporter who stores manifested  shipments of  hazardous
waste in containers meeting the requirements of § 26:>.30 at  a
transfer facility for a period of ten  days or less  in not subject
to regulation under Parts 270, 264, 265, and 268  of f.his chapter
with respect to the storage of those wastes."   Thesn regulations
do not restrict the use of multiple transfer facilities for  one
shipment nor do they place further restrictions on  the  number of
days available at each facility  (i.e., they do not  l.-.mit the
total number of days spent at  all transfer facilities to 10} .  Of
course,  each transfer facility must meet the definite.on found at
§ 260.10.

     A key element of the § 260.10 definition is  the  "normal
course of transportation."  Storage of manifested shipments  of
hazardous waste at a transfer  facility must  be withir. the  normal
course of transportation.  As  the Agency has stated in  the past,
EPA can- envision situations in which hazardous waste  may be
stored at one transfer facility for 10 days,  and  ther be stored
at a second transfer facility  for an additional 10  days,  and
remain within the normal course of transportation (see  the
attached June 7, 1990 letter  from Sylvia Lowrance to  Robert
Duprey and the June 22, 199.4,  letter from  Michael Petruska to
Kevin Igli).
                                                          Printer! on Bnrv'a

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                              - 2 -

     Your letter also asked for clarification of the phrase
"normal course of transportation."  The 10-day storage limitation
at transfer facilities was based on information provi.ded by the
transportation industry, which indicated that shipmei.ts of
hazardous waste normally take no longer than 15 days, including
both the actual transportation and the temporary holding of the
shipment (see 45 FR 86966, December 31, 1980).  Individual
circumstances, however, may prevent shipments from bring
completed within this time period.  EPA believes that what
constitutes "the normal course of transportation" depends on the
particular facts of each case.  Therefore, EPA does r.ot believe
it is appropriate to set a generic time limit beyond which a
shipment would automatically be outside the normal ccurse of
transportation.

     You next inquire whether the authorization of a provision
affecting the storage of hazardous wastes at transfer facilities
under § 3006 of RCRA would make that provision no lor.ger subject
to preemption under the HMTA because it was "otherwise authorized
by Federal law."  (See 49 App. U.S.C. § 1811 (a).)  EIA formulated
its current position on RCRA state authorization and preemption
under the HMTA during the 1992 authorization of California for
the base RCRA program.  EPA does not believe that it is
appropriate to use the RCRA Subtitle C authorization process to
make specific determinations of possible preemption inder the
HMTA.  Pursuant to the HMTA, the DOT has established procedures
both for making preemption determinations and providing waivers
from preemption.'  A possible issue of preemption under HMTA would
not affect the program's eligibility for RCRA authorization where
the preemption concern is unrelated to RCRA authorities.  (See 57
£S 32726, July 23, 1992, and the attached October 29, 1992,
letter from Devereaux Barnes to Cynthia Hilton).   Thvs,  EPA still
believes that the RCRA authorization decisions provide no basis
for shielding state regulations.touching upon hazardous materials
transport from possible preemption challenges raised under the
HMTA.

     Finally, you ask whether EPA has the authority to review a
state's interpretation of an authorized provision,   'iou cite the
Arkansas Department of Pollution Control and Ecology's (DPC&E)
interpretation of the 10-day transfer facility storage limitation
as a cause for concern.  According to your letter,  tie DPC&E
enforces a 10-day storage limitation that applies to the total
storage time at all transfer facilities, not the storage time at
each one.  Although SPA has a different interpretation than what
you have described for the DPC&E, the state of Arkansas is
authorized for the transporter requirements, and thus has primary
authority for implementing them.   EPA's response to a state's
interpretation of an authorized provision would deper.d on how it
waa implemented in a particular situation, and factors such as
any relevant state court decisions or an enforcement action.   EPA

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                              - 3 -

is currently not aware of any instance where this dii faring
interpretation has been implemented.  Further, EPA believes that
the question of whether Arkansas's interpretation deviates from
national HMTA transportation standards should be addressed under
the HMTA preemption process, rather than through RCR1. state
authorization.

     I hope that this clarification is of assistance to you.
Further guidance regarding the issues you have raisec. may be
available in the future, as a result of EPA discussions with DOT.
If you have further questions regarding the authorization of
states for the regulation of hazardous waste transporters and
transfer facilities, please contact Wayne Roepe of my staff at
703-308-8630.  If you have further questions regardirg the EPA
regulations regarding the transportation of hazardous waste,
please contact Ann Codrington of -my staff at 202-260-4777.

                                   Sincerely,   A fi


                                 ^Michael Shapiro^I-irector
                                   Office of Solid Waste

Attachments

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                                           CHEMICAL WASTE
                                           TRANSPORTATION INSTITUTE
June 3,  1994
Michael Shapiro
Assistant Administrator for
  Solid Waste and Emergency Response
OS-100
U.S. Environmental Protection Agency
401 "M" St., SW
Washington, DC  20460

Dear Mr. Shapiro:

On behalf of the Chemical Waste Transportation Institute (CWTI), I thank you for your timely reply
to our letter of April 27, 1994 concerning EPA's interpretation of the 40 CFR 263.12 ten-day
limitation on storage at transfer facilities.1  We are compelled to write again because it did not
respond substantively to all our concerns.

The CWTI  is a not-for-profit association that represents companies that transport hazardous waste
throughout  the United States and Canada, and in Mexico.

In retrospect, we can see how your staff would have read our letter as a request to evaluate the
Arkansas Department of Pollution Control and Ecology (DPC&E) authorized program pursuant to
RCRA Section 3006 in terms of its administration of the 10-day transfer facility storage rule. In fact,
our request concerning an interpretation of Section 3006 was only one of four related issues raised in
our letter.

I am taking this opportunity to attempt to clarify our concerns and request your indulgence to
respond.  As a reference,  I am attaching our April 27th letter.  By way of background, you correctly
pointed out in your letter that DPC&E's proposed rule revision limiting the time hazardous waste may
be stored at one or more transfer facilities to ten days was not contained in the Department's April
22, 1994 published final rule.2  However, the provision was not pulled because the DPC&E had
reversed or otherwise rescinded their position on the merits of the 10-day aggregate storage limit.
Instead, the entire section concerning transfer facility regulation, including the 10-day aggregate
storage limit, was pulled because DPC&E intends to address and clarify other aspects of the transfer
facility provisions and republish the proposal later this summer.   In the meantime, the DPC&E has
       Letter to Stephen C. Hansen,  CWTI, from Michael Shapiro, EPA, dated May 23,
       1994.

       Enclosed is the text from the DPC&E final rule and responsiveness summary that
       explains the Department's interpretation of the  10-day transfer facility storage
       limitation.  See specifically page 55. The rules cover page is enclosed as a dated
       reference and page 54 because it begins the Department's discussion of transfer
       facility issues.

                              This document has been retyped from the original.

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affirmed to CWTI on two occasions that the Department's proposed 10-day aggregate storage limit is
a restatement of internal interpretive guidance of 40 CFR 263.12 and that the Department enforces 40
CFR 263.12 based on that guidance.3  In short, whether or not the 10-day aggregated storage
language is in a published rule of the DPC&E, the 10-day aggregated transfer facility storage policy
is currently being enforced.

Clarification of EPA's Interpretation of the 10-dav Transfer Facility Storage Rule

Our primary reason for writing was to obtain reaffirmation of EPA's interpretation of 40 CFR 263.12
to the effect that the ten-day limitation begins anew at each transfer facility that a shipment may be
stored at in the normal course of transportation.  If EPA's policy has changed, we have had no notice
of it.  This issue was not addressed in the Agency's May 23rd letter.

EPA's Interpretation of the jhrase "Normal Course of Transportation"

Closely related to our request that EPA reaffirm it's interpretation of 40 CFR 263.12 as it pertains to
the ability of a shipment to be held at multiple sites for up to ten days at each site is the matter of
EPA's interpretation of the phrase "normal course of transportation."4  As explained in our letter of
April 27, DPC&E cites EPA's preamble to the transfer facility rule to the effect that EPA "set a ten
day period for in-transit holding of hazardous waste [and] that shipments of hazardous waste normally
take no longer than fifteen days (including both the actual transportation and the temporary holding of
the shipment)."5 In view of this statement that "normal" is "no longer than fifteen days," the
DPC&E cannot fathom how EPA could interpret the 10-day transfer facility storage provision at 40
CFR 263.12 to begin anew at each such facility.  In order for us to reopen discussions with DPC&E
on the merits of their interpretation of the 10-day in-transit storage rule, we asked that EPA define
what is  meant by the phrase "normal course of transportation."  This matter was not addressed in the
Agency's May 23rd letter.
3      Telephone conversations between Tom Ezell, Hazardous Waste Division, DPC&E,
       and Cynthia Hilton, CWTI, April 22,  1994 and May 31,  1994.

4      40 CFR 260.10.

5      45 FR 86967 (December 31, 1980).

                              This document has been retyped from the original.

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Reaffirmation of EPA's Interpretation of Section 3009 Authorize

Again to help frame the parameters of our discussion with the DPC&E and options we may use to
pursue to resolve our differences of opinion, we requested that EPA advise us whether or not RCRA
Section 3009 "authorizes", within the meaning of 49 U.S.C. App. 181 l(a), as opposed to "does not
prohibit" a state's more stringent interpretation of EPA's  "10-day, in-transit storage" and "normal
course of transportation" language.  The U.S. Department of Transportation, under authority of
§181 l(a), has found that the fact RCRA does not prohibit a state from imposing more  stringent
regulations does not protect those regulations from preemption under the Hazardous Materials
Transportation Act.6  We had hoped to obtain a reaffirmation of DOT's and prior EPA
interpretations.  The Agency's May 23rd letter did not address this request.

RCRA Section 3006 Implications

We did ask if DPC&E's interpretation of the 10-day in-transit aggregate storage limitation was
acceptable within its authority pursuant to RCRA Section' 3006.  The Agency's letter  did address this
issue stating that it was premature to ask the question prior to the Department formally adopting the
policy as a rule. However, it begs the question presented by the situation in Arkansas of a state that,
not by rule but by  "interpretation,"  enforces policies that are at odds with  EPA's implementation of
RCRA.  Please elaborate on EPA's authority to review a state's requirements in terms of such
requirements' acceptability as part of a state's authorized program when such requirements are
imposed  and enforced not by regulation but by interpretation.

Conclusion

Aside from written response to these issues, we are not asking, at this time, for EPA to engage in any
action or to assess  whether action should or could be taken against DPC&E's 40  CFR  263.12 10-day
aggregate transfer facility storage limitation. Our only  intent at the moment is to use EPA's response
to further our discussions with the DPC&E on the  in-transit storage issue.
       57 FR 58843, 58855 (December 11, 1992) and 59 FR 28913, 28920 (June 3, 1994).
       Also see EPA discussion of this matter citing "EPA agrees that a regulation
       preempted by any other Federal Law is invalid."  57 FR 32726, 32728 (July 23,
       1992).

                              This document has been retyped from the original.

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Again, your attention to this issues is appreciated.  Please contact me or Cynthia Hilton, CWTI, if
further clarification is needed.

Sincerely,
Charles Dickhut
Chairman

enclosures
                                This document has been retyped from the original.

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               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON. O.C. 20460
                                                       OFFICE OF
                                A.. ,~~j        SOLID WASTE AND EMERGENCY RESPONSE
                                23 1994
Mr. Stephen C. Hansen
Chemical Waste Transportation Institute
4301 Connecticut Avenue, NW
Suite 300
Washington, DC  20008

Dear Mr. Hansen,

     Thank you for your letter of April 27, 1994.  In your
letter, you raise concerns regarding a recent state of Arkansas
rule notice that would place an aggregate 10-day limit on the
time hazardous waste may be stored at one or more transporters
transfer facilities  (April 6, 1994, Arkansas Department of
Pollution Control and Ecology (DPC&E) Regulations No. 23, page
61).  In your letter, you request EPA to confirm or clarify  its
interpretation of the transfer facility storage time .limits  under
the federal regulations, and whether Arkansas may be authorized
under RCRA to implement this provision.

     We have contacted the state of Arkansas regarding their
transfer facility regulations and have been informed that the
provisions of concern to you did not appear in the applicable
final rule published on April 22, 1994 (DPC&E Regulations No. 23,
page 170).  However, we understand that Arkansas may promulgate
regulations regarding transfer facilities in the future.  If
Arkansas adopts rules that go beyond the Federal requirements and
submits them for authorization, EPA will then make a
determination as to whether the rules may be authorized as
requirements that are more stringent than Federal program
requirements.

     Although the Arkansas transfer facility provisions you
referred to in your letter were not finalized, EPA will continue
to coordinate with the Department of Transportation and the
states to discuss issues that have been raised regarding
hazardous waste transporters and transfer facilities.  I am
particularly aware that RCRA regulation of transfer facilities
has become a contentious issue, and we are examining the matter
closely.  If you have further questions regarding the

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                              - 2 -
authorization of states for the regulation of transporters and
transfer facilities, please contact Wayne Roepe of my staff at
703-308-8630.

                                    £ncerely
                                   Michael 'Sfiapi£^, Director
                                   Office of Solid Waste

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                                        HAZARDOUS WASTE
                                        MANAGEMENT ASSOCIATION

                                        INSTITUTION OF CHEMICAL WASTE MANAGEMENT
                                        CHEMICAL WASTE TRANSPORTATION INSTITUTE
                                        REMEDIAL CONTRACTORS INSTITUTE
April 27, 1994

Michael Shapiro
Assistant Administrator for
  Solid Waste and Emergency Response
OS-100
U.S. Environmental Protection Agency
401 "M" St., SW
Washington, DC

Dear Mr. Shapiro:

On behalf of the Chemical Waste Transportation Institute (CWTI), I am writing to reaffirm
EPA's interpretation of the 40 CFR 263.12 as it relates to the ten-day limitation of storage at
transfer facilities.

The CWTI  is a not-for-profit association that represents companies that transport hazardous
waste throughout the United States  and Canada, and in Mexico. The Institute works to
promote professionalism and performance standards to  minimize risks to the environment,
public health and safety; to develop educational programs to expand public awareness about
the industry; and to contribute to the development of effective laws and regulations governing
the industry.  The CWTI is the only North American organization that exclusively represents
companies engaged in hazardous waste transportation.

Since 1980, federal regulations at 40 CFR 263.12 have provided that shipments of hazardous
waste may be temporarily stored at a transfer facilities  for a period of ten days or less
without triggering the need for a RCRA Subpart C treatment, storage, or disposal permit.
EPA has clarified that the ten-day limitation begins anew at each transfer facility that the
shipment may  be stored at in  "the normal course of transportation."1  EPA's guidance
acknowledges that repeated, extended delay in the transport of hazardous waste from the
point of generation to the designated management site as a result of "storage" at transfer
facilities may not be consistent with the normal course  of transportation.  However, such
determination would have to  be made on a case by case basis.  In addition, this issue was
discussed at the recently concluded  Regulatory Negotiation on the Uniform Manifest.  At that
       See attached memoranda from Sylvia Lowrance, former Associate Administrator for
       Solid Waste and Emergency Response, EPA, and Robert L. Duprey, Director
       Hazardous Waste Management Division, Region VIII, EPA dated June 7, 1990 and
       David Ullrich, Acting Director, Waste Management Division, EPA, dated October
       30, 1990.  The terminology "normal course of transportation" occurs in the definition
       of "transfer facility" at 40 CFR 260.10.

                            This document has been retyped from the original.

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time, EPA officials reaffirmed the 10-day per transfer facility storage allowance
interpretation.

In spite of this guidance, the Arkansas Department of Pollution Control and Ecology
(DPC&E) recently finalized revisions to regulations affecting the management of hazardous
waste.  As part of that revision,  the DPC&E has placed an aggregated 10-day limit on the
time a shipment of waste may be held at any number of transfer  facilities. For example, the
rule would hold a transfer facility responsible for illegal storage of hazardous waste if a drum
of hazardous waste from California bound for South Carolina was held 5 days in California
to consolidate drums from other locations, then held 3 days in Texas to change tractors, then
held more than 2 davs at the subject site in Arkansas (or any other State prior to delivery) to
break/bulk the van's load for transport on other trucks to various permitted facilities.

After hazardous waste has been held at transfer facilities for more than 10 days while in-
transit, the DPC&E claims that the waste is outside the scope of normal circumstances
regarding its transportation and the exemption from RCRA permitting requirements is not
longer applicable. This assertion is based,  according to the State, on EPA's preamble to the
transfer facility rule which provided that"... the amended regulations set a ten day period for
in-transit holding of hazardous waste [and]  that shipments  of hazardous waste normally  take
no longer than fifteen days (including both  the actual transportation and the temporary
holding of the shipment."2  (Emphasis added.)   The DPC&E claims that at the time the ten-
day rule was promulgated that EPA gave no consideration to "the concept of multiple in-
transit holdings of waste at different transfer facilities...."3 Thus, it rests its case on what it
believes EPA intended by the phase the normal course of transportation.

DPC&E's interpretation of the ten-day rale has the potential to disrupt, delay  and otherwise
frustrate the transportation of hazardous waste.  Consequently, we  request a letter reaffirming
and clarifying EPA's  interpretation of the 10-day per transfer facility storage rule, including
a definition of or response to the State's interpretation and use of the phrase "normal course
of transportation."  Additionally, please advise us if the DPC&E's action is acceptable within
its authority pursuant to RCRA Section 3006 or if under RCRA the State's regulation would
"be viewed as 'broader in scope' and, therefore, not part of the authority program."4
Finally, please advise us whether or not RCRA Section 3009 "authorizes", within the
meaning of 49 U.S.C. App. 1811(a), as opposed to "does not prohibit" the State's  more
stringent interpretation of EPA's  "10-day, in-transit storage" and "normal course of
transportation language."
       45 FR 86967 (December 31,  1980).

       Arkansas Department of Pollution Control and Ecology Regulations No. 23, Final
       Rule and Responsiveness Summary. April 6, 1994, page 61.

       57 FR 32728 (July 23, 1992) (citing EPA's response to a CWTI challenge of various
       requirements imposed by the  State of California on the transportation of hazardous
       waste).

                            This document has been retyped from the original.

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Your attention to this matter is appreciated.  If you require further elaboration on the issues
raised above, please contact me or Cynthia Hilton, CWTI.

Sincerely,
Stephen C. Hansen
Chairman

enclosures
                              Tliis document has been retyped from the original.

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Arkansas Department of Pollution Control and Ecology Regulation No. 23
(Hazardous Waste Management)


1993 RCYtsion                                                                         April 6,1994


DEPARTMENT:  Pollution Control and Ecology, Hazardous Waste Division

ACTION: Final Rule and Responsiveness Summary


SUMMARY; The Arkansas Department of Pollution Control and Ecology is today revising ADPC&E Regulation
No. 23 (Hazardous Waste Management).

This revision of Regulation 23 changes from a format of "incorporation by reference" to 'Verbatim adoption" in most
cases. In the past, the Department has relied heavily upon incorporating by reference the federal rules incorporated
in Title 40,  Code of Federal Regulations (40 CFR) Parts 260-266, 268, 270, and 124.  This made it extremely
difficult to determine when a specific rule went into effect, or was revised, without researching the original state and
Federal rulemaking packages. It was not a simple task to determine whether a Federal provision or a substituted state
rule was in effect without cross-checking both documents.  The additional burden of needing to cross-check two
separate regulations, each of different format, created additional confusion as to the exact wording of the rules in
effect Most of the specific rules in 40 CFR were thus invisible to the public and the regulated universe, many of
whom did not take time to obtain or research the Federal rules.

As of December 4, 1992, the Department has final Federal authorization for all rules and changes to the RCRA
program promulgated as of June 30, 1991.  Since in an authorized State such as Arkansas the state hazardous waste
management program applies  to  the majority of situations  in lieu  of the Federal requirements, a single-source
reference is acutely needed to minimize conflict and confusion between the two sets of requirements. In this revision
to Regulation No. 23, the Federal rules as previously incorporated by reference and Federally authorized have been
reprinted in their entirety as previously adopted. References to the Director (vice the EPA Administrator) and the
Department (vice EPA) have been made where necessary, and specific Department requirements and points of contact
listed where appropriate. Where a state rule applies and has been implemented and/or authorized in place of a
Federal  rule, the state rule is shown in its proper  place in the full text of the regulatory requirements with the
applicable Federal rule, or in lieu of the Federal language it replaces.

The Department's intent behind this revision and its full-text format is to provide a stand-alone,  easily accessible
single-source reference for the Arkansas hazardous waste regulations and requirements currently in effect  Once this
revised regulation is in place, one should have only limited need to purchase and/or refer to a separate copy of 40
CFR to find the current requirements pertinent to his hazardous waste activities in Arkansas.

Incorporation by reference has  been retained to a limited extent in the case of 40 CFR 261 Appendices DC and X
Appendix IX of 40 CFR Part 266, and portions of 40 CFR  124, Subpart A.  Future Federal rule changes will be
adopted and incorporated verbatim as they art applicable, or in specific cases may be incorporated by reference in
a rule-by-rule manner.

The reformatting of the regulation also dictated a  major change  in the organization of the previous section and
paragraph numbers.  Federal rules adopted from 40  CFR Parts 260 through 266, 268, 270, and 279 have been kept
together to the maximum extent possible. To minimize impact in cross-referencing these rules, the entire text was
adopted in the same format as it appears in 40 CFR. 40  CFR Part numbers for the Federal rules  were changed to
Regulation 23 Section numbers; and all subparagraph numbers (e.g. paragraph citations following the right of the
decimal point in the citation) were left unchanged. 40 CFR Parts 260-266, 268. 270, and 279 were renumbered as
Regulation 23 Section numbers  7 through 17 respectively as described below. Any reference to an adopted provision
of the adopted portions of 40 CFR may be converted to a reference in this revision of Regulation 23 simply by

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facility on the appropriate transporter permit and to assist in tracking compliance with the regulatory
requirements for transporters and transfer facilities listed in § 10.12.

PUBLIC COMMENTS:  None received.

STAFF RESPONSE TO COMMENTS:
In light of the revised means of annotating which subsidiaries, facility, or locations affiliated with a specific
transporter are addressed under a transporter permit, the proposed revisions at § 10.1 l(c) are withdrawn, and the
original Federal language restored in its place.

        (21) Section 10.12 originally proposed to expand the operating requirements for hazardous waste transfer
facilities.  This revision would have established basic requirements for the operation of transfer facilities or
transportation terminals which are similar to the 40 CFR 262 standards for generators in order to provide
increased safety and protection for human heahh and the environment by more closely controlling the manner in
which these facilities may be operated

The proposed changes •would require transporters who operate transfer facilities where hazardous wastes are
temporarily held for short periods of time during the normal course of transportation to meet minimal
notification, recordkeeping, preparedness and prevention, personnel training, contingency planning and emergency
procedures necessary to protect human health and the environment at these facilities. The proposed changes
would affect the activities of transfer facilities only and do not alter or affect current transporter requirements
regarding, among other things, permitting, manifesting, labeling, marking, placarding, using proper containers,
and reporting and response to discharges. Additionally, the proposed rule would elucidate current regulations by
clarifying the limitations of storage and treatment activities allowed at transfer facilities which do not hold
storage or treatment permits.

The Department asserts that these changes do not, in any way, alter or restrict the movement, management,
handling, or transportation of manifested shipments of hazardous waste in a way different or inconsistent with
current EPA and DOT regulations for hazardous wastes which are transported and are not stored in transfer
facilities during transit For manifested shipments of hazardous wastes which are stored for a period of ten days
or less in transfer facilities during transit, these proposed rules only affect activities related to such temporary
storage and do not alter or restrict current requirements related to the movement of such shipments. The
Department further asserts that the proposed rules are necessary to provide adequate protection of human health
and the environment at transfer facilities and that the proposed changes, while having no impact on transporters
who do not own or operate transfer facilities, does not significantly increase the economic, recordkeeping, and
reporting impacts on transporters who do own or operate transfer facilities in that  the proposed changes clarify
current rules, add only "common sense" management requirements that prudent and well maintained facilities
should already be conducting, and requires the minimum amount of recordkeeping and reporting necessary for
the Department to locate, identify, and monitor compliance at transfer facilities.

ADPC&E Regulation No. 23 currently incorporates by reference most of 40 CFR  260-266, 268, and 270. The
provisions of 40 CFR 263.12 Transfer Facility Requirement}, as incorporated, state, "A transporter who stores
manifested shipments of hazardous waste in containers meeting the requirements of § 26230 at a transfer facility
for a period often days or less is not subject to regulation under parts 270,264, 265, and 268 of this chapter
with respect to the storage of those wastes."  EPA first proposed this rule, prior to its adoption into Regulation
23, at 45 FR 86968,  December 31, 1980. This rule was promulgated to clarify when a transporter handling
shipments of hazardous waste is required to obtain a storage facility permit and specifically provides that
transporters be allowed to store hazardous waste in approved containers at transfer facilities for short periods
without first complying with standards applicable to hazardous waste storage  facilities. At the time EPA
promulgated and ADPC&E adopted this rule, all available information regarding transfer facility operations and
activities where considered in determining that these transfer facility requirements were sufficient to allow
protection of human  health and the environment.   However. ADPC&E has become aware of additional transfer

                                                   54

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facility activities which are beyond the scope of those activities considered by EPA and ADPC&E at the time
this rule was promulgated and adopted. The Department contends that because these activities may result in
hazardous waste being managed at transfer facilities on a continuing basis, rather than the incidental basis as
considered by EPA, additional requirements are necessary to adequately protect human health and the
environment at these facilities.

In determining that the current transfer facility requirements were sufficient to protect human health and the
environment, EPA based  its opinion on two criteria. First, EPA considered 'Transporters have a natural incentive
to move shipments quickly and efficiently; their business, in most cases, is the movement of hazardous waste
rather than the storage of such waste." Secondly, EPA believed that requiring die use of DOT containers
minimized the potential for release. Therefore, EPA allowed that such short term storage (less than  10 days) at a
transfer facility if conducted to facilitate normal transportation activities and the waste was held in DOT
containers did not pose a substantial threat to human health or the environment because of the minimal residency
time waste would be held at transfer facilities. However, the Department believes that EPA did not consider mat
transfer facilities would operate in such a manner as to cause substantial quantities of hazardous waste to be
present on-site on a continuing basis and that such activity poses the same management concerns as do similar
activities at facilities which accumulate hazardous waste on-site (i.e., less-than-90-day generator accumulation) or
which store hazardous waste received from off-site. The Department has reason to believe that many transporters
maintain  large volumes of hazardous waste on-site continually at transfer facilities. Although specific shipments
of hazardous waste may enter and leave the transfer facility with a short residency time, the large volume of
waste being processed through such facilities allow that, at any given time, substantial volumes of hazardous
wastes may be present on-site. Moreover, the Department believes that EPA failed to anticipate that many
transporters would operate transfer facilities in close coordination with generators, brokers, and treatment,
storage, and disposal facilities for the purpose of using transfer facilities to supplement the storage activities of
those facilities rather than to support the transportation-related activities of the transporter.

The Department, therefore, believes that the present transfer facility requirements are insufficient to  protect
human health and the environment at such facilities and additional management requirements are necessary to
insure the protection of transfer facility personnel, as well as the health and safety of persons working or living
in the vicinity of such facilities and to protect and prevent the accidental release of hazardous waste or hazardous
waste constituents into the environment While the Department disagrees with EPA that current transfer facility
requirements are adequately protective of human health and the environment, it agrees with EPA's position that
transfer facility activities  should allow for limited in transit storage without a RCRA permit or interim status.  In
order to clarify these limitations, the proposed rule includes requirements which explicitly state the period of time
that transfer facilities may hold a shipment of hazardous waste in transit, clearly denning the term "in transit".

The proposed rule clarified that the requirements would apply only to transporters who own or operate  transfer
facilities. None of the requirements would affect or alter the activities of transporters not engaged in the
management of hazardous waste  at such facilities.

The proposed rule attempted to more clearly state the currently effective storage time limitations applicable to
transfer facilities which do not have RCRA permits or interim status for storage. Although this interpretation
does not  change the current requirements pertaining to the period of time waste may be held at transfer facilities,
the Department seeks to define in more precise terms that a shipment of waste may be held at transfer facilities
only 10 days while in transit The Department is aware that the wording of the current requirement  has been
frequently misinterpreted by some transporters to mean that a shipment of waste may be held at a number of
transfer facilities for a period of 10 days at each transfer facility.

The Department proposed to add additional requirements for the management of hazardous waste while stored at
transfer facilities. For the reasons previously stated, the Department believes these requirements are  necessary to
be adequately protective of human health and the environment for waste which is held at transfer facilities.
Sections  12.31, 12.32, 12.33,  12.34, 12.37 are equivalent to generator and TSD facility  Preparedness and

                                                   55

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                     MONTHLY  HOTLINE REPORT
                                         June 1996
                                                                 9461.1996(01)
 1.  Tank Storage at Transfer Facilities

    A transfer facility is a place where
 transporters temporarily hold shipments of
 hazardous waste during the normal course of
 transportation (40 CFR §260.10). A
 transporter storing manifested shipments of
 hazardous waste in containers meeting DOT
 packaging requirements at a transfer facility
for less than 10 days is not required to obtain
 a permit and is not subject to the requirements
 of Parts 264, 265, or 268 (§263.12). May a
 transporter store hazardous waste in
 stationary tanks at a transfer facility and still
 remain subject to the reduced transfer facility
 requirements of §263.12?

    A transporter may not store hazardous
 waste in stationary tanks and still remain
 subject to the reduced transfer facility
 requirements because such tanks are not
 portable. To store hazardous waste at a
 transfer facility without a permit or interim
 status, the transporter must meet three criteria.
 First, the transporter may store only
 manifested shipments of hazardous waste.
 Second, waste must be held in containers
 (including tank cars and cargo tanks) which
 meet DOT packaging requirements.
 Container is defined to mean any portable
 device in which a material is stored,
 transported, treated, disposed of, or otherwise
 handled (40 CFR 260.10). Finally, the waste
 may only be held for 10 days or less
 (§263.12). The transfer facility provisions,
 therefore, apply to storage in portable
containers (to accommodate the normal and
routine activities of the transportation
industry). Storage of waste in stationary tanks
at a transfer facility would not be a normal or
routine activity of the transportation industry
and thus is prohibited unless the facility has a
permit or interim status (45 FR 86967;
December 21, 1980).

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   MONTHLY HOTLINE REPORT
                    November 1996
                                              9477.1996(01)
 4.  Financial Statement Requirement for
    the RCRA Subtitle C Financial Test

    For purposes of complying with the
financial assurance requirements, treatment,
 storage, and disposal facilities (TSDFs) may
 demonstrate liability coverage by use of the
financial test. As evidence that the TSDF
 satisfies the financial test requirements, the
 owner or operator is required to submit a
 certified public accountant's report on the
 latest completed fiscal year's financial
 statements (§264.147(f)(3)(ii)). If the owner or
 operator does not have financial statements
from the latest completed fiscal year, may
estimated financial statements be used as
substitutes for this requirement?

    No.  If there are no financial statements for
the latest completed fiscal year, the financial
test mechanism cannot be used to demonstrate
financial assurance. In addition, estimates of
financial statements may not be used as
substitutes for full statements.  This is
applicable not only to new companies, but to
companies that have recently separated from
parent companies. Although such a recently
separated company may have the ability to
accurately estimate their financial statements
using the parent company's statements, it must
nevertheless rely on its own financial
statements to qualify to use the fincial test.
This allows the certified public accountant to
fairly predict the financial condition of the
company in conformity with generally
accepted accounting principals.

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                     MONTHLY HOTLINE REPORT
                                      December 1996
                                                               9477.1996(02)
 2. Tangible Net Worth Requirements
    for RCRA Subtitle C Financial
    Assurance

    Owners and operators of treatment,
 storage, and disposal facilities subject to
 Subtitle C regulation are required to
 demonstrate liability coverage for bodily
 injury and/or property damage to third parties
 resulting from accidental occurrences arising
from facility operations (53 FR 33938;
 September 1, 1988). This requirement can be
 demonstrated using one or a combination of
financial mechanisms, including a financial
 test. The financial test for liability coverage
 requires the owner or operator to possess net
 working capital and tangible net worth each at
 least six times the amount of liability coverage
 to be demonstrated by this test, and a minimum
 tangible net worth of $10 million
 (§264.147(f)(l)(i)(A) and (B)). How does an
owner or operator calculate the required
amount of tangible net worth when using the
financial test?

   The owner or operator using the  financial
test must possess a minimum tangible net
worth of at least S10 million.  Even if six times
the amount of liability coverage to be
demonstrated by this test is less than $10
million, the owner or operator must still have
at least $10 million in tangible net worth (see
Example 1). If, on the other hand, six times
the amount of liability coverage to be
demonstrated by the financial test is more than
$10 million, then that six times multiple is the
minimum tangible net worth necessary to
qualify to use the financial test (see Example
2).
Example 1: Amount demonstrated by the
           financial test:  $500,000
           Six times the;amount
           demonstrated: $3 million
           Minimum tangible net worth:
           $10 million

Example 2:  Amount demonstrated by the
           financial test:  $2 million
           Six times the amount
           demonstrated: $12 million
           Minimum tangible net worth:
           $12 million

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                       MONTHLY HOTLINE  REPORT
                                        December 1996
                                                                 9477.1996(03)
3. Annual Payments Into A Standby
   Trust Fund When Using A Letter Of
   Credit

   Subpart H of 40 CFR Parts 264/265
requires an owner or operator of a permitted
treatment, storage, and disposal facility
(TSDF) to establish financial assurance to
satisfy closure and post-closure care of the
facility. A letter of credit is one of the
financial mechanisms That the owner or
operator may choose to demonstrate financial
assurance (§§264.l43(d)/264.145(d)). A letter
of credit allows ~a financial institution, that is
authorized by a federal or state agency to issue
letters of credit, to extend credit on behalf of a
TSDF. The letter of credit must be
irrevocable, issued for a period of at least one
year, and in an amount at least equal to the
current closure and post-closure cost
estimates, unless used in combination with
other financial assurance mechanisms
(§§264.143(g)/264.145(g)). An owner or
operator using a letter of credit for closure or
post-closure financial assurance must also
establish a standby trust fund to accompany
the letter of credit (§§264.143(a)/264.145(a)).
If an owner or operator is demonstrating
financial assurance through the use of a letter
of credit, must annual payments be made into
the standby trust fund?
    No. Under the federal regulations, the
 owner or operator is not required to make
 annual payments into the standby trust fund.
 The standby trust fund merely facilitates
 drawing on the letter of credit in the event that
 the owner or operator cannot pay for closure or
 post-closure care. A standby trust fund (as
 opposed to a trust fund established under
 §§264.143(a)/264.145(a)) cannot be used as a
 stand alone financial assurance mechanism
 under RCRA. The standby trust fund
 documentation must be worded exactly as the
 documentation for a trust fund, except for a
 few requirements: the annual payments into .the
 fund are waived; schedule A of the trust
 agreement need not be updated; and annual
 valuations by the trustee or notices of
 nonpayment are not required. These
 provisions for establishment of a standby trust
 fund also apply to an interim status TSDF that
 is using a letter of credit to establish financial
assurance for closure and post-closure care.
(§§265.143(c)/265.145(c)).

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                       MONTHLY HOTLINE REPORT
                                            October 1996
                                                                          9481.1996(01)
  1.  Resampling and Groundwater
     Monitoring Notification
     Requirements

     As pan of the ground-water monitoring
  requirements of 40 CFR Part 264, Subpart F,
  owners/operators of permitted hazardous
  waste landfills, surface impoundments, waste
  piles, or land treatment units must implement
  a detection monitoring program. Under this
 program, an owner/operator samples the
  groundwater at least semi-annually for
 permit-specific indicator parameters and
  waste constituents, monitoring-for statistically
 significant evidence of a release fronrtke unit
 (§264.98(a)and(b)). If the owner/operator
 determines that suckevidemx exists, she is
 required to notify the Regional Administrator
 in writing within seven days and immediately
 sample the groundwater for hazardous, as.no
 constituents listed in Part 264, Appendix DC,
 noting the concentration of any listed
 constituent detected (§264.98(g)(l) and (2)).
 The owner/operator has the option to
 resample the groundwater within one month
 and repeat the analysis for the hazardous
 constituent (§264.98(g}(3)).  The owner/
 operator is required to submit to the Regional
 Administrator an application for a permit
 modification to establish a compliance
 monitoring program within 90 days
 (§264S>8(gX4)). If the owner/operator
 chooses to resample, must she submit her
permit modification within 90 days of the
 initial notification, or the resampling?
   Because the determination of the existence
 of statistically significant evidence of a release
 may be affected by the resampling, the owner/
 operator must submit any required permit
 modification within 90 days of the resampling.
 However, if the resampling shows that no
 statistically significant evidence of a release
 exists, the owner/operator would not submit a
 permit modification and would continue
 detection monitoring. If the resampling
 confirms the presence of statistically
 significant evidence of a release, the owner/
 operator must then submit an application for
 permit modification within 90 days of the
    Many statistical procedures written into
 permits to comply with.the.Part.264, Subpart
 F, groundwater monitoring requirements
 involve verification resampling and retesting
 procedures as a means to simultaneously
 control Type I, or "false negative," error rates
 and improve statistical power. With such
 procedures, statistically significant evidence
 of a release from, a unit is not necessarily
 indicated by a single "statistically significant"
 excecdancc. Instead, the results of the
 statistical test are not interpreted until all
 resampling and retesting activities have been
 completed.  Thus, an initial exceedance of a
 prediction limit, for example, could be
 followed by a single or double independent
 resampling and retesting procedure. Should
 either the first or second independent retests
 lie below the prediction limit, then no
 statistically significant increase should be
 inferred, and the owner/operator may resume
detection monitoring without performing the
complete Part 264, Appendix IX, analysis or
 conducting a permit modification. Details of
 these and other statistical procedures can be
 found in Statistical Anal™'*; of Groundwater
 Monitoring Dam iU RrRA Facilities —
 Addendum to Interim Final Guidance
 (EPA530-R-93-003).

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9462 - COMPLIANCE
WITH THE MANIFEST
RECORDKEEPING,
AND REPORTING
Part 263 Subpart B
                 ATKcamey 1/3590/3 cr

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                                                          9462.1935(01)
Mr. David boulter
Act-ing Director, Main* Department of
  environmental Protection
Bureau of Oil and Hazardous
  Material* Control
State House Station *17
Augusta, Main* 04333

Dear Mr. Boultert

     On February 6, 1985. Transport Canada published new
regulations tor tne transport of hazardous Materials.  These
regulations* which became effective on July  I, recognise the
Uniform Hazardous Waste Manifest (UHWM) for  those shipments
originating in the United States and destined for Canada.
Thus, under tne Canadian regulations* U.S. generators are
only required to prepare and transporters only need to carry
the u.3. manifest for hazardous waste shipments to Canada.

     I have been asked by Environment Canada if this Agency
would consider recoynisino, the Canadian manifest for those
hatardous waste snipnents aoving from Canada to the United
States.  Before discussing this subject further with Environ-
ment Canadar I first wanted to solicit comments fron those
states which are most directly involved in Canadian trans-
boundary Movements*  Toward this end, X have enclosed a copy
of the Canadian manifest for» for your review and convent.

    In particular, I would appreciate your comaents on whether
the forMat, nuMber of copies, and information requirements on
the Canadian Manifest for* meet your State's Manifest Indor-
sation requirements.  Specifically, do you support the
initiation of a federal rul«aafcing action which would allow
the use of the Canadian Manifest for» for any hazardous waste
shipment originating in Canada,  of course,  I also welcome
any other ccements you May have on this subject.

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                                -2-

     I plan to discuss this issue with Mr. Vie Shantora of
Environment Canada early ne*t Month.  Therefore, X would
appreciate your ceeaMnts by December f.  In ord«r to cav«
tiae, Z »uvg««t that your staff contact Ma. Carolyn Barl«y
on 202-382-221? to diaeucs your coMwnta.

     Thank you for your h«lp.

                                  yours,
                        Bruce R. woddla
                        Director
                        P«r»ita and State Programs Division
  Enclosure
  ees  licftard Baker (Maine)
       Sue noreland
       tobert Halpasa
       Ylc Shantora (Invironswnt Canada)
KH-563xCBtcc:382-2117:10-25-85:CC'» disk9.doc!

-------
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Apf>uy«r f ortMiwil
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                                                    9462.1987(02)
              RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                            OCTOBER 87
2.   Manifesting Requirements

     40 CFR Section 263.20(a) requires that a transporter only
     accept waste which is accompanied by a manifest signed by
     the generator.  Section 263.20(b) requires a transporter to
     sign and date the manifest, acknowledging receipt of the
     waste as it is described in the manifest.  A generator loads
     his waste directly into a bulk tank railcar.  The rail
     transporter will then distribute the load among three
     trucks.  How would the manifesting requirements be handled?

          The generator would cut three manifests and on each the
          total volume transported would be indicated with a
          notation that the waste will be split into thirds.
          Each manifest would require original signature of the
          generator and the rail transporter.  The signed
          manifests would be mailed to the trucking company which
          would then give each of the three truck drivers one of
          the manifests.

     Source:    Paul Muschovic   (202) 475-7736
     Research:  Laurie Huber
        This has been retyped from the original document.

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                                                      9462.1993(01)
              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C. 20460
                                                       OFFICE OF
                                              SOLID WASTE AND EMERGENCY RESPONSE
Honorable Patsy T. Mink
U.S. House of Representatives
Washington, D.C.  20515-1102

Dear Ms. Mink:

     Thank you for your letter of November 21, 1992, to
Administrator Reilly regarding the Environmental Protection
Agency's (EPA's) evaluation as to whether the recent shipment of
petroleum-contaminated soil from Unocal Hawaii to the Republic of
the Marshall Islands satisfied all of the Agency's requirements
for such shipments.  We have since learned that the government of
the Marshall Islands has refused to allow the petroleum-
contaminated soil to be used for its original purpose  (i.e.,
landfill in a causeway between two islands).  As a result, the
contaminated soils will return to the United States.

     Regarding the regulations covering the movement of these
contaminated soils from the U.S. to the Marshall Islands, current
regulations under the Resource Conservation and Recovery Act
(RCRA)  (40 CFR 252.50-60) require any U.S. exporter of RCRA
regulated hazardous wastes to notify and obtain consent from any
receiving country prior to shipping hazardous wastes to that
country.  However, wastes not regulated by RCRA are exempt fro»
the notice and consent procedures prior to export.

     The burden of determining whether or not a waste shipment im
subject to RCRA export regulations rests with the generator of
the waste.  In the case of the shipment of petroleum-contaminated
soil from Hawaii to the Marshall Islands, the notification of
intent to export sent to EPA by South Pacific Environmental  (SPE)
claimed that the shipment was exempt from RCRA regulation and
therefore from export controls under RCRA.  Should SPE's
determination be found to be incorrect, EPA could take
appropriate enforcement action, including the assessment of
penalties.  To date, no such finding has been made by EPA or th«
State of Hawaii.

     Petroleum-contaminated soils from the cleanup of underground
storage tanks  (USTs), such as those to which you refer in your
letter, are currently exempted from regulation as hazardous waste
under RCRA and are therefore not subject to RCRA export
                                                         Printed on 8*00*0

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regulations.  The only exception to this exemption is in cases
where petroleum-contaminated soils excavated during the cleanup
of USTs fail EPA's toxicity characteristic test for one or more
of 13 contaminants (see 40 CFR 261.4(b)(10)).  In such cases, the
contaminated soil is considered hazardous under RCRA and subject
to the RCRA export requirements.

     Please let me know if I may be of any further assistance to
you regarding this matter.

                              Sincerely yours,
                              Sylvia' k. Lowrance, Director
                              Office of Solid r*ste

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C. 20460
                                                   9462.1994(01)
                                                           OFFICE OF
                                                      SOLID WASTE AND EMERGENCY
                          NOV   9  !S34                        RESPONSE
Jean M. Beaudoin,  Chairman
Environmental  Committee
Battery Council International
Weinberg,  Bergeson & Neuman
1300 Eye St.,  N.W.
Suite  1000 West
Washington,  D.C.  20005

Dear Ms. Beaudoin:

     Thank you.for your letter to the Administrator of August  16,
1994 concerning the transportation of certain recyclable
hazardous  wastes.   Specifically,  you requested a modification  of
40 CFR Parts 262  and 263 to allow recyclable hazardous wastes
identified in  Appendix XI of 40 CFR Part 266 to be transported
under  a new recyclable materials tracking document instead of  the
Uniform Hazardous  Waste Manifest.  The materials would then be
regulated  principally under the Department of Transportation's
hazardous  materials regulations (40. CFR Parts 170-179), to which
they are currently subject.

     As you may know,  EPA's Office of Solid Waste (OSW) had a
Definition of  Solid Waste Task Force which recently recommended
changes in the Agency's regulation of hazardous waste recycling
under  the  Resource Conservation and Recovery Act (RCRA).  The
recommendations are contained in a report entitled "Reengineering
RCRA For Recycling" (September 1994).   One of the recommendations
of the report  is that recyclable hazardous wastes should be
transported under  a system similar to the one suggested by your
organization.   The recommendation was based in part on the high
transportation costs incurred by transporters using the Uniform
Hazardous  Waste Manifest,  which some parties believe may not be
necessary  for  all  hazardous wastes destined for recycling.

     The Task  Force recommendations will be presented to the
Assistant  Administrator for Solid Waste and Emergency Response
for his review in  November 1994.   Your suggestion will receive
full consideration as the Agency evaluates the range of possible
changes in how recyclable materials are regulated.
                                                      ffrcycled/RecyclabI*
                                                      Print*! with Soy/Canola Ink on paper that
                                                      contain* at Matt 50% recyclad IIMr

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     We appreciate your interest in this important issue,  and I
hope this letter has addressed your concerns.   If you have any
further questions, please call Marilyn Goode of my staff at 202-
260-6299.

                                        Sincerely,
                                        Michael Shapiro,  Director
                                        Office of Solid Waste

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       BattefV                           WMSHINGTON OFFICE:
                                          Weinberg, Bergeson & Neuman
                                          1300 Eye Street, N.W.
                                          suite 1000 west
                                          Washington, D.C. 20005
                                          (202) 962-8585/FAX (202) 962-8599
                               August 16,  1994


Carol M. Browner
Administrator
U.S. Environmental  Protection Agency
401 M Street,  S.W.
Room W1200
Washington, D.C.  20460

Dear Ms. Browner:

          This   is   a   petition  for  a  modification  of   the
Environmental   Protection   Agency's   ("EPA")   hazardous   waste
transportation  regulations.^    The  petition  requests  limited
changes that would allow certain recyclable materials to be shipped
in commerce using a new recyclable materials tracking document and
not  the Uniform  Hazardous  Waste Manifest.    This change  would
advance recycling,  eliminate unnecessary  costs  and fully protect
public  health,   safety  and  the  environment.     The   proposed
modification also is fully consistent with recommendations adopted
by  EPA's  Definition  of  Solid Waste  Task  Force   after  numerous
meetings and months of study on ways to remove burdens on recycling
without jeopardizing the  integrity of  the solid waste  program.

          Specifically,  the  Battery  Council  International ("BCI")
seeks.a modification of EPA's transportation rules  (40 C.F.R. Parts
262 and 263) to allow recyclable hazardous wastes identified in 40
C.F.R.  Part  266   Appendix   XI  ("Appendix   XI wastes")   to  be
transported in commerce  under a new  recyclable materials tracking
document.    In addition,  because  the  materials could be  shipped
without a hazardous waste manifest,  they  would  not be subject  to
EPA' s transportation requirements  and would not have to be shipped
by  a hazardous   waste transporter.    See  40  C.F.R.  §  263.10..
Nevertheless,  the new  tracking document  BCI is  proposing would
require  disclosure  of  the   same  information  as   required by  a
hazardous waste manifest  and thus, no  data collection  or tracking
capabilities   would   be  lost.     Moreover,   all   substantive
transportation requirements  in EPA's rules would still apply.  The
source of  the  requirements,  however,  would  be  the Department  of
-'    This petition is submitted in accordance with Section 4(e)  of
     the Administrative  Procedure Act,  5  U.S.C.  §553 (e).

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Carol M. Browner
August  16, 1994
Page 2
Transportation's Hazardous Material Regulations  ("DOT's HMR"), 49
C.F.R. Parts 170 to  179, riot EPA's regulations.

          From an environmental standpoint, recycling undoubtedly
is the best way to manage the Appendix XI wastes-.   Yet, because the
existing  hazardous  waste transportation requirements have become
unjustifiably expensive, the present system, requiring the use of
hazardous waste manifests and hazardous waste transporters, is an
impediment  to  recycling.    Indeed,  the  costs   of  transporting
Appendix XI recyclable wastes to the recycling facility under the
existing system often exceeds the net value created from recycling
the materials.  Where this is the case,  the current system creates
economic disincentives for handling the Appendix XI materials and
is unjustifiable  in light of the  fact  that an alternative,  less
burdensome  but  equally  protective   transportation  scheme  is
available.

          Accordingly, BCI requests that the EPA  amend sections of
the hazardous waste management regulations, 40  C.F.R. Parts 260 to
299,  so  that  (a)  recyclable hazardous  wastes  identified  in 40
C.F.R. Part 266, Appendix XI,  may be transported  in interstate and
intrastate  commerce  for  recycling accompanied  by  a  tracking
document other than  the Uniform Hazardous Waste Manifest  (40 C.F.R.
Part 262,  Subpart B)  and  (b) these same wastes can be carried by an
authorized hazardous materials transporter other than a transporter
meeting all  of the  requirements of 40  C.F.R.  Part 263  and any
related requirements imposed by various states.-7

          BACKGROUND

          BCI is a  not-for-profit trade association representing
commercial entities  involved in the manufacture, distribution, sale
and recycling  of  lead-acid batteries  ("lead  batteries").   BCI's
members include manufacturers  and distributors of lead batteries
and the secondary smelters that reclaim or  recycle lead batteries
once  they are spent.  BCI's  membership represents more  than 99
-'    Not all  of the wastes  listed in Appendix  XI are hazardous
     wastes when being  reclaimed.   The transportation  of non-
     hazardous wastes,  while not subject to the requirements of the
     Solid Waste Disposal Act ("RCRA") set forth in 40 C.F.R. Parts
     262 and 263, may  be subject  to similar state transportation
     requirements,   i.e.,   California's   transportation  rules.
     Accordingly, this petition is intended to cover all Appendix
     XI  wastes whether  or  not they are  RCRA  hazardous wastes
     subject   to  the   manifesting  and  transportation   related
     requirements in 40 C.F.R.  Parts 262 and 263.

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Carol M. Browner
August 16, 1994
Page 3
percent  of  the  nation's  domestic  lead  battery  manufacturing.
capacity  and more than  84  percent of  the  nation's lead battery
recycling or secondary smelting capacity.

          BCI  strongly  supports   lead  battery  recycling.    BCI
actively  promotes  the   enactment  of  mandatory  recycling  laws,
sponsors campaigns to encourage recycling and, through its members,
is directly involved  in  the recycling of  lead batteries.  In part
as a  result of  BCI's efforts,  thirty-seven  states have adopted
comprehensive  lead battery  recycling  laws and  five additional
states have adopted disposal bans that have the practical effect of
forcing recycling.   Due  to  these  measures,  the  U.S. battery lead
recycling rate has been  at or above 94 percent for  the last three
years.

          In addition to batteries, BCI's members  also collect and
recycle other lead bearing materials.  For  example, virtually all
of the by-products generated in the course  of producing a battery
(e.gr., baghouse  dust, waste water treatment sludge, plant scrap,
dross, floor sweepings and  others)  have  recoverable lead values
and  are  collected  and  sent   to  secondary lead  smelters  for
recycling.  All of the recyclable  materials  coming to, or produced
at, a secondary  lead smelter  are  recycled,  including first-run
slags, baghouse dust, treatment sludge and  plastic  casings.

          Recyclable  materials  handled  by  BCI's  members  are
identified in 40 C.F.R.  Part 266 Appendix XI.  This  appendix lists
those recyclable wastes that are so similar in character to primary
materials that  they  are  considered feedstock,  not wastes,  when
reclaimed.   See  40  C.F.R.  Part   266,  Subpart  H.    Appendix  XI
materials are  generated  by manufacturers,  assemblers  and  other
entities  in  the lead processing  and affiliated  industry.   Once
generated,  the  materials either  are  collected  by  or sent  to
secondary smelters for reprocessing.  Certain Appendix  XI materials
also  are  generated by secondary smelters who send  them to other
smelters for further reprocessing and recovery of lead.

          DISCUSSION

          A.   The Issue

          Some Appendix  XI  materials are regulated as hazardous
wastes when reclaimed.  When these materials are transported from
one location  to another, they  must be accompanied by  a Uniform
Hazardous Waste  Manifest and  the  generator and  transporter must
comply with the relevant portions of 40 C.F.R. Parts 262 and 263.
These  regulations  require  that  shipments  meet  the  applicable
packaging, labeling,  marking and placarding standards in DOT'S HMR.

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Carol M. Browner
August  16,  1994
Page 4
Transporters also must comply with all  applicable  requirements in
the  HMR,  must have  a  valid EPA  identification number,  and must
respond   to   any   discharge   or   release   occurring  during
transportation.  See 40 C.F.R.  §§ 262.30  to  262.33.

          Notably,   with   the   exception  of   the   transporter's
obligation  to  have an EPA  identification number,  the packaging,
labeling,  marking,   placarding  and other transportation related
requirements  imposed under EPA's  rules  (Parts  262  and  263}  are
identical  to  those  required  for common carriers  of  hazardous
materials under the HMR.   That  is,  the requirements that  presently
apply to  shipments of  Appendix XI materials would still apply by
virtue of  the  HMR even if EPA's  Parts  262  and 263 rules did not
exist.  See 49 C.F.R.  § 172.101.

          While  there  is   no  difference  in  the   substantive
requirements involved in handling Appendix XI materials under EPA' s
Parts 262 and 263 rules or the DOT'S HMR, the costs  associated with
shipping under the two schemes  are significantly different.  RCRA
hazardous waste must be transported by  a  licensed  hazardous waste
hauler.  The cost of  shipping a RCRA manifested hazardous waste in
a hazardous waste hauler is much higher than the cost  of shipping
essentially the same  material in a common carrier licensed to carry
hazardous .materials.   In  an informal  survey conducted by one BCI
member, the costs of  shipping RCRA manifested hazardous wastes were
more than double the  cost  of shipping  DOT  hazardous materials even
though  in  all  instances  the   materials  being  transported  were
fundamentally the same.

          The cost differential  between  shipping under RCRA' s rules
and  the HMR is  attributable primarily to additional requirements
imposed by various states  on transporters  of  materials  requiring a
RCRA hazardous  waste manifest.   These extra  state  requirements
include such things as special training or equipment,  higher limits
for  liability  insurance,   local  taxes  or  fees  and additional
reporting requirements.  See,  e.g., Pennsylvania Code,  Title 25, §
263.23   (imposing  a  hazardous  waste  transportation   fee   on
transportation of manifested wastes paid  into  the  State Hazardous
Sites Cleanup Fund) ; Alabama Hazardous Waste Management Regulation,
§ 335-14-4-04  (requiring applicants  for transporter  permits  to
submit a performance  bond guaranteeing compliance with,  among other
things,  the  regulations,  permits,  orders and corrective  action
measures); Arkansas Hazardous Waste Management  Code,   §§  16, 11 (r)
(charging  $2.00  per manifest  issued);  Maryland Hazardous  Waste
Rules § 26.13.04 (requiring hauler certificates, performance bonds,
special training for drivers and  instructor's of drivers,  annual
registration  fees   on  cabs,   containers  and  trucks,   vehicle
inspections);  New York Waste Transport Permits  Regulations § 364.5

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Carol M. Browner
August 16,  1994
Page 5
 (requiring $5,000,000 in liability insurance for vehicles carrying
 10,000  pounds  or  more  of  wastes  requiring  manifest;   federal
 requirements are  $1,000,000 in liability  insurance).

          States impose additional requirements .either because they
 perceive  a  need  for tighter  restrictions  on  hazardous waste
 transporters than on common carriers  or, as is evident from  some of
 the state schemes, because  they see this area as a potential source
 of  additional  revenues.    The motive in  some  cases  may be both.
 Regardless  of  the  reason, BCI  is   confident  that  no  state  has
 focused on the  adverse impact these added transportation rules have
 on legitimate  recycling.

          Moreover, neither the DOT nor EPA have concluded that the
 vast  array  of  additional requirements  imposed  by  states  are
 necessary to protect, the public health,  safety or the environment.
 To the contrary,  EPA's Definition of Solid Waste  Task Force found
 that  the  high  costs  arising from  the added state  requirements
 adversely  affect the  waste management system.    The added cost
 eliminates  competition between  carriers as  fewer  carriers  are
 willing to  compete in the  hazardous waste  transportation market
 with  the added requirements and  associated increased burdens and
 cost of doing  business.  Further, the fact that  requirements vary
 from state-to-state adds to the complexity and cost.  And, as noted
 above, the higher costs of  transportation  create a disincentive to
 recycling where the recyclable materials have  a low recovery value
 relative to  the  high cost of transporting the  material  to  the
 recycling facility.

          Because it  is impracticable to  seek changes on a state-
 by-state basis, BCI requests a federal response.

          B.   The Solution

          Transporting Appendix  XI  hazardous  wastes destined for
 recycling under  EPA's rules costs twice  as much as shipping the
 same  materials under the  HMR.    The  substantive requirements  of
 EPA's rules  and  the  HMR  are virtually  identical,  and no added
 protection to  health,  safety  or  the  environment is gained by the
 additional costs.  Yet, the added cost of EPA's  rules affects the
 efficiency of  the hazardous waste management system by reducing
 competition and  impeding a preferred method  of managing  certain
 recyclable wastes.

          EPA  could eliminate these disincentives  to  recycling by
 adopting a  rule applicable to Appendix  XI materials that would
 allow those materials to be shipped  in commerce with  a "Recyclable
Materials Tracking Document"  and not a hazardous waste manifest.

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Carol M. Browner
August 16, 1994
Page 6
The Recyclable Materials Tracking Document would require  the  same
information  as  a hazardous waste manifest  with the exception of
certain information that is relevant only to shipments  under Parts
262  and 263,  e.g.,  a  transporter's U.S.  EPA  ID  Number, waste
minimization   certification   and   land   disposal   restriction
notification.1''   Like  the  manifest, the  tracking document would
follow  the  shipment  to its destination  and the receiving  entity
would be required to acknowledge receipt,  noting any  discrepancies.

          Because Appendix XI  materials would not be required to be
transported with a manifest,  transporters of these materials would
not have  to comply  with 40  C.F.R.  Part 263.   See 40 C.F.R.   §
263.10.  Nevertheless,  as noted above, all of the-requirements  that
would have applied (e.g.,  labeling, placarding) will  still apply
pursuant to the HMR.

          Finally, under BCI's proposal,  a state or EPA's  ability
to track shipments and the substantive shipping requirements  will
not  change.     What  will  change,  however,  is  that   the state
requirements applicable to shipments requiring a Uniform Hazardous
Waste Manifest will not apply to Appendix XI materials unless the
states, after notice and open debate, determine such requirements
are needed for this limited class of recyclable materials.

          BCI appreciates your attention to this matter and stands
ready to provide  whatever  additional information you  may need in
conducting your evaluation of this  request.

                              Very  truly  yours,
                              Jean M. Beaudoin, Chairman
                              BCI Environmental Committee

cc:  RCRA Docket
249.16XOSLT001
-f    The waste minimization certification would not be applicable
     to materials  shipped under a  Recyclable Materials Tracking
     Document because it would be understood  that these materials
     were  to  be recycled and  the  generator  thus  was engaged  in
     waste minimization.   For the  same  reasons,  a land disposal
     restriction notification would be unnecessary.

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                     HOTLINE QUESTIONS AND ANSWERS

                                    January 1995                9452.1995(01)
                 RCRA
2. Manifest Requirements for Imported
   Hazardous Waste

   Any person who imports hazardous waste
into the United States must comply with all
applicable generator requirements and the
special requirements for importers in Part 262,
SubpartF(§262.60(a)). This includes
preparing a manifest with a generator EPA
identification number before transporting the
imported hazardous waste within the United
States, Because waste generated in another
country will not have an EPA identification
number, the importer's identification number
should be used on the manifest. Any party who
helped arrange for the importation (e.g., a
broker, a transporter, a TSDF), however, may
be considered an importer (June 25,1985,
memo from Skinner to Seraydarian). Incases
where there is more than one importer, each
with an identification number, whose number
should be used on the manifest?

   EPA does not require any particular
identification number to be used on the
manifest. The Agency recommends that the
parties to the movement decide among.
themselves who will act as the importer. The
importer's responsibility includes providing an
identification number on the manifest
(§262.60(b)< 1)). Regardless of who performs
the importer duties, EPA reserves the right to
enforce against any of the involved parties if
the requirements of the RCRA hazardous
waste regulations are not adequately met

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                      HOTLINE QUESTIONS AND ANSWERS

                                     March 1995                9462.1995(02)
                 RCRA
1. Signing the Manifest as an Agent
   When Importing Hazardous Waste

   A waste broker in Mexico arranges to
collect hazardous waste from several different
Mexican generators, and exports 1500
kilograms of hazardous waste for disposal at a
US. facility. The RCRA  regulations under
Part 262, Subpart F require an importer to
initiate a manifest when hazardous waste
enters the United States.  Since the broker from
Mexico accepts all responsibility for the
hazardous waste from the generator facilities
and handles the hazardous waste for the US.
disposal facility, can the  broker sign the.
Uniform Hazardous Waste Manifest as an
agent of the US, disposal facility that is
importing the waste?

   The regulations for imports of hazardous
waste allow the importer or his/her agent to
sign  the generator certification statement on
the manifest in place of the generator
(§262.60(b)(2)). The only requirement for an
agent signing the manifest is that the agent
must be somehow legally affiliated with the
EPA identification number used on the
manifest. The Mexican broker could sign the
manifest certification only if the broker's
company has a U.S. EPA identification
number (requiring a U.S. address) or the
broker is legally related to the importer (e.g., a
subsidiary). A broker signing as an agent
because of a legal relation to the importer
must place the U.S. address and U.S. EPA
identification number of the importer on the
manifest

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C. 20460
                           MAR  7  1996                   9462.1996(01)
                                                           OFFICE OF
                                                      SOLID WASTE AND EMERGENCY
                                                           RESPONSE
Mr. Charles  Dickhut,  Chairman
Association  of Waste  Hazardous Materials Transporters
2200 Mill  Road
Alexandria,  Virginia   22314

Dear Mr. Dickhut:

     I am  pleased  to  respond to your October 12, 1995, letter,  in
which you  request  clarification of federal policy on several
issues related to  the use of the hazardous waste manifest by
hazardous  waste transporters.

         Facilities and the Manifest
     First,  your letter asks me to clarify when an operator of  a
"transfer  facility" must sign either the transporter blocks of
the manifest,  or the corresponding blocks on the manifest
continuation sheet.  This issue appears to have arisen from
conflicting  interpretations of the transporter signature
requirements offered by two RCRA authorized states.  According  to
your letter,  one state requires operators of transfer facilities
to sign a  transporter block only in those cases where the
operator also is involved in transporting the waste to or from
the transfer facility.  The other state, however, requires that
the operator of the transfer facility sign a transporter block  of
the manifest to reflect the handling of the waste at the transfer
facility,  even though that transporter may have already signed
another transporter block in connection with transporting the
waste to or  from the transfer facility.  Thus, in the example of
the second state,  the same transporter company may be required  to
sign multiple transporter blocks, to reflect its various
transport  and transfer operations.

     RCRA  regulations generally require consistency in the use  of
the hazardous waste manifest,  particularly with respect to the
entry of federally required information.  Indeed, consistency in
the use of the manifest is one of the exceptional areas in RCRA
where the  usual rule acknowledging the States' latitude to
operate more stringent programs must at times yield to the
interests  of national uniformity in the transportation of
                                                     Recycled/Recyclable
                                                     Printed with Soy.-Canola Ink on paper mat
                                                     contains at least SOT. recycled fiber

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hazardous materials.  EPA explained the balancing of the "state
stringency11 and  "consistency" interests when it promulgated
jointly with DOT the Uniform Manifest as a final rule on March
20, 1984.  See 49 FR 10490 at 10492 et seq.  In addition, the
federal hazardous materials transportation laws include express
authority under  which the DOT may preempt State laws which touch
upon the preparation, content and use of shipping papers used in
conjunction with the transportation of hazardous materials in
commerce, unless the State laws are "substantively the same" as
the federal requirements•.  49 U.S.C. 5125(b)(l).  DOT has ruled
that state manifest requirements that vary from the joint EPA/DOT
regulations prescribing the manifest system are subject to its
HMTA preemption  scrutiny, and such state laws are preempted when
they "significantly alter the information supplied on the
manifest."  See  60 FR 62528 at 62537 (December 6, 1995).  In the
December 6, 1995, notice, DOT'S Research and Special Programs
Administration issued a preemption decision that invalidated a
state regulation that required the'use of a second transporter
block to record  the transfer of waste from one vehicle to another
at a transfer facility.  Id. at 62538.   Our response which
follows addresses only the issue of federal EPA policy on the use
of the manifest  transporter blocks.  Since your letter raises an
issue similar to the one addressed in the recent preemption
decision, you may also wish to consult with DOT to determine
whether these particular state requirements pose issues under
their statutes and regulations.

     The federal manifest regulations currently do not require
the use of a transporter block (a federally required data
element) to record the handling of hazardous wastes at facilities
meeting the definition of a transfer facility.   Rather,  the
instructions in  the Appendix to Part 262 clarify that the
transporter blocks (Items 5 and 7) should be used to identify the
company names of transporters "who will transport the waste."
Further, the provisions in section 263.20 dealing with obtaining
transporter signatures emphasize that it is the delivery of a
shipment of hazardous waste from one transporter to another that
is the event triggering the next transporter's obligation to sign
the manifest.  These requirements illustrate that the overarching
purpose of requiring handler IDs and signatures on the manifest
is to demonstrate custody of and accountability for the hazardous
waste at any point in time during its shipment.

     By definition, transfer facilities described in 40 CFR
section 263.12 must be owned or operated by transporter
companies.  Because they are owned or operated by transporter
companies, they  may be required to be identified on a transporter
block (and sign  a transporter's acknowledgment of delivery) when
their receipt of a' hazardous waste shipment reflects an actual
change in the custody of the shipment.   Thus, where a transfer
facility is required to be identified on a transporter block, it
is because there is a delivery (with a shift of custody) to a new
transporter/ and not merely because that transporter engages in
transfer activities.

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     If, however, the transporter who in fact transports
hazardous waste to a transfer facility is understood to retain
responsibility for the waste while it is stored at a transfer
facility, there is no change in custody at the time the waste is
placed in temporary storage at the transfer facility.  In this
case, the transfer facility operator should not be identified on
an additional transporter company block (block 5 or 7), nor
should it sign a transporter acknowledgment (blocks 17 or 18)
when the waste is received at the facility.  Likewise, it is
unnecessary to identify a transporter company on multiple
transporter blocks (e.g., 1 block for a transporting segment and
a 2nd block for transfer activities) if the same transporter
company conducts the activities, and there is no interruption in
that company's custody and control.  In this case, the same
transporter company is still conducting transportation related
activities throughout the period of its handling the waste
shipment, and it would serve no purpose to require signatures to
reflect a transfer of custody to itself.

     This clarification is consistent with transfer facility
guidance issued by Sylvia Lowrance on October 30, 1992.  In that
detailed guidance, the Office of Solid Waste explained that the
entities and identification numbers that must appear on the
manifest correspond.to the "generator of the waste, all of the
transporters who transport the waste, and the designated
facility."  As-explained then, when a transporter company
transports waste to and from a transfer facility which it
operates, and the waste remains under the control of the
transporter., no separate entry specific to the transfer facility
must appear on the manifest.  Thus, today's guidance expands on
the 1992 guidance slightly, by clarifying that a transfer
facility should be identified as a transporter on the manifest
only when it is accepting custody and control of the shipment
from another transporter company that delivered the shipment to
the transfer facility.

     We recommend that state programs follow this guidance to
minimize confusion and foster greater consistency under the
circumstances which you identified in your letter.  I emphasize,
however, that authorized State programs generally have latitude
to impose more stringent requirements, and I am not making
specific RCRA consistency findings regarding the particular state
programs which you reference in your letter, since I do not have
sufficient information in hand about the statutes, regulations,
or interpretations affecting those states.

Transporter Requirements and Imports

     Your letter also suggests that there is a potential conflict
in the transporter regulations that address imports of hazardous
waste into the U.S.  As you point out, the import regulations
(Subpart F of Part 262) impose requirements on importers to
comply generally with the Part 262 generator standards, as well
as more specific directions for completing the manifest for the

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imported wastes.  See 40 CFR section 262.60(a) and  (b).  The
latter directions require the importer to substitute its 'name,
address, and EPA ID number, as well as the name and address of
the foreign generator, for the generator information normally
entered on the manifest for a domestic shipment.  On the other
hand, in the transporter standards of Part 263 (and also on the
printed manifest instructions), there is the direction that a
•transporter of hazardous waste must assume a generator's
responsibilities under Part 262 (such as originating the
manifest), when it transports hazardous waste into the United
States from abroad.  40 CFR section 263.10(c)(l).

     EPA does not believe that there is a conflict between the
generator requirements and the transporter requirements with
respect to shipments of hazardous waste from abroad.  Section
263.10(c) requires transporters that transport hazardous waste
from abroad into the United States to comply with the relevant
generator requirements, i.e., the importer requirements at
section 262.60.  Section 263.10(c) basically serves to cross-
reference section 262.60 requirements and is intended to indicate
that a transporter that meets section 263.10(c)  conditions may be
subject to "importer" obligations.

     Section 262.60 imposes certain generator requirements on
"any person who imports hazardous waste from a foreign country
into the United States."  EPA has hot defined "importer," but has
interpreted the term broadly to potentially include numerous
parties such as hazardous waste brokers, TSD facilities, or
transporters, among others, depending on the situation.  There
could possibly be several different "importers" involved in a
particular shipment.  As EPA explained in a June 25, 1985,
memorandum (attached), where there is more than one importer
involved with a shipment, EPA requires only one of the parties to
perform the section 262.60 importer duties.   Therefore, in such
cases, the parties can agree among themselves (e.g., through a
contractual agreement) as to who will perform the importer
duties.  (As the 1985 memo notes,  however, if the designated
entity fails to perform the importer duties, all of the parties
could be subject to EPA enforcement for the failure to comply).

     With respect to your Association's members,  where the
transporter is one of several parties who may be importers of a
shipment, it may be helpful to have the transporter arrange with
the other parties to assume the importer responsibilities for the
entire group.  This arrangement would avoid unnecessary and
duplicative compliance activities by the transporter and other
parties.

Expedited Consent to Alternate Cosignees in Canada.

     Third, you raise a concern that there may be some .
irregularities occurring with respect to rejection by Canadian
consignees of shipments of hazardous waste originating in the
U.S. According to your letter,  the rejected shipments are

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frequently  rerouted  to  other Canadian  consignee  facilities,  upon
the U.S.  generator and  Canadian facility  obtaining  permission
from  Environment  Canada.  Your letter  appears  to agree  that  this
is an expedient response to the rejection,  but out  of concern  for
potential liabilities,  you ask whether the  practice conforms with
EPA's export  regulations. , The regulations  provide  that alternate
arrangements  for  an  exported shipment  shall not  proceed (except
in circumstances  not relevant here), until  there has been
renotification to EPA of the proposed  changes, and  the  exporter
has obtained  an Acknowledgment of Consent to the changes from  the
import country.   40  CFR section 262.53(c).

      While  this regulation provides the general  standard for
exported  shipments,  transboundary movements between the United
States and  Canada are governed by a specific bilateral  agreement
that  was  executed in- 1986, and amended in 1992.   The 1986
agreement enables Environment Canada,  under its  domestic laws, to
agree to  changes  in  the terms of a transboundary shipment,
without invoking  the more formal, diplomatic process described in
the above regulation.   EPA believes that  this  expedited form of
"consent" from Environment Canada would,  as a  practical matter,
satisfy the general  requirements in section 262,53(c) that an
exporter  obtain "consent" to proposed  changes  from  the  importing
country.  Thus, the  rerouting to alternate  consignee facilities
in Canada,  under  the consent process described in your  letter,
does  not  violate  U.S. law or policy.   I note, however,  that  the
U.S.  exporter must still provide renotification  to  EPA  of the
proposed  changes, notwithstanding any  expedited  "consent" from
Environment Canada to the changes.  We assume that  these two
communications would ordinarily occur  simultaneously, to avoid
unnecessary delay.

      Your additional  comments on the North  American  Manifest
concept,  and the  ongoing efforts to reduce  the burden of the
manifest  system,   are acknowledged and  appreciated.

      Thank you for your continuing interest  in the RCRA generator
and transporter regulations.   Should you need more  information on
these issues, please contact Richard LaShier on  202-260-4669.
                              Sincerely yours,
                              Michael Shapiro, Director
                              Office of Solid Waste
cc:  Richard LaShier
     Ann Codrington

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                            ASSOCIATION OF WASTE                   ~
 2200 MiD Road, Alexandria, VA 22314       HAZARDOUS MATERIALS        (703)838-1703  Fax (703) 549-9570
	 TRANSPORTERS 	
 'October 12,  1995
  Michael Shapiro
  Director
  Office of Solid Waste
  Mail Code - 5304
  U.S. Environmental  Protection Agency
  401 "M" St., SW
  Washington, DC  20460

  Dear Mr. Shapiro:

       I am writing on  behalf  of the -Association of Waste Hazardous
  Materials Transporters  to  request  your interpretation of rules
  concerning the Uniform  Manifest.

       The AWHMT is affiliated with -the American Trucking
  Associations' federation.  The AWHMT represents companies that
  transport, by truck .and rail,  waste hazardous materials,
  including industrial, radioactive  and hazardous wastes, in North
  America.  The Association  is a not-for-profit organization that
  promotes professionalism and performance standards that minimize
  risks to the environment,  public health and safety; develops
  educational programs  to expand public awareness about the
  industry; and contributes  to the development of effective laws
  and regulations governing  the industry.

       All members of the Association transport shipments required
  to be accompanied by  the Uniform' Manifest.   Recently, several
  practices involving the processing of the Uniform Manifest and
  related issues have come to  our attention.   Some of these
  practices are potentially  burdensome.   Others appear to be
  conujC'dtiJ.cLOi"y .  Youi  cluxzJIj.Ceitu.oii cf federal EFA
  matters would be most appreciated.
        if ever, must an operator of  a transfer facility sign the
  Uniform Manifest?

       At least two states are rendering different opinions about
  the duty of transfer facility operators to sign the Uniform
  Manifest. Texas does not want operators of transfer facilities to
  sign the Uniform Manifest unless  the operator also provides a
  transportation segment to or from the facility,  or both.  In this
                    Affiliated with, the American Trucking Associations, Inc.

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case, the  signature  would appear in item  17 or 18 of the Uniform
Manifest  (or  item 33 or 34 of the continuation sheet) -1
However, the  signature  would not be intended to indicate that
waste had  been held  in  temporary,  in-transit storage.  Rather,
the sole purpose  of  the signature would be to indicate the
identify of the entity  providing the actual transportation of the
waste.  On the other hand,  Louisiana contends that the operator
of a transfer facility  must sign the Uniform Manifest in item 17
or 18 (or  item 33  or 34 of the continuation sheet)2 even if the
facility operator  is or will be the transporter of record listed
on the Uniform Manifest because the facility operator provides
either the transportation segment to the  facility or from the
facility.  This practice could result in  the same company being
listed on  the Uniform Manifest three times as transporter 1, for
bringing the  hazardous  waste to the transfer facility,  as
transporter 2, for holding the waste at the transfer facility,
and as transporter 3, for moving the waste from the transfer
facility.

     We believe that the signature of the transfer facility
operator is .not necessary if the operator is already listed as a
transporter on the Uniform Manifest because the facility operator
also provides the  transportation segment  that delivered the
hazardous  waste to the  transfer facility or will provide the
transportation segment  removing the hazardous waste from the
facility,  or  both.   In  all cases,  the Uniform Manifest chain of
custody is preserved.   Conversely,  we believe that the signature
of the transfer facility operator is required by federal rules on
the Uniform Manifest if the operator performs no on-vehicle
movement of the waste.   In support of our position we note, that
the ability to store manifested shipments of hazardous waste at
transfer facilities  for periods of ten days or less is reserved
to transporters.3  Transporters are prohibited from delivering
hazardous  waste to anyone but another transporter when the waste
has not reached its  designated destination.4   Beyond the letter
of the law., we heDJ.eve  the spirit  of the  law demands a
demonstrated  chain of custody of all entities assuming control of
     1     By extension, information of the signatory would have
to appear in items 5 through  8 or  the Uniform Manifest or items
24 through 21 of the continuation  sheet.

     2     By extension, information of the signatory would have
to appear in items 5 through  8 or  the Uniform Manifest or items
24 through 27 of the continuation  sheet.

     3     40 CFR 263.12.

     4     40 CFR 263.21.

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the waste from the point of generation to the receipt at
destination.5

Who is to be listed as the "generator" on the Uniform Manifest
when hazardous waste is imported into the United States?

     EPA's rules applicable to transporters provide that "[a]
transporter of hazardous waste must also comply with 40 CFR 262,
Standards Applicable to Generators of hazardous Waste, if he
transporters hazardous waste into the United States from
abroad."6  The Association has  always interpreted this
regulation to require the transporter providing the first segment
of travel in the United States to be listed as the "generator,"
completing items 1, 2, 4 and 16 of the Uniform Manifest, as well
as being listed as "Transporter 1" in items .7, 8 and 17.

     We have always felt this policy was unfair to transporters
and attempted to raise our concerns 'about the equity and merit of
requiring a transporter to assume generator status simply because
travel involved a cross-border movement during the RCRA Manifest
Regulatory Negotiation (Reg/Neg).  Nothing said by EPA during
these negotiations suggested an interpretation of the rules other
than that which appears above.   Regrettably, the Reg/Neg came to
closure without resolution of this matter.  Rather, the final
Reg/Neg agreement provides that " [a] definition of importer will
be addressed by EPA in its work on the Basel convention, and thus
the issues raised in the manifest reg neg may be addressed in
     5    In an interpretation, EPA notes that in situations
where,
      "one company transports waste to and from a transfer
     facility it operates, and the waste remains under the
     control of the transporter, no separate EPA ID number
     need be entered on the manifest specific to the
     transfer facility.  However, ... waste must remain
     under the control of a transporter as designated on the
     manifest while at a transfer facility."

It could be inferred from this statement that if the waste at a
transfer facility does not remain under the control of the
transporter which delivered or removed the waste from the site
that another transfer who has control of the waste at the
transfer facility must enter its EPA identification number.

Memorandum from Sylvia Lowrance, Office of Solid Waste, EPA, to
David Ullrich, Waste Management Division, EPA, October 30, 1990,
page  3.

     6    40 CFR 263.10(c)(1).

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 that forum.

      On the other hand, it was recently brought to our attention
 that EPA rules at 40 CFR'262.60 appear to contradict the
 requirement that the transporter assume generator status for
 imports.   This rule provides that:

      11 [w] hen importing hazardous waste,  a person must meet
      all  the requirements of §262.20(a)  for the manifest
      except that: (1)  In place of the generator's name,
      address and EPA identification number,  the name and
      address, of the foreign generator and the importer's
      name,  address and EPA identification number must be
      used.  '(2)  In place of the generator's signature on the
      certification statement, the U.S. importer or his agent
      must sign and date the certification and obtain the
      signature of the initial transporter."8

      It may be in some cases that a transporter is indeed the
 importer.   However,  in cases where  the transporter is not the
 importer,  we do not believe the transporter should have  to sign
 the  Uniform Manifest as implied in  40 CFR 263.10.

 May  exported loads which are rejected by the designated  TSDF be
 received  by another TSDF without modification of•the Intent to
 Export  Notification?

      As in the United States, shipments  of hazardous waste are
 rejected  at  foreign-based TSDFs for a variety of reasons.   If
 such rejection occurs in the United States,  the U.S. generator  is
 given as  option of redesignating another TSDF to receive the
 waste.  However,  the ability of a U.S. generator to redesignate
 alternate foreign-based TSDFs without providing EPA with a
 renotification of the change and obtaining the receiving
 country's approval appears to be prohibited.   Although the Intent
.to Export Notification allows the U.S. generator to designate an
 "alternative consignee," if such alternative consignee is not
 designated,  the EPA rules  provide that:

      "the primary exporter must provide  EPA with a written
      renotification of the changes.   The shipment cannot
      take place until consent of the receiving country to
      the  changes . . . has been obtained and the primary
      7     RCRA Manifest Regulatory Negotiation,  Final  Agreement,
 page  3,  item 1.3.4.

      8     40 CFR 262.60{b).

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      exporter receives an EPA Acknowledgement  of  Consent
      reflecting the receiving country's  consent to  the
      changes."9

      It  has recently come to oar attention that rejected
shipments of U.S.  exported hazardous waste at  facilities located
"in Canada are frequently rerouted to other Canadian-based
facilities after the Canadian TSDF with  the U.S.  generator .obtain
permission from  Environment Canada.   Typically,  renotification
of U.S.  authorities is riot made  because  the time  delay would not
be tolerable in a transportation setting.  If  a renotification is
the only option for the .foreign  delivery of rejected shipments,
these shipments would simply be  returned to the United States.
Such' unnecessary transportation  incurs its own environmental
impacts.   However,  unless EPA is able  to clarify  its policy to
allow redesignation of TSDFs without renotification, more return
transportation will be the result.  Not  only must a transporter
and generator be concerned about possible enforcement by states
with manifest  programs when discrepancies between the TSDF listed
on the Uniform Manifest and the  TSDF listed on the  Intent to
Export Notification are compared,  but  what enforcement action
might be  expected from federal EPA as  well.

North American Manifest

     Inasmuch  as this letter is  devoted  to Uniform  Manifest
issues,   we would also like to bring directly  to  your attention
our strong support  for a North American  Manifest  form and system.
We believe such international cooperation is well within the
spirit of NAFTA and would surely reduce  regulatory  burdens on
those involved in the transboundary movement of hazardous waste.

Manifest  Burden  Reduction

     We hear much these days about the "burden" of  the Uniform
Manifest  and the possible advantages of  converting  manifest
information to EDI  format.   While it may be technically feasible
to reduce the  Uniform Manifest to EDI transmissions, we are not
wholly convinced of the merit of such proposals.  We believe a
tremendous regulatory burden would be  eliminated  simply by
eliminating the  option for states to require their  own version of
the Uniform Manifest form.   At minimum,  EPA manifest rules must
accomplish three objectives:   establish  chain  of  custody,  provide
on-vehicle hard-copy U.S.  Department of  Transportation-required
information, and prohibit non-federal  jurisdictions from imposing
duplicative, different or additional manifesting  requirements.
We hope these  are principles that you  can support.
          40 CFR  262.53 (c) .

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Conclusion

     These questions  together with one we submitted to your staff
on August 21, 1995  concerning the definition of "transporter" for
purposes of completing the Uniform Manifest represent Uniform
Manifest issues that  have been brought to our attention in recent
months .  Members of our Association do not want to be at odds
with EPA policy and rules.  Your written interpretation of policy
concerning the issues raised above will be most appreciated.
     Thank you for your attention to these matters.
forward to your reply.

Sincerely,
                                                     We look
Charles Dickhut
Chairman

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                       HOTL1NE;QUESTIONS AND ANSWERS

                                       March 1996
                               9462.1996(02)

 3. Generators and Designated
    Transporters

    In the normal course of transportation, a
 designated transporter is unable to deliver a
 manifested shipment of hazardous waste to the
 designated facility. To complete delivery of the
 waste shipment, the transporter would like to
 hire a second carrier. Must the transporter
 seek the approval of the generator who
 initiated the shipment in order to make these
 changes to. the 'chain of transportation?

    Yes. Choosing the sequence of
 transporters that will deliver a waste to the
 designated facility is the fole responsibility of
 the hazardous waste generator, and changes to
 the chain of .transportation require the approval
 of the generator,

    A properly completed manifest identifies
 the full sequence of transporters that will
 conduct hazardous waste to a designated
 facility. .The directions for the Uniform
 Hazardous Waste Manifest, found in the
 Appendix to 40 CFR Part 262, specifically
 instruct generators to provide the name and
 EPA identification number .of the first
 transporter (Items 5 and 6), and if necessary, of
 the second transporter (Items 7 and 8). The
 instructions further direct generators to use a
continuation sheet to identify additional
transporters as necessary (item 8, Note).
    The regulations for hazardous waste  .
transporters do not authorize haulers to make
uriapproved changes to the chain of
transportation delineated on the manifest. In
accordance with the manifest, transporters
must deliver waste.solely tq the designated or
alternate facility, the next designated
transporter, or the designated export
destination (§263.21(a». Transporters who
cannot deliver waste according to the
generator's designation must contact the
generator for instructions and must revise the
manifest to reflect the approved changes to the
prescribed chain of transport (§263.21(b)).
Generators alone are responsible for
identification of the complete chain of
transportation and must, therefore, be apprised
.of and approve of all deviations from that plan.

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9463 - HAZARDOUS
WASTE DISCHARGES
Part 263 Subpart C
                    ATKl/l 104/30 kp

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                                                    9463.1980(01)


June 18, 1980


Subject:  Questions on DOT's role in the Transportation of
          Hazardous Waste

From:     Bruce Weddle, Deputy Director
          State Programs and Resource Recovery Division (WH-563)

To:       Janet DeBiasio
          Hazardous Waste Section
          Region I

     The following are our responses to the questions you raised
in your memorandum of May 8, 1980 on the above subject:

Question

     Since U.S. DOT is broadening its authority to control
intrastate commerce, who in DOT will be responsible for
inspection, compliance and enforcement of the federal
transportation regulations in Region I?

Answer

     DOT's hazardous materials regulations will not apply to
intrastate motor carriers operating in a state which has interim
authorization.  However, DOT's regulations will be applicable to
intrastate motor carriers when that State receives final
authorization.  In states where EPA is running the program, the
DOT hazardous materials rules will apply beginning on November
20th  (the effective date of those rules).  DOT and EPA are
developing a plan for  implementing the DOT/EPA Memorandum of
Understanding which will include intrastate inspection,
compliance, and enforcement.  This plan will identify the
specific offices within DOT responsible for enforcement
activities.  For further information on DOT's responsibilities
for enforcement, I suggest that you contact Bill Nalley, DOT
headquarters  (755-5893).

Question

     When a state submits an application to EPA to manage a
hazardous waste program, it is assumed that U.S. DOT will allow
the enforcement of the Federal Transportation Regulations, 49 CFR
100-199, to be carried out on the state  level.  Who makes the
determination as to whether the state's transportation
legislation and regulations are substantially equivalent and
consistent with the Hazardous Materials Transportation Act and  49
CFR  100-199?
         This has been retyped from the original  document.

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                               -2-

Answer

     In terms of intrastate transportation,  DOT specifically
stated in the promulgation on May 22,  1980 that the regulations
do not apply to intrastate motor carriers in those states with
interim authorization.   Final authorization will only occur at
the state level when state regulations are equivalent to DOT
regulations.  For interstate transportation, DOT and EPA may step
in when HW transportation procedures ar not in compliance with
DOT HW transportation regulations.

     The determination of whether a State's transportation
legislation and regulations are substantially equivalent with the
Federal program will be made by EPA.  The RCRA State Interim
Authorization Guidance Manual, which will be available this
month, will provide the guidance necessary to make that
determination.

     The Agency has not negotiated who will make the
determination of equivalence with DOT since we are focusing
attention on matters related to interim authorization.  Since
this subject relates to final authorization, a decision as to who
will determine equivalency between State and Federal regulations
will be dealt with at a later date.

Question

     When there is a hazardous waste spill during transit, the
hauler submits a report to DOT.  DOT,  in turn, notifies EPA of
the incident.  Who in DOT will be receiving the report for the
New England area and where in EPA does DOT intend to transmit
copies of the incident report?

Answer

     In the event of a hazardous waste spill during transit, a
transporter must submit a written report as required by 40 CFR
171.16 to the:

          Associate Director for Hazardous Materials Regulations
          Department of Transportation
          Washington, D.C.  20590

DOT will then provide copies of the incident reports to
Headquarters.  The forthcoming plan for implementing'the DOT/EPA
MOU (as discussed in the first answer) will address this
particular  issue.
        This has been retyped from the original document.

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                               -3-

Question

     I have read the draft Memorandum of Understanding between
EPA and DOT.  Would you explain difference in jurisdictions and
responsibilities of the Bureau of Motor Carrier Safety (BMCS),
Federal Highway Administration's Washington office (FHWA) and
DOT?  When will we know who will be Region I' s contact in these
different agencies?

Answer

     The Bureau of Motor Carrier Safety (BMCS) is a part of the
Federal Highway Administration,  (FHWA) which is a part of the
Department of Transportation.  (See organizational chart
attached.)  BMCS's primary function is to reduce fatalities,
injuries and property damage, as well as increase public safety
in the highway transportation of hazardous materials.  The BMCS
and the FHWA field staff enforce the Federal Motor Carrier Safety
Regulations pertaining to the transportation of hazardous
materials by the highway mode.

     The Federal Motor Carrier Safety regulations govern
qualification of employees whose work affects safety of
operation, maximum hours of service of such employees, safety of
operation of commercial vehicles; and vehicle safety, including
performance requirements, parts and accessories, and maintenance
of vehicles.  The Hazardous Material Regulations, among which are
requirements for shipping papers, placards, containers, labels,
etc., concern the safe transportation of hazardous materials.

     The field programs of BMCS are administered by FHWA's nine
regional offices.  The contact person for each Region, as well as
for each state in that Region, is provided in the office of Motor
Carrier Safety's "Field Roster."  A list of the FHWA contacts.

     I hope these answers are sufficient, but, if you need
further clarification or information, please contact Wolf R. Gill
or Carolyn Barley  (755-9145).


Attachments

cc:  Regional Generator/Transporter Coordinators
     w/attachments
        This has been  retyped  from  the  original document.

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                                                         9463.1980(02)
            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON, O.C. 20460

%^-/

                            '""25 £30       PIG 8i-a


   MEMORANDUM

   SUBJECT:  Program Implementation Guidance On Issuance of
             Provisional EPA Identification Numbers

   FROM:     Steffen W. Plebn
             Deputy Assistant «miinirtrator
               for Solid Waste (WEH562)

             R. Sarah Compton
             Deputy Assistant Administrator
               for Water Enforcement (EN-335)

   TO:       PIGS Addressees
               and Regional Notification Contacts

   Issue:

        Should the Agency establish a new procedure to facilitate
   rapid issuance- of EPA identification numbers to generators or
   transporters during spills or other unanticipated events?

   Discussiont

        The final RCHA Subtitl* C regulations effective November 19,
   1980 include requirements for hazardous waste generators and
   transporters to obtain EPA identification numbers.  Generators and
   transporters who did not obtain an EPA identification number
   during the notification period may obtain one by applying on
   EPA Pbrm 8700-12.  Concern has been expressed by some EPA
   Regional Offices and some members of the regulated community
   that the regulations do not provide- for rapid issuance of
   identification numbers during spills and other unanticipated
   incidents where a person may become- a hazardous waste generator
   or transporter.  The following scenario illustrates this
   typ« of situation.

        A spill of gasoline* which met the ignitable- characteristic
   of hazardous waste, occurred at a gasoline filling station.
   The station did not have an EPA identification number.  Once
   the spilled material was contained in barrels, the station
   operator judged that keeping the barrels on-site for several
   weeks while waiting for an identification number could be

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dangerous.  The transporters he contacted would not pick up
the wast* to take it to a  facility  unless the station operator
produced * manifest bearing the generator's identification number.
The operator called his EPA Regional Office to obtain a
number bat was told that the regulations .do not provide for
their issuance over the phone, and  that application would
have to be made on Form 8700-12.  Obviously, that solution
was unworkable, for it prevented timely and safe handling of
the waste.  Later that day it was resolved that the Regional
Office would issue a special identification number over the
phone to the operator, thus enabling him to have the waste
transferred to another location without delay.  This is one
of several examples brought to our  attention, indicating a
need for rapid identification number issuance.

     In response to this need, the  Agency will publish- a
Notice in the Federal Register as soon as possible announcing
that EPA Regional Offices  may in certain instances and at
their discretion issue provisional  EPA identification numbers.
The Regional Notification  Contacts  will be listed as contact
points.  Z urge those individuals to plan for implementation
of* this new procedure.

     At this time, we have identified a general set of circumstances
where issuance of a provisional identification number would be
appropriate.  As the hazardous waste program matures, other
applications will probably become apparent*  Officials may waive
the EPA identification number requirements, for generators
and transporters engaged in immediate hazardous; waste removal
following a discharge incident.  (See 40 CFR 263.30(b) and
EPA Headquarters guidance  memo to Regional Office* on emergency
response, 11/19/80.)'  For  a variety of reason* a waiver may
not be authorized* or if a waiver is authorized, the generator
or transporter may still identify a practical need for obtaining
an identification number before transporting the waste.  In
such a case, an oral or written provisional identification number
may be issued by a Regional Office.

Decision«

     Regional Office personnel should be prepared to issue
provisional numbers on a 7-day, 24-hour basis.  Preparations
should also be made- to issue these  numbers orally either over
the phone or in person, as well as  in writing.
     ""*
     Recommended procedures' for issuing a provisional identi-
fication number are as follows s

     a)  Ascertain the need for a provisional number from the
         applicant.

     b)  If a decision is  made to issue the number, collect
         as much of the information required for Form 8700-12
         as possible.

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     c-)  Issue the number.  We suggest this be done by using
         a system devised internally in each Region.  A
         recommended format, similar to the standard EPA
         identification number format, would have the two
         letter state abbreviation, followed by the letter "P"
         for."Provisional", followed by a serially increasing
         nine digit code for each subsequent number issued,
         e.g.,  *VAP000000428."  (These numbers will not be
         part of the Don and Bradstreet system and will not
         be- entered into the national computer data base-.)

     d)  Explain what conditions, if any, apply to the> use- or
         duration of the number.  Inform the applicant of
         requirements for submission, of completed Form 8700-12
         within 10 days of receipt of a blank font from SPA.
         A final identification number may then be issued.

     e)  Document all proceedings and follow through as appropriate.

     We intend that the provisional identification number be
a practical alternative in situations where the standard
procedure- for issuing SPA identification numbers would be
unreasonably time-consuming.  A regulation change is not
necessary in order to implement this procedure, however,
future- amendments to the generator and transporter regulations
will clarify and discuss other requirements which may apply to
persoas^who receive provisional, numbers.  The establishment
of this procedure is. part of a larger effort by the Agency
te* address the? app I leaf ion, of th* Subtitle* C regulations- to
hasardous waste- discharger and: other circumstance* requiring;
rapid, response.  Tour comments and suggestions are- welcome-.

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TSDF Administrative Requirements
(Parts 264 and 265)

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9470 — TSDF
ADMINISTRATIVE
REQUIREMENTS
Parts 264 & 265
                 A.T. Kearney 1/3590/4 cr

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                                                    9470.1985(01)
             RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                           FEBRUARY 85
4.    Section 213 of the RCRA amendments requires that
     owners/operators of land disposal facilities operating under
     interim status submit Part B permit applications certify
     compliance with applicable groundwater monitoring and
     financial responsibility requirements by November B, 1985.
     If these requirements are not met, interim status is
     terminated.  Would an owner/operator with a treatment
     surface impoundment operating under interim status fall
     under the requirements of section 213 and, therefore be
     required to submit a Part B and an appropriate certification
     by November 8, 1985?

          Yes; the owner/operator of a treatment surface
          impoundment must comply with the requirements of
          Section 213.  The definition of land disposal units
          includes all land based hazardous waste management
          units.  Therefore, owner/operators of facilities with
          landfills, surface impoundments, waste piles, and land
          treatment units must comply with Section 213.

          Source:  Bryan Wilson (202) 382-4534
        This has been retyped from the original document.

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General (Subpart A)
                                     vo

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9471 - GENERAL
Parts 264 & 265 Subpart A
                      ATKl/1104/32kp

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                                                         9471.1983(01)
                           JUL 1 2 1983
Mr. J.e. Seavy, Plant Manager                 RBi  WCBLG0344
•mrottles. Incorporated
F.O. BOX 249
mock Road
Burlington, tt.J.  08016

Daar *lr. Seavyt

     This letter  is written  in reference to the exclusion
petition submitted by Hercules, Incorporated of Burlington,
New Jersey.  Hercules requested an exclusion for the wastewater
stream generated  at its Burlington facility, presently listed
for containing aethanol, a spent solvent.  This waste is produced
when the solvent  (EPA Hazardous Waste No. FOOD, which is used
in the manufacturing operation, is discharged to the plant*s
wastewater treatment systeai  for treatment.

     On November  17, 1961, EPA amended the hasardous waste
regulations under the Resource Conservation and Recovery Act to
exempt certain categories of mixtures of solid wastes and
hasardous wastes  from the presumption of hasardousness (see
46 FR 56582).  In one case/certain wastes are listed in Subpart
D solely because  they exhibit one or more of the characteristics
of hasardous waste identified in Subpart C of the regulations.
Mixtures of any of these wastes and other solid wastes, prior
to the amendment, were presumptively hazardous by application
of the mixture rules and remained hasardous unless the waste
mixtures were excluded pursuant to 40 CPR 260.20 and 260,22*
The Agency has, h/»wever, exempted mixtures of solid (non*
hasardous) wastes and listed (hasardous) wastes that are listed
solely for exhibiting*a characteristic from the presumption of
has ardou Sams* since these waste Mixtures ean be tested to
determine •ttmther they still exhibit the hasardous waste
characteristics.  Therefore, mixtures of these wastes listed
eolely for exhibiting a characteristic and other solid wastes
are no loog«r considered to  be presumptively hasardous.

     Hercules has stated that they have reviewed the treated waste
stream generated  a their facility in light of the November 17,
1*81, amendment to the mixture rule and have concluded that this
waste would no longer be conaidered haxardous.  The Agency has
not made an independent evaluation of your situation but, rather
is accepting your statement  as fact.

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                              -2-


     As a result, it is no longer necessary for you to petition
the Agency for exclusion of your wastes.  Therefore, this letter
is to indicate to you that, based on your interpretation, we are
•letting your file.

     However, if the manufacturing or wastewater treatment
system at fomr facility undergoes any process changes, this
waste mould emce again be considered a hazardous waste.  Each
•eoerator i» ultimately responsible for determining whether his
waste exhibits any of the characteristics of a hazardous waste
tl.e., ignitability, corroeivity, reactivity* and tp toxicity)
as described in 40 CPU 261, Subpart C.  If the waste must be
managed in accordance with the hazardous waste management
regulations.

     If I can be of any further assistant to you in this matter,
please do not hesitate to contact Mr. Matthew Straus or
Mr. William Sproat of my staff at (202) 382-4770.

                                Sincerely yours,
                              Eileen B. Claussen
                                  Director
                     Office of Management, Information,
                                and Analysis

cct  Ms. Sonya Shashoua
     N.J. Department of Environmental Protection
     Division of ffnvironmental Quality
     Solid Waste Administration
     32 E Hanover Street
     Trenton, w.J.  08623
                Corrected x pe« r 7/8/83

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                                                 9471.1984(01)
                 RCRA/SUfcERFUND HOTLINE  SUMMARY

                               MARCH 84
Can leachate from a landfilloor  liquid hazardous waste be viewed as  waste-
water so that the wastewater  tanks  handling these waste streams  are
excluded frcm regulation  by 265.1(0(10)?

     Wastewater has no regulatory definition, twt a resonable interpreta-
     tion would be a process  waste  fron an industrial process containing
     approximately 1% or  less contaminants.  Treatment tanks fee leachate
     or liquid wastes such as spent solvents cr icnitable liquids should
     not be excluded from regulation under 264.1(c){10).  It would be
     inconsistent to closely  control wastes in a landfill and not control
     management of the hazardous constituents in the leachate from them.

     Source:  Steve Lingle and Fred Lindsey

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                                               9471.1984(02)
                 RCRA/SUPERFUND HOTLINE SUMMARY

                              MARCH  84
Do portable treatment units connected to a process unit meet the  totally
enclosed treatment exclusion?

     Yes, if the unit when connected to a process is  in ccrpliance with
     the Regulatory Interpretive Letter (RIL 34) which specifies  the
     parameter of a totally enclosed treacnent fscility.  Thus, pcrtaoLe
     treatment units could be  used  at multiple facilities and be  excluded
     Eron regulation by 265.1(c)(9).

     Source:  Pred Lindsey

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                                                          9471.1984(03)


                            SEP - £ """'
Tinotny A. Taylor
Wang Laboratories, Inc.
Mail Stop 02G2
41 Wellman Street
Lowell, Massachusetts  01851

Dear Mr. Taylor:

     This is in response to your  letter of August 2, 1984,
in which you requested an interpretation of RCRA regulations
regarding tanks used for emergency secondary containment.  It
should be understood that this interpretation applies only to
the Federal regulations promulgated in 40 CFR Parts 260-265.
In states with E?A-authorized hazardous waste programs, the
state regulations will apply.

     As provided under 4UCFR $264.Kg)(8) and S265. l(c)(11),
emergency structures (including tanks) are exempted from the
regulatory standards .of 40CFR Parts 264 and 265 (except for
the preparedness and "prevention and contingency, plan require-^
ments of those standards).  To qualify for the exemption a
unit must be intended exclusively for  immediate responses to
discharges of 'hazardous wastes, such as burst pipes, ruptured
containers or tanks, breached dikes, and the like.  Structures
used for responding to discharge  events which occur periodically
or repeatedly, or in which containment or treatment extends
beyond the immediate response period,  do not qualify for the
exemption.

     The applicability of the exemption to the three example
"secondary containment" tanks described in your letter must be
determined based on a site-specific assessment of each unit*
against the above criteria.  For  example, taking the case of
the tank used to contain spilled  residue from "a truck loading/
unloading area, the exemption would apply to the tank only  if
it could be demonstrated that such spills were extremely rare
and unpredictable events.

     I hope this adequately  answers your questions.  Please let
me know if I can be of any further assistance.

                               Sincerely,
                                Peter Guerrero
                 Special  Assistant to the  Division  Director

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                                                               9471.1984(04)
              RCRA/SUPERPUND  HOTLINE  SUMMARIES

                            AUGUST 84
7.   A new landfill will have a separate  owner and operator.  While
     both parties will sign the permit,

     a)  1s one party chosen as the "permittee"?


    b)  which party is liable

        1)  during the operating life?

       ii)  during closure/post-closure?

            a)  Both the owner and operator are the  "permittees"
                on the permit; however,  it is common for the
                operator to assume responsibility for meeting
                permit conditions.

            b)i} Both the owner and operator are liable during the
                facility's operating life.

             ii) Both the owner and operator are liable during
                closure/ post-closure of the facility, unless
                the closure/post-closure plans specify that the
                owner of the facility is becoming the operator
                as well as the owner.  This action  would be
                accompanied by a permit  modification and relieve
                the original operator from liability (under
                RCRA) during the closure/postclosure period.

                Source:   Chaz Miller
                Research: Tom Gainer

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                                                       9471.1985(01)
                RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                                 DECEMBER  84
                               -2-

2.  If a facility's  interim status is terminated, trust the owner/operator of the
    facility still tneet the 5265 interim status standards for closure, post-closure,
    and financial responsibility?

        Yes;  a  facility which has had its interim status terminated must meet 3265
        standards, including those for closure, post-closure,  and financial
        responsibility.  A technical amendment to the interim status standards
        which was published in the November 21, 1984 Federal  Register (49 FR 46094)
        clarified that interim status standards are applicable to facilities whose
        interim status is terminated until their closure and  post-closure require-
        ments are fulfilled.

        Source:    Libby Scopino (202) 475-8731
        Research:  Hilary Scnmer

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                                                          9471.1986(01)
      3        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

 mt/                    WASHINGTON, O.C. 20460

""'"I MWl*^'
                               SEP 29
                                                            OFFICE 3?
                                                   SOLID WASTE A.SiO EME.4Ce.NCv ft£s?C«.
     Mr.  Fred Hansen
     Director
     Deoartment of Environmental Quality
     522  S.W. Fifth Avenue,  Box 1760
     Portland, Oregon  97207

     Dear Mr. Hansen:
          Thank you for your August 21, 1986, letter regarding
     accidental spills of listed or characteristic hazardous
     wastes.  Enclosed is the Agency's response to the eight
     questions and issues that you raised.  Please note  that  we
     have referred one of your questions to the Superfund  Office
     and will forward a response to you.  I hope this clarifies
     the Environmental Protection Agency's regulation of spills
     and spill cleanups.

          If I can be of further assistance, please let  me know.

                                   Sincerely,
                                   J. Winston Potfttar
                                   Assistant Administrator

     Enclosure '

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1.  When dees a spill become a Superfund candidate versus
    cleanup under RCRA?

    Question has been referred co our Superfund Office for
response.


2.  When does a spill become a facility as defined in RCRA?

    As discussed above, if cleanup activities do not begin promptly,
the spill is considered a land disposal site subject to permitting
requirements.  In addition, spill areas where hazardous waste is
treated, disposed or stored past the immediate response phase
are subject to all applicable interim status and permitting
standards for hazardous waste management facilities receiving
waste after 11/19/80 as outlined in Parts 264, 265 and 122.


3*  Are there any situations where the cleanup standards
    are different than background?

    RCRA regulations do not specifically identify a level of clean-up
required in spill situations.  Under §263.31, a transporter must
clean up any hazardous waste discharge so that the discharge no
longer presents a hazard to human health and the environment.
Under the emergency procedures provisions of §264.51 and S265.51,
generators, treatment, storage and disposal facilities must take
those actions, as outlined in the contingency plan, necessary to
minimize hazards to human health and the environment.

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                               - 2  -

3.  Spills where cleanup requires on-site  treatment.

    As explained in the response to question II,  S264.1(q)(R)
and §265.l(c)(11) provide a regulatory exemotion  from  interim
status and permittinq standards for treatment activities conducted
in immediate response to discharqes or threats of discharqes.


4.  Transportation spills cleaned up within a reasonably short time.

   §263.30 requires the transporter to take appropriate,
immediate action to protect human health and the  environment.
Under §263.30(5), an authorized official may authorize removal
of the spill by transporters without an EPA ID number  or manifest
in an emergency.  When an emerqency no longer exists,  all
applicable requirements of the RCRA regulations once again apply
to all of the transporter's activities.  The Department of
Transportation has also issued rules regarding spills  occurring
during transport.


5. Transportation spills not cleaned up within a  reasonably short time.

   As discussed above, EPA has not established a  definition of
what constitutes an immediate response to a spill situation.  The
time frames and extent of immediate response must  be judged by
persons responding to discharqes on an individual basis.  Extended
responses which are not judged to be immediate in nature may be
subject to enforcement action for illegal disposal.

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1. Accidental spills of listed or characteristic hazardous
   wastes jwhich are cleaned up within a reasonably short time.

     The Resource Conservation and Recovery Act (RCRA)  regulations
in 40 CFR Parts 264 and 265 Subparts C and D reauire immediate
actions to minimize hazards to human health and the environment
from any unplanned, sudden or non-sudden releases of hazardous
waste or hazardous constituents.  Sections 264.l(g)(3)  and 265.l(c)
(11) provide a requlatory exemption from interim status and permitting
standards for treatment and containment activities hazardous waste
discharges and imminent and substantial threats of discharges
(under §260.10 the term discharge includes both accidental and
deliberate spills).  The effect of this exemption is to promote
hazardous waste discharge prevention and control by relieving
persons engaged in immediate response to discharges and serious
threats of discharges from time consuming reguirements.

     Under this exemption, treatment, storage and disposal facilities
regulated under RCRA must continue to meet the applicable reguirements
of Subparts C and D of Parts 264 and 265.  Treatment and containment
activities conducted after the  initial response period are subject
to interim status and permitting standards.  A facility may guallfy
for an emergency permit under S270.61 for such treatment and contain-
ment activities occur ing after  the immediate response period.

    Accidental spills should be addressed  immediately and  in accordance
with the facility's contingency plan.  Sections 264.51 and 265.51
reguire owner/operators of treatment, storage and  disposal facilities
to have a contingency plan describing actions facility personnel
must take in  response to any unplanned sudden or  non-sudden
releases.  Under section 262.34(a)(4), generators  are also reguired
to have such  contingency plans  as a  condition of  obtaining a permit
exemption for 90 day on-site accumulation.  Generators are subject
to  interim status  and permitting reguirements for  treatment and
containment  activities conducted after the accumulation period.

2.  Accidental spills not  cleaned  up within reasonably  short time.

     As stated above, treatment and  containment  activities conducted
after  the initial  response period  are subject  to  permitting  and
interim status reguirements.   In  addition,  if  cleanup  activities
do  not begin promptly, the spill  is  considered  a  land  disposal
site subject to  permitting reguirements.

     The  Environmental Protection  Agency (EPA)  has not established
a definition of  what constitutes an immediate  response to a  spill
situation.   The  timeframes and extent of immediate response  must
be  judged by persons responding to discharges  on an individual
basis.  Extended responses which are not judged to be  immediate in
nature may  result in:  (1)  a  modification to the facility's contin-
gency  plan?  (2)  an enforcement action for an  inadequate contingency
plan or  permit violation?  or (3)  enforcement  action for illegal
disposal.

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            UNITED S,  . ES ENVIRONMENTAL PROTECTION At>...«CY
9471.1987(02)
   OEC 2 \
MEMORANDUM
SUBJECT: RCRA Subtitle C Exemption for Wastewater Treatment and
         Elementary Neutralization Units

FROM:    Marcia E. Williams
         Director, Office of Solid Waste (-WH-SB2)"

TO:      William A. Whittington
         Director, Office of Water Regulations and Standards
         (WH-551)

         James R. Elder
         Director, Office of Water Enforcement and Permits
         (EN-335)
    On November 17,  1980, EPA promulgated amendments to Subtitle
C of RCRA that suspended the applicability of the hazardous
waste regulations to owners and operators of wastewater
treatment and elementary neutralization units (45 FR 76074)  (see
40 C.F.R. sections  264.Kg)(6) and 265.l(c)(10)).  Since then,
EPA has been asked  to  respond to numerous inquiries regarding
the intended scope  of  these exemptions.  Because the
overwhelming majority  of inquiries are with regard to the
exemption for wastewater treatment units, this memo will focus
on these units.  Several attempts have been made to address  the
ambiguities of this exemption.  On more than one occasion, the
EPA responses have  offered conflicting guidance.

    The Office of Solid Waste is again receiving a flurry of
inquiries on the scope of this exemption, apparently prompted by
the July 14, 1986,  promulgation of more stringent revised
standards for hazardous waste storage/treatment tank systems
(including sumps).   Obviously, numerous individuals are hoping
to qualify for the  wastewater treatment unit exemption as a
means of avoiding being covered by the revised tank system
standards.  Thus, I feel that it is  important that we review and
clarify the scope of this exemption.  The purpose of this
memorandum is to obtain your concurrence with our reading of

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the current exemption so that we could send a Policy Directive
to the Regions regarding this matter and/or prepare  a  federal
Register, notice of clarification.

    In order for the exemption to be applicable to a wastewater
treatment unit, these conditions,  as listed in the definition of
wastewater treatment unit under 40 C.F.R.  Section 260.10,  must
be met:


    1)   The unit must be part of a wastewater treatment
         facility which is subject to regulation under either
         section 402 or 307(b) of the Clean Water Act; and

    2)   The unit receives and treats or stores an influent
         wastewater which is a hazardous waste as defined in
         section 261.3, or generates and accumulates a
         wastewater treatment sludge which is a hazardous waste
         as defined in section 261.3, or treats or stores a
         wastewater treatment sludge which is a hazardous waste
         as defined in section 261.3; and

    3)   The unit meets the definition of tank in section
         260.10.

    Most of the inquiries regarding the wastewater treatment
unit exemption are directed towards interpretation of condition
1) above.  Thus, our clarification of the intended meaning of
the term "wastewater treatment facility" is the primary factor
regarding the applicability of the exemption to a specific
wastewater treatment unit.

    It is our position that in order for a wastewater treatment
unit to be covered by the exemption, it must be part of an
pn-site wastewater treatment facility.  In this scenario, any
hazardous waste tanJc system that is used to store or treat the
wastewater that will be, or has been, managed at the on-site
wastewater treatment facility with an NPDES permit  (or one that
discharges to a POTW), is exempt from the regulations.  Also,
the means of conveyance of the waste between storage/treatment
units does not affect the applicability of this exemption.
Assuming the conditions discussed above are met, no distinction
will be drawn whether the wastewater is piped, trucked, or
otherwise conveyed to the wastewater treatment facility within
the on-site boundaries of the facility generating the
wastewater.  Likewise, any tank system at a facility with an
NPDES permitted wastewater treatment facility  (or one that
discharges to a POTW) that is used to store/treat wastewater
that is brought on-site from another facility, is covered by the
exemption.

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    However, any tank system that is employed in managing
wastewater at a facility prior to its off-site transfer  to
another location, whether or not the off-site location is an
NPDES permitted wastewater treatment facility (or one that
discharges to a POTW), is not covered by this exemption.

    Another scenario that needs to be clarified is that situa-
tion where a facility with an on-site wastewater treatment
facility has no discharge, direct or indirect, to surface
water.  The wastewater treatment unit exemption is intended to
cover only systems that 1) produce a treated wastewater effluent
which is discharged into surface waters or into a POTW sewer
system and, therefore, is subject to the NPDES or pretreatment
requirements of the Clean Water Act, or 2) produce no treated
wastewater effluent as a direct result of such requirements.
This exemption is not intended to apply to wastewater treatment
units that are not required to obtain an NPDES permit because
they do not discharge a treated effluent (45 £g 76078;
November 17, 1980).  As a result, we anticipate that some
facilities will apply for a zero-discharge NPDES permit in an
attempt to qualify for this exemption and thus avoid RCRA
regulation.

    Please note that the above reading is based on our
assumption that all storage/treatment tank systems covered by
this exemption will be subject to regulation by NPDES
authorities.

    If you agree with this general approach, please designate
someone to serve as a contact person for the Office of Water's
review of our draft policy statement.  We have been working with
staff from the Office of General Counsel and the Office of Water
Enforcement and Permits in developing the rationale to  support
our preferred reading of the current regulations.  We have their
tentative concurrence on this approach.  I look forward to
hearing from you regarding our efforts to clarify the wastewater
treatment unit exemption.  If you have any questions, please
contact me at 382-4627 or have your staff contact Bill  Kline or
Bob Dellinger of my staff at 382-7917.


cc:  Gene Lucero, WH-527
     Ron Brand, WH-562A
     Bruce Weddle, WH-563

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                       fATIS ENVIRONMENTAL PROTECTION ^HCY       947i.1988(02)
                                APR 29 088
Mr. Bruce P. McLeod, P.E.
Senior Specialist
Environmental Control
Monsanto Chemical Company
P.O. Box 12830
Pensacola, FL  32575

Dear Mr. McLeod:

    The purpose of this letter is to reply to your letter of
July 24, 1987, to Bob Bellinger, requesting an interpretation-
regarding application of the elementary neutralization exemption
to Monsanto's Pensacola plant.  First, please accept my sincere
apology for the delayed response to your letter.  As previously
mentioned, your letter involves difficult issues regarding the
scope of the elementary neutralization unit exemption, and was
further delayed by our inadvertent loss of your original letter.

    I would like to address your concerns in the same order as
discussed in your letter.  You first questioned whether the
Pensacola plant sumps are indeed sumps since the waste is not
ultimately transported to a RCRA storage, treatment, or disposal
facility as specified in the definition of sumps in 40 CFR 260.10.

    Since the various wastes with differing pH values, that meet
the definition of hazardous waste only due to corrosivity, are
introduced at various points upstream to a system of sumps and
piping, the collection and treatment of such wastes seemingly
occur more or less concurrently.  Accordingly, such sump(s) and
associated ancillary equipment  (e.g., piping, pumps) would indeed
be considered a hazardous waste sump and be subject to the
standard* for hazardous waste storage/treatment tank systems.

    Your second question requested clarification of whether the
Pensacola plant wastewater collection system would qualify as a
elementary neutralization and/or totally enclosed treatment
facility, thus qualifying for those respective exemptions.

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                               - 2 -


    Based on your description of this particular operation,  we
believe that the totally enclosed treatment facility exemption
would be unlikely.to apply.  We believe the sumps and their
associated ancillary equipment would qualify for the elementary
neutralization exemption under the Federal regulations because the
sump and its ancillary equipment meet the criteria defining an
elementary neutralization unit in 40 CFR 260.10 since it is used
to neutralize hazardous wastes only exhibiting the corrosivity
characteristic and it meets the definition of tank system.  Thus,
the elementary neutralization exemption, as allowed in 40 CFR
264.1(g)(6) and 265.l(c)(10), would seem to apply to this
Pensacola plant wastewater system insofar as the neutralization
sump and ancillary equipment are located within the boundaries of
this facility.

    Since the ultimate decision for determining the regulatory
status of a specific unit at your facility is the responsibility
of the State of Florida, please contact them at the address/
telephone number indicated below.  If necessary, please feel free
to refer them to me.

    Again, please accept my apology for not sooner addressing your
letter.  If you have any further questions, please call Bill Kline
of my staff -or me at (202) 382-7917.

                                  Sincerely,
                                  Robert W. April, Chief
                                  Capacity and Storage Section

RWD/bw

cc:  Bob Dellinger, WMD
     Bill Kline, WMD
     Carrie Wehling, OGC
     Chet Oszman, PSPD
     RCRA Branch Chief, Region 4

     Administrator, Florida DER
     Solid and Hazardous Waste Section
     Twin Towers Office Building
     2600 Blair Stone Road
     Tallahassee, Florida  32301
     Phone:   (904)  488-0300

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                                                 9471.1988(03)
               RCRA/SUPERFUND HOTLINE  MONTHLY SUMMARY

                                 JULY  88
3.  Elementary Neutralization Units

  A generator produces large volumes of corrosive waste. It is pumped directly to
  a tank  which is an elementary neutralization  unit.   However, this  waste
  (corrosive  only) remains in the tank  for  two months before it is  actually
  neutralized. Is this waste counted for purposes of determining generator status?
  Is the corrosive waste that is stored in the neutralization unit prior to treatment
  included in the scope of the exemptions in Sections 264.1(g)(6), 265.1(c)(10) and
  270.1(c)(2)(v)?

    No, this  type of waste is not counted for determining generator status.  As
    stated in the March 24,1986 Federal Register (51 FR 10146) wastes treated in
    elementary  neutralization units are included  in the general  category of
    exempted or excluded wastes that would not be counted in  determining
    generator status.

     Also, this  waste is  not counted because  it  is  not  subject to  substantive
     regulations  in 40  CFR  Parts 262 and  263 as  long  as it remains in the
     neutralization unit (51 FR 10152).

   Source:       Bob April   (202) 382-7917
                 Emily Roth (202) 382-4777
   Research:      Mary Stevens

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                                                      9471.1988(04)
      \       UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
      ?                  WASHINGTON. D.C. 20460
                                                          OFFICE OF
                                                  SOLID WASTE AND EMERGENCY RESPONS
MEMORANDUM

SUBJECT:  RCRA Regulation of Pesticide Rinsate
          Treatment/Recycling System

FROM:     Sylvia K. Lowrance, Director
          Office of Solid Waste   (OSt*3UO)

TO:       David A. Wagoner, Director
          Waste Management Division
          EPA Region VII
    This memorandum  is  in response to your  September  15,  1988
memorandum requesting clarification of the  RCRA regulation of
certain tanks  in a pesticide  container washing operation.

    As I understand  the process,  the rinsewater from  the
container washing is collected in a sump, is then pumped  to a
settling tank, and subsequently treated with activated carbon.
The treated rinsewater  is reused  for container rinsing, but the
pesticide residues are  discarded.

    Your interpretation that  the  used rinsewater is a "spent
material" is correct; as a spent  material going for treatment
(or reclamation), it is a solid waste.  If  the used rinsewater
contains a pesticide listed in 40 CFR 261.33 that was not
derived from an  "empty" container as defined in Section 261.7,
the used rinsewater  is  a hazardous waste.   If the pesticides do
not meet a listing,  the used  rinsewater is  a hazardous waste if
it exhibits a  characteristic  (Section 261.20-261.24).

    Although the system does  have certain characteristics of a
reclamation operation,  it is  more clearly defined as  a
wastewater treatment unit. As stated in your memo, this unit
would be subject to  RCRA permit requirements unless exempted
under the wastewater treatment unit exemption at 40 CFR
264.Kg) (6) or 265.1(0(10).   in a September 2, 1988  Federal

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                               -2-
Reqister notice, the Agency clarified that this wastewater
treatment unit exemption is intended to cover only tank systems
that are part of a wastewater treatment facility that (1)
produces a treated wastewater effluent which is discharged into
surface waters or into a POTW sewer system and, therefore, is
subject to the NPDES or pretreatment requirements of the Clean
Water Act, or (2) produces no treated wastewater effluent as a
direct result of such requirements.  This exemption is not
intended to apply to wastewater treatment units that are not
required to obtain an NPDES permit because they do not discharge
treated effluent (see 53 PR 34080-81).  As your memo explains,"
the treated rinsewater is completely recycled back into the
operation and no discharge occurs.  I cannot conclusively
determine whether the unit would be eligible for an .exemption as
a wastewater treatment unit; that determination must be made by
the authorized State or Regional office. In making this
determination, the authorized State or Regional office must
determine whether the facility is subject to regulation under
Sections 307(b) or 402 of the Clean Water Act.

    Regarding the regulatory status of the "reclaimed" rinsate,
you cited the January 4, 1985 Federal Register preamble  (50 PR
634) discussion of products from recycling, operations losing
their status as a waste.  While the regulatory language allows
for flexibility in determining whether a reclaimed waste may be
considered a product (thus losing its status as a waste), the
preamble discussiot. indicates that reclaimed wastewaters are not
to be considered products.  The reasons for this approach (i.e.,
that wastewaters are not ordinarily considered to be commercial
products and are often discharged, and that the Agency did not
intend to allow facilities to exempt their wastewater treatment
surface impoundments from regulation by being classified as
"recycling" facilities) are not necessarily applicable in this
case.  When reused, the reclaimed rinsate would lose its status
as a solid waste as provided in 40 CFR 261.2(e)(1)(ii),  provided
it is truly reclaimed as an effective substitute for what is
typically used to rinse the containers.  Until  it  is reclaimed
and fit for reuse, the rinsate would remain a solid waste, and,
if applicable, a hazardous waste.

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                               -3-
    If-you have any further questions or need any additional
clarification, you should contact Mitch Kidwell at FTS 475-8551


cc:  Michael Feeley
     Chief, Waste Programs Branch
     EPA, Region IX

     Karen Schwinn
     Chief, Waste Compliance Branch
     EPA, Region IX

     Waste Management Division Directors
     Regions I-X

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                                                       9471.1988(05)
                UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                          WASHINGTON, D.C. 20460
NOV 30
                                                           OFFICE OF
                                                   SOLID WASTE AND EMERGENCY
 Mr.  Fred Smith
 Institute of Makers of Explosives
 1120 19th Street,  N.w.
 Washington,  D.C.   20036


 Dear Mr.  Smith:

      EPA has been  requested by the  Institute  of  Makers  of
 Explosives to render an opinion on  the  application and
 interpretation of  the immediate response  exception as set forth
 at 40 C.F.R. sees.  264.1(g)(8), 265.1(0(11), and 270.i(c){3).
 It is the Agency's view that the treatment  of leaking or  damaged
 explosives,  or undetonated explosives left  after an initial
 firing  attempt will, in many instances, fall  within the
 circumstances contemplated by the cited provisions.

      The Agency recognizes that the use of  commercial explosives
 is subject to many non-EPA governmental regulations,  including a
 prohibition  by the Department of Transportation  against the
 transportation of  "leaking or damaged packages of explosives"
 (49  C.-F.R. sec.  173.51).   According to  the  Institute of Makers of
 Explosives,  these  regulations affect the  handling of explosive
 waste and reinforce the obligation  of members of the explosives
 industry to  consider safety as a paramount  concern.   Such wastes,
 if not  treated promptly and properly, can present an imminent
 public  safety and  environmental hazard, e.g., unplanned
 explosions or leaching of materials to  the  soil.   The immediate
 response exception applies in those instances where treatment  of
 the  explosive waste through open burning/open detonation  is  taken
 in immediate response to a discharge or an  imminent and
 substantial  threat of a discharge of a  hazardous waste.

      Examples in which the immediate response exception would
 apply to tbff disposal of explosive  waste  by open burning/open
 detonation, would include, but not be limited  to, the following
 situations^

 A.   Land is  cleared, with explosives and an  amount of damaged or
 unusable explosive waste remains that,  for  safety reasons, cannot
 be stored or transported off-site.

 B.   An  explosives  distributor has a temporary or permanent
 magazine at  which  undetonated (but, for safety reasons, unusable
 and  not transportable off-site), leaking  or damaged explosives
 are  found, usually at the end of the period of explosives use or
 during  a periodic  check on the stored explosives.

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C.  An explosives distributor operates an on-site magazine for a
project with a changing location  (e.g., road building, pipeline)
at which undetonated (but, for safety reasons, unusable and not
transportable off-site), damaged or leaking explosives are found.

D.  A mining operation detonates large amounts of explosives and
a small percentage remains undetonated after the initial firing
attempt but, for safety reasons, cannot be reused or transported
off-site.
     The Agency notes that a guidance manual is currently being
prepared that will discuss the permit requirements for facilities
which store, treat, or dispose of explosive waste in
circumstances not qualifying for the immediate response
exception.
                                   Yours truly,
                                   Sylvia Lowrance

                                   Director
                                   Office of Solid Waste

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                                              9471.1988(06)




            RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY

                           DECEMBER  88
1.  Closed Loop Recycling

In a production process a manufacturing facility generates a secondary material
that consists of 90% ignitable  liquids and  10% ignitable  gases.   From  the
production process the material  is piped to a storage tank where the ignitable
gases are separated from the ignitable liquids. The gases are then piped back into
the production process to be used as  raw material.  The remaining ignitable
liquid is discarded as a hazardous waste.  Is the liquid  and gas mixture exempt
from being a solid  waste under  the  closed loop recycling provision  in Section
261.4(a)(8)?
 1.  Closed Loop Recycling (Cont'd)
                     Raw
                  Material
                     I   i
                          Manufacturing
                             Facility
                                                             Gases
       PRODUCT
2°  Material
(90% liquids
 10% gas)
f    Storage  Tank

   Liquid JL
j
                                                              Hazardous
                                                                 Waste

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   According to Section 261.4(a)(8) secondary materials are not solid wastes if
   they are reclaimed and returned to the original process or processes in which
   they were generated  where they  are  reused in the  production process
   provided:

   (i)   Only tank storage is involved and the entire process through completion
        of reclamation is closed by being entirely connected with pipes or other
        comparable enclosed means of conveyance;
   (ii)  Reclamation does not involve controlled flame combustion (such as
        occurs in boilers, industrial furnaces or incinerators);
   (iii)  The secondary materials are  never  accumulated in such tanks for over
        twelve months without being reclaimed;  and,
   (iv) The reclaimed material is not  used to produce a fuel or used to produce
        products that are used in a manner constituting disposal.

   Provided  the reclamation  process meets  all requirements of  Section
   261.4(3X8), the portion of the secondary  material that is returned to the
   production process to be used as a raw  material (the ignitable gas)  is not a
   solid waste. However, the remaining portion  that is discarded  (the ignitable
   liquid) is a hazardous  waste and being  such is not  exempted from the
   definition of  a solid waste per Section  261.4(a)(8).  Since the generator  is
   handling  a hazardous waste, he/she must  comply with  the  applicable
   provisions of Parts 262 through 270.

Source:        Chester Oszman   (202) 382-4499
Research:      Joe Nixon

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                                         9471.1989(01)
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON. D.C. 20460
                            MAR 20 I9S9

                                                SOLiO WASTE AND cM£RGEMCv aec.

Mr. Robert H. Elliott,  Jr.
Zerpol Corporation
1300 Schwab Road
Hatfield, Pennsylvania   19440

Dear Mr. Elliott:

    This letter is written  in  response to your correspondence of
January 10, 1989, regarding the applicability of permit
requirements under the  Resource Conservation and Recovery Act
(RCRA) to your zero  discharge  wastewater treatment system.

    As I understand  the Zerpol Zero Pollution system, industrial
wantewater discharge to ground water,  surface water and sewer
systems is eliminated by a  process that returns treated water to
the production area  for reuse.  You have previously confirmed
that a National Pollutant Discharge Elimination System (NPDES)
permit issued under  section 402 of the Clean Water Act (CWA) is
not required for a zero discharge  system.  In your January  10,
1989 letter, you requested  a statement from EPA confirming  that
a RCRA Part B permit is also not required for your system.

    In responding to your letter,  I am assuming that you  are
referring to an exemption from a RCRA  Part B permit requirement
based on the wastewater treatment  unit exemption found at 40 CFR
264.l(g)(6) or 265.l(c)(10}.   There has been some confusion,
which I will clarify, regarding the regulatory interface  between
the NPDES permit of  the CWA and the exemption for wastewater
treatment units at 40 CFR 264. Kg) (6)  or 265.1{c)(10) of  RCRA,
particularly where zero discharge  is involved.  To understand
this interface, it helps to note that  one of the reasons  for the
wastewater treatment unit exemption is to avoid the
over regulation of such  units by requiring both a NPDES permit
and a RCRA Part B permit for the same  unit.

    To qualify for the  wastewater  treatment unit exemption, one
of the criteria which must be  met  is that the unit must  be  part
of a wastewater treatment facility which  is subject  to
regulation under either section  402 or 307(b) of the CWA.  This
means that the facility must have  a NPDES permit under  section

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                               -2-


402, be subject to an effluent guideline issued under  sections
301 and 402 of the CWA, or be subject to the pretreatment
requirements of 307(b) of the CWA (i.e., protection of human
health and the environment is ensured by regulation under the
CWA rather than RCRA).   While it is true that a zero
discharge system does not require a NPDES permit, the  alosence of
this permit (or an applicable effluent guideline or pretreatment
standard specifying zero discharge) necessitates a RCRA Part B
permit.  Otherwise, a wastewater unit treating hazardous wastes
could escape regulations developed to ensure protection of human
health and the environment.  Although this approach may, at
first, be viewed as a disincentive to developing zero  discharge
systems, a NPDES permit that specifies "zero discharge" may be
the most appropriate alternative to a RCRA Part B permit in
industries without zero discharge effluent guidelines,
encouraging zero discharge systems while being consistent with
the Agency's mandate to protect human health and the
environment.

    I should also respond to a statement you made in your
request for confirmation that a RCRA Part B is not required.
You asked EPA to send you a statement that a Part B permit is
not required for a "completely closed loop system."  I assume
you are referring to the exemption for a totally enclosed
treatment facility found at 40 CFR 264.Kg) (5) or 265.1(0(91.
As defined at 40 CFR 260.10, a totally enclosed treatment
facility is one which is directly connected to an industrial
process and which is constructed and operated in a manner which
prevents the release of any hazardous waste, or any constituent
thereof, into the environment during treatment.  A zero
discharge system under the CWA does not automatically qualify
for this exemption.  For example, a system that uses tanks
without covers may not qualify because it would not restrict the
escape of hazardous constituents to the air.  However,  I did not
receive sufficient information on your system to evaluate  it.

    You should be aware that State environmental regulations are
also applicable and that the State may regulate  such  facilities
differently under the State program.  Therefore,  whether  a RCRA
Part B permit is required for your system may be determined by
the appropriate State agency.
1  A point source discharge which is operating without  a valid
NPDES permit is also "subject to" section  402 of  the  CWA (albeit
in violation of that section).

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    Should you have any further questions, you may contact
Robert Dellinger or Mitch Kidweil, of my staff, at
(202) 475-8551.

                                  Sincerely,
                                  Sylvia K. Lowrance, Director
                                  Office of Solid Waste

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                                                                      9471.1993
                UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                             WASHINGTON, O.C. 20460
                                                                   OFFICE OF
                                                       SOLID WASTE AND EMERGENCY RESPONSE
Mr. Alan Phillips
Air Quality Laboratories
928 7th Street
Santa Monica, CA 90403

Dear Mr. Phillips,

Thank you for your letter dated May 1,1992, concerning separator water and the use of
evaporators at dry-cleaning facilities. I apologize for not replying to your letter sooner.
In your letter, you inquired about the regulatory status under the Resource Conservation
and Recovery Act (RCRA) of your Zerowaste machine.  In general, EPA Regions and
authorized states answer inquiries about the hazardous waste regulations.  However, we
understand that you have already consulted with Region IX on this issue, and they
referred you to us for further clarification.

Your letter stated that dry cleaners are classified as conditionally exempt small quantity
generators (CESQGs) under the RCRA hazardous waste regulations.  I would like to
clarify  that a  facility's generator category under RCRA is determined by the  total
amount of RCRA hazardous waste generated per calendar month at that facility. We
cannot, therefore, draw any conclusions that aU dry cleaners fall within only one
generator category or another.  If certain dry cleaners meet the definition of CESQG,
they must comply with only the requirements outlined in 40 CFR 261.5.

Based  on the information received from you, as well as other information from dry
cleaner trade associations and other interested parties, we feel that the separator water
evaporators meet the definition of "wastewater treatment unit" under RCRA. Tanks that
meet the definition of wastewater treatment unit are exempt from RCRA permitting
under  40 CFR Sections 264.1(g)(6) and 270.1(c)(2)(v). Therefore, these units would not
require RCRA permits, provided the criteria for qualifying as a wastewater treatment
unit outlined in 40 CFR Section 260.10 are met (see discussion below).

The definition of wastewater treatment unit consists of three  parts enumerated at 40
CFR Section 260.10. First, the evaporator unit must meet the definition of "tank" or
"tank system" also found in Section 260.10.  The descriptions you provided indicate these
units are tanks.  Second, the evaporator must be  receiving and treating or storing an
influent wastewater (or wastewater treatment sludge) that is a hazardous waste. We are
assuming the separator water is hazardous waste either by application of the derived-

-------
from rule (e.g., derived-from F002), or the toxicity characteristic (e.g.,
perchloroethylene). Finally, the dry-cleaning facility must be subject to Sections 307(b)
or 402 of the Clean Water Act; this includes wastewater treatment units at facilities that
1) discharge treated wastewater effluent into surface waters or into a Publicly-Owned
Treatment Works (POTW) sewer system, or 2) produce no treated wastewater effluent
as a direct result of such requirements.  We understand that some dry cleaners are
eliminating discharges due to concerns over sewer pipe leakage, not CWA discharge
limits per se. However, given the relatively small amounts of wastewater involved, we
have concluded that this situation is similar  enough to warrant equal consideration under
the wastewater treatment unit exemption. Please note  that the wastewater treatment
unit exemption applies to the storage and/or treatment of wastewater. not concentrated
wastes.  TTiis exemption would not be available to anyone placing free-phase
perchloroethylene, for example, into an evaporator.

Thank you for your interest in  solid and hazardous waste management. If you need
further information, please contact Ross Elliott of my staff at (202) 260-8551.

                                            Sincerely,
                                            Sylvia K. Lowrance  Director
                                            Office of Solid Waste

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General Facility Standards
(Subpart B)
                                       so

-------
9472 - GENERAL
FACILITY STANDARDS
Parts 264 & 265 Subpart B
                  ATKl/1104/33 kp

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                                           9472.1983(01)
            RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY


                            JULY  83
How detailed must the analysis  of  my  waste  be  for simple
storage at my Interim status  facility?

     The caller 1s referred to  §265.13  (General  waste
     analysis).  The analysis must,  at  a  n1n1*uim, contain
     all the Information  necessary to store the  waste 1n
     accordance with Part 265.   Adequacy  1s determined on
     a case by case basis fay  the Regional  EPA  office  or
     the State (1f the State  has Interim  authorization).
     Further guidance can be  found 1n Permit Applicant'*
     Guidance Manual  for  General Fad!Ity  Standards  (Oraft*
     June 1983) which 1s  currently available 1n  the EPA
     Regional libraries.

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                                          9472.1983(02}





            RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY


                            JULY  83
40CFR 26*.12(b) requires the owner/operator of a hazardous
waste management facility to Inform a generator 1i» writing
that the facility has the appropriate perm1t($) for ana  will
accept a generator's wastes.  Is a generator required to
receive this written notice prior to transport?

     No, 40CFR 262.20(b) states that wastes transported
     offsite must be sent to a facility permitted to handle
     that waste; a generator 1s not required to ask for  or
     receive a written notice from the facility owner/operator.
     However, a written notice would assure the generator
     that he 1s In compliance with 40CFR 262.20{b).  A written
     notice would also avoid the potential problem of a  generator
     sending waste to a facility which has the proper permits
     but which has not agreed to accept the waste.

          Source:    Rolf H111

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                                                                            9472.1985(01)
                    RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                                        MAY 85
Waste Analysis

2.  pursuant to 40 CFR §§265.13 and 264.13, owners and operators  (o/o) of hazar-
    dous waste treatment,  storage, and disposal (TSD) facilities mist obtain a
    waste analysis.  Must owner /operators use "Test Methods for Evaluating Solid
    Wastes" (SW-646) for this waste analysis?

         Currently, EPA does not require the use of SW-846 for the required
         waste analysis pursuant to §§265.13 and 264.13.   EPA, however, recently
         proposed in the October 1, 1984, Federal Register (49 FR 38786) to
         require the mandatory use of SW-846 for all sanpUng, nonitoring,
         analysis, and testing required under 40 CFR Parts 260-271 unless
         otherwise specified.

         Sourcess   Barbara Pace (202) 382-7703

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                                                                     9472.1985(02)
            RCRA/SUPERFUND/OUST  HOTLINE MONTHLY REPORT QUESTION
                                     MARCH  1985
Waste Analysis Plan

4,  If an owner/operator of an Interim status or permitted  treatment, storage,.
    or disposal facility (TSDF) accepts hazardous waste from small quantity
    generators, must  he address that, waste In his waste analysis plan required
    under §265.13 (for Interim status facilities) or §264.13 (for permitted
    facilities)?

         No; the owner/operator would not have to address the wastes from small
         quantity generators 1n his waste analysis plan. Sections 265.l(b)
         and 264.l(b) state that all of the Part 265 and 264 standards do not
         apply 1f otherwise excluded 1n Sections 265.(l)(c) or 264.(l)(f) and
         (g) or 1n Part 261.  Section 261.5(b) states that  a small quantity
         generator's  hazardous wastes are not subject to regulation under
         Parts 262-265 and Parts 270 and 124 1f the small quantity generator
         complies with the §261.5 standards.  Hence, hazardous wastes from
         small quantity generators in compliance with §261.5 are not subject
         to Part 265  or 264 standards, Including §§265.13 and 264.13 for waste
         analysis.

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                                • Au rKU i cC TlOti A&£N

                                                      9472.1986(02)
Dr. Q. P. Dudenbostal, Director
New Jersey DBF
CN-028
436 Baste State Street
Trentonf New Jersey  08625

Dear Dr. Dudenbostal:

     The Office of Solid Waste and Emergency Response has an
ongoing laboratory evaluation program for EPA  laboratories
and contractors.  This program entails the  periodic analysis of
performance samples using specified nethods selected from those
published in "Test Methods for Evaluating Solid Waste"  (SH-846).

     As we promised last summer, EPA is expanding the program
and inviting the solid waste testing laboratories of State
regulatory agencies to participate*  This is a voluntary program
designed to allow laboratories to evaluate  their capability to
analyze RCRA/CERCLA samples using SW-846 methods.  We feel that
a valuable side benefit of the program is the  information, the
Agency obtains, on how well the test methods perform in routine
use and where method improvements are needed.

   The program is structured so that it is  a self-auditing
operation.  Samples are periodically sent to the designated
laboratory contact along with specific instructions and analytical
standards necessary for the analyses.  The  samples range from
very simple aqueous solutions to more complex  matrices  character-
istic of wastes.  Participating laboratories receive four sets
of samples per year*  Each set consists of  two samples, one
inorganic and one organic.  Results are submitted to EPA for
evaluation against referee values.  A report is then prepared,
and sent to you which shows both how well your laboratory
performed and how the other participating laboratories  did.  No
laboratory is identified to any other laboratory.  If your
laboratory encounters problems in performing a specific test,
EPA is prepared to assist you in resolving  the problems.

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   If you would like to your laboratory to particlet
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                                                        9472.1986(04)

          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                      WASHINGTON, D.C. 20460
        4 JUN 86        UljiA-l L/Jill II T if       SOUO WASTE AND EMERGENCY RESPONSE
Mr. John Richard Slate
City Attorney
Suite 204
10551 Allen Road
Allen Park, Michigan  48101

Dear Mr. Slate:

     This is in response to your April 30, 1986, letter to
Congressman John Dingell regarding the Crystal Mines in Detroit,
Michigan.  Mr.  Dingell has requested that we keep you.  informed
of any developments pertaining to this matter.

     The Resource Conservation and Recovery Act (RCRA) allows
the placement of hazardous wastes, other than bulk liquids, in
salt mines if a RCRA permit is issued.  Crystal Mines, Inc.
(CMI) thus could apply now for a RCRA permit for the placement
of containerized or solid hazardous waste.  You should be aware
that neither EPA nor the Michigan Department of Natural Resources
(MDNR) has yet received an application from CMI.

     Depending on site-specific factors, however, it may be more
appropriate to consider permitting the Crystal Mines facility
under new, special regulations for "miscellaneous" hazardous
waste management units.  These rules are likely to be  used for
permitting most placement of containerized or solid hazardous
waste in underground mines.  The rules will be proposed this
summer for public comment and will be issued in final  form early
in 1987.

     Once a permit application is received, EPA and MDNR would
consult with each other during careful review of the application.
The consultation process provides assurance that all the RCRA
permitting requirements designed for the protection of human
health and the environment are satisfied before the permit is
issued.  These requirements include monitoring, corrective
action, closure and post-closure care, and financial assurance.
Because of the many new requirements imposed by the Hazardous
and Solid Waste Amendments of 1984, it is likely that  any permit
issued to CMI would be issued jointly by EPA and MDNR.

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     The RCRA permitting process also includes public participa-
tion through comments on a draft permit.  Usually,  the notice of
intent of a permit decision and opportunity for public comment is
provided in local newspapers, on radio, and to local groups on
EPA or MDNR mailing lists.  The schedule for public input to the
permitting process in this case is uncertain, since we have not
yet received a permit application from CMI.

     Thank you for your interest in this important  hazardous
waste issue.
                              Sincerely,
                              J. Winston Porter
                              Assistant Administrator

cc: Honorable John 0. Dingell
    Richard Traub, Region V
    James Roberts, MDNR

 WH-562/D.Zeitlin/bc/6-2-86/Control No: 601581/Due Date: 6/4/86
        382-4646

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           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY     '"*' *'*y°6^*>
                                                 9472.1986(06)
    8 JUL 86
Mr. Richard J.  Gimello
Executive Director
State of New Jersey
Hazardous Waste Facilities
  Siting Commission (CN 406)
Trenton, New Jersey  08625

Dear *r. Gimello:

     Thank you  for your June 5, 1986, letter regarding the
Environmental Protection Agency's (EPA*e) activities on
location guidance.  You raised six major issues that I will
address.  I understand that you discussed several of these  .
issues with Christopher Daqgett, Regional Administrator for
Region II, his  staff, and Arthur Day of my staff in a meeting
on June 20, 1986.

     You requested conies of the Phase I and Phase II documents*
I have attached the Phase I document entitled The Permit
Writers' Guidance  Manual for Location of Hazardous Waste Land
Treatment> Storage, and Disposal Facilities — Phase I —•""
CriteriaforLocation Acceptability and Existing Applicable
Regulations.   However, the second document entitled Guidance
Criteria for. Identifying Areas of Vulnerable Hydrogeologv is
currently under internal Agency review and not available for
external distribution.  When this review is completed, the
document will be issued as an "interim final* guidance to
provide the public with the opportunity to comment.  We will
send you a copy at that time*  I have attached a summary of
these two documents (Attachment I) to clarify any confusion
that exists about  the various drafts that were circulated.
In addition, I  have attached Criteria for Identifying Areas
of Vulnerable Hydrooeology -- Appendix D —- Development of
Vulnerability Criteria Based on Risk Assessment and Theoretical
Model i ng and an Executive Summary which provides the detailed
rationale for why we selected the "time of travel"  (TOT)
along a 100-foot flow line
     Your major concern centered on EPA's rationale  for  pro-
posing the TOT.  We selected TOTjQO for three  reasons:

       (1)  it identifies locations where plume  sis* will  be
            minimized)

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       (2)  it identifies areas that minimize potential for
            exoosure to releases occurring in the absence of
            monitoring and response? and

       (3)  it is useful in recognizing three potential
            exposure pathways.

     You also Questioned how the TOT method applies to coastal
states like New Jersey.  EPA is currently developing a strategy
to decide how the numerous RCRA regulatory provisions pertainino
to ground water should interrelate.  One of the guestions the
strategy will address is how the vulnerable hydrogeology
guidance should be used, i.e., how vulnerability under the
TOT method should affect a siting decision.  The strategy
should be completed by this fall and will be publicly available.
I want to stress, however, that the vulnerable hydrogeologv
guidance is not "location guidance* in the sense that it
prescribes where facilities may be sited.  The document only
describes a method by which vulnerability can be assessed;
it does not dictate what siting decision should be made
based on the results of the assessment.

     You asked if the compendium of siting criteria is completed
and if so was it used to develop the Guidance Criteria for
Identifying Areas of VulnerableHydrogeology.  We have completed
the compendium and produced a report entitled Review of
State Siting Criteria for the Location of Hazardous Waste
Land Treatment, Storage and Disposal Facilities.X understand
my staff provided you with a copy of this report earlier.
This report states that there seems to be no consensus among
states that use a TOT concept; appropriate values for travel
tine ranged from 3 years to reach off-site wells to 1000
years to reach an environmental pathway.  Also, states empha-
sized that disposal units should be located in low permeability
soil (examples ranged from 10-6 to 10-8 cm/sec).  These two
points indicated to us that our vulnerability criteria were
well within the scope of many state siting criteria.

     Finally, you suggested that we conduct a management-
level review of the suitability of New Jersey's siting
criteria.  We are currently reviewing the Mew Jersey siting
Criteria document you enclosed and will provide you with
comment* hy late July.

     Please understand that our vulnerable hydrogeologv
guidance is just that, guidance.  Our next steo, in resnonse
to RCRA Section 3004(0)(7), is to develop location regulations
applicable to new and existing hazardous waste treatment,
storage, and disposal facilities*  We will keep you informed
as these standards are developed, proposed, and finalized
over the next two years.

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     I hope this letter addresses the issues you raised.  If
you have any further questions,  please feel free to contact
John"Lehman* Director,  Waste Management Division, at (202)
382-7919.
                              Sincerely*
                              J.  Winston Porter
                              Assistant Administrator

Enclosures
 WH-562/MCMANUS/D.ZEITLIN/sld/7-2-86/Control No.J  SWER-09159
                382-4651/Due Date:  7-8-66

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                         ATTACHMENT 1

I.  The Perffit Writer's Guidance Manual For Location of
Hazardous waste Land Treatment, Storage and Disposal Facilities
— Phase I

     o  Published in draft final in February of 1985

     o  Written prior to the Hazardous and Solid Waste Amendments
        (HSWA)

     o  Describes five criteria for an acceptable location
        and cites existing applicable regulations under RCRA
        and other Federal laws

II•  Guidance Criteria for Identifying Areas of Vulnerable
     Hydroqeoloqy

     o  Formerly known as Phase II Guidance

     o  Satisfies the statutory requirement (3004)(0)(7) of RCRA
        as amended by HSWA that EPA develop Guidance Criteria
        that defines Vulnerable Hydrogeologies

     o  Assesses site vulnerability by applying the tirae-of-
        travel (TOT) of around water along a 100-foot flow line
        (TOT 100) oriqinatinq at the base of a hazardous
        waste unit.

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY      5472.1987(01}
MEMORANDUM
SUBJECT:  Determination of Operator At Goverrot*nt-Owned
          Contractor-Operated (GOCO) Facilities

PROM:     Gene A. Lucero, Director
          Office of Waste Programs Enforcement

          Marcia E. vrilli««s. Director
          Office of Solid Waste

TO:       Waste Management Division Directors
          Regions I - X


     The purpose of this memorandum is to clarify who should
sign as the operator on permit applications for Government"
Owned Contractor-Operated (GOCO) facilities.  Earlier guidance
(see attached memo) had recommended that the Regional office
consider the role of the contractor in the operation ot" the
facility before determining who should sign the permit appli-
cation.  We also noted that: in some cases where the contractor's
role is less precisely defined the Region should exercise
judgment given the factual situation.

     It appears that there is still sowe confusion reiardirm
signatories for permit aprHeat.ion?,  (rhenevr a contractor or
contractors at a governnent-owneM facility, are responsible or
partially responsible for the operation, management or oversight
of hazardous waste activities at the facility; they should sign
the permit as the operator (a).  In some instances both the
Federal agency and the contractor(s) are the operators and
multiple signatures to that affect would ba appropriate.  A
review of the) facility'a operating records, contingency plans,
personnel training records, and other documents relating to waste
management should indicate who the oparator(a) ara.  Aa a general
rule, contractors will meet this teat and therefore in most
situations abould ba required to algn tha permit application.

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     It you have any questions olease contact Jim Michael, Ortics of
SoLici kast<« %t *'TS  3P2-2221  or Anna Duncan, Of.tlce of k.'aste
Inforcernent at FTS  382-4829.

Attachment

cc:  Bruce MtcMle,  OSW
     Flaine 3tanl«. , Ov.PF
     Chris Gruurtlar. OSVJBR
     Matt Hala, PSPD
     Federal Facility Coordinators* P«»gion I-x

bcc: Jim Michael, OSW
     Anna Duncan. OWPE
     Suzanne Rudzinski, PSPD

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            UN'-«D STATIS EHVlRONMiNTAL PtOTfCT^S ACIHCY 9472.1988(01}
JUN  2  1988-

Thomas J. Dolce, P.E.
Principal Engineer
Applied Environmental Technologies Corp.
7 Belver Avenue, Suite 210
Quonset Point, Rhode Island  02852

Dear Mr. Dolce:

    Your letter of April 18, 1988 asks for a regulatory
interpretation regarding the security requirements of 40 CFR
264. 14 (b) .  I will provide you with the Federal interpretation,
however, I also want to refer you to the States where your
facilities are located, for the States' interpretation.

    The RCRA/Superfund Hotline was correct in indicating that
if all hazardous waste storage and treatment occurred within a
facility's building, then the walls of the building would
constitute compliance with the artificial barrier requirement
in 40 CFR 264.14(b) (2) (i) .  Further, 40 CFR 264 .14 (b) (2) (ii) is
satisfied when all entry doors are locked at all times with
entry strictly controlled through the main plant entrance, as
you suggest.  However, the phrase "strictly controlled1* should
be fully described, with examples relevant to the facility, if
you are preparing a Part B permit application.

    The "Permit Applicants Guidance Manual for the General
Facility Standards of  40 CFR 264", SW-968, August 1983
(available through the Hotline), supports our regulatory
interpretation by stating that "26.4. 14 (b) is satisfied if the
active portion is located within a facility or plant which
itself has a surveillance system, or a barrier and a means to
control entry*"  The guidance goes on to say that "the
requirements for signs in 264. 14 (c) would still be applicable."
    X on* you to also ask the State hazardous waste  agency
which •Kntains jurisdiction over the facility (ies) of  concern
to you faff an interpretation of the State security
requirements, using the same description as was  included in
your April 18th letter.  The State, in most likelihood
{especially in New England) , is the authorized permitting

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authority who will be issuing the facility's permit.  In some
cases, the State's hazardous waste regulations are more
stringent or broader-in-scope than the Federal requirements.
list of State hazardous waste agencies is attached for your
use.

    If you have any further questions about the Federal RCRA
requirements, please contact Chester Oszman at (202)382-4499.

                                  Sincerely,
                                  Bruce R. Weddle
                                  Director
                                  Permits and State Programs
                                    Division
Attachment

cc:  Chester Oszman, OSW

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                                                                      9472.1991(01)
 NOTE


 SUBJECT:  Location Standards for Hazardous Waste Management Facilities

 TO:         Bob Knox

       You recently requested information on our hazardous waste facility siting
 requirements in response to a request by Gordon Binder, who is concerned about
 potential environmental equity issues in the siting process. The following is a summary
 of our current siting requirements and an overview of new standards that are being
 developed.  Both current standards and  those under development are based on technical
 suitability of a site; economic or other factors are not considered.  Historically,
 hazardous waste units have been associated with industrial manufacturing plants.  The
 siting of these plants is controlled by local zoning requirements.

       EPA currently has limited regulatory restrictions for the siting of hazardous waste
 treatment,  storage, and disposal  faculties (TSDFs). These siting restrictions are based on
 the sensitivity of the environment; they restrict TSDFs from locating in 100-year
 floodplains and  areas prone to severe earthquake damage in certain parts of  the western
 United States.

       The Agency, however, is currently developing  more restrictive siting criteria for
 TSDFs.  These more restrictive criteria will also be based on the sensitivity of the
 environment  Certain very environmentally sensitive locations will be subject to absolute
 siting prohibitions. New and expanding TSDFs will be prohibited from siting in
 wetlands, in historic migration zones of rivers and coastal waterways, and directly over
 active seismic faults. The proposed location standards will also place additional
 conditions  and restrictions on TSDFs in unstable areas, areas susceptible to earthquake
-damage anywhere in the United States, karst terrane (limestone areas prone  to sinkhole
 development), hydrogeologically complex areas, and areas over  high-resource-value
 ground waters (e.g. drinking water areas). Additional requirements in these  sensitive
 locations include either technical or health-based demonstrations by the  owner or
 operator of the  TSDF.  Technical demonstrations would generally involve engineered
 modifications to the environment or  to the unit that would mitigate against the location-
 specific hazard.

       EPA is not alone in recognizing the need for TSDF location standards in certain
 sensitive locations. To date, 38 states have either proposed or promulgated location
 standards that are more stringent than the Agency's current siting standards.  Some of
 the States'  siting standards are even more stringent than what the Agency is proposing.
 For example, the State of South Carolina also requires TSDF siting setbacks  from
 schools and waterways.

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      The specific location selected for a TSDF is a local decision. However, because
EPA regulations are based on the technical suitability of a site and not on economic or
other factors, they ensure that the selected TSDF site is protective of the environment.
Furthermore, the EPA and State permitting process ensures public participation in
establishing the conditions for the TSDF, including its location, design and operation.

                                    Jeff Denit

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                         HOTLINE QUESTIONS AND ANSWERS
                                      December 1994
                          9472.1994(01)
2. Elementary Neutralization Units
   Generating and Storing Non-
   Corrosive Hazardous Wastes

   The operator of an electroplating facility
neutralizes corrosive D002 wastewaters with
lime in an on-site tank. The neutralization
process causes a sludge to accumulate at the
bottom of the tank. Although it does not
exhibit the characteristic ofcorrosivity, this
sludge from the treatment of electroplating
wastewaters meets the definition ofF006
listed hazardous waste (40 CFR §26131).
The neutralization process thus causes a non-
corrosive hazardous waste to be generated
and stored in the treatment tank. Can this
tank meet the definition of an elementary
neutralization unit?

   This treatment tank at the electroplating
facility meets the definition of an elementary
neutralization unit, because the waste
originally treated in the tank is hazardous only
due to corrosivity. According to 40 CFR
§260.10, an elementary neutralization unit is a
device which: (1) is used for neutralizing
wastes that are hazardous only because they
exhibit the corrosivity characteristic, or are
listed only because ofcorrosivity; and (2)
meets the definition of a tank, container,
crarvp-irt vehicle, or vessel. As long as the
 original influent waste is hazardous only due
 to corrosivity, generation of a new, non-
 corrosive listed ot-characteristic hazardous
 waste during the neutralization process does
 not automatically bar the tank from the
 elementary neutralization unit definition. This
 tank is therefore eligible for the exemption for
 elementary neutralization units found at 40
 CFR §§264.1(g)(6), 265.1(c)(10), and
 270.1(c)(2Xv). Units qualifying for this
 exemption are not subject to permitting,
 generator on-site accumulation Hnv* limits,
 weekly inspections, or other technical RCRA
 standards. Since the elementary neutralization
 unit exemption applies only to the tank and
 does not attach to wastes that are removed
 from the unit, the F006 sludge formed during
 the neutralization process is subject to full
 regulation as a hazardous waste once it is
removed from the tank for treatment and
disposal

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               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                REGIONS
                        77 WEST JACKSON BOULEVARD
                          CHICAGO, IL 60604-3590
                                         CS-29A
Rosemary Cantwell, Chief
Hazardous Waste Enforcement  Section
Office of Enforcement
Indiana Department of Environmental Management
100 North Senate Avenue
Indianapolis, IN  46206-6015

Re:  Regulatory Assistance

Dear Ms. Cantwell:

  The U.S. Environmental Protection Agency (U.S.  EPA}  is in
receipt of the April 11, 1995,  letter  from Mr. Matthew Klein,  of
your staff. The letter requested guidance  on the  legal
significance of "comments" in the  Code of  Federal Regulations
(CFR), specifically in 40 CFR §265.176 [329 IAC 3.1-10-1&2];
whether generators who store ignitable or  reactive waste in
containers must post "No Smoking"  signs pursuant  to 40 CFR
§265.17(a)  [329 IAC 3.1-10-1&2]; and whether permitted treatment,
storage and disposal (TSD) facilities  which employ a facility-
wide "Tobacco-free" policy are  exempt  from posting "No Smoking"
signs, as required by 40 CFR §264.17(a)  [329 IAC  3.1-9-1&2].   The
Region's interpretation of the  issues  raised in Mr.  Klein's
letter are as follows:

(1) Significance of "comments"  in  CFR:

  Existing case law confirms the status of "comments"  and "notes"
in a statute as conirr.erit.a:ry, and net a  legal requirement,  as would
be the rule itself.  A court may look  at comments or notes to
help interpret a provision, but the comments or notes  are not
themselves binding.  See United States v.  Marathon Development
Corp.. 867 F.2d 96 (1st Cir. 1989); Motorola.  Inc.  v.  United
States. 729 F.2d 765 (C.A. Fed. 1984).  See also  In re Valentine.
146 B.R. 945 (Bkrtcy. E.D.Va. 1991); In re Tavlor,  45  B.R. 643
(Bkrtcy.Pa. 1985); Omaha Pollution Control Corp.  v.  Carver-
Greenfield Corp.. 413 F.Supp. 1069 (D.C. Neb.  1976}  [latter cases
discussing significance of comments in the Uniform Commercial
Code].  Thus, on the basis of existing case law,  the Indiana
Department of Environmental Management (IDEM)  cannot use the
comment following 40 CFR §265.176  [329 IAC 3.1-10-1&2]  to require
a generator to comply with 40 CFR  §265.17(a)  [329 IAC  3.1-10-
1&2], if it would not otherwise be subject to that requirement.
                                                           Printed on Recycled Paper

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(2)  Are generators wh
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(3)   Are permitted TSDFs with a "Tobacco-free" policy which, store
     ignitable or reactive waste required to post "No Smoking"'
     signs pursuant to 40 CFR §264.17(a)?

  For both permitted and interim status treatment, storage, and
disposal facilities ("TSDFs"), 40 CFR §264.17(a)  [329 IAC 23.1-9-
1&2] and 40 CFR §265.17(a)  [329 IAC 3.1-10-1&2], respectively,
require that a "No Smoking" sign must be conspicuously placed
wherever there is a hazard from ignitable or reactive waste.
There is no exemption for a facility with a "Tobacco-free"
policy.

  The fact that a facility has a "Tobacco-free" environment may
not fully address the human and environmental safety concerns
stated in the regulation.  The text of both these provisions
clearly spells out that the purpose of the provision is to
prevent the exposure of ignitable wastes to "Open flames,
smoking, cutting and welding, hot surfaces, frictional heat,
sparks. .  , spontaneous ignition. . ,  and radiant heat."
40 CFR §264.17(a) and 40 CFR 265.17(a) specify that when
ignitable or reactive waste is being handled, the owner or
operator must confine both smoking and open flame to specially
designated areas.  The regulations absolutely require posting at
least a "No Smoking" sign.

  Based on the information provided,  the facility's argument that
posting a "No Smoking" sign would encourage smoking is not viewed
by the Region as a valid excuse for failing to comply with 40 CFR
§265.17(a).  In our view, IDEM is justified in arguing that the
facility is free to post a "No Smoking or Ignitable Sources"
sign, but the facility must, at a minimum, post a "No Smoking"
sign.

We hope that the above comments are responsive to the issues
raised in the April 11, 1995, letter.   Should you have further
questions, please do not hesitate to contact Barbara L. Wester,
Assistant Regional Counsel,  (312) 353-8514, or Michael
Cunninahani, RCRA Technical Er.fcrcetr.ent Section., at (312)
886-4464.

Sincerely yours,
T. Leverett Nelson
Acting Chief,
Solid Waste Emergency Response
 Branch

cc: Matthew Klein, IDEM
Thad Slaughter
Acting Section Chief
Technical Enforcement
Section 1

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Preparedness And Prevention
(Subpart C)	
                                     so

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9473 - PREPAREDNESS
AND PREVENTION
Parts 264 & 265 Subpart C
                   ATKl/l 104/34 kp

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Contingency Plan And Emergency
Procedures (Subpart D)	_^
                                    SO

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9474 -
CONTINGENCY PLAN
AND EMERGENCY
PROCEDURES	
Parts 264 & 265 Subpart D
                 ATK1/1104/35 kp

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                                                              9474.1984(01)
                    PERMIT POLICY Q & A REPORT

                        CONTINGENCY PLAN

                       SEPTEMBER 10,  1984
1.  Cucstion:  for a new facility,  can information for the  contingency
plan, sucn as arrangements with local  authorities, be subnitted
at a drtte later than sutnission ot"  the rest of the Part B?  40  CFH
        D, S270.14(b>(7);
Answer:  Ho.  Zf th« applicant has don* enough planning to. support
obtaining * KCRA permit, he should nave sufficient information  to
atterpt to nake arrangenents with local authorities and draft an
adequate contingency plan.  Only those arrangements agreed to by
local authorities need to be described in the contingency plan.
Zf tno applicant's efforts were unsuccessful, these nust be
cioeunenteri separately, according to $162.37{b), and, in this caso,
th* contingency plan does not need to address arrangements with
local authorities.  Also, under $264.51(«i),  information regarding
the specific energoncy coordinators nay be submitted after the
tine of application.

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Manifest System, Recordkeeping
And Reporting (Subpart E)
                                    in

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9475 - MANIFEST
SYSTEM, RECORD
KEEPING AND
REPORTING
Parts 264 & 265 Subpart E
                  ATKl/l 104/36 kp

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                                                          9475.1984(01)




                    RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY


                                       APRIL 84
2.  a) Is a generator required to keep copies  of  biennial  reports and manifests at the
    site?  The RCRA definition of generator is site  specific.

    b) Is a TSDF  required to keep copies  of manifests  and  biennial  reports on site?

         a) 262.40 does not specif/ that  a generator must  keep  copies of manifests
         a-nd biennial reports on site. Copies of both can be kept  at corporate
         headquarters.  It must be noted, however, that 3007(a)  of  RCRA states that
         a generator must be able to provide to EPA  or duly designated  personnel
         information on or access to records regarding waste management.

         b) 265.71(a)(5) requires TSDF's  to retain copies  of manifests  on site for
         at least three years from the date'of delivery.  2€5.74(a) states that all
         required records must be furnished upon  request and made available for
         inspection by EPA personnel.  Biennial reports are required records.

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                                               9475.1985(01)
            RCRA/SUPERFUND  HOTLINE MONTHLY SUMMARY

                            SEPTEMBER 85
Waste Minimization Certification

3.  A shipnent of hazardous vase* is initiated on or after September I, 1985, by a
    fully-cegulated generator.  The manifest does not contain the waste minimization
    certification as required by Section 3002(b)(i) of RCRA.  The owner/operator
    of the designated treatment, storage or disposal facility (TDSF) receives the
    waste shipnent unaccompanied by the waste minimization certification.  May tne
    owner/operator accept the waste shipnent? Is the owner/operator required to
    notify the State or Region about the incomplete manifest?

    Section $265.72(b)  requires the owner/operator of a TSOf, upon discovering a
    •significant [manifest!  discrepancy," to first attempt to reconcile the discre-
    pancy with the generator.  If the discrepancy cannot be reconciled in fifteen
    days, then the owner/opera tec must  notify the Regional Administrator.  However,
    •significant discrepancies" as defined in S265.72U) are:  •(!) for bulk waste,
    variations greater  than 10 percent  in weight and (2) foe batch waste, any varia-
    tion in piece count." The owner/operator oust notify the Regional Administrator
    only for unreconciled significant discrepancies.  The owner/operator need not
    notify the Regional Administrator since waste shipnents unaccompanied by a
    waste minimization  certification are not significant manifest discrepancies.

    Source:    Mark Greenwood (202) 382-7703

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                                    OCTOBER  85                        9475.1985(02)
8. Shall Quantity Generators.  100-1000 kq/nonth generators, and th» Manifest

   A small quantity generator  (9QG)  of less than 100 kg/fcionth sends the waste to a
   facility which is registered by the State to manage (store) solid wastes.  This
   State-registered storage facility accepts wastes fron other anall quantity
   generators of less than 100 kg/nonth and after collecting enough waste for a bulk
   shipnent (over 1000 kg), sends it to a facility for disposal.

    {a) is ^nifestiog required at all in this scenario?  If so, at -hat point?
    (b) Must the final disposal site  be a RCRA permitted disposal facility?

                                                          10°-1000
                              req"lred  in  ^is  scenario.   The hazardous waste itself
               excluded fron regulation under Parts 262 to 265,  270,  and 124, so tr.at
                                        of  a"V  P^ty who stores,  treats, or disposes or
        (t»  The final  disposal  site  need  not be a RCRA permitted disposal facility.
            Section 261,5(g)(3) allows SCGs to send  their waste to a facility which  is
            registered by  the State  to manage solid  wastes and  still remain exempt fron
            full regulation.                                                    v


        (0  If  the  waste was generated by 100-1000 kg/lnonth generators, manifesting  would
            be  required to the State-registered solid  waste storage facility as well as to
            the State-registered disposal facility.  In addition,  until March 31, 1986, the
            waste may  be disposed of in a State-registered disposal facility.  After March
            1986, the  final disposal site must be a  RCRA permitted (or interim status)
            facility.

       Source:  Barry  Stoll (202) 382-4761

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                                                       9475.1986 (Dial
          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                     WASHINGTON. O.C. 20460
                                             30---J W«3
                                                        VieflGENCY RESPONSE
Honorable Rudy Boschwitz
United States Senator
210 Bremer Building
419 N. Robert Street
St. Paul/ Minnesota  55101

Dear Senator Boschwitz:

     Thank you for your September 16, 1986, letter regarding
your constituent, Mr. win Sabatka, President of Finishing
Eguipment, Inc«  In the correspondence which you enclosed,
Mr. Sabat-ka raised several questions about the application of
Minnesota's hazardous waste program to Finishing. Equipment's
operations.

     Minnesota has been authorized to implement and enforce
the Federal Resource Conservation and Recovery Act (RCRA)
program in lieu of the Environmental Protection Agency (EPA)
since .February 1985, Mr. Sabatka' s concerns, therefore, are
most appropriately addressed by the Minnesota Pollution
Control Agency (MPCA) with whom he has been corresponding.
Nevertheless, we have spoken with EPA Region V and MPCA
representatives to try to clarify the situation.

     with respect to Finishing Equipment's manifests, Mr.
Sabatka stated in his letter to you that the waste was
"properly manifested as [waste] F001".  While the waste was
correctly identified by the F001 category, MPCA has informed
us that it was incorrectly described as waste oil, rather
than as still bottoms.

     Mr. Sabatka also stated that he does not believe Finishing
Equipment's operations are subject to the financial assurance
regulation*.  Prom the information we have obtained,  it
appears that Finishing Equipment is a storage facility, as
defined in both the EPA and MPCA regulations.  Consequently,
the owner or operator of the facility must comply with the
financial responsibility regulations (among others).  The
Federal financial regulations were published in large part on
April 7 and 16, 1982.  Copies of these rules, along with a
summary of them, are enclosed.  EPA also made minor changes
to the rules on May 2 and July 11, 1986, but these are not
yet effective in Minnesota.  Otherwise, Minnesota's financial
rules are subtantially equivalent.

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     I hooe this response  is  helpful.   Please feel free to
contact Matthew Straus  on  (202)  475-8551  or  Carole Ansheles
on (202) 382-4761 of  my staff if you  have any further
Questions on manifesting or financial  responsibilities,
respectively.

                                 Sincerely,
                                 J. Winston  Porter
                                 Assistant Administrator

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                                                               9475.1987(01)
              RCRA/SUPERFUND  HOTLINE MONTHLY SUMMARY

                                APRIL  87
1.  Storage Prior to Recycling

    According to the Hazardous  waste  recycling regulations promulgated
    as part of  the January 4,  1985  rule  {50  FR 614), owners or operators
    of facilities that recycle  materials without prior storage are
    subject only to Section 3010  notification requirements and §265.17
    and §265.72 manifest regulations  per §261.6(c)X2->. -Do the two
    following recycling operations  involve storage prior to recycling?

    (a) Truck  drivers with bulk  shipments or drums of spent solvent
        pour the solvent into  a  receiving bin at a recycling
        facility.   The receiving bin is directly harfr-piped to
        the distillation unit, such  that  the receiving bin feeds
        the distillations unit.  When the distiller is non-operational
         (at night),  some waste solvents may remain in the feed tank.

    (b) As in the first situation, bulk shipments or drum of spent
        solvent are poured into  a  receiving device at a second
        recycling facility.  The receiving  device is essentially a
        tank with a pump in the  bottom which is connected to a
        large  tube that directly feeds into the distillation unit.
        The pump is in operation whenever there  is waste in the
        tank.   Therefore, the  tank never  contains solvent when the
        distillation unit is not in  operation.

         (a)  Although there is no  time limit for storage, the two
              recycling facilities  are fundamentally different.  The
              first recycler uses the receiving bin to store waste
              when the distillation unit is not operating.  Per
              S261.6{c)(l), he is subject  to the  storage standards.

        (b)  In the case of the  second recycler, he does not use the
              receiving bin for storage.  His receiving bin  is more
              clearly used only for conveyance,  not storage.  The bin
              is more directly tied to the operation of  the  recycling
              unit and indeed,  could  be viewed  as part of the
              recycling unit.  Hence, the second recycler would only
              be subject to $261.6(c)(2J  (i.e.,  getting an EPA ID
              number and complying  with the manifest  standards.)

        Source:    Matt Straus    (202) 475-8551
        Research:  Kim Gotwals

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                          FEB   9 (989                   9475.1989(01)
Dear Facility Manager:

     As required by the Resource Conservation and Recovery Act
(RCRA), the U.S. Environmental Protection Agency (EPA)  must
submit a report to Congress on the generation and management
of large-volume solid wastes from mineral processing
facilities.  Within six months after submission of the report
EPA must then determine which of these wastes will remain
exempt from RCRA hazardous waste management (Subtitle C)
regulations.  We are asking for your assistance in gathering
the necessary information for the preparation of the report to
Congress and the subsequent regulatory determination.

     We have enclosed EPA's National Survey of Solid Wastes
from Mineral Processing Facilities.  Please complete and
return the questionnaire within 45 days of the date you
receive it.  Your response to the survey is required under
Sections 3001 and 3OO7 of RCRA.  Failure to respond may result
in a fine or other penalties under Section 3008 of RCRA,   We
have included some important details about Confidential
Business Information as an addendum to this letter.  Please
read this information carefully before responding to the
survey.

     Section 8OO2(p) of RCRA directs EPA to study various
factors as part of the report to congress on large-volume
mineral processing wastes, including sources and volumes of
wastes, current waste management practices, alternative waste
management practices and their costs, and documented damage
and potential risk to human health and the environment from
waste management practices.  Consequently, the questionnaire
requests information on the large-volume mineral processing
wastes (which are called SPECIAL WASTES in the questionnaire}
from the point of generation to their ultimate onsite or
offsite disposition, including all intervening steps.

     The survey is composed of three booklets.  The first
booklet contains instructions and definitions for use in
completing the questionnaire.  The second booklet contains the
questionnaire itself.  The third booklet contains extra sets
that you may need to complete.  Please read the instructions
thoroughly and carefully before attempting to complete the
questionnaire.

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                             - 2 -

     The questionnaire itself contains nine sections:

Section 1, general information on the entire facility.

Section 2, processing units that GENERATE a special waste.

Section 3, processing units that RECEIVE a special waste (or
           its residue).

Section 4, wastewater treatment plants that RECEIVE a special
           waste (or its residue).

Section 5, surface impoundments  (including tailings ponds and
           lagoons) that RECEIVE a special waste (or its
           residue).

Section 6, other waste management units that RECEIVE a special
           waste (or its residue).

Section 7, environmental monitoring in proximity to special
           waste management units that RECEIVE a special
           waste (or its residue).

Section 8, general information on waste management units not
           covered in Sections 5 and 6.   (Since any facility
           subject to Subtitle C requires corrective action at
           any onsite solid waste management units causing
           environmental problems, an inventory of each
           facility's solid waste management units is
           necessary for assessing the economic impact of such
           a designation.)

Section 9, contact person at the facility in case follow-up
           information is needed, and instructions on
           returning the completed questionnaire.

At the end of the questionnaire are lined pages labeled
"FACILITY NOTES" for you to use  in clarifying or explaining
your answers, if necessary.

     EPA appreciates your efforts to provide timely and
accurate information and looks forward to your response.  If
you have any questions about the survey, please call  the
toll-free survey helpline (1-8OO-635-885O).  If you are unable

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to get through on this number, you may call Bob Hall of my
Staff at_(202)475-8814.

                           Sincerely,
                           Sylvia K. Lowrance
                           Director
                           Office of Solid Waste

Enclosures

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                                                                           FILE
                                                                           1JL»L.
   ^fcO SV»
/ A %        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
5 ""*"""^  "                       WASHINGTON, D.C. 20460
I
                                                   1995               9475.1995(01)
                                                                               OFFICE OF
                                                                        SOLID WASTE AND EMERGENCY
                                                                               RESPONSE
  Mr.  Donald S. Berry
  Goodwin, Procter, and Hoar
  Counsellors at Law
  Exchange Place
  Boston, MA 02109-2881

  Dear Mr. Berry:

         I am pleased  to respond to your August 8, 1995 letter, which requested confirmation
  that the Environmental Protection Agency's manifest discrepancy requirements would not
  apply to certain shipments of waste initiated by one of your clients.

         As related to me in your letter, your client's manufacturing process generates a waste
  which exhibits the characteristic of corrosivity. The client ships these wastes to permitted
  treatment facilities under manifests which indicate the corrosive characteristic of the
  hazardous waste.  However, in some instances, the  receiving treatment facility finds that the
  pH of the waste has changed,  such that it no longer exhibits the RCRA corrosivity
  characteristic.  According to your letter, one or more of these treatment facilities has
  responded to these circumstances by initiating  the "manifest discrepancy"  procedures
  described in 40 CFR sections 264.72 and 265.72 (for interim status  facilities), or in
  corresponding State regulations.  Your letter asks whether these facts were intended to be
  covered by the manifest discrepancy requirements.

         With respect  to the requirements of the Federal regulations, our view is that these
  facts need not give rise to the filing of a discrepancy report. Manifest discrepancies are
  defined in sections 264.72(a) and 265.72(a) as differences between the quantity or type  of
  hazardous waste designated on the manifest and the quantity of type  of hazardous waste a
  facility  actually receives.  When there is any variation in piece count in a batch shipment, or
  a variation of more than  IQ%  by weight in a bulk shipment, the Federal regulations classify
  the variation as a significant discrepancy, which must be reconciled  with the generator within
  15 days of receipt of the waste,  or failing that, reported  to EPA or the authorized State. See
  40 CFR sections 264.72(b) and 265.72(b).

         We believe that the manifest discrepancy regulation was intended to cover those
  situations where there is  in fact a quantity of hazardous waste that is unaccounted  for at the
  time of receipt.  Under the facts described in your letter, there is not really a deviation in the
  waste quantity; rather, the quantity of waste identified on the manifest is in  fact received,
                                                                          Rtcycted/Rvcyclabi*
                                                                          pnn»d wltn Soy/C*neu Mk on piptr mat
                                                                          contain* *t M*t SOS rveycMd natf

-------
but at the time of receipt, does not exhibit the hazardous characteristic.  Thus, the issue is
really one of waste characterization, and not an issue of accountability for the waste
quantities shipped and received.  So, our view is that the manifest discrepancy requirements
should not extend to these facts.

       While we believe that this is the better view of the Federal manifest discrepancy
requirements, we also acknowledge that it  is a close issue.  The regulation itself does not
specifically exclude those situations where  the waste is subsequently shown not to be
hazardous, and in those cases where the  treatment facility does handle the situation as a
discrepancy,  it would seem  that the "discrepancy" would be easily reconciled by a phone call
or other communication with your client.  In addition, if an authorized State  were to interpret
these facts to require discrepancy resolution or reporting under its corresponding regulation,
the.; the treatment facility would be required to comply with the more stringent interpretation
of the State.  Under RCRA  section 3009, it is permissible for authorized States to administer
more stringent programs.

       I do wish to emphasize that your client would appear to be in compliance with the
manifest requirements when it designates the wastes as corrosive and ships it to the treatment
facility  under the hazardous waste manifest.  The manifest was not intended  to act as a
certification that  all shipped materials are indeed hazardous wastes.  The regulations allow a
generator to characterize its waste based on process knowledge, and it is understood that
generators may at times characterize their wastes conservatively, rather than  incur the costs
of testing every batch or stream.

       If you have  additional questions about the manifest discrepancy requirements, please
contact  Richard LaShier on  202-260-4669.
                                                Michael J. Petruska, Chief
                                                Regulatory Development Branch

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                          GOODWIN,  PROCTER &  HOAR
                           * PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
                                     COUNSELLORS AT LAW
                                       EXCHANGE PLACE

                             BOSTON] MASSACHUSETTS oaios-assi
                                                                           TELEPHONE (6171 STO'lOOO
                                                                           TELECOPiCP i«i7) Si7-aS9i
DONALD S 86RRY. P C                                                         CA8UC . OOOOP«OCT BOSTON
    (617) STO- 1344
                                        Augusts, 1995
   Mr. Michael J. Petruska
   U.S. Environmental Protection Agency
   Regulatory Development Branch
   401M Street, S.W.
   Washington, DC 20460

         Re:   Application of Hazardous Waste Manifest Discrepancy Requirements to
                Certain Waste Shipments

   Dear Mr. Petruska:

         This letter is submitted to seek confirmation that EPA would consider the hazardous
   waste manifest discrepancy requirements set forth at 40 C.F.R. §§ 264.72 and 265.72 not to
   apply to certain shipments of waste generated by our client as described below.

         As you and I recently discussed, this firm represents a company whose manufacturing
   process generates w***** ?yhiHiting th* characteristic of corrosivitv. These wastes do not exhibit
   any other hazardous waste characteristic and do not constitute listed hazardous wastes.  The
   wastes are shipped from the generating facility to licensed hazardous waste treatment facilities
   located in a number of states, and the manifests for the wastes are properly completed to indicate
   that the wast^ &* rnrrnsivp Jfo some cases, by the time the wastes reach the treatment facility^
   their pH has changed and they no longer exhibit the corrosivity characteristic.  As a result, the
   treatment facility Concludes that there is a difference between the type oFwaste designated on the
   manifest and the type of waste actually received, and the facility then submits a discrepancy
   report under the aforementioned regulations or the parallel state regulations.

         Sections 264.72 and 265.72 refer to discrepancies between the quantity or type of
   hazardous waste designated and the quantity or type of hazardous waste received. Based on or
   discussion, it is my understanding that EPA would consider these provisions to be inapplicab'
   where the waste shipments, as described above, no longer constitute hazardous waste.  As a
   result, the  filing of a discrepancy report would not be appropriate, and the treatment facili'
   receives the waste either could sign and return the manifest to indicate receipt of the shir
   could take no action with respect to the manifest.  It is also my understanding that EP/
   consider our client's designation of the above-described wastes as corrosive to const?

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                       GOODWIN, PROCTER  & HOAR
Mr. Michael J. Petruska
U.S. Environmental Protection Agency
Augusts, 1995
Page 2
compliance with the manifest requirements for hazardous waste generators as set forth at 40
C.F.R, §§ 262.20-262.23 because such designation is accurate at the time the waste is shipped
from the site of generation.

       I would appreciate it if you could provide me with written confirmation that the foregoing
is EPA's ^yosition on this issue and that no further recordkeeping or reporting is required in such
a situation. Please call me at 617-570-1344 if you have any questions regarding this matter.
Thank you very much for your assistance.

                                         Very truly yours,
                                         Donald S. Berry, P.C
l!7233.bl

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                      HOTLINE QUESTIONS AND ANSWERS
                                     October 1995
                        9475.1995(02)
                 RCRA
1.  Location of Operating Records at
    Treatment, Storage, and Disposal
    Facilities

    The owner or operator of each hazardous
waste treatment, storage, or disposal facility
(TSDF) must keep a written operating record
at the facility. This record retention
requirement applies to both facilities.
operating under permits and facilities
qualifying for interim status (40 CFR §§2641
265.73). The operating record must include a
significant number of records ranging from
waste analysis results to closure cost
estimates to tank integrity assessment records.
Must TSDF owner/operators maintain all of
the different documents making up the
operating record in one central location?

    No, the federal RCRA regulations do not
require owner/operators of hazardous waste
TSDFs to maintain all of the documents
making up the operating record in one
designated area. Compliance with die
operating record requirements of §§264/
265.73 demands only that the specified
information be maintained on site at the
facility; other records can be kept at remote
locations. In addition, for the records that
must be kept on site, the  various documents
making up the operating  record need not be
consolidated in  one office as long as they are
available for review somewhere on the facility
grounds (this might be more practical in the
case of a large facility with multiple
buildings). In order to improve accessibility
to and control over these key documents,
however, EPA recommends that, where
possible, all of the contents of the operating
record be retained in a central area under the
supervision of one designated individual.

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Closure And Post-Closure
(Subpart G)	
                                      so

-------
9476 - CLOSURE AND
POST-CLOSURE
Parts 264 & 265 Subpart G
                  ATKl/1104/37 kp

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                                         Directive No, 9476.00-16
              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, O.C. 20460
                                                              OF
                                                  SOLID WAS^E AND EMERGENC*
MEMORANDUM

SUBJECT:  Effective Dates for Characteristic and Listed Wastes
          per March 19, 1987 Clean Closure Regulation

FROM:     Sylvia K. Lowrance, Directo^Ww  K-
          Office of Solid Waste (WH-562)0

TO:       Waste Management Division Directors
          Regions I-X

    Several regions have raised questions about the effective
date of the Clean Closure Conforming Changes Rule of March 19,
1987 (52 FR 8704) and, in particular, have asked whether the
clean closure standards discussed in the preamble to the rule
{52 FR 8705) apply in authorized states.  The purpose of this
memorandum is to clarify the applicability of the March 19, 1987
rule.

    As you know, the Clean Closure Conforming Changes rule made
several conforming changes to the Part  265 closure and
post-closure regulations for surface impoundments.
Additionally, the Agency set forth its  interpretation of these
regulatory requirements in the preamble to the rule.  In
particular, the rule changed the closure by  removal standards
under Part 265 to be consistent with Part  264 standards.  A key
feature of this change was to amend the 265  closure by removal
standards for characteristic wastes.  Under  the old closure by
removal standard, "clean closure" could be achieved if the owner
or operator-demonstrated that remaining materials did not
exhibit tti* characteristic that first brought the unit under
control.  Under amended $265.228(a), however, surface
impoundment* containing characteristic  wastes as well as those
containing listed wastes must "remove"  all waste residues,
including hazardous waste constituents  derived from the waste.
The preamble to the Conforming Changes  rule  provides guidance on
determining when "removal" of waste residues has been achieved.

    According to the preamble (52 FR 8706),  "removal" under
§265.228(a)(1) means removal of all wastes and liners, and the
removal of leachate and materials contaminated with the waste or
leachate (including ground water) to levels  that are protective
of human health and the environment.  Owners/operators must

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                                         OSWE* Directive No, 9476,00-16


                               -2-
demonstrate that any hazardous constituents left in the soils,
subsoils or groundwater would not cause unacceptable risks  to
human health or the environment.  These demonstrations must
document that the contaminants do not contaminate any
environmental media in excess of Agency-recommended limits.  The
Agency-recommended limits include water quality standards and
criteria and health-based limits based on verified reference
doses (RfDs) and Carcinogenic Potency Factors (CPFs).  If no
Agency-recommended limits exist for a hazardous constituent,
then the owner/operator must remove the constituent down to
background levels, submit data of sufficient quality for the
Agency to determine the environmental and health effects of the
constituent, or follow landfill closure and post-closure
requirements.

    The March 19, 1987 rule became effective in unauthorized
states on September 15, 1987.  The date on which the clean
closure policy outlined in the preamble may be applied in
authorized states will depend on whether the wastes in question
are listed or characteristic.  For characteristic wastes, the
policy would not apply until the authorized state had adopted
the new regulation at §265.228(a) (1) - - until that time
facilities could continue to clean close by demonstrating that
remaining materials did not exhibit the characteristic that
brought the waste into the system (i.e., the demonstration
required under the former rule).  The deadline by which
authorized states must incorporate the March 19, 1987 regulatory
changes is July 1988.  For listed wastes, on the other hand, the
policy may be applied in authorized states immediately, since
the preamble interprets regulations that should already be
adopted as part of the authorized state program.

    Regardless of whether a specific state has adopted these
regulatory changes, owners and operators should be reminded of
the statutory requirements of S3005(i) of HSWA.  Units which
clean close pursuant to Part 265 standards will not be relieved
of post-closure care obligations until they demonstrate
"equivalency" with Part 264 clean closure standards  (see 52 F.R.
45788).  Accordingly, owners and operators of facilities who
wish to clean close should be encouraged to perform  such
closures in accordance with Part 264 standards.

    If you have any questions,  please call Sharon  Frey at  FTS
475-6725.

cc:  Region counsel, Regions I-X

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                                                       9476.1989(03}
              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, O.C. 20480
                                   t^fl*                    OFFICE OF
                                   W            SOLID WASTE AND EMERGENCY RESPONSE

MEMORANDUM


TO:       Terry Anderson, Chief
          Wyoming/South Dakota Section
          EPA Region vm

FROM:     Frank McAlister, Chief
          Permits Policy Section
          Office of Solid Waste

          Barbara Foster, Acting Chief
          Closure and Financial Responsib
          Office of Solid Haste

SUBJECT:  Public Participation Requirements  for Closure  Plan
          Approval

     This memorandum responds to your letter of August 7, 1989 in
which you requested clarification  of the public participation
requirements of the closure plan approval process.   You
questioned whether public notification  is required when  the
Agency modifies an approved closure plan for an interim  status
facility.  The specific case you discussed involves  several
changes to the liner system of a landfill that will  be used for
closure.  We have examined this request and  discussed it with the
Office of General Counsel,  our response is  as follows.

     The regulations governing amendment of  interim  status
closure plans are found at 40 CFR  265.112.   Section  265.112(c)(3)
states that if an amendment to an  approved closure plan  is  a
class 2 or 3 modification according to  the criteria  in § 270.42,
the modification to the closure plan must be approved according
to the procedures in § 265.112(d)(4).   Based on your description,
we believe that the modifications  to the closure  plan would
likely be classified as Class 3, and that the  procedures in
§ 265.112(d)(4) must be followed.  Under these procedures,  the
Regional Administrator will provide the owner  and the public,
though a newspaper notice, the opportunity to  submit written
comments on the plan and request modifications to the plan no
later than 30 days from the date of the notice.  He will also,  in
response to a request from the public  or at  his own discretion,
hold a public hearing whenever such a  hearing might clarify one
or more issues concerning a closure plan.   The Regional

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                              - 2 -

Administrator will give public notice of the Hearing at least 30
days before it occurs.  The amendment cannot be approved until
these procedures have been followed.

     The specific case you discussed involves the closure of five
surface impoundments.  The closure plan discusses the
construction of a landfill on the location of two of the five
closing surface impoundments.  The Region should also consider
whether the creation of this new landfill constitutes a change in
interim status under § 270.72 and therefore requires submission
of a revised Part A application and EPA approval.

     If a public hearing is held, it may be held concurrently
with one being held by the Wyoming Department of Environmental
Quality (WDEQ), provided that the Federal procedural requirements
are satisfied. In addition, notice should be given that there is
a separate Federal action.


     We hope that this memorandum answers your questions on this
matter.  If you have any further questions please call Wayne
Roepe at FTS 475-7245.

cc:  Oenise Keehner
     Wayne Roepe
     Margaret Schneider, OGC
     Nandam Kenkeremath, OGC
     Pat Godsil, Region VIII
     David Christenson, Region VIII

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                                      OSWER DIRECTIVE I 9476.00-12
            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON, D.C. 20460
MEMORANDUM

SUBJECT:  Closure Requirements

FROM:     Marcia E. Williams
TO:
                                                         OFFICE OF
                                                SOLID WASTE AND EMERGENCY ftESPQNSi
                      •^
Director           /*  [I
Office of Solid Wa^te  IWH-563)

David A. Wagoner
Director
Waste Management Division
EPA, Region VII
     This memorandum  is  in  response to your memorandum of
December 17,  1987, which posed  ei number of questions related to
implementation of. the closure regulations.  As you know, we
have discussed the issues over  the phone with you several times
since receiving your  memo,  both in the context of general
policy, and also in the  context of applying these policies to
specific situations.  Wa have responded to each point in turn.

Response to point 1:

     Your question concerns the consistency between the new
tank system regulations  (51 FR  25422, July 14, 1986), which
include post-closure' care,  and  the closure requirements for
container storage units.  Since we have now revised the tank
system standards as of July 14, 1986, we recognize that there
are inconsistencies with the present container standards.  We
agree that the container storage requirements in Subpart I of
40 CFR Part 264 and  265  should  be revised so that the Agency
will have *a consistent overall  policy for closure of storage
and treatment units.

Response to point 2:

     You requested guidance or.  whether the clean closure policy
for surface  impoundments contained in the March 19, 1987
Federal Register, notice  can be applied to all hazardous vaste
management units  in  Iou_. (which does not have final RCRA

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                                       OSWER DIRECTIVE # 9476.00-12
                               -2-

authorizatiorU . - >The clean closure policy that was contained in
the March 19r 1987 FederaiLJReqister should be applied to
closures by.removal of wastes from any RCRA regulated unit.
Regulated units include landfills, surface impoundments, waste
piles, and lajid treatment units.  The regulatory language
governing the level of cleanup described in each of the
following.sections, 26^ ,197, 264.228(a), 264.258(a), 265.1^7,
265.228'(a)v and 265.258(a), is identical.  Since the
consequences of .achieving clean closure are the same,
regardless of type of-unit, the general policy contained in the
March 19,'1,987 £E notice, and the specific details regardi.r.g
the setting of cleanup levels in each medium that are contained
in the1 upcoming. "Surface Impoundment Cleanvciosure Guidance1
Manual"',•• should be applied consistently to all units that close
by removal-of wastes.  Another guidance document, "Clean
Closure of Hazardous Waste Tank Systems and Container Unit?",
is currently being developed.  It is consistent with the ma.'iual
for clean closure of surface impoundments; differing only vnere
necessary because of the unique nature of tank systems and
containers.

     As stated in the March 19, 1987 preamble, clean closure
cleanup  levels are"to be based on Agency-approved health based
limits, rather than background, except where no such
Agency-approved limit exists, and then background may be used
as the basis for settirc cleanup levels.

Response to point 3:

     As currently' envisioned, the proposed changes to the
closur*e  regulations would allow a landfill to defer closure to
manage non-hazardous wastes only if certain demonstrations are
made.  Key among these is that managing non-hazardous wastes
will not be incompatible with prior management practices,  "he
preamble will  include a discussion of potential incompatible or
detrimental effects which are to be considered in evaluating a
request  to defer closure.  For  landfills these concerns
include:  subsidence, increased  leachate  formation, cap
settlement and gas production.  These potential detrimental
effects  could  support a finding of incompatibility, which would
be grounds for disapproving a deferred closure request.

     This  rule change will not  affect enforcement actions.   The
opportunity to defer closure will be afforded to both permitted
and  interim status units.  Facilities with units which  have
lost  interim  status can receive an operating permit which
includes the  LOIS  unit.  Waste.receipt would not be allowed  in
the LOIS unit  prior to permit approval.

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                                        OSWER DIRECTIVE ft 9476.1O-12
                               -3-

Response to point: 4

     You have requested guidance on the issue of whether
changes may be made at facilities operating without a permit or
interim status and LOIS .{loss of interim status) facilities
under section 270.72 wiicn nece?Sc\ry to comply with corrective
action.and closure plans.  This issue was raised in the context
of the rule, proposed on August 14, 1987, 40 CFR Parts 265, 270
and 271 entitled .-"Changes to interim Status and Permitted
Facilities for Hazardous Waste Management; Procedures for
Post-Closure Permitting; Proposed Rule".  We are currently
considering this ..issue and will address it., in the final rule
scheduled for Summer 1988.

Response to point. .5 •

     Your first question, in 5a and b, concerns your
interpretation of 40 CFR Part 261 and the March 19, 1987
Federal Register notice, as they apply to wastes resulting from
closure.''Your interpretation is correct.  As you stated, a
characteristic waste must be managed under Subtitle c unless
the material no longer exhibits any of the four characteristics
specified in Part;.261, -Subpart C.  It would not be sufficient
to merely demonstrate that the iruiterials no longer exhibit the
one or more characteristics that had originally brought the
waste under Subtitle 0 regulatory control.  A waste that is
listed as hazardous under Part 261, Subpart D, and any waste
residues or contaminated soil or debris that are removed from a
unit during closure operations, are considered to be hazardous,
unless the waste'*materials have been delisted,  in accordance
with Section 261.3.

     Your first bullet point within point  5 referred to hov
DOD/DLA (Department of Defense/Defense Logistic Agency)
recommends, in their  "Conforming Storage Model RCRA Permit
Application" (which accompanies their model permit), to
determine whether or not decontamination washwater at a site is
hazardous. ' As mentioned above, the determination should be
based on whether, or not the waste exhibits any  of the four
characteristics  specified in Section  261.20.  TOG and TOK  are
indicator parameters  only.  Therefore the  DOD/DLA Model Permit
Attachment for'Closure  is incorrect when it implies that the
concentrations of TOC and TOX define whether or not washwater
is hazardous.

     EPA has commented  on this closure  plan application
extensively. DOD, however, has,not responded to all of our
comments on the  model permit.  Therefore,  as we said  in thn
August  8,  1987 cover  memo to the  model  permit,  EPA may  request
different  or additional information  if  a permitting  authority

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                                       OSWER DIRECTIVE i 9476.00-12
finds part or alX. of the model permit application to be
inappropriate.., Copies of both the cover memo and EPA's
comments on DLA's.conforming model permit application are
attached for your reference.  Please note EPA comments
regarding waste analysis and the closure plan.  We recommend
that you .use the recent draft report, "Clean Closure of
Hazardous Waste>Tank Systems and container Units" instead as a
guide to Closure'.

     Your second gullet point within point 5 asked why, in
certain situations,.non-hazardous material must be removed from
a landfill:.for clean closure, but then could conceivably be
re-deposited legally in a sanitary landfill'.*"  We share your
concern that this could be  viewed as an inconsistency within
our regulatory program.  Two regulatory efforts, however, are
currently underway which should address this potential
problem.  .You alluded to the first effort, redefining hazardous
waste, in-your memo.

     As we* move more towards concentration-based listings,
inconsistencies may occur less often.  You should.note,
however, that the basic reason why action levels in the clean
closure situation are no;, consistent with hazardous waste
identification  levels .is that action levels in the clean
closure situation are based en the.more protective of two
possible scenarios: 'the direct ingestion of soil and ingest ion
of contaminated ground water, assuming no attenuation in the
unsaturated  zone or dilution in the ground water.  The
delisting  levels, on the other hand, are based strictly on
ground water inges'tion, and are derived from  a generic model
that accounts  foY vertical  and horizontal spreading of
contaminants over a 500 foot distance in the  aquifer.  This
difference may well remain  even if changes are made in how
hazardous wastes  are listed.  The answer to the problem is to
complete the Subtitle D regulations for municipal landfills and
surface  impoundments.  The  result of these more stringent
regulations  should be that  if waste is removed from a landfill
for clean closure and re-deposited in a sanitary  landfill, that
the new  landfill  will be more protective of the environment
than the  original one.

     We  hope you  will  find  this memo to be useful to you  in
interpreting these  issues  related to the  implementation of
regulations  regarding closure.  Please contact Hope Pillsbury
of my staff  at FTS 475-6725 if you have any questions regarding
this memo.

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                                        OSWER DIRECTIVE | 9476.0C-12
                                -5-
Attachments
cc:  Luetta Flournoy, Region VII
     Matt Hale, QSW
     Margaret .Schneider,  osw
     Jim Bachmaier, OSW
     Chet Oszman, OSW
     Bill Kline, osw
     Mike Petriiska, OSW
     Chr i s Rhyne  OSW

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                                                                    9476.00-13
                                                                    IAttachment
   DATE:
                     UNITED  STATES ENVIRONMENTAL PROTECTION AGENCY
                                      REGION V
31 DEC 1987
SUBJECT:  Regulatory Interpretation of the Closure Performance Standard
            For Surface Impoundments At GMC/Harrison Radiator, Dayton, Ohio

   FROM:  William Miner,  Chief
          Solid Waste Branch

     TO:  Marcia Williams, W-ector
          Office of Solid Waste

          The Closure Performance Standard under §40 CFR Part 265.111(b) calls
          for the Owner/Operator to close the facility in a manner that "Controls,
          minimizes or eliminates....post closure escape of hazardous waste,
          hazardous constituents, leachate, contaminated run-off, or hazardous
          waste decomposition products to the ground or surface waters..."  GMC
          Harrison Radiator has proposed the closure as a landfill option for
          their regulated surface impoundments; which, we contend, will not meet
          the closure performance standard as defined above.  We believe that
          proposed method of closure will not provide adequate protection against
          the release of  hazardous constituents to the groundwater underlying the
          facility; and,  as such, does not provide adequate protection for human
          health and the  environment, as called for under the Closure Performance
          Standard.

          The facility has two surface impoundments which received a variety of
          hazardous wastes beginning with the "South Lagoon" constructed in 1966,
          and the "North  Lagoon" which was constructed in 1972.  Both lagoons
          accepted wastewaters containing halogenated solvents, which in the case
          of the North Lagoon, has compromised groundwater quality to a signifi-
          cant degree.

          Recent groundwater quality assessment data for the North Lagoon has
          revealed concentrations of halogenated solvents which exceed the Maxi-
          mum Concentration Limits for drinking water by an average of twenty
          times.  It 1s also believed that the South Lagoon 1s affecting ground-
          water quality as well, but 1t 1s unknown at this time the concentra-
          tions of any specific hazardous constituents.

          The Exposure Information Report (EIR), completed for the regulated
          units at the SMC facility, concluded that the proposed method of clo-
          sure My not minimize the production of leachate which will occur as a
          result of groundwtter Infiltration Into the stabilized wastes.   In
          particular, page 47 of the EIR states,  "It 1s assumed that water  levels
          will rise when  pumping of (the) county wells 1s discontinued, with
          gradients and water levels returning to near historic  (prepumplng)
          conditions.  Hater levels may rise to elevations above those  of the
          bottoms of the lagoons...

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                                   -2-


As such, it 1s possible that some of the recompacted sludges contained within the
closed facilities may be below the water table.  This could result in leaching of
the wastes..."

We do not believe that GMC can adequately demonstrate that they can minimize or
eliminate the post-closure escape of hazardous constituents to the groundwater  (as
required by the Closure Performance Standard) simply due to the expectation that
the stabilized wastes will lie within the aquifer after closure has been completed.
Also, the presence of groundwater contamination from the Impoundments leads us to
believe that simply capping the impoundment will not alleviate the problem. We
propose that GMC has only two options for the regulated impoundments: 1) GMC must
remove the wastes presently in the Impoundments and dispose of them off-site or;
2) Remove the wastes from the present units and construct a doubly-lined landfill
unit in its place, and construct the unit at least one meter above the highest
expected groundwater elevation.  We believe that these methods of closure will
adequately meet the closure performance standard, since they will demonstrate that
the post-closure escape of hazardous constituents to the groundwater has been
thoroughly minimized.

We request that a determination be made by your office concerning our argument  that
the intent of the closure performance standard precludes closure as a landfill.   In
any event, we will be pursuing corrective action either 1n a postclosure permit  or
with a 3008(h) order.  However, if we can require excavation through the closure
process, appropriate action can be started much more quickly.  Approval of this
closure plan 1s a 3rd Quarter FY '88 commitment by the Region, and we have tenta-
tively scheduled a meeting with GMC to discuss these closure concerns for mid-
January 1988.  Therefore, we request that you respond to this memo by January  10,
1988, so that we can be prepared when we meet with the facility.

Specific questions concerning the facility can be answered by Robert Swale, the
closure plan reviewer for this facility.  Mr. Swale can be reached at FTS 886-6591.


cc:  Anthony Sasson, OEPA
     Randy Meyer, OEPA
     Richard Robertson, OEPA-SWDO

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                                  OSWER DIRECTIVE # 9476.00-13
   -
   \        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
   3                   WASHINGTON, D.C, 20460

                                               SCUD '.VAS'E A\
MEMORANDUM

SUBJECT:  Regulatory Interpretation of the Closure
          Performance Standard
                                 ^--

FROM:     Marc i a Williams, Director',
          Office of Solid Waste  ~^

TO:       William Miner, Chief
          Solid Waste Branch, Region V

     In your memorandum of December 31,  1987 you requested our
views on whether the closure performance standard  (264.111 and
265.111) could be used to require source control at two
particular surface  impoundments  which the owner/operator wishes
to close as landfills.  Our  response to your question first
addresses the issue in a general way and then turns to your
specific question concerning the two surface impoundments.

     The general performance standards and the technical
standards complement each other, and both must be  complied with
(See 51 ER 16424).  Where the unit-specific technical standards
provide detailed instructions, those procedures should be
followed.  In exceptional cases  where unit-specific standards
may not be enough to minimize or eliminate post-closure escape
of hazardous constituents, you should look to the  closure
performance standard for authority to require additional
control measures.

      In addition,  the preamble  to the March 19, 1985 Proposed
Rule for Standards  Applicable to Owners  and Operators of
Hazardous Waste Treatment, Storage, and  Disposal Facilities  (a
Final version of the Rule was published  on May 2,  1986) states,
in 51 IB 11070, that

      "the amendment explicitly  requires owners or operators of
      TSDFs to comply with both  the general performance
      standard and  the applicable process-specific standards.
      Owners or operators must close their  facilities  in  a
      manner that complies with  applicable  process-specific
      requirements  where specified;  the general performance

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                                 uSWER DIRECTIVE i 9476.00-13
                               — 2—

     -standards apply to activities that are not otherwise
      addressed by the process-specific standards but are
      necessary to ensure that the facility is closed in a
      manner that will ensure protection of human health and
      the environment."

     The final rule for Closure, Post-Closure and Financial
Responsibility Requirements (May 2, 1986) further states, in 51
FR 16424, that TSDFs must "comply with both the general
performance standard and the applicable process-specific
standards."

     These authorities support your position that the closure
performance standard can be used as a basis for requiring
source control when necessary to achieve this standard.  40 CFR
Subpart G,  Sections 264.112 and 265.112 requires a description
of how each unit and facility will be closed in accordance with
Sections 264.111/265.111 (see Sections 264.LIZ/265.Il2(b)(1)
and (2)5.  Section 265.112(b) in particular, requires that the
closure plan include "a detailed description of other
activities necessary during the partial and final closure
period to ensure that all partial closures and final closure
satisfy the closure performance standards, including, but not
limited to, ground-water monitoring, leachate collection, and
run-on and run-off control."

     Your memorandum indicates that hazardous constituents may
migrate into ground water because the water table may come into
contact with the bottom of the unit.  The closure requirements
at 264.228/265.228 were designed to minimize infiltration
through the cap.  Therefore the problem identified in this case
is not addressed by the design-specific requirements, and the
264.111/265.111 performance standard can be invoiced to require
additional actions.

     It is also important that the closure process is
consistent with any corrective action process that may be
required in the future.  In the case of these two surface
impoundments, your memorandum indicates that releases are
currently occurring and that these releases would not be
minimized if closure were performed with significant amounts  of
waste in place.  Corrective action to address such releases
could necessitate removal of the waste.  If this occurred  after
capping, the action would be seriously complicated and
substantial resources would have been wasted on the cap.

     An alternative approach to using the  closure performance
standard as a tool for obtaining environmentally sound closure
and to address  releases, would be  to use a. post-closure permit
and/or a 3008(h) order issued in conjunction with closure plan
approval.

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                                  OSWER DIRECTIVE i 9476.00-13
                               -3-

    In conclusion, it is the Region and/or the state's choice
(depending on which level of government is authorized to
implement RCRA) as to which tool  is used.  Clearly the
regulations allow the use of the  general performance standards,
post-closure permits or 3008(h) orders to ensure that
facilities close in a way that is protective of human health
and the environment.
cc:  Robert Swale, Region V
     Lee Tyner, OGC
     Chris Rhyne, OSW
     Jim Bachmaier, OSW
     Lauris Davies, OSW
     Regional Division Directors

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ON<
  MEMORANDUM

  SUBJECT:  Ground-Water Monitoring  at Clean-Closing Surface
            l^mpoundme.qit and  Waste  Pile Units

  FROM:      ji Wi nSt d vt
            Assistant Administrator

  TO:        Regional Administrators
            Regions I-X

      Several provisions of  HSWA have made, it  necessary or
  desirable for a number of  owners or operators  to  close their
  land disposal units.   Many of these units are  going  through
  "clean closure*1; that is,  removal  of all waste residues,
  contaminated containment system  components,  contaminated
  subsoils, and structures and equipment  contaminated  with
  waste  and leachate.  Several Regions have questioned whether
  a  clean closure demonstration requires  ground-water
  monitoring before the unit is declared  clean for  the purposes
  of closure under sections  264.228(a),  264.258(a),  265.228(a),
  or 265.258(a).   The purpose of this memo is  to reiterate  and
  clarify Agency policy in this regard.

      It has been the Agency's policy  for some time that owners
  and  operators must not be  allowed  to  "walk  away"  from units
  with inadequate ground-water monitoring systems or with
  ground-water contamination at closure.   This policy  has been
  described in my August 27, 1985  memorandum  regarding RCRA
  policies on ground-water quality at  closure, in the  FY 1987
  and  1988 RCRA Implementation Plans (RIP), and  in  the clean
  closure policy outlined in the preamble to  the final
  "conforaiiig: change** rule  concerning  clean  closure of surface
  impound******-published in the  Federal Register on March 19,
  1987 (52 fft 1704).  If an  adequate ground-water monitoring
  system isr~Tn. place, it is  still  th* Agency's policy that as
  part of the clean closure  certification process EPA must
  review ground-water monitoring  data to verify that there is
  no ground-water contamination from the unit(s).

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                                    OSWER Policy Directive No. 9476.00-14

                               -2-
    There exists, however, a universe of land disposal units
that may not have a ground-water monitoring system, or may have
an inadequate ground-water monitoring system in place at
closure.  These include interim status waste piles, interim
status surface impoundments that contain corrosive-only
hazardous waste that are eligible for a waiver under section
265.93(e), interim status units exempted from ground-water
monitoring on the basis of the self -implemented waiver found in
section 265.90(c), or units simply failing to comply with the
Subpart ? requirements.

    Many of these units have already closed by removing waste
and certifying "clean closure" without assuring clean ground
water.  Congress has made it clear that ground-water
contamination at treatment, storage, and disposal units must be
addressed.  Section 3005(i) of RCRA requires all units receiving
hazardous waste after July 26, 1982 to comply with ground-water
monitoring standards established under Section 3004, regardless
of their current active or inactive status.  Any closed interim
status unit covered under Section 3305 (i) that does not meet the
40 CFR 264 clean-closure standard must be issued a post-closure
permit implementing the appropriate Subpart t program.  In order
to avoid post-closure permit responsibilities, interim status
facilities that have "clean closed" will need to present
evidence that the "clean closure" is in compliance with the
Agency's clean-closure rules found in sections 264.228 and
264.258.  (This position is clearly presented in the Final
Codification Rule, 52 FR 45788, December 1, 1987).
Reexaaii nation of all prior clean closures should be performed as
suggested by the 1988 RIP and in concert with individual
Regional priorities.

    We recognize, however, that under certain circumstances  for
units that "clean -closed" under interim status a demonstration
that ground water is uncontaminated might be made without a
ground-water monitoring system in place.  In order to preclude
the need for ground-water monitoring at a clean closing unit the
owner or operator* would need to meet the decontamination
standard as codified in section 270.1{c)(5) and  (6) and make a
demonstration in, accordance with applicable waiver requirements
found in section 264.90(b) (4) .  For clean-closing  units at  least
the follojr|ji8_ criteria would need to be met to assure  compliance
with the giiatra]. closure performance standard  (section  264.111):
    I) Accurate historical data  on  wastes  handled  at the  unit
       have been carefully recorded,  including a complete
       analysis of waste composition  and characteristics;

    2) The properties of the waste  constituents together  with
       the geochemical environment  of the  soils show no
       potential for migration to ground-water during the active
       life and any post-closure care period; and

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                                  OSWER Policy Directive No. 9476.00-14
                               -a-



     3) Other  supportive data  (e.g., an alternative monitoring
       system or other geophysical verification)  needed to
       ensure protection of human health and the environment.


    We recognize that these criteria for not requiring
ground-water  monitoring are stringent.  However, these
restrictions  are necessary because the Part 264 clean-closure
demonstration may ultimately relieve the owner or operator of
any  further Subtitle C responsibilities at the closing unit or
facility.

    For  those units authorized to operate under Section 3005(e)
that stopped  receiving waste prior to July 26, 1982, several
tools exist for obtaining confirming data.  Where the
Administrator has determined, based on any information, that
there has been a release of hazardous waste (or hazardous waste
constituents) from a facility into the environment, Section
3008(h) may be used to perform studies (including ground-water
monitoring) and/or corrective measures, as necessary to protect
human health  or the environment.

    Where imminent and substantial endangerment can be
established,  studies and corrective measures can be required
under Section 7003.  Section 3913 could be used to collect data
and to implement ground-water monitoring, where the presence or
the release of hazardous wast* "may present substantial hazard"
to human health or the environment.

    Where a permit for the facility is otherwise required,
corrective action  (including ground-water monitoring)  for
improperly "clean closed* units may be effected under  Section
3004 (u) during the perait process.  In cases where an  adequate
ground-water  monitoring system has not been installed  and there
is no valid ground-water monitoring waiver, and/or where othet
Subtitle C requirements have been violated, attempts at clean
closure, whether successful or not, should not preclude the
imposition of enforcement authorities, foe example under Section
3008(a) to obtain remedies and/or penalties under Section
30«8
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 MAY  I 2 G89                   OSWER Policy Directive # 9476.oo-is
SUBJECT: Guidance on Demonstrating Equivalence  of  Part  265  Clean
         Closure with Part  264 Requirements

FROM:    Sylvia Lowrance, Director V  A  ^  >4.
         Office of Solid Waste   ^-^^ ^*   
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subsoils..**  The Agency  interpret* the terms "remove" and
"decontaminate" to mean "...removal of all wastes and liners, and
the removal of all leachate  and materials contaminated with the
waste or leachate  (including ground water) that pose a
substantial present or potential threat to human health or the
environment11  (52 £B at 8706) .  To meet this standard,
owner /operator s must demonstrate that no Part 261 Appendix VIII
constituents remain in the soils, vadose zone, or ground-water
above Agency-recommended  limits before certifying clean closure.

    These Agency-approved limits or  factors include water
quality standards and criteria, health-based limits based on
verified reference doses  (RfDs) and Carcinogenic Potency Factors
(CPFs), or site-specific  Agency-approved health advisories (52 £B
at 8706).

    When assessing potential exposures to constituents released
from the unit, the owner/operator must establish the points of
compliance directly at or within the unit boundary for all routes
of exposure (surface water contact, ground-water ingestion,
inhalation, direct contact,  and soil ingestion).  In setting
these points of compliance,  consideration of contaminant
attenuation between the unit and potential exposure points is not
allowed.

    Further discussion of these requirements is provided in the
preamble to the March 19, 1987, conforming changes regulation (52
FR 8704), and in a subsequent Notice of Clarification issued on
March 28, 1988 (53 2B 9944).   Pending the up-coming issuance of
the clean closure guidance mentioned in the March 19, 1987,
preamble, these tvo sources  provide the fullest interpretation of
Agency policy concerning  the requirements applicable to units
undergoing clean closure.

B.  Previous Part 265 Interim status Clean Closure Requirements

    The pre-1987 part 265 interim  status clean closure
requirements differed from the Part 264 requirements in several
significant way*.  First, these standards allowed owner/operators
to discontinue removal activities and certify closure if they
were able to demonstrate  that residuals associated with the unit
were no longer hazardous. This provision allowed owner/ operators
of surface impoundments containing solely characteristic wastes
to meet the clean closure standard by demonstrating that wastes
no longer exhibit the characteristic that first brought the
impoundment under regulatory control.  In this, situation,
owner/operators could have clean closed without evaluating the
presence of additional Appendix VIZZ constituents that could pose
a threat to human health  or  the environment.

    Secondly, the  interim status ground-water monitoring
requirements applicable to these units only required

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owner/operators to monitor for indicator parameters and hazardous
waste constituents for which a waste was listed.  Owner/operators
did not have to demonstrate that all Appendix VIII constituents
that could pose a threat to human health or the environment had
been removed in order to certify clean closure.

    Finally, interim status facilities were not required to
demonstrate that all releases of Appendix VIII constituents to
soils, surface water, air, or ground water posing a threat to
human health or the environment had been removed at closure.

IV. EQUIVALENCY DEMONSTRATION INFORMATION REQUIREMENTS

A.  Gfneyal Information Requirements,for Equ|,yalency
    Demonstrations

    40 CFR Section 270.1(c) now affords owner/operators who
closed under the Part 265 requirements the option of
demonstrating that the units had actually been closed in
accordance with the Part 264 requirements, by submitting an
"equivalency demonstration".  This equivalency demonstration is
outside the Part B post-closure permit application and review
process.  The Agency expects owner/operators to submit sufficient
information in their equivalency demonstrations to allow the
Agency to determine whether the clean closures fully comply with
the Part 264 requirements.  The Agency does not intend, however,
that owner/operators submit the same quantity of information
required when submitting full Part B permit applications.

    The demonstration submitted by the owner/operator must
include, at a minimum, sufficient information for identifying the
type and location of the unit, the unit boundaries, the waste
that had been managed in the unit, and the extent of waste and
soil removal or decontamination undertaken at closure.  Relevant
ground-water monitoring and soil sampling data should also be
submitted to demonstrate that any Appendix VIII constituents
originally in the unit and that remain at closure are below
levels posing a threat, to human health and the environment.
These levels are those discussed in the March 28, 1987 preamble,
i.e., water quality standards and criteria, health-based limits,
carcinogenic potency factors, or ATSDR site-specific Agency-
approved advisories  (52 £B at 8706).

    Owner/operators  can submit information demonstrating that
the closure certified under Part 265 complies with the Part 264
standards using existing data developed at the time of closure.
If insufficient data are available to support this demonstration,
owner/operators may collect new data to demonstrate that the Part
265 clean closure meets the Part 264 clean closure requirements
that were in effect at the time of closure.  If upon review, the
Agency determines that the closure does not meet the Part  264
standards, the owner /operator will be required to submit a Part B

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permit application containing all the applicable information
required in Part 270,  including ground-water monitoring
information.

B.  Acceptability of  Specific Information Supporting Equivalency
    Demonstrations

    Five potential issues concerning the acceptability of
specific kinds of data used in an equivalency demonstration have
been identified.  These  issues are discussed below.

    1.  Acceptability of Previously Collected Data

    Many facility owner /operators will  have generated
considerable amounts  of  data during their original closure
activities.  To the extent that these data represent the
conditions at closure and provide sufficient information to
determine compliance  with the Part 264  requirements, they may be
used to support an equivalency demonstration.  Regional staff
should evaluate the information for the extent to which it
fulfills the requirements of Part 264 ,  and for its overall
quality, reliability,  and accuracy.

    While previously  collected data may be used, in many cases
owner /operators will  need to collect some additional information
on hazardous constituents that may remain in the soils, vadose
zone, or ground water to demonstrate equivalency.
    2 .   Use of? Existing Soil and Ground— Wat^r Sampling Data as
         Proxies for Missing Data

    The  Agency believes that in limited cases owner/operators
may use  existing soil  and ground-water sampling data as proxies
for missing data.   In  the first case,  soil sampling data can
serve as a proxy for ground-water monitoring  data when these are
not available.  In the second case,  ground-water monitoring data
can be used to demonstrate the acceptability  of a soil or vadose
zone cleanup.   In  such cases,  the Agency may  consider these data
when reviewing equivalency demonstrations.  For example, some
owner /operators may wish to use previously collected soil
sampling data  as a surrogate for actual ground-water sampling
data in  order  to demonstrate compliance with  the Part 264 ground-
water clean closure levels, or facility owner /operators may wish
to demonstrate that soil contamination was remediated
sufficiently by submitting ground-water monitoring data
demonstrating  no migration of contaminants from the soil.  It is
more likely that EPA will accept soil sampling data as a proxy
for ground-water monitoring data than the converse.  One such
example  of  where soil  sampling and vadose zone data might be used
as a surrogate for ground-water sampling data is  in a
hydrogeologic  setting  where the water table  is located at

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significant depths from the surface or vhere ground-water
monitoring is not feasible.

     Demonstrations using soil sampling data will, however,
generally require assumptions of contaminant fate and transport
in the relevant subsurface media.  As stated in the preamble to
the March 19, 1987, conforming changes rule, the Agency does not
believe it is appropriate to consider assumptions about
subsurface attenuation when approving clean closures, given the
uncertainty involved in such assumptions and the fact that all
further regulatory control ends upon certification of the
closure.

     3.  Requirement for Full Apendix VTII
    The Part 264 clean closure standards require a demonstration
that all Appendix VTII constituents originally in the unit have
been removed or decontaminated.  As with the 40 CFR Section
264.93 monitoring requirements, however, the Agency believes that
it may be possible to exclude some hazardous constituents from
consideration based on knowledge of past activities at the unit.
Equivalency demonstrations that consider all the hazardous
constituents that may reasonably be expected to be in or derived
from the wastes managed in the unit may be acceptable in lieu of
the full list of Appendix VIII constituents.

    The Regions may decrease the list of constituents that must
be evaluated to the extent that information submitted by the
owner /operator is complete relative to the wastes disposed and
demonstrates that these constituents could not reasonably be
present in environmental media affected by the unit.  In
evaluating such demonstrations, Regions should also evaluate
closely the potential that additional Appendix VTII constituents
may be present in the soils or ground water beneath the unit.

    4.  Use of Data from Previously Existing Ground-Water
        Monitoring Systems

    The Agency will consider equivalency demonstrations based on
data from previously existing ground-water monitoring systems
provided such ground-water monitoring systems were in compliance
with the applicable requirements*.  At a minimum, such systems
must have met the Part 265 Subpart F ground-water monitoring
requirements.  To the extent that these systems were located,
screened, and operated properly to gather representative ground-
water information, the Agency believes that they can be used to
support an equivalency demonstration.  In order to determine
whether monitoring systems were in compliance with Part 265,
Regions should examine available records and documents, such as
old inspection reports, enforcement records, CHE reports, or
Ground-Water Task Force reports.

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     5.  Practicabtl itev of Obtaining New Data

     Some  facilities will have certified clean closure several
years ago, and subsequently may have constructed structures on
top of  clean closed units, making it difficult to obtain new data
for the equivalency demonstration.  For example, a building with
a concrete floor or wastewater treatment unit constructed on top
of a clean closed hazardous waste management unit could obstruct
the collection of nev sampling data.  Collecting new soil or
ground-water data at such a site might require either drilling
through the concrete floor of the building or using angled
drilling techniques.

    The Agency recognizes the difficulties associated with data
collection in these cases.  In reviewing the quantity of such
data submitted, the Regions may consider the technical
difficulties involved in collecting such data.  The standard of
protection against which equivalency demonstrations will be
evaluated will not, however, be different depending on the
technical difficulties of data collection.* Accordingly, the
Agency will require owner/operators to submit representative
existing data and/or to collect those data necessary to
demonstrate compliance with the Part 264 requirements.

V.  APPLICABILITY TO LANDFILLS

    EPA interprets its regulations to allow landfills from which
wastes have been removed at closure to accomplish "clean closure11
and, if closed under 40 CFR Part 265 standards, to allow an
equivalency demonstration to be made under 40 CFR Section
270.l(c)(5) and (6), through redefinition of the landfill as a
waste pile, surface impoundment, or land treatment unit.  It is
most likely that the redefinition, or change in process, will be
to a waste pila, pursuant to 40 CFR Section 270.72(c).  clean
closures or demonstrations of equivalency with clean closure, are
governed by the applicable Part 264 closure requirements (e.g.,
40 CFR Section 264.298 for waste piles).

    As  an alternative to making an equivalency demonstration
pursuant to 40 CFR Section 270.1(c)(5), the owner/operator of a
landfill  from which all waste has been removed and for which the
owner/operator can provide evidence that the level of
contamination is such that it no longer poses a threat to human
health  and the environment, may request that the Regional
Administrator shorten the post-closure care period [40 CFR
Section 264.117(a)(2)(i)].  The term of the post-closure permit
should  then be modified to a minimal period in accordance with 40
CFR Section 270.42.

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VI. CONTKHTS OF THE EQUIVALENCY DEMONSTRATION AND PROCEDURES FOR
    SUBKXTTAL

    No specific format for em equivalency demonstration is
required.  For ease of review, the Agency suggests that
equivalency demonstrations include three basic sections: 1) a
Unit Description, 2) a Description of Closure Activities
Conducted, and 3) a Demonstration of Compliance with Clean
Closure Levels.

    The first section, Unit Description, should provide
information on the size and location of the unit,  the wastes
managed by the unit (EPA hazardous waste numbers and quantities),
any liner system and leachate collection system, containment
system, and run-on and run-off control systems.  In addition,
owner/operators should present a description of the hydrogeology
of the immediate area, including descriptions of ground-water and
soil conditions, ground-water monitoring systems,  detection
programs, and any corrective action activities undertaken.  For
land treatment units, information concerning application rates
should also be included.

    The second section, the Description of Closure Activities
Conducted, must identify/ in detail, all removal and
decontamination activities completed at the unit during closure.
This description should include information on the quantity of
waste. removed (by waste type), the quantity of leachates and
contaminated containment liquids removed, the quantity of bottom
sludges/residues removed, the quantity of contaminated soil
removed, the methods used for removal of inventory (i.e., waste,
sludge, residue, liquid, and soil), and the procedures used for
decontaminating and/or disposing of inventory.  Specifically, the
description of the decontamination and disposal activities should
identify the method of decontamination of equipment/structures,
the treatment or disposal of cleaning agents/ rinsewater, and the
demolition and removal of containment systems  (e.g., liners,
dikes) and other equipment/structures.

    The previously approved closure plan should provide the
majority of the descriptive material required  for sections 1 and
2 of the demonstration.  The owner/operator should not assume
that the closure plan has been retained by the Agency; relevant
portions of the plan should be r•submitted.  A copy of the
closure certification should also be provided.

    The third section. Demonstration of Compliance with  Clean
Closure Levels, should present sampling data supporting the
owner/operator's equivalency demonstration.  This section  should
specify where samples were taken in each relevant medium, when
the samples were taken, what parameters were examined, and the
analytical results.  The information should specify the  sampling
protocols and analytical methods used during the sampling

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                                8

activities, along with available quality assurance/quality
control information.  The raw sampling data should b« presented
in an appendix to tha report, vhila the results should be
summarized in a clear manner in the body of tha report.  In cases
where surrogates or proxies are proposed for use, the
owner/operator should fully explain the reason for the use of
such proxies and any analytic assumptions which ware made.  Where
data from all Appendix VIII constituents are not submitted,
section 2 of the submission should support the assertion that
such constituents were not and are not present in the unit.

    Finally, tha demonstration should include a narrative
discussion summarizing both the results of previously collected
data and new data collected for this demonstration.  In the
conclusion, the section should compare the results of sampling
data to the applicable clean closure levels for the relevant
parameters.

    The December 1, 1987, Codification Rule presented procedures
and timeframes for the submittal, review, and approval of
equivalency demonstrations.  The timeline presented below
summarizes tha critical dates and activities that must be
followed by owner/operators and tha Agency upon receipt of an
equivalency demonstration.
_ JL _
I. 90

MOtyt

.

30 Ofty*
L *
80 Days
                                           180

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                                                           9476.1983(02)
                              JAN  | |  1983
Dr. Reva Rubenstein
Director
Institute of Chemical Waste
  management
National Solid Waste*
  Management Association
1120 Connecticut Avenue, N.W.
Washington, D.C.   20036

Dear Dr. Rubenstein:

     This letter is  in response to your letter of  December €,
1982, requesting interpretation of closure and post-closure
requirements regarding land disposal  facilities.   I have
responded to your questions in the order presented in  your
letter and attachment.

1.  Recontouring the final cover material and/or adjusting
    inplace waste in the sane unit as required to  maintain the
    function of the  final cover as a  result of. subsidence and
    settlement, does not constitute receipt of hazardous waste
    after January 25* 1983.J;These actions must be described
    in each facility's closure and post-closure plans  which
    must be approved by the Regional  Administrator.  Modifica-
    tions can be made to these plans  as necessary  with Agency
    approval•

2.  The controlled Irrigation of the  vegetative cover  is allowed
    in order to establish vegetation  during the closure period
    or to maintain it during prolonged dry-spells  in the post-
    closure period.  But the regulations require the final cover
    to provide long-term minimization of migration of  liquids
    through the closed landfill  (S264;310(a)<1)),  and  to function
    with minimum maintenance  (5264.310(a)(2)).  Thus,  the
    guidance documents recommend that the plant species chosen
    be indigenous, require minimal or no additional moisture,
    and be selected  based on anticipated moisture, light,
    temperature, elevation, and competitive cohabitants, etc.

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The closure and post-closure plans should contain a descrip-
tion of why and when the irrigation may be determined to
be necessary (e.g., recommended by ideal agronomist to
establish vegetation during a dry period), the amount and
frequency of water application, and water balance analysis
showing the effect of the irrigation water on total annual
liquid input through the final cover*/

EPA has available two reports that provide technical
information on this subject, entitled 'Evaluating Cover
Systems for Solid and Hazardous Waste* SW-867, September
1982, which discusses Irrigation of plant cover and other
plant requirements; and (2) "Hydroiogic Simulation on
Solid Waste Disposal Sites* SW-868, September 1982, which
is a computerized water balance model, to evaluate the
probable hydrologic performance of existing or proposed
landfill designs.  Both of the reports are available from
the Government Printing Office (SW-R67 is Stock No. 055-
000-00228-2 IS4.75, SW-868 is Stock No. 055-000-00225-8
*$6.00).  EPA is currently revising the model for •Hydrologic
Simulation on Solid Waste Disposal sites* to enable its
use in estimating seepage through the liner as well as
through the cover.  The revised TOdel should be available
early in 1983.

Your statement that 40 CFK Parts 264 and 265 prohibit the
addition of bulk liquids to the waste management unit J.s
net quite accurate.  Bulk liquids$Mr Wcto "1'f IfaV site
is lined and has a leachate collection and removal system.
Liquids in the leachate collection system must be removed
during operation, closure, and post-closure.  In general,
the addition of liquids into the unit during closure would
be permitted only if by doing so the facility and waste
will be stabilised sooner*  As you know, the objective
during and after closure is to remove liquids and keep them
out.  If liquids are added during closure, the closure period
would need to be extended until the addition stopped.

To further claVify the above explanations I must emphasize
four points.  First, any liquid applied to the final cover
of a landfill to sustain vegetation cannot be a hazardous
waste (e.g.* cannot be leachate unless it is no longer a
hazardous waste), cannot harm the vegetation., and cannot
otherwise impair'the integrity of the final coyer (e.g.,
cause increased infiltration because of damage caused by
pB).  Second* liquids aay not be injected into the waste
after closure (e.g., leachate recirculation by injection),
since this is contrary to the post-closure objective of
keeping liquids out.  Third, as stated above, liquids
could be allowed during closure, including leachate

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reelrculation,  if;  (a)  there is a liner and  leachate
collection  system,  (b)  leachate is removed  from the
leachate  collection systero,  (c) the addition of liquids.
serves Jto_~_*nhajiice  closure~Te»g. ,  accelerates subsidence
-end" stabilizationf,~-ca_tIi«r ..than__roerely serves as a_conv«nieat
way_ todispose  of  thc"l'iquids, anH~T8T~the  liquid .addition
f 5-sxjrr* ined  anfl lustitted in  the closure—plan. .Such
closure you Id not  be completed until recircul_atjLon._cea8es_,
Also, recirculatlon lot  a hazardous waste (leachate) after-
January 26,  1983 would  make  the unit a regulated unijf .
subject to  the_ requirements  of Part 264_._  I  should poi'nt
out that  recircula'tioti'of a  hazardous waste  (leachate) can
occur during  operation_*ad- would normally be considered an
operational ra'tTKer than closure activity.   Closure activities
are those which _le_ad_ to .stabilizetion ~of~ the unit in a
timely manner af^ter receipt  of wastes has ceased.  FourUs,
the characteristics and purpose of any* llquids~~€o be added
to the land'fill or to the cover during or after closure.
must be specified  in the closure or post-closure plans and
approved  by the RA (or  authorized State),  including any
extension of  the closure period.   Such purpose and extension
must be consistent with the  environmental objectives specified
In Part 264 or  265.

Landfills that  are currently engaged in co-disposal of
hazardous and non—hazardous  wastes could continue to accept
non-hazardous wastes after January 25, 1983, in order to
complete  a  partially filled  hazardous waste unit and close
under either 40 CFR Part 265 or Part 264 requirements.  This
assumes that the owner  or operator completes the cell in a
tiswly manner,  which generally means within the 180 day
closure period.  If the closure cannot be co»pleted__wLth-in
the- 180 days the owner  or operator must apply to have the
closure period  extended beyond 6 oonths* for a specified
time p»riod,  as prjpvid«
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    or closure permit («.g., tinw» period, final contours, type
    of waste).

4.  For the situation where a surface impoundment 'clones as a
    landfill* before January 25, 1983, I presume you mean no
    more hazardous wastes received after January 25, 1983, but
    closure (e.g., dewatering, etc.) has not yet been done.
    The waste will be removed from the surface impoundment,
    solidified and replaced in the same impoundment, to ensure
    that it will bear the weight of the cover.  EPA do«s hot
    consider this replacement of waste after January 25, 1983,
    to be "receipt* of hazardous waste which would constitute
    a 'regulated unit*.'  This decision assumes that the
    solidifying material is not a hazardous waste.

5.  For your last question you described the ease where
    multiple hazardous waste trenches will cease to r*ce_iye
    hazardous waste on or before January 25, 1983, and where
    the closure plan provides for a delayed closure of a half-
    filled trench for the deposit of solidified hazardous
    waste from closed and capped trenches.—In general, such
    placement o€-«oHrl1fieri_haiarrtnu« waste fro* the clos«rd-
    trenchet into the reserved half*filled t re-neb-, even at
    the same facility, will be considered 'receipt* of hazardous
    waste such as to constitute a 'regulated* unit^Because the
    waste is received and disposed at the facility urtTf after
    January 26, 1983_.  1 refer you to the July 26, 1982 Pedera 1
    Register preamble discussion at 47 •** 32289 which describes
    the concept of a waste management unit*  Where landfills
    consist of a series of trenches which are separately lined,
    each trench is a separate wast* management unit*  The transfer
    of hazardous waste from OR* unit to another after January 26,
    1983 therefore makes the receiving trench or unit a "regulated*
    unit.

     As a side note, I should mention that the closure
performance standard for interim status and for permitting
facilities is the same (40 CPR 264.111 and 40 CP* 265.111).
The final cover or cap for landfills closed under Part 264 or
265 standards should be Himilar.  Significant differences in
the design of the cap should result from site specific factors
rather than the type of permit a facility ha*.  Thus, many of
the above comments apply to both Part 264 and 265 closure
requirements*

     I hope the above explanations help clarify the regulations
for you.  Should you have any further questions with regard  to

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how this regulation effects NSWWA members pleaee contact me or
Pred Lindmey of my staff (382-475*5).


                                  Sincerely yours,
                                  John H. Skinner
                                  Acting Director
                                  Office of Solid Waste

cc:  Regions I - X (with incoming)

     «ike Cook.
     Eileen Claussen
     John Lehnan
     Bruce vieddle
     Lisa Priedrean
     nnrk Greenwood
     Pred Lindsey
     Gene Lucero
     Ken Shuster

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                                                               9476.1984(03)
           RCRA/SUPERFUND  HOTLINE MONTHLY  SUMMARY
                             MARCH 84
Does a 265 closure have to use the 5270.ltd) certification?
    So, the closure is not a permit application oc a permit report.
    Source:  Betty Seller

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            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON. O.C. 20460              9476.1984(04)
                           AUG07 1984
                                                 tiO WASTE
MEMORANDUM


SUBJECT:  Closure issues Related  to Wood Preserving Plants

FROM:     John H. Skinner, Director
          Office of Solid Waste

TO:       James H. Scarbrough, Chief
          Residuals Management Branch, Region IV


     In your June 26, 1984 memorandum you posed three questions
regarding closure activities and  the use of unproven technolo-
gies for closure at wood preserving plants.  Several questions
regarding the definition of K001  hazardous wastes generated
by these facilities were also raised; these latter questions
have been partly answered in my July 25, 1984 memorandum.A/

     First, the maximum time allowed for closure after final
receipt of waste is 130 days as specified in S264.113(b)
unless the Regional Administrator grants the owner or operator
an extension.  The grounds foe extensions are strictly limited
to instances when: (1) of necessity, it takes longer than
180 days to perform closure, or (2) a new owner or operator
will recommence operations at the site and closure would be
incompatible with continued operation,  it seems that the
first criteria could be argued in the case of wood preservation
plants.  However, if the owner or operator could use a proven
technology to complete closure within the 160 day period, an
extension may not be justified.   In addition, I agree with
your assessment on this issue and reaffirm the guidance in
the preamble to the May 19, 1980  regulations: "A variance
procedure will allow a longer period, where it can be justified,
although in no case may closure take more than three years."
I/  A question was  raised  regarding  contaminated  rainwater
    run-off from  treated wood  storage areas.   We  hope  to  resolve
    this issue along with  the  regulatory  status of  spray  irrigation
    fields in conjunction  with EGD.   We expect to get  back  to
    you on these  points  in the near  future.

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                                                                   9476,1984(05)
•
'
j
                                    SEP 18
       Subject:   Stean Tean Conrenta,  Crucible  Steel,  Syracuse,  NY

       From      Chris Rhyne
                 KG Permit Assistance  lean

       Toi        Janes Reidy,  Chief
                 PCHA Permit a. Section, Region II


       Background

           Crucible Corporation  operates a speciality steel  will on
       the  west  side of Onondaga  Lake  approximately  2  miles northwest
       ot Syracuse , New York.   Since 1973 Crucible has keen operating
       a  2U acre landfill to dispose of its steel mill wast*.  These
       wastes ,  including CAP and  AOD dusts, waste caustic  solids, ar.cl
       acid pickling slucic.es,  are spread over the surface  of  an  inactive
       Solvay  Process Wastebed that  is 60 feet  deep  and 365 acres  in
       areai extent.

           The  Solvay Process Uastobed was forced as  a by-product  frcn
       tho  production of Soda  Ash (sodium carbonate) dating back to 1BH1
       and  is  comprised of Calcium Carbonate, Calcium  Silicate,
       Hydroxide, and lesser amounts of other compounds.  The average
       is approximately 12.0.
            After spending time with the State of  Hev York in an
       to obtain a permit to dispose of their hazardous waste, Crucible
       decided  to halt the disposal  of hazardous waste at this site
       in March of 1982.  -Sine* Crucible was no longer disposing of
       hazardous waste, they agreed  to submit a closure plan to the
       Region II office.  In this plan, Crucible propose* to continue
       operating the landfill as a non-hazardous waste landfill,
       applying ncn-hazardjous waste  over the in-place hazardous waste.
       Final cover would b« applied -in stages as the landfill, i* ccra-
       pleted.   Crucible anticipates completion in eight years.

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                             -2-

     Second, we agree with you that closure techniques should
be based on proven techniques and not concepts still in the
R and D stage.  For example, if the owner or operator wishes
to use land spreading of hazardous waste at closure, he must
demonstrate the effectiveness of the technique in his permit
application in accordance with Subpart M (land treatment) in
§264.272.2/  In this instance, more details are required
to determine the specific nature of the technology.  However,
if an interim status facility wishes to add a land treatment
technique, these new processes must be allowable under S27Q.72
as changes to interim status.  If these processes cannot be
justified under S270.72, a RCRA permit is required before
they can be used at the facility regardless of whether it is
to be used during the operating life or a.t closure.

     Third, the addition or creation of new processes at the
facility during interim status may be allowable under §270.72.
If the facility is permitted, however, process changes are
not allowed as minor modifications; therefore, the new process
would require a RCRA permit.

     I hope this memorandum addresses your concerns.  Please
contact Carole Ansheles at 382-4761 if you have any further
questions.
2/  As explained  in my July  25,  1984 memorandum,  we  are  currently
"~   investigating the regulatory status  of  spray  irrigation
    technologies  to determine  if they  meet  the definition of  a
    land treatment unit, a surface  impoundment, or a landfill.

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     • ray the rei-uirenent for cover at closure be delayocJ for an
       extended period of time?

     " Assuming the regulations allow delayed cover, do Crucible's
       argument* for delayed cover r'*»r,cnstrat« that the facility
       will prevent threats to hunan health and the environment?

     • May the final cover be covered by non-hazardous waste
       after installation?


niscussion

     Tne first issue is whether there is a legal basis for delaying
placement ot: the cover.  The owner or operator nust generally con-
plete closure activities within ISO days after closure plan approval.
The regulations do provide in sone casos for a longer than 180
day closure period;  however, the conditions outlined in <2fi5.113{b)
are specific and nust'be met by the applicant*  That is, th«
closure activities nust, of necessity, take hit* longer than 180
days to corplete;'  or closure would be incompatible with continued
operation, there is a reasonable likelihood that operation will
he recor.r>enced by a person other than th» owner or operator, and
the facility has the capacity to receive additional waste.  In
addition, tha owner or operator nust take all steps to prevent
tnreats to hunan health and the environment.

     If the Regional Administrator finds that the above conditions
have been T»«t, Crucible nay delay closure for a period lonqer than
IbO rtays.  Discussions with OSK »taff *nd with one staff haw
concluded, however, that the longer period nust fee relatoo to a
need for extra tine to conpiete legitirnate closure activities or
to a likely transfer of the operation to new parties, not to the
addition of non-hazardous waste disposal operation* at the sare
site, by the saise owner or operator.  We have not been informed of
any likelihood that someone other than the current owner will take
over operations at this site.  In addition, the preamble to the
Hay 19, 1930 regulations (45 PR 33197) provides that "..in
no case nay closure take more than 3 years." Therefore, the
Crucible closure plan raust contain only that tirv ne«d«d to
conplote legitimate, closure activities and nust reflect a closure
tine of less than 3 years.

     The second issue is whether or not Crucifclw's arfjuT^ents for
delaying final cover are environmentally sound.  Crucible has
indicated that an fSperr&eable ner&rane ever their waste would
cause excess settlement and subsequent Solvay Uasto dike instabi-
lity.  They reference a report by Ray M. Tueter, P.F»f addressing
settlenent and stability of the Crucible Landfill.  Mr. T«»eter
states that if the water table within the Solvay Waste w*re

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lowered (as would ha the case if the landfill were covered with
irpemeatle lirer), this would increase the effective stresses
in the Solvay feaste, resulting in increased settler»ent.   Nowhere
does Mr.  Teeter indicate that the increased settlertent would
create instability in the dike.

     Crucible's other environmental argument for delaying cover
is that the Solvay Waste adsorbs th« chroraiutn being leached from
the hazardous steel nill waste. This argument is based on Section 4
of th*j Engineering Report and Plan of Operation accompanying
the application for a State of New York permit.

     In this docunent lab scale and fi*ld scale test results are
reported.   The report, however, does not support Crucible's
conclusion.  The.following questions and observation* are included
for your  usei

     1.  Significant arounts of chromiun were leached from the
         Pilot column leaching test (see tables 4-4, 4-5, 4-6,
         and 4-7 for exanples).

     2.  The 'Multiple 2 Column Tests" did not indicate how much
         tap water was leached through the- columns or what the
         composition of the leacheate was at the completion of
         the test.  This information is critical to proper
         evaluation of the data.

     3.  Hexavalent Chromium in readily leached from both Air
         Pollution Oust and Waste Caustic Solids (See Table 4-8,
         page 4-12.).

     4.  Crucible indicates that Caustic Sludge and Acid Pickling
         Sludge do not leach chronate with neutral pR water, but
         do leach chrornate during the EP toxicity test at pH 5.0.
         They then conclude that these wastes could not be
         expected to leach Hexavalent Chroniura in the Crucible
         Landfill (see page 4-13).  Thin is not necessarily
         true since acid rain deposited in this region can be
         expected to have a pH of <5.0 (see pages 4-7 and 4-10).

     5.  Field Scale tub leaching tests showed a high' level
         (17.6 ng/L) of Chroniun in the leachate when Solvay
         Haste was used as an adsorbant (see table 4-15, page
         4-24).

     6.  Trivalent ant! Hexavalent Chroniun tests are not
         thoroughly reported since the quantity of leachate
         passed through the Solvay Process Waste has not been
         stated.  Results do, however, indicate that Hexavalent
         Chrcniuo is not well adsorbed by the Solvay Waste.
                               -3-

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     7.  Kexavalent Chror»itm Adsorption Tests show that Chrcnate
         is not well absorbed (350 ng/L) and is easily leached
         fiy tap water (s«e p«ge 4-28.).
     8,  In the Sequential Adsorption Colimn* test the
         Chroniui" content of the Solvay Process waste wa* very
         low (,5rc,/L). Crucible indicate* that thi* is duo to
         the reduction of K«xavalont Chroniuir. to Trivalent
         Chroniun.  Our review indicates that this is unlikely
         to happen.  Since the chron»ate content of the leachate
         was not reported, no reliable deductions can be nade.
         Their theory of reduction of the Hexavalent Chrowiun to
         Trivalent Chronium with Ferrous Iron as the reducing
         agent is unsubstantiated (see page 4*29).

     The third issue is whether the final cover can be covered
by additional non-hazardous waste.  It is distinctly the
intent of the regulations that final cover be "final*.  (This is
clearly implied by the reference to the vegetative layer In rule,
preamble, and guidance).  Moreover, $265. 117 (c) states that
post-closure use of the property on or in which hazardous wastes
remain after closure must never be allowed to disturb the integrity
of the final cover*  The only exception is if the owner or
operator can demonstrate that the disturbance!

     (1) Is necessary to the proposed use of the property, and
         will not increase the potential hasard to fiunan health
         or the environnentj or

     (2) Is necessary to reduce a threat to human health or the
         environment.

Obviously, the first test would be the one that night be used at
this site.  To meet rteet this test, Crucible would still have to
show how disturbance of the cover would not only satisfy the
requirements of $265. 117 (c) (1) but must demonstrate specifically
how. this disturbance vill still provide for control of pollutant
migration and surface water infiltration ($265.310(b) and other
applicable conditions outlined in $265.310.


Ri»connendfl t i ons

     Crucible's request for an extended period of tine for
installation of a final cap should be denied.  First, it is
doubtful that continued operation of the nonhazardous. landfill is
•necessary* for thtl completion of closure activities.  Rven if it
could be construed as such, 3 years would be the  limit outlined
in the regulatory preamble.  Secondly, the purely environmental
arguments outlined in Crucible reports are not technically sub-
stantiated.  In fact, the underlying Solvay Process Waste is

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apparently a significant contributor to the poor quality ground
water underneath the site.  Crucible's steelwill waste merely
exacerbates the problen by naking its own hazardous waste con-
tribution in the fora of Hexavalent Chronium, and by providing a
conduit for increased infiltration into the underlying Solvay
Process Waste.

     Covering of the final cap with additional non-hazardous
solid waste right be allowed if Crucible can denonstrato that
this disturbed cap will function as well as a norrsal exposed
final cap as per S265.117(c) and 5265.310, and that periodic
inspections will not be necessary.

     In any event, the currently proposed cap configuration
should not be .approved.  Since it is a soil-only cap, it will
allow significant anounts of precipitation to enter the under-
lying Solvay Process Wasts.  An impervious cap design will not
only csitigata the threat posed by the chromiura—containing steel
nill wastes but will also lower the contaminant loading contri-
buted by underlying Solvay Process Haste.  If the Region should
allow the interim cap, it should take another look'at subsidence,
since it appears to be significant.  The problen with slope
stability should not be increased by th« addition of the imper-
neable cap.


Contacts

     Region II - Catherine Massinino FTS 264-1717
     Headquarters - Chris Rhyne FTS.382-4695


cct  Terry Grogan
     Peter Guerrero
     Bruce Meddle
     Ernie Regna
     Ron Ney
     Dov VJeitnan
     Nancy Hutzel
     Art Day
                               -5-

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                                                                                9476.1985(01)

                       RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY

                                           JUNE 85
Partial Closure

3.  The owner/operator (o/o)  of a permitted  facility plans to remove a tank frcra service.
    His permit does not address removal of the tank.  Must the permit be modified to
    reflect this tank removal?

         Removing the tank would constitute  partial closure of the facility.  The closure
         plan should address  this situation  according to $264.112(a)(l).  since the permit
         does not cover partial closure, the o/o niust amend his plan.  Section 264.112(0)-
         requires the o/o to  amend his plan  whenever changes in operating plans (e.g.,
         tank removal) affect the closure plan.  To amend the closure plan  to address
         partial closure,  the o/o must comply with the standards for major modifications
         for permits under $270.41. The o/o should amend his plan to address all antici-
         pated partial closures so that he need only modify his permit once.

         Source:    Susan Hughes (202) 382-4790

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  ,                                                           9476.1985(02)
  |        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                       WASHINGTON, D.C. Z0460
                               27 085
                                                        OFFICE OF
                                               SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
          r\
Subject:  iRQRA J^lir^s on ground-Water Quality  at Closure

From:     iT*,Win/pto»r Porter
          /Assistant Administrator
          \J
To:       Regional Administrators
          Regions I-X


Background

     As a result of the Hazardous and  Solid  Waste Amendments of
1984, we expect that an unprecedented  number of  facilities will
close one or more hazardous waste management units during  the
coming months.  Moreover, many of these units will close because
they are unable to certify compliance  with applicable ground-water
monitoring  and financial responsibility requirements on November 8,
1985.  Overall, perhaps one half of all existing surface impound-
ments may close before the effective date of the retrofitting pro-
visions in  1988.  Given the number and significance of these
closures, it is essential that EPA and the States take steps to
ensure proper implementation of RCRA requirements as these facil-
ities close.  This memorandum is intended to provide general
guidance on RCRA closure policies as affected by the 1984  Amend-
ments, especially in terms of ground-water quality at closure.

     The Amendments generally confer broad authority on the Agency
to assure that hazardous waste management units  are operated and
closed in a manner that protects human health and the environment.
In particular, the Agency now has several authorities for  ensuring
ground-water quality and conducting corrective action at and after
closure, in addition to the pre-Amendment closure process.  We
intend to make full use of these authorities to  be sure that
improper closures do not occur.

     Close  attention to closures follows from practical concerns
as well.  In many cases, closure is the last time that a facility
comes under the close scrutiny of RCRA.  Lack of attention to
environmental problems at the time of  closure may lead to an
increase in the number of Superfund sites several years in the
future.

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                                -2-


New Closure Policies

      In the past,  there  has  been some  uncertainty regarding
what  level of  clean-up is  required  at  closure.  Facilities were
allowed to close  in some cases  without an  adequate ground-water
monitoring system in  place or without  a plan  to respond to con-
tamination.

     We must be clear that ground-water quality is an integral
aspect of RCRA closure.  Owners and operators must not be allowed
to "walk away" from units  with  inadequate  monitoring systems and
ground-water contamination at closure.  In many cases/ the interim
status regulations  (Part 265, Subparts P and G) can and should be
used to address ground-water quality issues at closure.  Post-
closure permits,  corrective  action  orders  (RCRA $3008(h)), and
corrective action  authority  under RCRA §3004(u) can and should
be used when applicable  and  necessary  to supplement these regula-
tions to address  contaminated soils or ground water at closing
facilities.  For  example,  approval  and completion of a closure by
removal under  $$265.228  or 265*258  does not preclude the Agency's
ability to use 3008(h) orders,  3004(u)  authority, or other appli-
cable RCRA provisions as necessary.

     For facilities with closing land  disposal units, the facility
management process  (as described in the FY 86 RIP) will be used
to determine the most appropriate course of action.  The strategy
for each facility will depend upon  the specific facts of each
case.  All closures,  however, should be guided by the principles
outlined in this memorandum.

New Authorities

     Several new  tools are available to the permitting and
enforcement programs  to  supplement  the closure process of
Part 265.  These  new  authorities should be used (when applicable
and within the context of  overall Agency priorities) to assure
that adequate  ground-water monitoring  and  protection are imple-
mented at closing  facilities.   The  following provisions of the
1984 Amendments give  the Agency broad  new  authority to address
potential soil and ground-water contamination at closure:

     S3005(i)  changes the  definition of "regulated unit' in
$264.90(a) to  include units  that received  waste after July 26,
1982 (from the current date  of  January 26, 1983).  This expands
the universe of facilities that is  subject to the requirements
of Part 264, Subpart  F,  through a post-closure permit.

     $3004(u)  requires corrective action for  releases from solid
waste management  units,  and  from regulated units  (for releases

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                               -3-

other than ground-water releases), at facilities seeking RCRA
permits.  This authority may be used when a closed or closing
unit is located at a facility which is receiving either an operat-
ing or post-closure permit.

     S3008(h) allows corrective action to be required at any
interim status facility with a release of hazardous waste into
the environment.  This authority may be used in tandem with the
closure process to require corrective action during or after
closure.

Additional Guidance

     This is the first in a series of guidance raemos that will
be issued regarding the closure of hazardous waste management
facilities.  Future guidance will address in detail the issues
raised in this memo/ including technical and policy guidance for
closure by removal and post-closure care.  I encourage you to
contact my staff to discuss any of the issues regarding
closure and to identify any areas in which Headquarters should
be preparing additional guidance.

cc:   John Sk-inner
      Gene Lucero
      Bill Hedeman
      OSW Senior Staff
      Peter Cook
      Lloyd Guerci
      Waste Management Division Directors, Regions I-X
      RCRA Branch Chiefs, Regions I-X
      Permit Section Chiefs, Regions I-X
      Enforcement Section Chiefs, Regions I-X
      Nark Greenwood

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                                                          3476.1985(03)
           UNITCC STATES ENVIRONMENTAL PROTECTION AGENCY

                       WASHINGTON, B.C. 20460
  SEP i  1 B85
  ^^                                                    OVIi ICC 0*
                                               SOLID WASTE AMD EMERGENCY

MEMORANDUM

SUBJECT:  Permitting  Units Created for Facility Closure
FROM:     Bruce  R.  Weddle,  Director
          Permits and  State Programs Division (WH-563)

TO:       Hazardous Waste Division Directors  and  Branch Chiefs
          Regions I-X

     This memorandum addresses the question of whether hazardous
waste management units built specifically as  part of  the  closure
process must by covered by RCRA permits.   Some facilities have
proposed closure schemes which involve the creation of a  new
tank, impoundment,  pile, or incinerator to manage hazardous wastes
exhumed and/or transferred  during closure. K number  of owners/
operators have argued  that creation of .these  new  units is a
necessary and temporary measure to accomplish closure of  regulated
units.  They have sought -to have the new units approved in their
Part 265 closure plan  rather than through the permit  process.

     In all eases,  the addition of new units  requires more than
closure plan approval.  In  some cases it requires a permit.  The
Part 264 standards  apply to new units added during closure as
well as to new operating units.  The regulations  do not provide
a means for exempting  new units from the permitting standards
simply because they are used in the closure process.

     Alternatively, the addition of new units may constitute an
allowable change to a  facility during interim status. According
to 5270. 72(c), changes in processes or addition of processes may
be *allowed if a revised Part A and justification  are  submitted,
and the Director approves the change because  of an emergency
situation or because it is  necessary to comply with Federal
regulations or State or local laws.  In the case  of adding a new
unit for closure, this section could be applicable if the Director
agrees that the additional  unit is necessary  for  the  owner /opera tor
to comply with Part 265 closure requirements.  In no  case, however,
may the cost of adding these units exceed 50% of  the  cost of
building a comparable  entirely new facility (S270.72(e».

ccs  Permit Section Chiefs, Regions I-X
     Peter Guerrero
     Terry Grogan
     Carole Ansheles
     Amy Mills
     Dave Pagan

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                                                          9476.1985(04)
           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON, D.C. 20460
                            ;ro 25 --•
                            ; _i  u w . w-.
                                                        OFFICE OF
                                              SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT:  Applicability of Post-Closure Permitting
          Requirements to Non-Regulated Units

FROM:     Marcia E. Williams, Director M^v^  LJ^"^
          Office of Solid Waste         r

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 disposal
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 §270.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, issuance of a post-closure permit would
have little benefit since ground-water monitoring requirements
cannot be applied.  The unit/facility in this  case should  be
closed under interim status, and thus subject  to the general
closure performance standards of Part 265 and  post-closure ground-
water monitoring (§265.117), as applicable.  If the unit has
caused ground-water contamination, enforcement 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) corrective action authority would
apply when the permit is issued since the unit is a  "solid waste
management unit."

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                              -2-
     If you have any further questions  regarding this  issue, please
contact Dave Fagan, Acting Manager,  Permits  Policy  Program at
•*ar>-472in                                         *
382-4740.


Attachment


cc: RCRA Branch Chiefs

    Permit Section Chiefs

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    '1       UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         Seattle, wHfifNg£8n  98101

           533                 MAY 2 0 «$
ATTWOf:

MEMORANDUM
             Applicability of 40 CFR Part 264,  Subpart G
SUBJECT:     to Non-Regulated Units

             Charles E. Flndley, Director/ '
FROM:        Hazardous Waste Division    I

             John H. Skinner, Director
T0:          Office of Solid Waste (WH-562 B)


       The purpose of this correspondence 1s to confirm our Interpretation
 of 270.l(c) which states that all owners and  operators of hazardous  waste
 management units must have permits during the active life (Including the
 closure period) and for units which close after the effective date of the
 Part 264 standards for any post-closure care  period required under 264.117.

       We are interpreting this to require permits for the closure  and
 post-closure care of any unit not closed (Including certification  of
 closure) prior to permit Issuance.  If the unit ceased receipt of  wastes
 prior to July 26, 1982, the permit would not require compliance with
 Subpart F of Part 264, but with the ground water monitoring requirements
 of Part 265 Interim status.  All other applicable requirements of
 Part 264, particularly the closure performance standards  of Subparts G,  K,
 L. M, and N, would also be imposed through the permit.

       Such an interpretation would subject the facility to the provisions
 of the 1984 Amendments, particularly Section  3004(u).

       We would appreciate confirmation of this Interpretation.

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                                            9476.1985(05)
                                1985
Ms. Ellen E. Eagan
URS Engineers
350U North Causeway Boulevard
Metairie, Louisiana  70002

Subject:  Lana Disposal Unit Closure
          Clarification of Proposed
          and Promulgated Rules
          URS No. 520-02-96

Dear Ms. Eagan:

     Thank you for your letter of October 10,  1985, in which you
requested clarification of several issues relating to land dis-
posal units.  We are responding to your questions in the order
oraer in which they were detailed in your letter.

     If a land disposal unit contains no waste currently listed
or characterized as hazardous, and completes all closure acti-
vities prior to the effective date of any regulation listing, or
characterizing a waste contained in the unit as hazardous, the
unit would not be regulated under Subtitle C of the Resource
Conservation and Recovery Act, as amended (RCRA).  If the subject
land disposal unit is located at an interim status facility or a
facility seeking a permit under RCRA, certain  requirements under
the Hazardous and Solid Waste Amendments of 1984 (HSWA) may apply.
Your letter did not contain sufficient information to make a
determination on this point.  A land disposal unit not regulated
under Subtitle C of RCRA would not be required to comply with
the specific regulations referred to in your questions numbers 2
through 6.

     In response to your question number 7, Section 3004(o) (1 ) (A)
mandates that a permit issued to a landfill or surface impoundment
after November 8, 1984, must require the installation of two or
more liners and a leachate collection system and ground-water
monitoring.  Section 3005(j) of RCRA prohibits surface impound-
ments in existence on November 8, 1984, and which qualify for
interim status* from receiving storing or treating waste after
November 8, 1988, unless the surface impoundment is in compliance
with the liner, leachate collection system, and ground-water
monitoring requirements of Section 3004 (o) ( 1) (A) .  If a surface
impoundment becomes subject to these requirements after November
8, 1984, due to the promulgation of additional listings or
characteristics for the identification of hazardous waste, the

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                               -2-
surface' impoundment must comply with the requirements of Section
3uu4(o)(1)(A) four years fron the date of promulgation of the
additional listings or characteristics.  A land disposal unit
r.oc required to obtain a RCRA permit, including a post-closure
permit, and not otherwise subject to the HSWA would not be required
to retrofit under Section 30U4.

     Since you mentioned in your letter that the subject land
disposal units are in authorized States, you should contact each
appropriate State agency for applicable State rules and statutes.
Currently, no States are authorized for the HSUA.  Any applicable
requirements under KSWA also must be complied with in addition
co the authorized States' regulatory program.

                                Sincerely,
                                Marcia Williams
                                Director
                                Office of Solid
Waste
 cc:  Carol Ansheles
      Peter Guerrero
      Terry Grogan
      Dave Fagan
      Lillian Bagus
      benjamin Smith
      Dov Weitman

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                                                         9476.19861U1J
           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                       WASHINGTON, O.C. 20460
                               MAY   8 1985
                                                        Of ICE OF
                                               SOLID WASTE AMD EMERGENCY RESPONSE
Ms. Deborah Self
Student Environmental Health Project
Center for Health Services
Station 17
Vanderbilt University
Nashville, Tennessee  37232

Dear Ms. Self:

     This is in response to the questions you submitted  in April
1986 at the Cincinnati meeting.  Your questions address  both the
particular situation of the partial closure of Chemical  Waste
Management's Eraelle facility, and the general requirements of
the closure/post-closure regulations promulgated under authority
of the Resource Conservation and Recovery Act (RCRA).

     In regard to the Emelle facility, my staff spoke with the
appropriate staff in our Region IV  (Atlanta) office.  My under-
standing is that the situation has changed somewhat since last
July, when Region IV held a public hearing on their closure
plan.  Region IV staff said they had processed the closure plan
without a formal post-closure plan submittal because it  was a
partial closure and they were attempting to work out a new ground
water monitoring system required for the facility.  The  remaining
active hazardous waste management units will obtain an operating
permit.  Regional staff say that post-closure care will  begin at
final closure of the facility and will continue for 30 years.
Howeverr Chemical Waste Management will be required to conduct
post-closure activities for the partial closure, as well.  In
addition, permit conditions will need to be developed.   If you
have further questions regarding the Emelle facility, you should
contact Craig Brown in our Region IV office (404 347-3067).

     The former procedural requirements for closure and  post-
closure carsvwre somewhat unclear regarding partial closures
and subsequent post-closure responsibilities.  He proposed amended
regulations on March 19, 1985, that attempted to clarify those
requirements*  The final regulations were published on May 2, 1986
(51 PR 16422), and will become effective on October 29,  1986.   I
am enclosing a copy of them for your information.

-------
     The final regulations clarify the definition of partial
closure, hazardous waste management unit, partial closure noti-
fication requirements/ and how partial closure and the initiation
of post-closure responsibilities interact.  I believe these
regulations will result in better protection of human health and
the environment at all hazardous waste management facilities.
Thank you for your interest in these issues.

                                     Sincerely,  -

                                               ' '
                                             /
                                            / /
                                     Marcia E.
                                     Director
                                     Office of
                                               Williams

                                               Solid Waste
Enclosure

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                                                                9476.1986(01a)
               RCRA/SUPERPUND  HOTLINE MONTHLY SUHRARY

                                AUGUST  86
5»   Closure Plans - Appeals

     The otoer/operator (o/o) of an interim status facility has  submitted!
     his written closure plan at least 180 days before he expects  to
     begin closure as required by 40 CFR 265.112(c).  The EPA subsequently
     noted deficiencies in the plan and returned it to the o/o for revision
     according to 40 CFR 265.112(d).  After the o/o has submitted  his plan a
     second time, the EPA again noted deficiencies. Using the authority
     given in 40 CFR 265.112(d), EPA modified the plan and sent  it back to
     the o/o as a final closure plan.  Vfriat avenue of appeal is  available
     to the o/o if he wishes to contest the modifications made to  his
     final closure plan?

          At the present time, there are no provisions under RCRA  which
          would allow the o/o to appeal the final closure plan issued
          by the Regional Administrator.  The o/o would have to  pursue
          other legal recourse outside of the RCRA regulations to  appeal
          the provisions in his final closure plan.


          Source:    Dov Weitman  (202) 382-7703
          Research:  Kris Andersen

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                                                                    9476.1986(02)

              RCRA/SUPERFUND  HOTLINE MONTHLY  SUMMARY

                             SEPTEMBER 86
3.  Hazardous Waste Tank Closure and Post-Closure

    The owner/operator (o/o) of an interim status underground hazardous
    waste storage tank plans to close the tank.  Curing the operating
    life of the tank, hazardous waste leaked and contaminated under-
    lying soils.  Wiat regulations apply in this situation?

         EPA published a final rule regulating tanks holding hazardous
         waste in the July  14, 1986 Federal Register (51 FR 25422).  EPA
         revised the standards for hazardous waste tanks, effective
         January 12, 1987.  EPA stated that if an o/o demonstrates that
         all contaninated soils cannot be  practically removed or
         decontaminated as  required in 40 CFR 265.197(a), then the o/o
         must close the tank system as a   landfill (51 FR 25484).  The
         o/o must perform post-closure care in accordance with the closure
         and post-closure care requirements that apply to landfills
         (40 CFR 265.310).  The tank o/o roust meet all of the requirements
         for landfills specified  in Subpmrts G and H of Part 265 with
         regard to closure,  post-closure, and  financial responsibility.

         Under the landfill closure and post-closure requirements (40 CFR 265.310),
         the o/o must comply with all  post-closure requirements contained in 40
         CFR 265.117 through 265.120 including maintenance and monitoring through-
         out the post-closure care period.

         Note that the above mentioned requirements for closure of hazardous
         waste tanks as landfills do not become effective until January 12,
         1987.  Tank closures occurring prior to January 12, 1987 must comply
         with prior regulations which may  include 40 CFR S265.197 and S265.110
         through $265.115.  The latter sections were amended on May 2, 1986 (51.
         FR 16422).  Section 265.11(b) requires the o/o to control, minimize or
         eliminate, to the  extent necessary to protect human health and the
         environment/ postclosure escape of hazardous waste, hazardous constitu-
         ents, leachate contaminated run off or hazardous waste decomposition
         products to the ground or surface waters or to the atmosphere.  Since
         the May 2, 1986 amendments were not promulgated pursant to HSWA, they
         are effective in authorized states only if the states have adopted
         revisions to their programs to incorporate these requirements.

         Also, under Section 3008(h) of the Solid Waste Disposal Act, whenever
         the EPA Administrator determines  that there is or has been a release of
         hazardous waste into the environment from a facility authorized to
         operate under Section 3005(e), the Administrator may issue an order
         requiring corrective action or any other response measure necessary to
         protect human health or the environment.

         Source:    Bill Kline  (202) 382-7917
                    Ginny Steiner (202) 475-9329
         Research:  Carla Rellergert

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             UNITED STATES tNVIRONMENTAL PROTECTION AGENCY        .,,,
                                                            94/6.1986(0;
                             8 OCT 86
Honorable Bob Wise
House of Representatives
Washington, D.C.  20515

near Mr. wise:

     Thank you for your September 4, 1986, letter recjardinq
closure requirements for surface impoundments under the
Resource Conservation and Recovery Act (RCRA).

     On May 2 of this year, the Environmental Protection
Aaency (EPA) promulgated final reflations requiring hazardous
waste facilities to begin closure activities within a specified
tine after they ceased accenting hazardous wastes.  EPA
promulgated this rule based on the belief that expeditious
closure of hazardous waste disposal surface impoundments,
after they are no longer receiving hazardous waste for disposal,
would inorove the protection of human health and the environment,

     The goal of EPA's current regulations is to minimize the
formation and migration of leachate to the adjacent subsurface
soil, around water, or surface water*  This goal is achieved,
in part, through design and operating standards that require
placement of final covers on closing units.  EPA relies
principally on the final cover to provide post-closure protec-
tion of ground water.  Many older units are not lined, so
early placement of the final cover is important to reducing
leachate generation from the unit.

     The Union Carbide facility referred to in your letter
is affected by this rule since they plan to cease accepting
hazardous wastes rather than installing a double-liner system
in accordance with the requirements of Section 3Q05(j) of
the Hazardous and Solid Waste Amendments of 1984.  As you
may be aware, we are currently involved in litigation with
Union Carbide on this issue.

-------
     I hope that  this clarifies  EPA's  rationale  in deternininq
whether a facility he allowed  to regain  onen.  If  ! can be of
further assistance, please let "»e know.

                               Sincerely,
                              vJ.  Winston  Porter
                              "Assistant Administrator
 WH-5S2/BROMM/T.MCMANUS - 475-8613/sld/9-7.2-R6/Control
No:AL602911/Due  Date: 9-23-R6/COMTROLLED CORRESPONDENCE «5

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                                                                      9476.1986(04)
                   RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                                   OCTOBER  86
8.  Retrofitting Surface Impoundments


    RCRA Section 3005(j) states that except  for  specific cases  for which
    variances are granted a surface  impoundment  shall not receive, store, or
    treat hazardous waste after November 8,  1988 unless it  is in  compliance
    with Section 3004(o) (1)(A), the minimum technology standards for new
    surface impoundments.  Section 3004(o)(l)(A)  requires new surface impound-
    ments to have two or more liners with a  leachate collection system
    between the liners and ground water monitoring.  Hence,  the owner/operator
    (o/o) must either close or retrofit his  surface impoundments  to meet the
    minimum technology standards if  he wants to  operate the units after
    November 8, 1988.

    Since storage in a surface impoundment not meeting minimum  technology
    standards is prohibited after November 8, 1988, must the o/o  who wishes
    to close his impoundments, complete closure  by November 1988?

         No; EPA interprets the statute to require the  facility to stop
         accepting waste by November 8, 1988. The statute  does not
         require closure by that date.  Therefore, the  owner or operator must
         comply with applicable closure regulations.

         The "Interim Status of Surface Impoundments - Retrofitting Variance"
         (OSWER Policy Directive 19484.00-1)   states that closure activities can
         occur after November 8,  1988,  provided that the receipt of hazardous
         waste stops on or before November 8,  1988.  Therefore the owner/operator
         is required under 40 CFR 265.112(d){2) to begin closure within 30
         days after the last date on which wastes are received.   According to
         40 CFR 265.112(d)(l)  the owner/oprator must also submit a written
         closure plan to the Regional Administrator at least 180 days prior
         to the date on which closure  is expected to begin.  Therefore,  notification
         of closure of an interim status surface  impoundment is required by
         June 8, 1988 unless the impoundment  is retrofitted or a variance is
         obtained (51 PR 1644).

         Source:    Barbara Pace  (202)  382-7703
         Research:   Betty Wilson

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                                                    9476.1987(01)
June 9, 1987

MEMORANDUM

SUBJECT:  Applicability of Section 3005(i) of RCRA to Surface
          Impoundment Closed by Blue Bird Midwest Pursuant to
          40 CFR §265.228(b)

FROM:     Marcia Williams, Director
          Office of Solid Waste (WH-562)

TO:       David A. Wagoner, Director
          Waste Management Division
          Region VII


     This is in response to your May 13, 1987 request for a
statutory interpretation regarding the applicability of Section
3005(i) to closure conducted at the Blue Bird Midwest facility
pursuant to 40 CFR §265.228(b).

     We have reviewed the information accompanying your request
and concur with Region VII's interpretation that unless Blue Bird
Midwest can demonstrate compliance with the standards for closure
by removal in 40 CFR §265.228(a), a post-closure permit
implementing applicable Part 264 standards, including Subpart F
ground-water monitoring and corrective action, is required.  The
post-closure permit is required regardless of whether Blue Bird
has satisfied the closure requirements of 40 CFR §265.228(b).
Your information indicates that Blue Bird has not clean closed
the swale and has not demonstrated through an adequate ground-
water monitoring system that all contaminated subsoils have been
removed or decontaminated, as required by §264.228(a).
Therefore, it appears that RCRA Section 3005(i) applies to the
closed surface impoundment at Blue Bird.  Your memorandum did not
include information indicating that Blue Bird Midwest upgraded
the ground-water monitoring system in accordance with comments in
the Region's December 29, 1986 letter.

     For your information, we expect the final codification rule
based on the March 28, 1986 proposed rule to be issued within the
next two months.  The draft final rule now in Red Border states
that the requirements of Section 3005(i) (i.e., ground-water
monitoring, unsaturated zone monitoring and corrective action
requirements applicable to new units) are applicable to all land
disposal units which received waste after July 28, 1982 or had
        This has been retyped from the original document.

-------
                               -2-

not closed by January 26, 1982.  The rule clarifies that land
disposal units that close by removal under interim status are
subject to post-closure permitting.

An exception to the post-closure permit requirement would be the
case where surface impoundments closing by removal or
decontamination met the requirements of §264.228(a).  The
forthcoming rule will allow the owner/operator to submit a
petition to demonstrate to the Regional Administrator that a
post-closure permit is not required for units that closed
according to Part 265 standards.  The petition must contain
ground-water and soil analytical data and other information
sufficient to demonstrate the applicable Part 264 standards for
closure by removal or decontamination can be met.  If the
"equivalency" of Part 264 closure by removal can be demonstrated,
a post-closure permit would not be required.  Public notice of
Agency actions on these petitions will follow the closure plan
public notice procedures of §265.112.

     If you have additional questions about this memorandum or
the codification rule language, please contact Matthew Hale,
Chief, Permits Branch at FTS 382-4740.

cc:  Terry Grogan, OSW
        This has been retyped from the original document.

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                                                                     9476.1987(03}
                RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                                   JUNE  87
4.  Clean Closure

    Section 265.228(a)  of the recently promulgated  amendment to the
    surface impoundment closure and post-closure care rule, published
    in the Federal Register on March 19,  1987 (52 FR 8704), states that
    various facility elements (e.g.,  contaminated subsoils, liners, and
    structures)  must be removed or decontaminated before clean-closure
    can occur.   Contaminated groundwater is not listed among those
    elements.   Must affected groundwater also be removed or
    decontaminated before clean closure is possible?

       In the preamble  to the final rule the Agency stated that it
       interprets the term "contaminated subsoils"  to include  contaminated
       groundwater (52  FR 8705).  The preamble also states (52 FR 8706)
       that owners and  operators must remove all wastes, liners, and all
       materials  contaminated with waste or leachate (including groundwater)
       that pose  a threat to human health or the enviroonent.

    Source:   Ossi Meyn   (202) 382-7597
    Research:   Kurt Patrizi

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                                           9476.1987(05)
     RCRA/SUPERPUND HOTLINE MONTHLY SUMMARY

                  SEPTEMBER 87
2.    Certification of Closure

     The owner/operator  of a hazardous waste management unit
     is conducting closure and hires a  contractor to certify
     the   closure.      40   CFR   264/265.115   state  that
     certification of closure must be made by an independent,
     registered, professional engineer.  Can the engineer who
     is employed by the  contractor  performing  the closure,
     certify the closure of the facility?

          Yes,  the  "RCRA  Guidance  Manual  for  Subpart  G
          Closure and Post-Closure Care Standards and Subpart
          H Cost  Estimating Requirements"  clarifies that an
          "independent" engineer cannot be  directly employed
          by the  owner or  operator of  the unit.  Also, the
          May 2, 1986 Federal  Register (51  FR 16433) states
          that, "...  the certification  should be  made by a
          person  who  is  least  subject  to   conscious  or
          subconscious pressures  to certify  to the adequacy
          of a closure that in fact is not in accordance with
          the approved closure plan."

     Source:   Sharon Frey  <2Q2) 475-6725
     Research: Chris Bryant

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                                                    9476.1987(07)


             RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                           NOVEMBER 87


4.   Closure Plan Public Comment Period

     As specified in Section 265.112(d)(4),  the Regional
     Administrator has ninety (90)  days to approve, modify or
     disapprove the closure plan for an interim status facility
     once it has been submitted for consideration by the owner
     operator.   The section also provides for a 30 day public
     comment period on the content of the plan, which is to be
     carried out during the 90 day term.   It is initiated via a
     notice in the local newspaper.  It is unclear as to when
     this public comment period would begin.   Is it immediately
     upon receipt of the plan without an initial approval by the
     Regional Administrator?  Or would it begin only after a
     preliminary screening by the Region?

          Section 265.112(d)(4)  provides for a 30 day public
          comment period on the content of a proposed closure
          plan for an interim status facility and does not state
          when this period is to be initiated.  The Agency has
          not issued any specific guidance,  because the practice
          will vary from site to site depending on the detail and
          complexity of the individual plan.   Owners and
          operators may request public hearings in addition to
          comment periods.   The Regional Administrator also may
          schedule a hearing at his own discretion.  The Regional
          Administrator may schedule the hearing with or without
          the benefit of the response from the public comment
          period; regardless,  the hearing must be noticed 30 days
          prior to its occurrence.   It is therefore conceivable
          that, within the framework of the 90 days allowed, the
          time required to fulfill both regulatory requirements
          could be as long as 60 days, or as short as 30 days
          (for current notice of the hearing and the comment
          period).  The Regional Administrator will review the
          plan prior to offering the contents for public review,
          and will approve, modify or disapprove its contents
          within 90 days from the date of submission.

     Source:    Chris Rhyne  (202)  382-4695
     Research:   Andy O'Hare
        This has been retyped from the original document.

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                                                          9476.1987(08)
           UNITED STATES ENVIRONMENTAL PROTECTION AGENO

                       WASHINGTON. O.C. 20460
                                                      0<=-'C£ .-
 , .-•-                                         SOLID WASTE AND EMS t.f ' NCV B£SPONSC
 ML../ I  |


MEMORANDUM
SUBJECT:  Closure and  Post-Closure  Issues
FROM:     Marcia E.  Williams,  Director
          Office of  Solid  Waste  (WH-562)

TO:       Robert E.  Greaves,  Chief
          Waste Management Branch  (3HW30)
          Region III


     Thank you for your  November 4,  1987 memorandum  in  which-
you requested clarification of several  issues relating  to  closure
of interim status surface  impoundments.  The clarification of
these issues follows the same  format as presented  in your
memorandum.  The answers to questions one and two  are dert/-1
from the draft guidance, "Surface  Impoundment Clean  Clos:.r
Guidance Manual" (October  12,  1987).

     1.  For an interim  status surface  impoundment that is
         closing by  removal under  §265.228 (a)(l),  but has  not
         triggered ground-water  assessment under §265.93(d»,
         it is not necessary to  monitor ground water for
         the full list of  Appendix VIII (or IX) constituents.
         A ground-water  evaluation conducted as part of the
         clean-closure demonstration should establish the
         chemicals that  may be reasonably associated with  the
         wastes managed  at the impoundment, Including any*
         decomposition products*  While the most convincing
         means of demonstrating  the  absence of such  chemicals  is
         by performing an  Appendix VIII analysis of  the waste,
         this is not required if it  can be demonstrated that
         only a subset of  these  constituents could reasonably  be
         expected to exist at the  impoundment.

         On the other hand, if the interim status  surface
         Impoundment has triggered ground-water assessment under
         §265.93(d)  and  ground-water contamination ij eviv.-nt,
         clean closure  is  probably not  a  feasible  option.   However,
         should it  be determined to  be  feasible  (see issue 3)f
         the  same rationale should be used to determine constituents
         of concern  as  was used  when ground-water  assessment  was
         not  triggered*

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                         - 2 -
2.  As stated above,  Appendix VIII (or IX) analysis of ground-
    water samples  is  not necessary for a clean closure
    demonstration.   As you suggested, a combination of
    analyses for what is likely to be present in the waste
    coupled with an explanation of the basis for not analysing
    the remaining  hazardous constituents would be appropriate
    in most instances.

3.  The general closure regulations (§265.113(b)(1)(1})
    allow the 180  day closure period to be extended if the
    closure period will, of necessity, take longer then ISO
    days to complete.  This rule allows for flexibility In
    complex closure situations, and In other situations
    where the owner or operator cannot practicably complete
    closure expedltlously.

    However, we generally believe that ground-water contami-
    nation should  be  addressed under a corrective action
    program—preferably in the context of a permit, since
    ground-water contamination clean-up usually Involves an
    extended clean-up period.  Moat operators attempting to
    close units that  have ground-water contamination win
    need a post-closure permit and therefore are not llk«iy
    to be able to  clean close.  We recognize, however, tnat
    under some limited circumstances an owner or operator
    may be able to demonstrate that clean closure'la possible
    after a very short ground-water corrective action effort
    (perhaps leas  than one year).

    Should this be the case, the Regional Administrator
    has the option under §265.113(b)(l)(i) of extending the
    closure period to implement such an effort.  Protracted
    or Indefinite  closure periods designed solely for the
    purpose of ground-water clean-up are not acceptable.
    Under these circumstances a post-closure permit containing
    corrective action schedules of compliance should bet
    used or a §3008(h) corrective action order.

4.  Th« Final Codification Rule published in the Federal
    Register on December 1, 1987 (52 PR 45788) addresses
    this issue directly.  In essence, the rule states that
    units closing by removal under Part 265 standards must
    obtain a post-closure permit unless the owner or operator
    can demonstrate to the Regional Administrator that tr.e
    closure met the standards for closure by decontaminacion
    in section 264.228, 26H.280(e) or 264.258, respectively.
    The rule further outlines approaches for making the
    demonstration.  A copy of the rule is attached for your
    information.

-------
     5.  When EPA has Issued guidance  that Interprets a permit
         or closure requirement,  States should follow chat
         guidance for comparable  State requirements or be able
         to explain why their approach is equivalent or more
         stringent than the Agency's approach.  In overviewing
         State permits and closure plans the Region should follow
         the approach outlined  in the permit quality and closure
         plan protocols which cross reference regulatory require-
         ments and applicable guidance; the State administrative
         record should be consulted to determine hovr the State
         has Interpreted those  State regulations (comparable to
         the Federal) for which we have issued guidance.  Of
         course, if a "more stringent" EPA regulatory amendment
         or rule clarification  requires the State to amend its
         regulations, the State should follow the procedures
         and tlmeframes in Part 271 for program revisions.

     Should you require further clarification of these issues
please contact Chris Rhyne of my  staff at PTS 382-4695.

Attachment

cc:  RCRA Branch Chiefs, Regions  I-X

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                                                         9476.1988(01)
         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                     WASHINGTON, O.C. 20460
   JAN 29
                            4AN 2 9 i98S
                                                     OFFICE OF
                                            SOLID WASTE AND EMERGENCY RESPONSE
Mr. John Ramsey
Environmental Engineer
Bureau of Waste Management
Kansas Department of Health
  and Environment
Forbes Field
Topeka, KS  66620-0001

Dear Mr. Ramsey:

       This letter is in response to your December 29, 1987
inquiry regarding closure requirements at facilities having
delisting exclusions revoked.  Specifically, you requested
guidance on the applicable closure requirements for units at
facilities whose State-issued final delisting decisions  (granted
before the enactment of HSWA) were being revoked based on
re-evaluations of their petitions using HSWA criteria.  To date,
we have not revoked a Federally-issued final delisting exclusion.
We have, however, denied final exclusions (as a result of HSWA
re-evaluations) for wastes that had been issued temporary
exclusions based on pre-HSWA criteria.  This letter, therefore,
only provides insight to policies concerning the regulatory
status of Federally-issued final exclusions and temporary
exclusions that have been revoked.

       Since the state of Kansas has been authorized by EPA to
administer and enforce hazardous waste management programs
pursuant to Section 3006 of RCRA, 42 U.S.C. Section 6926, the
closure requirements for the waste units at the subject
facilities should be determined by State authorities. The Federal
policies discussed in this letter may be helpful as guidance in
determining the closure requirements for the units at those
facilities where State-issued final exclusions are being revoked.

       Tb* regulatory status of wastes that have been granted
exclusion from Subtitle C regulation is dependent on the
retrospectivity given to the type of exclusion granted.  For
wastes that are granted final exclusions, the Federal policy is
that these exclusions are fully retrospective (i.e., the waste  is
assumed to have always been non-hazardous).  In these cases, the
units handling wastes that were issued final exclusions are not
subject to Subtitle C regulation unless the unit also contains  or
had contained other non-excluded hazardous wastes.

-------
                               - 2 -
       Some Federal temporary exclusions were granted based  on
pre-HSWA criteria evaluations and later denied final  exclusion
after r«-«valuations using post-HSWA criteria.  In these cases  we
have adopted a policy which, in short, states that these wastes
were non-hazardous only during the time that the temporary
exclusion was in effect.  The regulatory status of the units
containing such wastes is, therefore, dependent on whether those
units accepted the temporarily excluded wastes before the
temporary exclusion was in effect and/or whether the same unit
continued to accept these wastes after the temporary exclusion
was revoked and a final denial issued.  Attachments I and II
address the Federal regulatory status of units and the interim
status of facilities that handled wastes that were temporarily
excluded and then denied final exclusion.

       Your letter makes reference to Section 3005(i) of RCRA and
the possible implications for State  implementation.  Please note
that Section 3005 (i) is a HSWA provision and as such is
implemented by EPA until a state is  specifically authorized for
that provision.  Also, please note that the key "trigger" under
Section 3005(i) is receipt of hazardous waste after July 26,
1982. It may be beneficial to consult your legal office to
determine if Kansas has a State requirement which parallels
Section 3005 (i) and if so, what consequences the State equivalent
regulation may have on the regulatory status of revoked final
exclusions.  The applicability of a  State equivalent to 3005(i)
and its effect on revoked exclusions may be dependent on the
retrospectivity given to State-granted final exclusions.

       I hope this letter has provided some guidance to assist
you in developing closure policies for the subject waste units.
If you have any further questions, or wish to discuss our
delisting or closure policies in more detail, please feel free to
contact me at PTS 382-4206.  I will  be Acting Branch Chief  for
Suzanne Rudzinski until March.

                              Sincerely
                               Elizabeth Cotsworth, Acting Chief
                               Assistance Branch

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MAR 2   888                                              9476.i988,o2a


 MEMORANDUM


 SUBJECT:   Cleanup Levels  ror  Lead  and  Cadmium
           in  Soils  for  RCRA Clean  Closures

 FROM:      Jeffery D.  Denit. Acting Director
           Office of  Solid  Waste

 TO:        David A.  Wagoner. Director
           Waste Management Division
           Region VII


     In  your memorandum  of  December 29,  1987.  you requested
 guidance  on setting  soil  cleanup  levels  for  lead and cadmium at
 RCRA  facilities that intend to achieve clean  closure.   As  you
 know,  the preamble  to the  March  19,  1987,  final  regulation
 (conforming 265.22B(a>  to  264.228  stated  that verified
 Reference Doses (RfDs)  and Carcinogenic  Potency  Factors (CPFs;
 could  be  used as Agency-recommended limits  for  contaminants such
 as  lead and cadmium,  where appropriate,  to  set  soil  cleanup
 levels.   The  verified RfD  would  be the most  appropriate criteria
 for  setting a soil  cleanup level  for contaminants that are not
 known  to  have carcinogenic effects,  and  the  CPFs would be  the
 most  appropriate limit  for carcinogens.

     The preamble also states  that,  in  cases  where no EPA
 recommended limit exists  for  a specific  contaminant,  a soil
 cleanup level may be based on either:

     1.    background  levels; or

     2.    data developed by the owner or  operator to support a
          health-based limit.

 When  neither  of the  above  is  feasible,  clean closure cannot be
 achieved  and  the unit must be closed under  the  landfill closure
 requi rements.

     Presently, th« Office  of  Research  and Development is
 investigating recent data  on  the toxicity of  lead and cadmium.
 Over  th«  next several months, decisions  will  be mad* on an RfD
 for  cadmium and an RfD and a  CPF for  lead.  The  Office of

-------
                              - 2 -
Dr ink ing_ Water will soon propose a. Maximum Contaminant Level. Goal

-------
                              - 3 -
    Attached for your information are comments marked on a copy
of the Hickok report by Lisa Ratclifr of OSW's Technical
Assessment Branch, as well as a fact sheet on  lead prepared  b'v
the Office of Waste Programs Enforcement ifor  internal  EPA use
only;.  These materials summarize the Agency's current
recommendations on the effects of exposure to  lead and  cadmium.

    The Surface Impoundment Clean Closure Guidance Manual that
was provided to your staff on October 12. 1987.  for.review.
provides additional information on adjusting soil  levels to
account for certain site-specific factors.   Although  this
guidance has not been cleared through the Agency  review process.
vou can use the information contained in Chapters  **•  and 5 of  the
October 12. 1967.  draft until such time  that the  final  guidance
manual is available.  These chapters provide information on  the
removal of wastes, contaminated soils, ground  water,  and other
materials, and on follow-up monitoring and sampling  to  ensure
chat the cleanup  levels have been met. Jf there  are  any further
questions on clean closure, please contact Jim Bachmaier of  the
Land Disposal Branch at FTS 475-8859.  Any questions  regarding
toxicity studies  should be directed  to Lisa Ratcliff  of the
Technical Assessment Branch at FTS 382-a761.

Attachments

cc:  Joseph Carra
     Robert Tonetti
     A 1 essi Otte
     James Bachmaier
     Li sa Ratcliff

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References,;
     Barth,  S.,  et.  al.. 1984.  Soil Sampling
     Quality Assurance User's Guide-
     iEPA/600/4-34/043; U5EPA-Las vegas,
     Nevada  *NTiS:  PB 84-198-62U

     Connor,  J.,  et. al., 1975.  Background Geochemistry  of
     Some Rocks.  Soils, Plants, and Vegetables  in  the
     Conterminous United States.  (Geological Survey
     Professional Paper 574-Fj, U.S.
     Government Printing Office, Washington, D.C.

     Mason,  B.J., 1983.  Protocol for Soil
     Sampling:  Techniques and Strategies.
      USEPA -
     Las Vegas,  Nevada  iNTIS: PB 83-206-979;

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                                                   9476.1988(03)
                RCRA/SUPERFUND HOTLINE  MONTHLY SUMMARY

                                  APRIL 88
3. Post Closure Plans for Hazardous Waste Tanks

   According to Section 264.197(c) an owner or operator of a tank system that does not have
   secondary containment meeting the requirements of Section 264.193(b) through (0 and
   is not exempt from the secondary containment requirements in accordance with Section
   264.193(g), must have a contingent closure and post-closure plan that meets all closure,
   post-closure and financial responsibility requirements under Subparts G and H of Part
   264.  If the facility's permit for an underground tank system specifically states that no
   post-closure care is required, must a contingent post-closure plan still be prepared and
   submitted as required by Section 264.197(c)?

    No, the facility's permit would shield the owner or operator from the requirement to
    prepare and submit a contingent post-closure plan.  According to Section 270.4(a),
    compliance with a RCRA permit during its term generally constitutes compliance for
    purposes of enforcement with Subtitle C of RCRA. However, the facility would also
    be required to clean close.  Alternatively, the Director (in either the Regional Office or
    the State, as appropriate) could modify the permit under Section 270.41 to require post-
    closure care and the submission of post-closure plans for cause, such as new informa-
    tion or new regulations. For instance, if the permit was issued before the hazardous
    waste tank regulations were revised to require post-closure plans (July 14,1986) and the
    tank system cannot be clean closed, the Director may modify the permit to require post-
    closure care as required by Section 264.197(b).

  Source:        Chester Oszman    (202)382^1498
  Research:      Joe Nixon

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                                                    9476.19S8(03a)
             UNITED STATES EN VIRONMENT AL PROTECTION AGENCY

                        WASHINGTON, O.C. 20440
                               27 BBS                 «,„«„,
                                               SOUO WASTE AND EMERGENCY RESPONSE
MEMORANDUM

SUBJECT:  Interpretation of the Use pf /Soil Background Levels as
          Clean Closure Standards '
FROM:     Sylvia K. Lowrance,
          Office of Solid Waste (WH-562)

TO:       William Muno, Acting Associate Director
          Waste Management Division, Region V  (5HS-13)


    The purpose of this memorandum is to provide an interpreta-
tion, as requested by you in your May 9, 1988 memorandum, on the
use of soil background levels as clean closure standards under
RCRA.  Please note that we have recently responded to a similar
request from Region VII.  The attached memorandum from Jeff Denit
to David Wagoner dated March 2, 1988 presents our position on when
soil background levels should be used as clean closure standards.
This interpretation is based on previous discussions on this topic
included in the preamble to the March 19, 1987 final regulation
(conforming 265. 228 (a) to 264. 228 (a)) and in the subsequent notice
of clarification to the final regulation (March 28, 1988).

    The March 19 preamble states that exposure levels, or clean
closure levels, must be based on Agency-recommended exposure
levels or factors that have undergone peer review by the Agency.
If no Agency-recommended exposure limit exists for a specific
hazardous constituent, the clean closure level must be based on
either a background level or an exposure level submitted by the
owner or operator based on toxicity data of sufficient quality for
the Agency to determine the environmental and  health effects of
the constituent.

    In response to the issues raised in your memorandum  regarding
the Burnham Corporation foundry in Zanesville, Ohio,  I want to
emphasize two points raised in the March 2 memorandum.   First, the
toxicity data for lead and cadmium are still being  reviewed by the
Office of Research and Development.  However,  we expect  a verifi-
cation of the cadmium reference dose (RfD » 0.0005  mg/kg/day) by
the RfD Workgroup in the near future.  As a result,  I  would
continue to recommend that the soil clean closure  level  for  lead

-------
                                -2-


be based on background soil levels and the level of 9 mg/kg be
used as the clean closure  level for cadmium.  Also, the March 2
memorandum states that two approaches can be used to determine
background levels for lead; either by taking soil samples at
uncorttaminated areas of the facility or by using published
literature data on lead levels in similar soils.  It should be
noted that background soil samples should be taken from an area(s)
that has not been affected by routine operations of the unit, by
accidental or emergency incidents, or by other operations at the
facility.  Your statement  describing the selection of background
samples appears to fulfill this requirement.

    If you have any questions regarding the above comments and
recommendations or require further assistance, please feel free
to contact Mark Salee of my staff at (FTS) 382-4755.

Attachment

cc:  Regional Division Directors
     Jeff Denit, OSW
     Bruce Weddle, PSPD
     Joe Carra, WHD
     Dev Barnes, CAD

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                STATIS •NVMOHMCHIVU. HQT1CTIOM ACiMCT     9 476. 19 33 ( 04)
MEMORANDUM.

SUBJECT:  Guidance on Deadlines Applicable to Proposed Delay
          of Closure Regulation

FROM:     Sylvia K. Lowrance, Director
          Office of Solid Waste

TO:       Hazardous Waste Regional Division Directors
          Regions I-X


     Attached you will find a copy of the "Delay of Closure"
regulation, to be published in the Federal Register in about
two weeks.  Many questions have been received, both from the
Regions as well as industry, on how this proposed rule might
affect facilities which will cease the receipt of hazardous
wastes to comply with the November 8, 1988 statutory
requirement for retrofitting of surface impoundments.

     The purpose of this memorandum is to provide guidance on
these issues, particularly the timing for closure plan
submittals and approvals in light of the proposed Delay of
Closure regulation.

     Statutory and Regulatory Requ i r ement s

     According to statute, interim status surface impoundments
that have not been retrofitted or have not received a retrofit
waiver must cease the receipt of hazardous waste by November 8,
1988.  By current Federal regulation the final receipt of
hazardous waste triggers initiation of the closure process  for
the unit  (40 CFR 264/265.113).  Furthermore, under current
regulations, a facility owner/operator without an approved
closure plan who intends to close an interim status surface
impoundment rather than retrofit must submit a closure plan to
the. Regional Administrator by no later than June 13, 1988  (180
days before the "expected date* of closure - which is December
8, 1988,  i.e., 30 days after the last receipt of hazardous
waste). See 40 C.F.R. S265.112(d) (l) and  (2).  An
owner/operator with an approved closure plan who intends to
close a permitted or an interim status surface impoundment  must
notify the Regional Administrator 60 days prior to the time
closure is expected to begin.  Since the  "expected date" of
closure must be no later than December 8, 1988, notification
must occur by October 10, 1988.  See SS264.112(d) (!) and  (2)
and 265.112
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                               -z-


     TKese requirements and timeframes are more fully described
in OSWER Policy Directive #9484.00-5-a, October 15,  1987.
These requirements are currently unaffected by the proposed
Delay of Closure rule, since the existing regulations remain in
effect until the proposal is finalized and adopted in
authorized states.  However, once finalized, this rule would
allow landfills, and in more limited circumstances,  surface
impoundments to postpone closure to receive non-hazardous
wastes after the November 8, 1988 retrofitting deadline.   Some
owner/operators of these types of units may wish to avail
themselves of this alternative.  However, such units are still
subject to all closure plan submission deadlines.

     Synopsis of Proposed Regulation

     Briefly, the proposed rule allows owner/operators to delay
closure of surface impoundments and landfills to receive
non-hazardous waste after they cease receiving hazardous waste.
(Units which have lost interim status are ineligible.}  The
rule contains general requirements imposing a set of conditions
that are applicable to all owners/operators who wish to defer
the closure process, regardless of the unit type.  These
general requirements are basically the same for permitted and
interim status facilities.  There is also an additional set of
requirements for surface impoundments that do not satisfy the
minimum technology requirements.  The proposed regulation is
not a means for facilities to circumvent closure; rather, it is
designed to allow units with existing capacity which are
operating in an environmentally protective manner to use their
remaining disposal capacity.  The proposed requirements are
stringent and we believe that most existing, non-MTR surface
impoundments will find it difficult to meet the criteria to
delay closure to receive only non-hazardous wastes.  We
emphasize that all units that meet the criteria for delaying
closure will remain subject to Subtitle C requirements,
including final closure requirements when they stop receiving
non-hazardous waste.

     General Requi rements

     All units wishing to delay closure must obtain a  Subtitle
C permit and comply with applicable permit requirements.  As
part of the permit modification or Part B permit  application,
the owner/operator must include demonstrations showing that the
unit has the existing design capacity  to manage non-hazardous
wastes and that the non-hazardous wastes are not  incompatible
with any remaining wastes in the unit.  The permit modification
or the Part B permit application must  include  revised  facility
plans, including waste analysis, ground-water  monitoring,  and
closure and post-closure plans, and,  if necessary, closure and
post-closure cost estimates and  financial  assurance  to reflect
changes associated with operating the  unit  to  receive  only
non-hazardous wastes.

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                               -3-


     SPecific Requirements for surface Impoundments

     An additional set of requirements will  apply to surface
impoundments that do not satisfy the HSWA double liner and
leachate collection system requirements or have not received a
waiver from these requirements.   For these units, we are
proposing a combination of source control, accelerated
corrective measures, and limitations on continued operations
following a detected release to ground water.   (See
attachment).  At the time the decision is made to delay
closure, owner/operators must choose one of  three alternatives:
(1) to leave the wastes in place (i.e., disposal impoundments);
(2) to remove the waste from the impoundment;  or (3) to remove
sludges and flush the impoundment with non-hazardous wastes.
Alternative 1 is available only to impoundments which have not
had a release at the time of conversion to receipt of only
non-hazardous waste.  If such an impoundment begins releasing,
closure is triggered.  If a unit that has undergone waste
removal is leaking at the time it converts to receipt of
non-hazardous waste, this receipt may not begin until
corrective measures are implemented.  On the other hand, if a
unit that has undergone waste removal begins leaking after the
conversion to the receipt of non-hazardous waste, corrective
action must be implemented within one year of this conversion.
Any impoundment that has converted to receiving only
non-hazardous waste must show substantial progress in meeting
cleanup standards.  If neither of these requirements are met,
the unit must close.

     Regional Procedures

     As noted above, we believe that the proposed rule
establishes stringent requirements for those wishing to remain
open to receive non-hazardous waste.  Accordingly, we expect
that while many owners and operators may be initially
interested in exploring this regulatory option if finalized and
adopted in authorized States, relatively few units will be able
to meet the regulatory requirements.  In light of the upcoming
November 8, 1988 deadline we offer the following implementation
questions and answers concerning closure plan review and
approval procedures to assist you in responding  to  inquiries
from interested owners and operators:

Q.   Can a unit postpone submission of the closure plan on  the
     grounds that the owner/operator intends to  delay closure?

A.   No.  Units remain subject to the closure plan  submission
     deadlines despite this proposal.  Enforcement  authorities
     should be used if necessary to ensure that  closure plans
     are submitted.   (OSWER Policy Direction No. 9900.0-1A,
     Oct. 1, 1987).

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                               -4-


Q.   May interim status units which cease receiving hazardous
     waste on November 8, 1988 continue to receive
     non-hazardous wastes under the current regulations?

A.   Yes, in certain cases.  Interim status units are not
     required to initiate closure until the closure plan is
     approved.  Units awaiting closure plan approval may
     continue to receive non-hazardous waste.  Further, units
     may continue to receive non-hazardous wastes during the
     closure period provided the receipt of non-hazardous waste
     does not impede the timely and effective closure of the
     unit.  The timeframes for closure are set forth in 40 CFR
     265.113.  (See OSWER Policy Directive No. 9484.00-5-a
     Oct. 15, 1987)

Q.   If a large number of closure plans are received in June
     1988, how should Regions and States set priorities?

A.   The regulations set a 180-day timeframe for review of
     closure plans.  However, we recognize that it will be
     difficult to meet these timeframes if a large number of
     closure plans are submitted on June 13.  The RIP provides
     guidance on establishing priorities for review of closure
     plans.  Environmentally significant facilities should be
     addressed first.

Q.   Which units are affected by this proposal?

A.   The option would be available only to permitted and
     interim status facilities which submit a Part B
     application or amended application.  Facilities that have
     lost interim status (including LOIS facilities) would not
     be eligible to delay closure.

Q.   will the rule be effective in authorized States?

A.   Authorized States will have the discretion on whether or
     not to adopt the rule since the rule  is  less stringent
     than the 1986 amendments to the closure  regulations.
     (Please note that authorized States are  required  to  adopt
     conforming changes to implement the May  1986 changes no
     later than January 1, 1989.  See  53 FR  7740, March  10,
     1988).  The final rule will be effective in unauthorized
     States.

Q.   What affect does the proposal have on ongoing  enforcement
     actions?

A.   None.  Enforcement actions underway will not  be affected
     by the. regulation when it is finalized;  the  regulation
     will not be retroactive.

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                               -5-
     We will keep you updated on the rule development and
schedule.  If you have any further questions,  please contact
Sharon Frey at FTS 475-6725.

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           UNITED STATES CMVIROHMCKTAl. FROTtCTIOM AGO     9476.1989(01)
  MAY  16869
MEMORANDUM

SUBJECT:  Final Rule for Delay of Closure Period for
          Hazardous Waste Management Facilities

FROM:     Sylvia K. Lowrance, Director
          Office of Solid Waste

TO:       Jonathan Z. Cannon
          Acting Assistant Administrator

    Attached is a final rule that amends portions of the closure
requirements applicable to owners and operators of hazardous
waste land disposal facilities.  This rule is the subject of
pending lawsuit brought by Union Carbide and the Chemical
Manufacturers Association.

    Under existing rules, hazardous waste management units must
initiate closure after final receipt of hazardous waste.  The
attached regulations allow, under limited circumstances, a
landfill, surface impoundment, or land treatment unit to remain
open after the final receipt of hazardous waste in order to
receive non-hazardous wastes in that unit.  This rule details
the circumstances under which a unit may remain open to receive
non-hazardous wastes and describes the specific conditions
applicable to such units.

    This rule must undergo a second Red Border review and
subsequent OMB review due to changes made in the rule following
initial clearances'.  I request that this rule be handled
expeditiovBly to avoid the need for the Agency to defend the
existing (rather than amended) regulatory requirements.  The
Steering .GMpitt* has approved a 7 calendar day Red Border
review peflpd.

Attachments

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                                                       9476.1989(02

             UNITiO STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON, O.C. 20460
                                                         OFFICE OF
                                                 SOLID WASTE AND EMERGENCY BESf
SUBJECT: Correction to the Delay of Closure Rule Preamble Language

FROM:    Joseph S. Carra, DirectorfLa.Ss
         Permits and State PrograiriMSiVision  (OS-340)

TO:      Permit Section Chiefs I/
         Regions I-X

    This memorandum clarifies a discrepancy in the Delay of
Closure final rule published in the Federal Register of August 14,
1989 (54 FR 33376).  The discrepancy involves the  time frame for
submission of permit modification requests for owners and
operators of permitted facilities that wish to receive
non-hazardous wastes after the final receipt of hazardous wastes.


    The rule language at S264.113(d)(4) correctly  stated that the
    request must be submitted no later than 120 days prior to the
    date on which the owner or operator of the facility receives
    the Jcnown final volume of hazardous wastes at  the unit or no
    later than 90 daY5 af^er the gffestive date of the rulQ in the
    s^ate in which the^ un.ji t j.s located. whichever  is later.  This
    language is found at 54 FR 33395.

    The preamble language incorrectly stated  that  the request must
    be submitted at least 120 days prior  to final  receipt of
    hazardous wastes, or within 90 days of publication of the
    Federal Register notice.  This language is found at 54 FR
    33377.

    We do not intend at this time to publish  a Federal Register
correction notice.  If you have any questions about this, please
call Barbara Foster at FTS 382-4751.

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                               -2-


     Your third question asked if the interim status closure
plan has to include all units that are listed in the Part A or
solely those that have actually been constructed.  Your interim
status closure plan must account for all units that have been
constructed.  According to 40 CFR §265.112(b)(l), the closure
plan must include a description of how each hazardous waste
management unit at the facility will be closed  (51 FR 16422);
it is not required to address closure of units planned in the
future.  Of course, before further units or cells are put into
service, the plan must be revised in accordance with applicable
regulations.

     Please be reminded that the above responses are based on
the Federal RCRA regulatory requirements at 40 CFR Part 265.
States authorized to implement the RCRA program may have
adopted more stringent requirements.  Should your facilities be
located in authorized states the applicable state law applies.

     If you have any further questions, please call Sharon Frey
at FTS 475-6725.
                                Sincerely,
                                Jeffery D. Denit
                                Acting Director
                                Office of Solid Waste
cc:  Robert Greaves, Region III
     Kenneth D. Feigner, Region X

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               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY    Jljfif f; -,
                          WASHINGTON, D.C. 20460            y        ( I'JZJ

                              JUN   4 1990
                                                            OFFICE OF
                                                   SOLID WASTE AND EMERGENCY RESPONSE
                                               9476.1990(01)
 MEMORANDUM
SUBJECT
FROM:
TO
           Regulatory Interpretation of Questions Raised in
           Objection to Region V Review of Clean-Closure
           Equivalency Petition for Steel/Abr$jsi#es,
           Incorporated  OHD 091 83X-31;

           Sylvia Lowrance, Direc
           Office of Solid Waste (0
          David A. Ullrich, Acting
          Waste Management Division  (
                                        -12)
     This  responds to your memorandum of February 21, 1990 in
which  you requested our response to' 'arguments raised by Steel
Abrasives,  Inc.  of Hamilton,  Ohio in objection to the Agency's
preliminary denial of its equivalency petition (OHD 091 831
313) .  As you  explained in your memorandum, Steel Abrasives
closed a  surface impoundment, waste pile, and sluiceway in
1985,  while the  units were subject to interim status
standards.   Closure was certified by the Ohio Environmental
Protection  Agency (OSPA) .  Steel Abrasives recently submitted a
petition  to demonstrate equivalency with the closure by removal
standards of Part 264.   After reviewing the facility's
equivalency petition, EPA Region V made a preliminary
determination  that the  1985 closure is not equivalent to 40 CFR
Part 264  standards.   Steel Abrasives submitted a document
entitled  "Comments and  Request for Hearing in Support of Steel
Abrasives,  Inc.  Equivalency Petition" on February 9, 1990.  In
that document. Steel Abrasives challenged the Agency's
authority to revisit clean closures and objected to the way the
regulations  were applied  to its particular case.   In your
memorandum,  you  requested our response to several arguments
they raised.

    In general,  we disagree with the  arguments that Steel
Abrasives made in its February 9,  submission and believe that
the Agency acted  within  its authority when it issued a

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 preliminary denial of Steel Abrasive's equivalency
 demonstration.  However, given the specific facts of this
 situation, we believe that the Region has the flexibility to
 reconsider its preliminary decision to deny Steel Abrasive's
 equivalency petition, should it wish to do so.  We explain the
 basis for requiring equivalency determinations, and address
 Steel Abrasive's arguments below.

 BACKGROUND

     Section 3005(i)  of HSWA requires all landfills, surface
 impoundments, waste piles, and land treatment units that
 received waste after July 26,  1982 to comply with the Part 264
 Subpart F standards (groundwater monitoring and corrective
 action)  that are "applicable"  to new permitted units.  The
 Agency has selected post-closure permits as the mechanism for
 implementing the Subpart F standards at units that close before
 obtaining operating permits.   Thus, to implement the
 requirement of Section 3005(i),  the Agency,  in the Second
 Codification-rule (52 FR 45788,  December 1,  1987}  amended
 section  270.l(c)  to  require post-closure permits for the newly
 subject  interim status units.

     However,  the Agency recognized that Part 264 Subpart F
 standards are not "applicable"  to hew permitted units if those
 units  close by removal under sections 264.228,  264.258,  or
 264.280(e).   Therefore,  since  Section- 3005(i)  subjects  interim
 status regulated units only to  Subpart F standards that  are
 "applicable"  to new  permitted units,  Section 3005(i)  does not
 impose Subpart F standards  on  interim status units that  meet
 the  requirements for closure by  removal under  Part 264.

     Prior  to  March 19,  1987, the  Part 265  regulations governing
 clean closure differed from the  requirements  of  Part 264.  The
 Agency has  since modified  those Part  265 closure by  removal
 regulations  so  they  are  equivalent  to those  in  Part  264  {see
 the Conforming  Changes rule 52 FR 8704,  March  19,  1987).
 However,  in  the Second Codification rule,  the Agency clarified
 that closure  by removal  under the previous interim status
 standards, which were  not equivalent  to  the  Part 264
 requirements, does not provide an exemption  from the
 requirements  of  Section  3005(i).  At the  same time, the Agency
     It should be noted that the current Part 264 standards
for closure by removal are unchanged from the standards that
were in place for permitted facilities at the time that Steel
Abrasives closed.

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 devised  a  procedure  by  which  owners/operators that closed under
 the  previous  Part  265 standards  can demonstrate that the
 closure  also  met the standards  for closure  by removal under
 Part 264,  and thus avoid  post-closure permitting obligations.
 This equivalency determination  procedure  is codified at  section
 270.1(c)(6).   The  Agency  discussed the  rationale behind  the
 equivalency determination both  in the preamble of the Second
 Codification  rule  and in  the  preamble of  the proposed rule {51
 FR 10706,  March 28,  1986).

 RESPONSE TO STEEL  ABRASIVE'S  ARGUMENTS

 1.   Challenge to the Agency's Authority to  Revisit Closures

     In its February  9 submission, Steel Abrasives challenged
 the  Agency's  authority  to revisit interim status clean closures
 and  require post-closure  permits if it  determines that the
 closure  does  not satisfy  the  closure by removal standards  of 40
 CFR  Part 264.  It  argued  that (1) OEPA's  1985  acceptance of the
 closure  should stand and  EPA  has no right to reopen the  case;
 (2)  the  adequacy of  the closure  should  be judged by the
 regulations effective at  the  time of the closure;  and, (3)  to
 take  further  action, EPA must demonstrate that metals remaining
 in the area pose a threat to  human'health and  the environment.

    We disagree that the Agency  lacks authority to revisit
 OEPA's 1985 acceptance of closure and apply  the standards  of
 Part  264.  As  is discussed above, Section 3005 (i)  of  HSWA
 expanded the  universe of facilities to which the standards  of
 Part  264 Subpart F apply, and the Second Codification rule
 established that this universe includes interim status
 facilities that closed by removal but did not  satisfy the
 requirements  for closure by removal under Part  264.   To
 implement  the mandate of Section 3005 (i), the  Agency
 established authority within  its regulations at  40  CFR
 270.1 (c)(5-6)  to revisit those clean closures  and  to  require
post-closure permits when facilities cannot  successfully
demonstrate equivalency.  This authority was properly
established by the  Agency through notice and comment  rulemaking
procedures.  Thus,  if Steel Abrasives closed under  the
standards of Part 265 that were in effect prior  to  the
Conforming Changes  rule, the  regulations provide authority  for
the Agency to revisit its 1985 closure,  and  it  is not necessary
for the Agency to demonstrate a specific threat  to human health
or the environment  in order to do so.
         It should be noted that the opportunity for Steel

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     Steel Abrasives also suggested that, even if the Agency has
 authority to revisit clean closures, it should not exercise
 that authority,  steel Abrasives argued that reopening the case
 and requiring further action from a facility that attempted to
 clean close would set a bad precedent for EPA and the regulated
 community.  However, we believe that the Agency has the
 obligation to revisit clean closures and make a case-by-case
 determination whether the standards of Part 264 have been met.
 In  doing so, the Agency does not seek to discourage clean
 closures, but to carry out the mandate of Section 3005(i)  of
 HSWA, that is, to subject those facilities that have not met
 the Part 264 standards for closure by removal, to post-closure
 permitting requirements and, thereby, to the standards of Part
 264 Subpart P.

 2.   Challenge to the Begulations as they Apply to Steel
     Abrasives.

     In addition to challenging the Agency's authority to
 revisit clean closures, Steel Abrasives objected to certain
 procedures followed by the Agency in applying the regulations
 to  it.

     First, Steel Abrasives objected that the Agency has no
 legal right to use internal guidance as regulations.   It argued
 that  the Agency must decide whether the closure met the
 applicable Part 264 requirements,  and not rely upon internal
 policy memoranda or guidance to change the rules.
Abrasives to  file a  legal challenge  to the regulatory
provisions promulgated  in the  Second Codification rule has
passed.  That  rule was  promulgated on December 1, 1987, and
Section 7006  of  RCRA, which provides for appeal of regulations,
requires that  an appeal be filed within 90 days of
promulgation.  However, the Agency's authority to require
equivalency demonstrations was, in fact, challenged  (see
American Iron  and Steel Institute v. t.'o EPA, 886 F.2d 390 (D.C.
Cir. 1989) cert, petition pendilTg on other issues} .
Petitioners in that  suit challenged  several provisions of the
Second Codification  rule, including  the Agency's authority
under Section  3005(i) to impose a retroactive post-closure
burden on facilities that lawfully closed under interim status
provisions.  The court  in that case  upheld the Agency's
authority.

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     We  agree  with  Steel Abrasives  that  the Agency cannot use
 internal  guidance  as  regulations,  but note that the Agency
 established  its  authority and procedures  for  equivalency
 determinations through notice and  comment rulemaking
 procedures.   The Agency can use guidance  to help implement
 regulations that have been properly promulgated.  When using
 this guidance to implement its regulations, the Agency does
 consider  comment on the regulatory interpretations provided by
 the  guidance  as  well as the application of the  guidance in that
 particular case.

     Steel Abrasives next argued that averaging  the lead and
 cadmium levels in  the entire closure area,  thus leaving hot
 spots in  place is  allowable, because of the protective slag
 covering  the  area, and because the local  groundwater does  not
 appear  to have been impacted.  Thus, it argues, the closure
 performance standard has been met.

     Steel Abrasives is correct in  that  it must  demonstrate that
 its  closure meets  the specific performance standards for
 closure by removal under Part 264, or be  subject to
 post-closure-permitting-requirements.   It is  also correct  in
 citing  groundwater that is free of'contamination as an element
 of demonstrating clean closure.  However,  it  should also
 demonstrate that the groundwater wi.ll ..remain  free of
 contamination in the future because,- to meet  the performance
 standards of  Part  264, Steel Abrasives'should demonstrate  that
 any  hazardous constituent left in  the soils will not cause an
 unacceptable  risk  to human health  and-the environment  in the
 future, and will not impact any environmental media in excess
 of Agency recommended limits or factors (see  52  FR 8704  at
 8706).  In addition, since no further monitoring or management
 is required at a clean closed unit, and there are no
 limitations on future uses of the  property, this demonstration
 should be made assuming direct contact with the  soil.   In  this
 case, the fact that slag is currently covering  the  area  and,
 thereby, limiting exposure is not  relevant  to a  demonstration
 of clean closure because the slag  could be  removed  in  the
 future, and direct contact could occur.

    Generally, the owner or operator should remove  "hot  spots"
 of contamination (i.e., areas of contamina-tion above Agency
 limits)  in order to demonstrate clean closure.   This practice
 is recommended in the 1987 "Surface impoundment  Clean Closure
Guidance Manual."  However,  this is not a requirement  specified
per se  in regulations and, as is discussed  above,  the
 recommendations in, and applicability of,  guidance must be
assessed in each case.  The  Region may wish to evaluate the
number and size of the "hot  spots" remaining in  the  soil,  the
degree to which they may exceed established "clean closure"
 levels,  and other site-specific factors  in determining whether

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 the performance  standard for clean closure has  been  met  for
 these particular units.

     As you know, the Agency is  in the process of establishing
 soil lead levels based on a biokinetic uptake model.   Since  the
 model is  not  yet available, OSW has issued interim guidance  on
 establishing  soil lead cleanup  levels at KCRA facilities, which
 provides  the  Region some flexibility in making  this decision
 (see Memorandum  from Sylvia Lowrance to David Ullrich, May 7,
 1990).  However, as was discussed above, EPA must accept and
 respond to comment on the guidance and its applicability in
 individual cases.

     Finally,  Steel Abrasives objected to EPA's  submittal of
 preliminary denial and request  for information  during  the
 public  comment period.  They claim that by doing so, the Agency
 unfairly  prejudged the issue and biased the public.

     We  agree  with Steel Abrasives that as a general rule, we
 should  wait for  the comment period to close before issuing a
 preliminary decision.  However, we do not agree that,  in this
 case, the Agency prejudged the  issue.  The Agency had before it
 the  equivalency  petition submitted by Steel Abrasives and,
 based on  that information,  made a preliminary determination.
 Further,  the Agency's final decision will be made after the
 close of  the  comment period and should take into account any
comments  that were submitted during that time.

     I hope the above responds to your questions.  If you have
any  further questions, please contact.Barbara Foster (FTS
382-4696).

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON, D.C. 20460
                          MAY 2- 1991             9476.1991(01)
                                                      OFFICE OF
                                             SOLID WASTE AND EVieRGENCV RESPONSE
MEMORANDUM
SUBJECT:  Closure Standards for Hazardous Waste Land Treatment
          Units

FROM:     Devereaux Barnes, Director
          Permits and State Programs  Division
          Office of Solid Waste  (OS-340)

TO:       Doug McCurry, Chief
          Waste Engineering Section
          RCRA Branch, Region IV


     You  previously  raised a  series of  questions regarding  the
closure of hazardous waste land treatment units to my staff and to
the  ORD  laboratory  in Ada  (RSKERL-Ada).   These  are  important
questions since  many land treatment  facilities are beginning to
close in response to the November 8,  1990 prohibition of the land
disposal  of  the petroleum  refining wastes   (K048-52).    After
consulting with RSKERL-ADA, as well as internally, we are providing
you with the answers you sought.  It  is  important to keep in mind
that of the four major types of  land disposal  units,  the  land
treatment unit is the most difficult for which to define generic
technical closure procedures.   This  is  due  to the fact that  the
characteristics of the  soils  affecting the closure are by nature
site-specific, and that  the wastes are to be transformed, degraded,
or immobilized during the closure  process by the soil,  biologic,.
and climatic conditions unique to each site.  With this constraint
in mind,  we  have addressed  your  questions as  specifically  as
possible:

1.   Q.   Is soil sampling required during closure/post closure?

     A.   Section 265.280(d)(1)  requires that during  the closure
          period the owner or  operator of an interim  status  land
          treatment facility continue unsaturated zone monitoring
          in a manner and frequency specified in the  closure plan,
          except that soil-pore liquid monitoring may be terminated
          90  days after  the  last  application of waste to  the
          treatment zone. Unsaturated zone monitoring consists of
                                                          Printed on Recycled Paper

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          both soil-pore  liquid monitoring and  analysis -of soil
          cores (see Sections 265.278(a) and  (b) ) .

          In addition, Section 265. 280 (f)  requires  that during the
          post-closure  care period the  owner or  operator  of an
          interim status  land  treatment unit must continue soil-
          core  monitoring  [soil  sampling]   in  the   manner  and
          frequency specified in the post-closure plan.

          Similarly, permitted units must continue unsaturated zone
          monitoring during closure and post-closure care periods,
          as specified  in the  permit (see Sections 264. 280 (a) (7)
          and (c) (7».

          Given the language of Sections 264.280 and 265.280, we
          expect that  in  most  cases  unsaturated zone monitoring
          (particularly soil-core) will be necessary during  the
          closure and post-closure care periods of a land treatment
          unit. There are, however, limited instances where soil-
          core monitoring  may not be required by the -closure and/or
          post-closure plan.   For example,  in the  case where  the
          treatment zone  is removed  as a part of  clean closure,
          soil-core monitoring may be suspended at the completion
          of  the  closure  period.     (See  Sections  264. 112 (e);
          264.280(C); 265.280(d) and
2.   Q.   At what intervals and for how long?

     A.   General guidance pertaining  to  soil sampling intervals
          and duration  during land treatment site closure/post-
          closure is provided  in  several  land treatment guidance
          documents:

               Guidance Manual on Hazardous  Waste Land Treatment
               Closure/Post-Closure (OSHER Directive 9476.00-9)

               Permit   Guidance   Manual   on  Unsaturated   Zone
               Monitoring for Hazardous Haste Land Treatment Units
               (EPA/530-SW-86-040)

               RCRA Guidance Document:  Land Treatment (NTIS-PB-
               155065)

               Permit Guidance Manual  on Hazardous Waste  Land
               Treatment Demonstrations (July, 1986)

          Although the guidance provides  a general framework for
          soil sampling,  the  geographic,  spatial,  and temporal
          variabilities between different  land treatment units (as
          well as  within any  individual  unit)  necessitate  that
          site-specific   considerations   be   evaluated   when
          establishing the sampling intervals and  duration required

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during  closure/post closure of a  given land treatment
unit.

Data  from the  reconnaissance  survey  is  used  as  the
primary  basis  for  establishing site-specific sampling
requirements,  if this survey reveals that the facility
has  been well  managed,  with  no  apparent  significant
buildup or downward migration of hazardous constituents,
the  general  guidance provided  in  the above-referenced
guidance documents can be used to establish soil sampling
intervals  and  duration.    We   recommended  that, at  a
minimum, samples should be collected quarterly during the
closure  period  and during the  first  year  of the post-
closure period.  Periods between sampling events may be
gradually extended after the first  year of post-closure.

If  data  from   the  reconnaissance survey  reveals  an
apparent significant buildup and/or downward migration
of hazardous constituents,  the general  guidance alone
will  not  be  sufficient  to establish soil  sampling
intervals and duration.  Under such a scenario, soil pore
liquid  samples  should continue  to  be  collected  as
recommended in the Permit Guidance  Manual on Unsaturated
Zone Monitoring for Hazardous Waste Land Treatment Units
(EPA/530-SW-86-040).   The soil pore  liquid monitoring
should continue  until there is  no  longer potential for
vertical migration of fast-moving hazardous constituents
from  the  waste-soil  matrix.    Additionally,   it  is
important to  collect soil  cores  downward  through  the
treatment zone into the unsaturated zone for analysis at
selected intervals along the core  in prder to determine
the extent of degradation and immobilization within the
treatment zone, as well as the migration of less mobile
waste constituents into the unsaturated zone. Under this
scenario, actual degradation rate data under the closure
conditions may be deemed important.  If such  is the case,
sampling intervals  should be shorter  than specified in
the guidance.

Two recent land treatment research  studies, sponsored by
RSKERL-Ada, provide useful guidance because they involve
a  determination   of degradation   rates  under  field
conditions.  These studies  used the following sampling
schedule: 0, 2, 4, and 8 weeks, and continued at 4-week
intervals  throughout  the  study.     Under  a  closure
scenario, the  sampling  schedule should use these same
intervals,  or   other type  of  appropriate  sampling
interval, until a minimum of 6 data points are obtained
or until an asymptotic constituent level is approached.
Any  time degradation rates are   to  be calculated,  a
minimum  of 3 replicate  sample  analyses are recommended
for  each sampling  date in  order   to establish  a  95%

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          confidence interval for the degradation rates and half-
          lives  of the  waste  and its  constituents.   After you
          determine that degradation is proceeding at an acceptable
          rate  and  that downward  migration  is not  occurring,
          quarterly  sampling  (as  recommended  in  the  general
          guidance) can be initiated.

3.   Q.   Does  EPA  recognize  approved  methods for determining
          degradation rates?

     A.   There  are  no  EPA-approved  methods  for  determining
          degradation  rates,  although  methods  for  determining
          degradation rates  are discussed  in the Permit Guidance
          Manual on Hazardous Waste Land Treatment Demonstrations
          (LTD).   These are based  on methods  used in  the  land
          treatment research program at RSKERL-Ada and documented
          in the lab's publications.   (See Attachment)

          The need and approach for determining degradation rates
          will depend  to a  great degree  on the results  of the
          reconnaissance survey discussed under Question 2.  Under
          the well-managed  scenario,  we can see little  need to
          undertake  this task  unless the  final loading  rate is
          significantly  greater  than that  used  during  normal
          operation.  Under the poorly managed scenario, we would
          consider this task a  necessity.   The actual approach for
          determining  degradation  rates  would  vary  somewhat
          depending on the degree of the problem as well as waste
          and site-specific  characteristics.  In addition to the
          treatability study approach discussed in the LTD Guidance
          Manual,   the  RSKERL-Ada   publication  Mobility   and
          Degradation of Residues at Hazardous Waste Land Treatment
          Sites at Closure (See Attachment) specifically provides
          information pertaining to the quantitative evaluation of
          mobility and persistence of organic and inorganic waste
          constituents which have accumulated in soil  treatment
          systems under various closure scenarios.

4.   Q.   Can continued operations under closure last indefinitely?
          At  what  concentration  is  closure complete?    At  what
          concentration, degradation rate, or point  in  time  does
          operational  closure  cease  and  a  RCRA cap  become  a
          requirement?

     A.   As  Sections 264.113  and  265.113  layout,  closure  is
          expected to be completed within 180 days after receiving
          the final volume of hazardous waste, but a longer period
          may be approved if the owner or operator can demonstrate
          that closure activities will,  necessarily,  take longer
          than  180  days   (see   Sections   264.113(b)(1)(i)   and
          265.113 (b) (1) (i)). in the case of a land treatment unit,
          more  than  180  days  may  be  required  to  maximize

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          degradation,   transformation,   or   immobilization   of
          hazardous constituents within the treatment zone.  This
          period cannot be defined by regulation in that each site
          will require a  time period specific  to  that site.   The
          duration of the closure period is primarily dependent on
          the  waste  loading rate at  closure as  well  as  the
          potential waste degradation rate.  Each owner or operator
          should,  however,  be  able  to  estimate that  time  in
          advance, based on the treatment data already established
          during operation.  For the large majority of well-managed
          land treatment units, the duration of the closure period
          will vary between 90 and 360 days.

          Because land treatment  closure  is a  continuing process
          rather than a set of distinct engineering procedures (as
          in landfill  closure),  the  concentrations of  hazardous
          constituents  remaining  in the  treatment  zone  after
          closure may vary and will continue to change during the
          post-closure care period.   Post-closure care at a  land
          treatment facility is different from practices at other
          closed or closing land disposal facilities in that active
          management   will  frequently   continue   to   enhance
          degradation     and    transformation   and    sustain
          immobilization.   Complete  degradation  of  organics  to
          background levels before closure has been completed is
          not necessarily required.  Concentrations  of  organics
          should, however, be to  the point that the application of
          a  final cover  and the  reduced level  of   active  site
          management  will  prevent  the  post-closure  escape  of
          hazardous   constituents  from  the   treatment   zone.
          Similarly inorganics should be immobilized during closure
          to provide the  same  level of protection over  the  long
          term.

          In the case where closure activities fail  to immobilize
          or degrade  hazardous  constituents,  an  impermeable  cap
          may be  required or clean closure may  be appropriate.
          (Changes to the closure plan will require  approval  by
          the  Regional Administrator  (Sections  264.112(c)   and
          265.112 (c)).     The  determination   of  the   rate   of
          immobilization and degradation is site specific; however,
          escape  of  constituents  from  the  treatment  zone  at
          concentrations above health-based  levels indicates  that
          the   rate   of   immobilization   or   degradation   is
          unacceptable.

5.   Q.   What closure standards  are  required where migration of
          hazardous constituents  has occurred?

     A.   The general closure performance standard  remains the same
          whether or not  migration of hazardous constituents  has
          occurred.  That is, the owner or operator must close the

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          facility in a manner that minimizes the need for further
          maintenance; and that controls, minimizes, or eliminates
          to the extent necessary to protect human health and the
          environment, the post-closure escape of hazardous waste,
          hazardous constituents, leachate, contaminated run-off,
          or hazardous waste decomposition products to the ground
          or surface water or to the atmosphere.  (Sections 264.111
          and 265.111).

          Where hazardous  constituents have migrated beyond the
          treatment  zone  above  health-based levels,  successful
          immobilization,   degradation,  or transformation  during
          closure  may be  subject  to question.    In  this  case
          additional  closure  and post-closure activities may be
          required that go beyond disking, adding soil amendments,
          and installation of a vegetative cover.   Obviously, the
          additional  activities  will  vary  from  site  to  site;
          however, some of these activities may include,  but are
          not limited to,  removal of some or all of the treatment
          zone and  installation  of a  low  permeability cap.   In
          addition,  cleanup  of  the  contaminated  media,  e.g.,
          ground-water removal and treatment,  may  be appropriate.
          Cleanup of these media  is a corrective action decision.

          Whatever program of  additional activities is  selected,
          it must be consistent  with the goals specified  in the
          general closure performance standard.

6.   Q.   What closure standards are  required where ground-water
          contamination exists but where levels of contaminants
          are within the ACL's established by the  permit?

     A.   At units  where  ground-water  contamination exists  but
          where that contamination is below the established ACL,
          corrective  action under Section  264.100 may  not  be
          required.   The  decision  as to  whether  ground-water
          cleanup is required  is  site-specific, generally based on
          the principles  described in EPA's proposed  corrective
          action rule (55 ZB 30798).  At the same time, the closure
          standard to be  applied remains the same  (see  previous
          discussion).

          Furthermore, having  an  ACL does not negate the treatment
          demonstration requirement of Section 264.272.   If it is
          found during  closure  that  constituents  are  migrating
          below the treatment  zone  above health-based  levels,
          additional steps may be required, such as treatment zone
          removal or installation  of a  low permeability  final
          cover.   The determination of what steps are required will
          depend primarily upon whether the hazardous constituents
          migrating from the land treatment unit would cause ACLs
          to be exceeded during the closure or post-closure period.

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          The owner  or operator should  be aware that  the post-
          closure care period cannot be terminated until the owner
          or operator successfully demonstrates that all the ground
          water at the  site  is safe for  all  potential  receptors
          (Alternate Concentration Limit Guidance,  EPA/53o-SW-87-
          017) .

7.   Q.   At  what point  in  the life  of  the  unit  do  closure
          activities become  in-situ remediation  under corrective
          action? At what concentrations and frequencies for soil,
          pore-water, surface water  and ground water?  What permit
          modifications are required?

     A.   Most actions taken  to  remedy migration of constituents
          of concern outside the treatment zone (into ground water,
          surface water, or  soil adjacent to  the treatment zone)
          at  closing units  can be accomplished  as a  part  of
          closure.

          At  a  permitted facility, methods for preventing  such
          migration should be outlined in  the permit (see Sections
          264.270-264.283).     If,   during   closure,   migratory
          constituent concentrations are  found to  exceed  levels
          specified in the permit, a corrective action program must
          be initiated (see Sections 264.90-264.101).  The addition
          of a corrective action program  requires a permittee to
          initiate a  Class  3 permit modification,  although  some
          limited remediation activities,  such as a change in the
          number of ground-water monitoring wells at  a  regulated
          unit,  may require only a Class 2  permit modification (see
          Appendix I to Section  270.42).   Such modifications may
          receive temporary authorization provided  they  meet the
          test of Section 270.42(e)(2).   (Of course, Class 2  or 3
          modifications would not be used  in states authorized for
          ground-water corrective action, but not authorized for
          EPA's  new permit modification procedures.   In authorized
          States,  permit modifications must be made according to
          state  modification  procedures.)  In the alternative, the
          Agency may take unilateral action to modify a  permit to
          require corrective action (see  Section 270.41),

          At  an interim  status facility,  certain  requirements
          designed to prevent migration of constituents of concern
          are specified  in  Sections 265.270-265.282  and 265.90-
          265.94.   Unlike permitted facilities,  at  present there
          are no regulatory provisions requiring corrective action
          when  migratory    constituent   concentrations   exceed
          regulatory levels of concern.   Instead, the Agency may
          compel corrective action at an  interim status  facility
          through the issuance of an administrative order pursuant
          to  RCRA,    Section   3008(h).     In  addition,   as  an
          alternative, the Agency may expedite the  issuance  of a

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                                8

          permit  to  an interim status  facility,  with the result
          that the corrective action provisions referenced above
          would be applicable.

          Completion of remedial  activities may exceed 180 days.
          As mentioned previously, this is a legitimate basis for
          granting  an  extension  of  the  closure period.    In
          addition, long-term remediation activities at regulated
          units,  such  as  ground-water  counterpumping,  may  be
          performed during the post-closure care period.

8.   Q.   At what point  in  time, and  to what standards  does  a
          facility certify closure?

     A.   This question is directly related to question 4 in your
          letter.  You will  note  in Sections 264.115 and 265.115
          that closure is to be certified when the unit has been
          closed  in  accordance  with the specifications  in  the
          approved closure  plan.   Closure will be complete when
          closure  activities  have  immobilized,   degraded,   or
          transformed hazardous constituents in the treatment zone
          to levels  agreed  upon  in  the closure plan  and  when  a
          vegetative cover has been established.  In the case where
          the  treatment  zone  is  ineffective,  closure  may  be
          certified after the treatment zone is  removed or after
          a low  permeability cap is installed.   Other long-term
          activities such  as ground-water remediation will normally
          be .completed  during the  post-closure care  period  and
          after closure certification.

     We hope these responses are useful.  Please feel free to call
Chris Rhyne (FTS  382-4695)  to discuss other technical aspects of
land treatment closure.

Attachment

cc:  Sylvia Lowrance, OSW
     RCRA Branch Chiefs, Regions I-X
     Nancy Bethune, Region IV
     John Matthews, RSKERL-Ada
     Scott Huling, RSKERL-Ada
     Tom Beisswenger, OGC
     Susan Bromm, RED, OWPE
     Chris Rhyne, AB, PSPD,  OSW
     Barbara Foster,  PB, PSPO, OSW
     Dave Pagan, CAB, PSPD,  OSW

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                        HAZARDOUS WASTE LAND TREATMENT

                              SELECTED REFERENCES

RCRA Guidance Document Land Treatment  (NTIS PB87-155065). OSW,  1982.

U.S. EPA.  1983.  Hazardous Waste Land Treatment.  OSW, SW-874.

Streebin, L.E., Robertson, J.M., Callender, A.B., Doty, L., and Bagawandoss,
K.  1984.  Closure Evaluation for Petroleum Residue Land Treatment.
University of Oklahoma, Norman, OK.  PB85-115822.  EPA/600/2-84-162

Overcash, M.R., Nutter, W.L., and Kendall, R.L.  1985.  Field and Laboratory
Evaluation of Petroleum Land Treatment System Closure.  PB86-130564.
EPA/600/2-85/134.

Loehr, R.C., Martin, J.H. Jr., Neuhauser, E.F., Norton, R.A., and Malecki,
M.R.  1985.  Land Treatment of an Oily Waste--Degradation, Immobilization, and
Bioaccumulation.  PB85-166353.  EPA/600/2-85/009.

U.S. EPA.  1986.  Permit Guidance Manual on Hazardous Waste Land Treatment
Demonstrations.  OSW, EPA/530-SW-86-032.

U.S. EPA.  1986.  Permit Guidance Manual on Unsaturated Zone Monitoring For
Hazardous Waste Land Treatment Units.  OSW, EPA/530/SW-86-040.

Martin, J.P., Sims, R.C., and J. Matthews.  1986.  Review and Evaluation of
Current Design and Management Practices for Land Treatment Units Receiving
Petroleum Wastes.  Hazardous Waste & Hazardous Materials. Vol. 3, No. 3.
pp. 261-280.

Dupont, R.R and Reineman, J.A.  1986.  Evaluation of Volatilization of
Hazardous Constituents at Hazardous Waste Land Treatment Sites.  Utah State
University, Logan, UT.  PB86-233939.  EPA/600/2-86/071.

Sims, R.C., Sims, J.L., Sorensen, D.L., and Hastings, L.L.  1986.  Waste/Soil
Treatability Studies for Four Complex Industrial Wastes:  Methodologies and
Results.  Volume 1:  Literature Assessment, Waste/Soil Characterization,
Loading Rate Selection.  Utah State University, Logan, UT.  PB87-111738.
EPA/600/6-86/003a

Sims, R.C., Sorensen, D.L., Doucette, W.J., and Hastings, L.L.  1986.
Waste/Soil Treatability Studies for Four Complex Industrial Wastes:
Methodologies and Results.  Volume 2:  Waste Loading Impacts on Soil
Degradation, Transformation, and Immobilization.  Utah State University,
Logan, UT.  PB87-111746.  EPA/600/6-86/003b.

American Petroleum Institute.  1987.  The Land Treatability of Appendix VIII
Constituents Present in Petroleum Refinery Wastes:  Laboratory and Modeling
Studies.  Washington, D.C.

Westat, Inc.  1988.  Statistical Methods for Evaluating the Attainment of
Superfund Cleanup Standards.  Vol. 1:  Soil and Solid Media.  Final Draft.
Statistical Policy Branch.  U.S. EPA.  Washington, D.C.

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Barth, D.S., Mason, B.J. Starks, T.H. and Brown, K.W.  1989.  Soil Sampling
Quality Assurtfice User's Guide.  PB89-189864.  EPA/600/8-89/046.

loehr, R.C., Erlckson, D.C., Rogers, L.A., and Kelmar, D.M.  1990.  Mobility
and Oegradatoin of Residues at Hazardous Waste Land Treatment Sites at
Closure.  RSKERL-Ada.  NTIS PB90212564.  EPA/600/2-90/018.

Sims, J.L., Sims, R.C., and J.E. Matthews.  1990.  Approach to Bioremediation
of Contaminated Soil.  Hazardous Waste & Hazardous Materials. Vol. 7, No. 2.
pp. 117-149.

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                                                       9476.1991(02)

RCRA/SUPERFUND  HOTLINE MONTHLY SUMMARY

                 OCTOBER  1991


    2.  TSDF Ctosure/Post-Closure After Loss
        of Interim Status

    Pursuant to 40 CFR §270.73(cX2), a Subtitle C
    land disposal facility lost its interim status due to
    the owner/operator's failure to submit
    certification that the facility was in compliance
    with all applicable groundwater monitoring and
    financial responsibility requirements. The
    owner/operator has been told by his enforcement
    agency that he is required to close his facility in
    accordance with 40 CFR Part 265, Subpart C
    closure standards. If the facility has lost its
     interim status to operate, why should the ownen
     operator be required to comply with  interim
     status standards to close the facility?

           According to 40 CFR §265. l(b), the standards of
        Pan 265 are applicable to interim status facilities
        until Part 265 closure and post-closure responsi-
        ibilides are fulfilled. As EPA explained in the
        preamble to its November 21,1984, amendments to
        the applicability sections of Pan 265 (49 £R 46094),
        EPA has statutory authority under §3004 to enforce
        the Pan 265 standards at facilities which no longer
        have interim status to operate. The preamble
        explains that such facilities must close in accordance
        with 40 CFR Pan 265, Subpan G.
           The September 25, 1985, Federal Register (50
        OL 38949), specifically indicates  that compliance
        with all applicable closure and post-closure
        requirements specified in 40 CFR 265, Subpart G is
        required when a facility has lost its interim status
        due to the owner/operator's failure to submit
        certification of compliance with all applicable
        groundwater monitoring and  financial requirements
        (40 CFR §270.73(c)(2)) to the Regional
        Administrator.  Such a facility owner/operator must,
       in accordance with 40 CFR §§265.112(d)(3)(i) and
       265.118(e)(l), submit a closure and post-closure
       plan to the Regional Administrator no later than 15
       days after termination of interim status.

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                                                          9476.1992(01)
     \
     |        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
     >                   WASHINGTON. O.C. 20460
                                 2 1992
                                                      OFFICE OF
                                             SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM

SUBJECT:  RCRA  Post-Closure Permits  tor Regulated  Units  at NPL
          Sites

FROM:     Don R. Clay
          Assistant Administrator

TO:       Patrick Tobin
          Deputy Regional Administrator
          Region IV
     Thank you for your inquiry regarding the  ability to  issue
post-closure  permits  to  RCRA  regulated  units  at  NPL sites.
Attached you will find a final legal analysis from the Office of
 aneral  Counsel  (OGC).    Based on  the legal  interpretation,  I
conclude that  CERCLA  121 (e) (1)  does  not  eliminate the  need to
secure a RCRA permit where the facility is  required to  obtain such
a permit due  to the  presence of  a RCRA  Subtitle  C treatment,
storage or disposal unit that was not created by the CERCLA action.

     This interpretation is consistent with Agency policy  that EPA
has the discretion to use its authorities under CERCLA,  RCRA, or
both to accomplish appropriate cleanup action at a site, even  where
the  site  is  listed  on  the  NPL.    The  integration of   these
authorities should be applied on a case by case basis,  taking into
account Regional priorities, to avoid duplication of  efforts  where
possible.  Some options  for  integration include:

     o    adding language to the RCRA post-closure permit that
     establishes  a schedule of compliance  (as allowed under
     RCRA section 3004(u)), according to which the appropriate
     corrective action would be determined after completion of
     the CERCLA action.   If a thorough CERCLA response is
     carried out,  there  should be no need  for  further  action
     when the  site is  reviewed under RCRA.

     o    dividing  responsibilities   in   the   Interagency
     Agreement,  focusing  CERCLA activity only  on certain
     prescribed  units.   This  could leave cleanup of other
     units under the direct control  of RCRA authorities. This
     may  be appropriate where the RCRA  regulated  unit is
                                                         Printed on Recycled Paper

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     DOE has  taken  the  position, based on CERCLA section
121 (e) (l),  that RCRA  permits are not necessary or required at NPL
sites  and that instead, RCRA requirements for groundwater
protection  and post-closure care need to be wet only to the
extent they constitute  ARARs for the CERCLA response action at
the facility;  DOE  further argues, based on the decision in
United states v. Colorado  (D.Colo. Aug. 14, 1991) that the State
has no authority to enforce RCRA permit requirements at an NPL
site.  Region IV takes  a contrary position, arguing that DOE has
an obligation to apply  for and obtain post-closure permits for
non-CERCLA, RCRA-regulated units at Oak Ridge.  The Region notes.
that RCRA permitting  requirements were triggered by DOE's
decision to operate and close these specific types of hazardous
waste  management units  beyond key dates established in RCRA
regulations.

     In addition to the legal issue/ DOE expressed the practical
concern that a requirement to study and respond to groundwater
contamination at individual RCRA units as part of separate post-
closure permits, rather than addressing the site groundwater in
its entirety under  CERCLA, would not be efficient or cost-
effective.

     Region IV has  raised three specific questions for
Headquarters' review.


DISCUSSION

     Question l:  Does  CERCLA section 121(e)(1) relieve DOE from
     the requirement  to apply for post-closure permits at NPL
     sites and instead  require RCRA 40 CFR 264 standards for
     post-closure care  and groundwater protection be considered
     as ARARs in a  ROD?

     No;  CERCLA does not relieve DOE from the requirement to
obtain post-closure permits for pre-existing, RCRA-regulated
units at NPL sites.   CERCLA section 121(e)(1} provides that:

     No Federal, State, or local permit shall be required for the
     portion of any removal or remedial action conducted entirely
     onsite, where  such remedial action is selected and carried
     out in compliance  with this section.

Thus, no permits need to be obtained in order to conduct a
remedial action "selected and carried out in compliance with"
CERCLA section 121, even if that action will involve the
treatment,  storage  or disposal of hazardous waste.  However, this
does not eliminate  the  need to secure a permit where the facility
is required to obtain a permit due to the presence of a RCRA
Subtitle C  treatment, storage or disposal unit that was not
created by  the CERCLA action.

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     Of course,  any  remedial action  selected for the site under
CERCLA section  121 would have to attain  (or waive) the
substantive  standards  set out in RCRA  40 CFR 264, to the extent
they are determined  to be ARARs.

     The decision in United States v.  Colorado  (D.Colo. Aug. 14,
1991) does not  change  this analysis.   In that case, Colorado was
attempting to enforce  a closure plan under RCRA that was in
conflict with a cleanup plan under CERCLA;  the district court
found, in effect, that in order to evaluate whether or not to
enforce Colorado's claim,  he would have been required to review
EPA's remedial  action  decision under CERCLA — such review is
barred by CERCLA section 113(h).  The  Colorado decision does not
limit the ability of a state to issue, and seek to enforce, RCRA
orders or permits that do not conflict with the CERCLA-selected
remedy.

     This analysis is  further supported by the fact that RCRA
"facilities" and CERCLA "sites" are  not necessarily coterminous.
In cases where  the CERCLA site is only a portion of the RCRA
facility (e.g.,"consisting of several  of the larger solid waste
management units), the corrective action portion of the RCRA
permit must be  available to address  the contamination that is
subject to RCRA only.   However,  if in  that example the permitted
unit were on the CERCLA site,  and if RCRA requirements could not
be enforced at  RCRA-regulated units  on a CERCLA site (as DOE
argues), then the RCRA permit's ability to address releases at
solid waste management units of the RCRA facility would be
improperly prevented;   this cannot be  correct.

     EPA has recognized that where there are corrective action
requirements in a RCRA post-closure  permit and remedial action
requirements a  CERCLA  decision document, there is the potential
for conflict or overlap between the  two authorities in addressing
contamination problems (see NPL Listing Policy for Federal
Facilities, 53  Fed.  Reg.  10520,  10522-23 (March 13, 1989)
(attached)) .  As the Agency noted in the preamble to the 1990
revisions to the NCP,

     EPA ... has the discretion to use its authorities under
     CERCLA, RCRA, or  both to accomplish appropriate cleanup
     action at  a site,  even where the  site is listed on the NPL.
     (See 54 FR at 41009  (Oct.  4, 1989)	  In the context of
     federal facility  cleanups,  this decision, and the cleanup
     plan in general,  would be discussed in the Interagency
     Agreement  (IAG) for the facility.

55 Fed. Reg. 8666, 8698 (March 8, 1990).  The Agency has a number
of options for  harmonizing operation of the two authorities and
avoiding duplicative orders and overlaps.

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      First,  any  conflict or overlap could be avoided by
establishing a timing  sequence  for evaluation of site problems
under RCRA and CERCLA.   For instance, the RCRA post-closure
permit could establish a schedule of compliance  (as allowed under
RCRA  section 3004(u)),  according to which the appropriate
corrective action would be  determined after completion of the
CERCLA action;   if a thorough CERCLA response is carried out,
there will be no need  for further action when the site is
reviewed under RCRA.   Such  a provision in a RCRA permit might
read  as follows:

      In light of the requirement in the FFA to achieve a cleanup
      under CERCLA that is protective of human health and the
      environment, corrective action under this permit shall be
      determined  according to the following schedule:  after the
      work called for in the FFA has been completed, the need for
      any further corrective action, under this permit, shall be
      evaluated.  Such  further corrective-action shall be limited
      to action required based on new information or conditions,
      not available at  the time  of the remedy selection under the
      FFA, that render  the FFA remedy no longer protective of
      human health or the environment.

      Similarly, the  CERCLA  decision document could delay its
review of certain units (or "carve out" those units) while action
proceeds under RCRA;   such  areas would then be revisited under
CERCLA after the RCRA  action has been completed, as part of the
review of the site for possible deletion from the NPL.  As EPA
explained in the NPL Listing Policy for Federal Facilities,

      In some circumstances,  it  may be appropriate under an
      [Interagency Agreement]  to divide responsibilities, focusing
      CERCLA activity only on certain prescribed units, leaving
      the cleanup of  other units under the direct control of RCRA
      authorities, such as where the RCRA-regulated hazardous
      waste management  unit  is physically distinct from the CERCLA
      contamination and its  cleanup would not disrupt CERCLA
      activities.

53 Fed. Reg. at  10523.   It  is generally expected that sites
cleaned up under RCRA  would qualify for "no action" under CERCLA.
(This approach is discussed in  your memorandum, "Requirements for
Cleanup of Final NPL Sites  Under RCRA" (Don R. Clay, July 11,
1990)  (attached).)

      Alternatively,  a  potential overlap could be resolved by
drafting a RCRA permit that references the CERCLA cleanup
actions.  For instance,  the corrective action condition of the
RCRA  permit could be written to say:

      In light of the requirement in the FFA to achieve a cleanup
      under CERCLA that is protective of human health and the

-------
     environment, corrective action under the permit is
     unnecessary, as  long as the permittee complies with the
     conditions in the  FFA, including roodifications thereto.

     In situations like Oak Ridge, where there are interconnected
groundwater plumes rather than distinct source units, EPA has
stated that it is generally most appropriate to address the
contamination comprehensively under an enforceable agreement
under CERCLA (e.g., an  FFA), see 53 Fed. Reg. at 10523, and to
use mechanisms like those discussed above to have the RCRA permit
take into account the CERCLA action.

     Finally, the Agency recognizes that there may be cases where
a RCRA-authorized State declines to coordinate RCRA cleanup
actions with an on-going CERCLA action, and a conflict may occur
that cannot be resolved through discussions.  In that case, EPA
may resolve the conflict using CERCLA section 122(e)(6), which
prohibits a PRP from  taking remedial action at a CERCLA site
without EPA's authorizatio.n1:

     Inconsistent Response Action — When [an RI/FS has been
     initiated] for a particular facility under this Act, no
     potentially responsible party may undertake any remedial
     action at the facility unless such remedial action has been
     authorized by the  President.

EPA has interpreted this authorization requirement to extend to
PRP remedial actions  ordered bv a State.  See discussion at 53
Fed. Reg. 10523.  Thus, once an RI/FS has been initiated, EPA can
deny a PRP authorization to comply with a State order or permit
calling for remedial  action at the CERCLA site.

     Of course, EPA also has the discretion under section
122(e)(6) to allow the  PRP to implement the State-ordered remedy;
this might be appropriate where, for example, the State-ordered
cleanup activities would be consistent with, or distinct from,
the CERCLA action.  To  our knowledge, the Region has not yet made
any decisions under the CERCLA section 122(e)(6) authorities.

     Question 2;  Does  the Tennessee Department of Environment
     and Conservation (TDEC) reserve its rights to require DOE to
     apply for post-closure permits if DOE fails to fulfill its
     obligation to conduct timely remedial investigations and
     remedial actions (schedules to be negotiated pursuant to the
     FFA} for certain RCRA regulated units at Oak Ridge
     Reservation (ORR)?
     1   In the Superfund Executive Order, No.  12580, the
President's authority under CERCLA section 122(e]1(6) for KPL
sites has been delegated to EPA.  See E.O., Section 4(d)(l).  See
also discussion at 54 FR at 10523, n. 10.

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     The answer to the question of whether TDEC has "reserved"
specific rights depends on  the language agreed to by TDEC in the
FFA as well as the language of the post-closure permit and
applicable State regulations.  (Clearly if TDEC incorporated a
schedule of compliance into the permit, then it would have
reserved its right to at  least review the site after the CERCLA
action has been completed to determine if any permits or other
action are necessary under  RCRA;  similarly, if the permit
included a permit condition stating that "corrective action under
the permit is unnecessary as long as the permittee complies with
the conditions in the FFA," the failure to comply with the FFA
could trigger a review of RCRA responsibilities.)  However, as
explained above, it is clear that the simple issuance of an FFA
for the Oak Ridge site does not, without more, act to preempt the
effect of permits required  under RCRA (including RCRA-authorized
State law) for non-CERCLA activities.

     The continued applicability of RCRA permitting requirements
appears to have been contemplated by DOE and EPA in the FFA for
Oak Ridge.  Section IV, C.  of the FFA provides that:

     ongoing hazardous waste management activities at ORR [Oak
     Ridge Reservation] may be subject to or require the issuance
     of additional permits  under Federal or State laws.  This
     agreement does not relieve the DOE of its obligations, if
     any, to obtain such  permits.  This Agreement does not
     supersede, modify, or  otherwise change the requirements of
     the DOE's existing RCRA permits.


     Question 3:  Does EPA  have discretionary authority to
     disallow entirely, or  limit the CERCLA section 121(e)(1)
     permit waiver, provision to ensure that NPL and non-NPL RCRA
     facilities are treated equitably?

     CERCLA section 121(e)(l) provides that no federal, state, or
local permit "shall be required" for CERCLA response actions,
thereby effectively limiting EPA's ability under the statute to
require a PRP to obtajLn a permit for a CERCLA response action.

     However, this does not mean that a PRP may not have an
obligation to comply with a permit issued with regard to matters
other than the CERCLA response action.  For example, where a
facility has a pre-existing NPDES discharge permit related to on-
going activities distinct from the CERCLA actions, that permit
remains in force even if  the site is listed on the NPL and an
RI/FS is initiated under  CERCLA.  In addition, if obligations
under a preexisting permit  would overlap with planned CERCLA
activities, EPA could authorize a PRP, under CERCLA section
122(e)(6), to carry out remedial actions called  for in an order
or permit issued under another federal or State  law.

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                                7

                       *  *  *  *
     If you have any questions concerning these responses, or
would like to discuss the issues further, please contact me (260-
7697) or Larry Starfield of my staff (260-1598).

Attachments

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105,20 .     Federal Register. 4. Voi- 54, • No».47- /< Monday.' Marctnl3;,1989-/ Rulea-'and Regulations
'ENVIRONMENTAL PROTECTION .
      R Part 300
   1L-3S3S-2I

Th« National Priorities U«i for
Uncontrolled Hazardous Watte Sttac;
Ufttlng Policy for Federal Faculties

AOCNCY: Environmental Protection
Agency.
ACTION: Notice of policy ttatement

SUMMARY: The Environmental Protection
    ncy ("EPA") Is announcing a policy
     ' ig to the National OH and
--- dousSubstanpea Contingency
Plan ("NCP"). «0 CFR Part SOa which
was promolgated pursuant to section 105
of the Comprehensive Environmental.'
Response. Compensation; and liability'
Act of 1080 rCERCLA") fameaded by
the Superfund Amendments and
Reanthorization Ac* of 1686 ("SARA"))
.and Executive. Order 12580 (52 FR 232V
January 29..1887). CERCLA requires that
the NCP Include a list of national
priorities among the known releases oc
threatened-releases of hazardous
substances, pollutants* or contaminants
throughout the UnitedStates, and that
th'e list be revised at least annually. The
National Priorities List ("NFL"). Initially
promulgated aa Appendix B of the NCP
      {ember ft 1983 (48 FR40858),
       lift this list*
   — notice describes • policy for
placing on the NPL sites located on
Federally-owned oc^operatedfadlities
that meet the; NPL ehgibffity-criteria. set
oat in the NCP, even If the Federal
facility is also- subject to the corrective
action authorities of Subtitle C of the
Resource Conservation and Recovery
Act ("RCRA"|. EPA bad requested .
public comment on this policy on May
13. 1087 (52 FR17B91); comments
received are contained In the
Headquarters Superfund Public Docket
Elsewhere in today's Federal'Register Is
a rule adding Federal facility sites to the
NPL In conformance with this policy.
EFFECTIVE DATE: This policy la effective
Immediately.
ADDRESSES: The Headquarters
Superfund Public Docket Is located at
the U-S. Environmental Protection
Agency. 401 M Street SW, Washington.
DC 20460. It is available for viewing "by
appointment only" from 9:00 »^\, to 4*00
PAL. Monday through Friday, excluding
Federal holidays. Telephone 202/382-
3046..
FOB FURTHER INFORMATION CONTACT:
Joseph Kruger. Hazardous Site
Eis *  atioo Division; Office of
       ncy and Remedial Response
 (OS-£30).i(£S. Environmental Protection
 Agency, 4Q1M Street SW:; Washington.
 DC 20400, or-tha.Superfund Hotline*
 phone (600) 424-934&(or38&4000.liLthe
 Washington. DC, metropotitartarea.)
 SUPPLEMENTARY INFORMATION: •

T>bl« of Contents.
 L Introduction
 O. Drolopment of llu Policy for Listing
    Federal Faculty Sites
 OL CoonHaattoa of Response Authorities-at
    FeoerslFacflitr Sties oo UM NFL.
IV. Rflinoiiss to Public Comments

L Introduction

  In 1980, Congress enacted the'
Comprehensive Environmental-
Response, Compensation, and Liability
Act 42 US.C. sections 9601-0057
 (CERCLA or "the AcCJ..in response to
 the dangers of uncontrolled or
abandoned hazardoua waste site**
CERCLA was amended In 1988 by the
Sm^CaTl^l'Ct o»fffl_^R ^^fftl'f ADO
ReauthorizatidnActrSARA'3 Puk'L.
No. 63-499. .i'OOStat. 1613 ef*e7; To   '
implement CERCLA. the Environmental
Protection Agency ("EPA" or.*the,.
Agency"] promulgated'the revised
National OH and Hazardoua Substances
Contingency Plan ("WOP"), 40 CFR Part
300. On July 16,1982 (47 FR 31180).
pursuant to CERCLA section 105 ana
Executive .Order 12318 (46 FR 42237.
August 20.1881J. The NCP. further'
revised by EPA on September 16,-1985
(SO FR378Z4) arid-NovemberZp. 1985 (SO
FR 47812), sets forth guidelines and
procedurea!nee3ed to respond coder
CERCLA to releases'and threatened
releases-oflcazardons substances!
pollutants: or contaminants.-In response
to SARA. EPA proposed revisions to the
NCP on December 21.:1988 (S3 FR
S1394).-
  Section 10S(a)(8}(A).of CERCLA. as
amended by SARA, requires that the
NCP Include criteria Cor "determining
priorities among releases or threatened
releases throughout the United States
for the purpose of taking remedial action
and. to the extent practicable  taking into
account .the potential urgency of such
action, far the purpose of taking removal
action." Removal action involves
cleanup or'other actions that are token
in response to releases or threats of
releases on a short-term or temporary
basis (CERCLA section 101(23)).
Remedial action tends to be long-term In
nature and Involves response actions
which are consistent with a permanent
remedy for a release (CERCLA section
 101(24)). Criteria for determining
priori ties for possible remedial actions
under CERCLA are Included in the
 Hazard Ranking System ("KRS"). which
 EPA promulgated as AppendfacA of the
 NCP (47 FR 3121S; July 16.1882),'
  SectIoa-10S(«)(8](BJ of GKRCLA, as
 amended by SARA; requires, that ^he-
 statutory criteria provided by the HRS
 bo used to prepare a list of national
 priorities among the known releases-or
 threatened releases of hazardous-
 substances,' pollutants, or contaminants •
 throughout the United States. The list,
 which is Appendix B of the NCP. Is the
 National Priorities List ("NPL^ Section
 105(a](8)fB) olsonquires that the NPL -
 be revised at least annually.
  A site can undergoCERdA-Qnanced
 remedial action only after U Is placed on
 the final NPL as provided In the NCP at
 40GFR300£6(c)(2).and30QJB8(a),
 Although Federal facility sites-ore
 eligible for the NPL pursuant to .the NCP
 at 40 CFR300J86(c){2). section lll(e)(3)
 of GERCLA,-as amended by SARA.
 limits the expenditure of Superfund
 monle»atFederally-K)wned facilities.
 Federal facility sites alao are subject to.
 the requirements of GERCLA section.
 120. added by SARA.
  This notice annoances4he AgencyTs
 policy of including oojhe NPL Federal
 facility sites that meet the eligibility. -.
'requirements (e^, anKRS scon of
 2&SO), even if xuch facilities;are also
 subject to the corrective action.
 authorities of Subtitle C of the Resource
 Conservation and Recovery Act
 rRCRA-J, 42 U.&& 6901-6991(1),
 Elsewhere-in today's Federal Register
 EPA Ir-addlngCederal facility sites la-
 the NPL In«onformance with this-policy.

 D. Development of the Policy./or Listing
 Federal Facility Sites

  CERCLA-section 10S(a)(8)(B) directs
 EPA to list priority sites "among" the -
 known releases or threatened releases
 of hazardous substances.- pollutants, or
 contaminants, and section 10S(a)(8](A)
 directs EPA to consider certain
 enumerated and "other appropriate"
 factors in doing so. Thus, as a matter of •
 policy. EPA has the discretion not to use
 CERCLA to respond to^certain types of
 releases.-
  When die Initial NPL was
 promulgated (48 FR 40062. September 8,
 1983). the Agency announced certain
 listing policies relating to sites that
 might qualify for the NPL: One of these
 policies was that RCRA land disposal
 units that received hazardous waste
 after July 26.19&2 (the effective date of
 the RCRA land disposal regulations)
  • EPA ftopattd outor cr«1«!on« «o tht HRS on
 Dtoetnlxr n. 19W (S3 FR Sl»«t howrrrr. «M
 carat HRS •ppliM la Ui« IliUng o( riln oo OM
 MPL mtU 1h« r»»«c
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             Federal Register /'VoL 54. No! :4r7-Monday. March: 13. 19fl9'/- Ruler, and Regulations;     10521
 would generally not be Included on tha
 NPL. On April 10.1085 (60 FR U117], the
 Agency announced that II was
(considering revisions to that policy
 baaed upon new authorities of tha
 Hazardous and Solid Waste
 Amendment of 1884 ("HSWA") that
 allow the Agency to require corrective
 action at soUd wuta management unit*
 of RCRA facilities In addition to
 regulated hazardous watte management:
 unit*.
   On June 10,1988 (51 FR 21057), EPA
 announced several component* of a .
 final policy for placing RCRA-cegulated
 sites on the NPL, but made daar that the
 policy applied only to non-Federal alto*.
 The Policy stated that the listing of non-
 Federal sites with release* that can be
 addressed under the expanded RCRA
 Subtitle C corrective action-authorities
 generally would be deferred. However,
 certain RCRA sites at which Subtitle C
 corrective action authorities are
 available would generally be listed tf
 they had an HRS score of 2&50 or
greater and met at least one of the
following criteria:
   • Facilities owned by persons who
have demonstrated an inability to
finance a cleanup as evidenced by their
invocation of the bankruptcy laws.
   • Faculties that have lost -
authorization to operate, and for which
then are additional Indications that the
owner or operator wffl be TinwuTing to
 indertake corrective action.
   • Sites, analyzed on a case-by-case
basis, whose owners or operators have
a clear history of unwillingness to
undertake corrective action.*
  On fune 10,1986 (51 FR 21059). EPA
stated that it would consider at a later
date whether this revised policy for
deferring non-Federal RCRA-regnlated
sites from the NPL should apply to
Federal facilities.
   On October 17.1966. SARA took
effect adding a new section 120 to
CERCLA devoted exclusively to Federal
 fadiltiea. Section 120 explains the
applicability of CERCLA to the Federal
Government, and generally sets out a
 scheme under which contaminated
Federal facility sites should be included
In a special docket, evaluated, placed on
the NPL (if HRS scores so warrant}, and
 addressed pursuant to an Interagency
 Agreement with EPA.
   As part of its deliberations on a
 Federal facilities lilting policy. EPA
 considered pertinent sections of SARA
 and the proposed policy concerning
 RCRA corrective action at Federal
 f aciliUes with RCRA-regulated.
 hazardous waste management units (SI
 FR 7722, March S, 1986). Specifically.
 that policy stated that:
   * RCRA section 3004{u) subjects
 Federal facilities to corrective action
 requirements to the same extent as
 privately-owned or -operated fadllties:
   • The definition of a Federal facility
 boundary is equivalent to the-property
 wide definition.of facility at pdvately-
 owned or -operated facilities^
   Ilia Agency determined that .the great
 majorityif Federal faculty sites that
 could be placed on the NPL have RCRA-
 regulated hazardous waste management
 units within die Federal facility property
 boundaries, subjecting them to AGRA
 corrective action authorities. Therefore,
 application to Federal faculties qf.the
 March 5.1886 boundary policy end the
 June 10,1886 RCRA deferral policy
 would result In placlng-yery few Federal
 facility sites oa the NPL However,
 CERCLA and its legislative history
 indicate oat Congress clearly intended
 that Federal facility sites generally be
 placed on the NPL and addressed under-
 the process set out In CERCLA section
-120(e). Thus. EPA concluded that the
 RCRA deferral policy applicable to
 private .sites might not be appropriate
 for Federal faculties. On May 13,1987
 (52 FR .27991). the Agency announced
 that it was cornidmlng adopting « policy
 for listing Federal facility sites that are
 eligible for the NPL. even  If they  are also
 subject to the corrective action
 authorities of Subtitle C of RCRA; public
 comment was specifically requested on
 Ibis approach.
   Congress' Intent that Federal faculty
 sites should be on the NPL, even if
 RCRA corrective action authorities
 apply, is evidenced by. the nature of the
 comprehensive system of site
 identification and evaluation set up by
 CERCLA section 120, added by SARA.
 First. In section 120(c), EPA Is required
 to establish a "Federal Agency
 Hazardous Waste Compliance Docket,"
 based on Information submitted under *
 sections 103 and 120(b) of CERCLA. and
 sections 3010,3005, and 3010 of RCRA.*
  • SecOoa MIS of RCRA provide* lor At Carratocy
 •f Ftdcral rftM (TOOT HCRA hutrdou wt«t« ti
  • On Aojxut t. toaa (S3 FR XXm/MOOS). EPA
published (ddlttootl Information oa Agency policy
concerning crfltrU to AcLrroiatUuiowtytr or
op«T*(orU unwUUftf or tm*bU to uztderUfc*
 Limctiv* action.
«f «l «nf «ta»TS MCdoa 900S of RCRA ttifaltn po*« «f tauntoa* w u(* vndor RCRA:
«iui RCRA Mdtoa MIO rtv^iim Bodfiottloiu UM( «
RCRA buwdotM «mt* tt Uinf (« td, Octobers. 1984] (enph.tU «
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16522      Federal Register / VoL S4. No. 47 / Monday. March 13. 1003 / Rulos and Regulations
  EPA bellev«« th«t.tod«r*s decision not
to apply the f ua« 1980 NPL/RCRA policy
(«•  noa-Foderxl sites) to Fedanl
      es U consistent with. seeder
      (2) of CERCLA.- which provides
  si -all guideline*, ndearregnlatioas
.ind criteria which are applicable ta-
* * ~taclusion on tha National-
Priorities List, or applicable to remedial
actions* * *sbaU also be applicable to
(Fedanl fadlltiea|." Given-.
CongicMloaal Intent that Federal*
facility altoa should b« Included on the
NEL. EPA Interprets section. 120f.a)(2) to
mean that lha criteria.to Uat sites should
not be nan exduslanary than the
criteria to list non-Federal altea OB the
NFL. Aa discussed la the May 13.1967.
notice on the policy (82. FR17992-3).
moat Federal faculties include RCRA-
reguloied hazardous waste management
units and thus, almoct all watte
contamination areas within facility
boundaries ore  subject to RCRA
corrective action.antharities; la addition.
key exclusions in the non-Federal RCRA
deferral policy are not applicable to
Federal facilities. Thus,- If the non-
Federal RCRA deferral policy were
applied to Federal sites, very few
Federal sites would be listed..
  The Agency believes thatalthoogtr
section 120fa)(2) evidences Congress*
Intent that the Federal agencies comply.
with the same baseline of requirements
anaOcable tq private sites, the section
      ot require that all policies and
     ements applicable to private end
* ederal facility sites be identical.
Indeed. Congress specifically set out a
aeries of loqulreuients which apply to
Federal facilities hi a manner different
from, or in addition to, those applicable
to private sites,  «-g, the preparation of a
separate Federal Agency Hazardous
Waste Compliance Docket (section
120(c)J: the notification required before
Federal agencies may transfer property
(section 120(h)J; and the entire process
for signing fnteragency Agreements at
Federal facility sites (section 120(eJ (ZJ-
WJ-
  Just as Congress recognized that there
are unique aspects of Federal facilities
requiring additional or special attention
In the contexts just named, special
attention is also-requlre'd In deciding
what listing/deferral  policy should
apply to Federal versus private sites.
EPA's opinion Is that significant
differences inherent in the rules to
which Federal faculty sites and private
sites are subject under CERCLA and the
NFL dictate that different listing and
deferral policies should be crafted for
each class of facilities.
  For private sltea. the only legal
•'  'Icance of NPL listing t* that Uic site
becomes eligible for Fund-financed
remedial action, as provided tn the NCP
at 40 CFR 300.00{c}(2} and 300.(M(a)(l)
(removal actions and enforcement
actions can be taken at private altea
regardless of NPL status): Indeed,* EPA
recently-suggested in the preamble to
proposed revisions to the NCP (S3 FR
51416. December 21. 2988) that it may be
appropriate to -view the non-Federal
NPL "as a Ust for Informing the public of
tiazardoua waste sites that appear to
warrant* '• * remedial action-through
CERCLA funding along." This
relationship between A* NPL and the
availability of Fond monies (at private
altea) is a central factor behind EPA's
deferral polldee; EPA has concluded
that by deferring to other statutes like
RCRA, "a maximum number of
potentially  hazardous waste altes.can be
addressed and EPA can direct Its
d :yj^f?f .A »ffortf (and Fund monies. If
necessary)  to those sites where remedial
action cannot be achieved by other
means" (S3 FR S141S, December 21,
1988). However, this goal of maximizing
the use of United Fund monies-does not
apply to Federal {aJdUtjrsltesv
  Federal facility cites on the NPL are
not eligible for flutd-/waaced remedial
actions (exceptln the very limited coses
described hi CERCLA section lll(e)f31L
pursuant to the NCP at-40 CFR'
300.66(c)(2). thus, the deferral of Federal
facility sites from the NPL would Hot
result m significant economies to the.
Fund, although it conld'do harm to the
Informational and management t^wls of
Including Federal facility altea on the
NPL, as well u Congressional intent.
Although the Agency-might have
decided to defer Federal facility sites
subject to RCRA based on a desire to
avoid duplication la remedial actions •
(another of the purposes behind RCRA
deferral for.pdvate sites). EPA has
concluded that this goal may be
accomplished satisfactorily for Federal
facilities through the process, set out in
CERCLA section 120 (e)(2HeX4> of
developing  comprehensive lACs. As
discussed hi detail below. EPA will
attempt to use the LAG process to
achieve efficient, comprehensive
solutions to site problems, and where
appropriate, to divide responsibilities
for deamrp among the various
applicable authorities.
  Finally, the deferral of Federal facility
sites to RCRA-authorized States, in lieu
of evaluation under the IAC process.
may be inconsistent with the Intent of
CERCLA section 120(g), which provides
that "no authority vested In the (EPA]
Administrator under this section (120]
may be transferred** to-any person. 42
U.S.C. 9fl20(g).
IlL CoonDoatloa of ReapooM
Authorities «t Federal Fadllty-SUn on -
UwNTL-

  EPA recognizes that when it lakes
action tinder GERCLA to.addresa a
facility-mat is-also subject to RCRA;
authorities, then U some risk of .overlap
or.avea conflict Such conflict dhtatioos
are not-a. problem where EPA ts
responsible for carrying out the
requirements of both RCRA and.
CERCLA (since any furisdictional
overlaps can be managed within EPA).
Howe ret,-an overlap of.autbority may
yleM disagreements as to how« site
should be cleaned ttp-wbere-a State has
been authorized to carry out all or part
of the RCRA program.4
  However, this potential overlap
between RCRA and CERCLA cleanup
authorities Is the result of Congressional
design, not site listings.' EPA neither
intends nor believes thai Uteilsoogs
themselves create a conflict between
CERCLA and RCRA (or State law);
rather, any conflict stems from the
overlap of the corrective action
autEorlHeTol the two statOttsTThe
overlap erisGwhenaveTEPA takes:
CERCLA-action at aaltaihat bis
regulated-hazardous wasta management,
units subject to a State's RCRA-program
or other State law.EPAcan take such
CJRCLA actions at sties gotonlEa NJPL
eT welTaTBrstBron ISe NFL.* (Sucn"
contucts may also oocDrat private jltes
as wall aa at Federal facility sites;)
There may also be-cases, where the
applicability of Both RCRA and
CERCLA authorities at NPL sites does
act create a conflict—for example.
where the RCRA hazardous waste
management units are not Included
within the area to be addressed under
CERCLA. or where the release Is exempt
Gram action under RCRA. Thus, conflict
between RCRA and CERCLA corrective
actions can occur at virtually any point
in the process or not at aft,
  How RCRA authorities are affected fjf
at all) when CERCLA also applies to a
site is a matter that varies greatly,
depending upon the facts of the site, in
some cases, the NPL site is physically
distinct from the RCRA-cegnlated
  « BPA noecatiM Uul mutj SUfe* km
tbUUMfcxu ««t* Uw* tod»j>«exUnt •( Owl «poo
wUck &<•&•(••• mrtfaoriBMi RCRA program m*j b»
U»*d. AlllwwskUiU poUcr «UUm«rt COCUM
pttaatSjraallM m«<±«n»«n for ffjtjta^ KfltAfby
EPA or mdMcfml SU«n| «• Ft4«nl I •eOHbt aa
1h» MPU th« *«M «Mlr»<« *o«W «ppJr «« •««»•
RCRA SUU Urn (bt< fotfaartr Vftttff «rf
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             Federal.Register-/  VoL 54. No..4Z./ Monday; March  13, 1909 / Rules and Regulations      10523
 hazardous waste management units, and
 corrective action or closure at Ilia
 •misted units may proceed tinder
     A, while at the came time a cleanup
   ran is proceeding at another area of
 the property under CERCLA, without the
 risk of Inconsistency or duplication of
 response action. In other cases, the
 releases or contaminant plumes may
 overlap, such that a comprehensive
 solution under ana statute may IM the
 most efficient and da«lrabl« solution.
 The questions of which authority ahould
 control, and of how to avoid potential
 duplication or inooa*i*tency, an often
 Implementation issues, to be resolved la
 light of the fact* of the ca<« and after
 consultation between EPA and the
 concerned State.
  EPA's belief U that in most situations,
 it Is appropriate to addrcȤ sites
 comprehensively under CERCLA.
 pursuant to an enforceable agreement
 (La, an IAG under CERCLA section
 120). signed by the Federal facility, EPA.
 and, where possible, the State. In some
 circumstances, it maybe appropriate-
 under an JAG to divide responsibilities
 focusing CERCLA activity only on
 certain prescribed units, leaving die
 cleanup of other units under thedlrect
 control of RCRA-authorities; such as
 where the RCRArregulated-hazardous-
 waste management unit Is physically-
 distinct from the CERCLA.
    aminationand its cleanup would
     tisrupt CERCLA activities.
 smeznatfrely. the IAG can prescribe
divisions of responsibility, such as
 stating that CERCLA wiU-address
 ground water contamination .while
 RCRA will address'the closure of
 regulated hazardous waste management
 units. Any disagreements in the
 Implementation of the  IAG would be
 resolved by .the signatory parties under
 the dispute resolution terms of the IAG.
  Of course, there may be cases where a
 RCRA-authorized SUte declines to foin
 the IAG process, or agreement on the
 terms of an IAG cannot be achieved. For
 Instance, State officials may dedde that
 the proper closure of a landfill should be
 accomplished through  excavation, while
 CERCLA officials may determine that
 the tame area should be managed
 differently as part of a comprehensive
 CERCLA action at the site. Although
 EPA will try to resolve any such
 conflicts and achieve agreement with
 the State in the IAG process, there may
 be cases where the conflicting views of
 EPA and the SUte concerning corrective
 action  cannot be resolved
  CERCLA section 12Z(e)(B]. entitled
 "inconsistent response actions." gives
   citfc guidance on thia point:
  INCONSISTENT RESPONSE ACTION.—
When either th« ProiMsnt. or * potentially
re« poctible pity pnrnnnl to «n
•dmini*tnUv« order or content decree oader
(nveitigatian and fesdUlltr (tody (TU/FSJ (or
• particular facility voder this Act. no
potentially tccpouIbU party may wtderUka
toy remedial actlan «1 lh« facility anl«M
such remedial action has been authorized by
th« Prerident
  As the Conference Report on SARA
noted, section 122(e)(0) was Included In
the bul "to darify that no potentially
responsible party (PRPJ may undertake
any remedial action at a facility unless
such remedial action has been
authorized by the President" (or his
delegate, EPAl'.SeelLR. Rep. W2. 89th
Cong, 1st Sess. at 254 (1888LSM alto
132 Cong. Rec. S1431fl (daily ed,
October 3. 1888J (Tils is to avoid
situations in which the ERP begins work
at * site that prejudges or- may be
inconsistent with, what the final remedy
should be or exacerbates; the,
problem."]* This authorization
requirement applies to any remedial
actions taken by a PRP, including those
actions ordered by & State, as, both types
of action could be said to present a
potential conflict with a CERCLA-
authorizecl action.*
•atbcria • CMudUl •cttoo toodotteM alUc tb«
InJtl*Uotiii(«aRI/ra«t«nKPC«i««b*ib*«n
M^tfwl ta UM EPA AdmMi«. tbcygKMl aa&ortly
fa CBrytos;o«t tb»t«qiti i ntttt o( CERCLA
«gtad«« tat «HM «nj«r tbdr fabdlctioa or coated;
tunrmt. OM abffitr of Ov» Ptdrnl tgaOtt to
•adiarCx* «(t«« BkUr Mcdoa IZ2(eK.e] U UmlUd by
Wow.
  •«« iat «od
ih
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10S24      Federal Register /  VoL S4. No. <7  / Monday. March 13. 1989 / Rates and. Regulations;
ait" r . \RCLA remedial investigation/
fenvi.    rtudy (RI/FSJ has begun—
           iction ha* been ordered by
      b—I* generally available at both
  .. - -« and Federal facility sites.
However. CERCLA section 120(a)(4|
provides that State laws thall apply to
remedial actions—Including those tinder
CERCLA—rt federalfadtity filet that
are jiof on the NPL that, acting as a
general limitation ori-the moro general
section 122(e)(0).w Of course, no such
limitation applies to.Fedecal facility
sites oops they «re placed oa 4he NPL
  The.plam language of section lZZ(e)(6)
make* It dear that It t§ the RI/FS—not
the listing Itself—that triggers section
123e)(6). Indeed, an RI/FS may be
commenced prior to, aj well as after.
NPLUsting.'i-Thls U especially true for
Federal-facility sites, as the President
hat delegated his authority to take
CERCLA section lOi response actions
(Including Rl/FSs) to Jhe Federal.
agencies fo'r most nonrNPL sites
(Executive-Order 12580; at section
2(e)(l)).«» Thus; whan a Federal facility
is placed on.the NPL.an RI/ES will often
nave been commenced (or completed)..
  la order tb InVoke'tEe emtborization
mechanism of CERCLA section 122(e](ej.
EPA must make-a threshold.
determination of wnetfaer.er.not an HI/
fS "under this Act (CERCLAJ? has been
     'eo!; studies-conductea' by Federal
      es before a slte.has been placed
0- —e NPL may or may not constitute
an appropriate RI/FS InEPA's
opinion.1.* A* « matter of policy, the
  " S«cUoo 120(tH<) «U«M ••* follow Sut. Uw»
taooaaiat aauml tad motdifl action. lododfag
SUU Uwt i«twdla| •oteoMBtnt. ititli •ffdjr to
tewrq *«« poraMfll ti iKe Afcney'f
towvtl ititfMrilr ««IOT CEROA1
  " Seetfoa 104 «utborM«« wtrt it on
the policy, but rather is concerned that
no Superfimd monies-be spent at
Federal facilities. The commenter-
believes that neither pre-remedial work
(preliminary assessments and site
inspections) nor renedlal work should
be BnancedJjy-thfi Trust Fund.-:
  In response. Executive Order 12530 (SZ
FR2923. January 29,19B7). at section
2(e). delegates the responslbffltyfor
conducting most pre-remedial work to
the Federal agencies. Therefore, the
Federal agencies, rather than the Trust
Fund, finance these activities, with EPA
providing oversight In addition, section
lll(e)(3] of CERCLA, as amended by
SARA, strictly limits the use of the Fund
for remedial actions at Federally-owned
faculties. Although the Administrator
does have the discretion to nsefunds
from the Hazardous Substances
Superiund to pay for emergency removal
actions for releases or threatened
releases from Federal facilities, the
concerned Executive Agency or
department must reimburse the Fund for
such costs. Executive Order 12S80.
section 9(1). The Department of Defense
and the Department of Energy also have
response authority for emergency
removals (Executive Order, section
2(dJ).
  Another commenter opposes the
policy of placing RCRA-regulated
Federal facilities on the NPL arguing
that public notifies lion is adequately
addressed by other provisions of
CERCLA {(sctioR* 120 (b). (c). and (dj).
hnd that the policy ii inconsistent with
section TZOfnl. which require* that

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             Federal Register. / VoL 54. No; 47 / Monday  MarchjL3; OL989 / Hales and Regulations      IOSZ5
 Federal facilities comply, with CERCLA
 in the same manner as any
 nongovernmental entity. The commenter
 belie vea that the adoption of the
 proposed policy la Inconsistent with
 EPA'a .policy regarding non-Federal
 facilities.
   In response^ CERCLA sections 120 (b).
 (c). and (d) refer ta tha establishment of
 the Federal Agency Hazardous Waste
 Comptlanca Docket and to the
 evaluation of facilities' on the docket for
 the NPL,MThe Agency agrees that this
 docket will provide the public with tome
 Information regarding hazardotu waita
 activities at Federal facilities, as-well as
                      contamination.
                                   .
 of contiguous or adjacent property. The
 Agency believe*, however, that
 evaluating sites using the HRS, and
 placing on the NFL those sites that pose
 the moat serious problems.. will serve to
 inform the public of the-relative hazard
 of these sites. The'.listing process also
 affords the public the opportunity, to
 examine 'HRS documents 'and references
 for a particular site, and to comment on
 a proposed listing. In addition, the NFL
 provides response categories and
 cleanup-atatus codes for sites, and
 deletes sites when no further response is
 required, adding to the Informational
 benefits of using the NPL. Therefore,
 EPA believes that listing Federal facility
 sites will advisejhe public of the status
 of Federal government cleanup'efforts,
 as well as help Federal agencies-set .
 urioritiejj and focus* cleanup' efforts'on
 mow sites that present the; most serious
problem*, consistent with'the NCP (50 •
FR 47S31, November 20. .1885).
  As-to the comment concerning
CERCLA section 12Qf a). EPA agrees that
the section provides that Federally-
owned facilities are subject to and must
comply with CERCLA to tha  same
extent as any nongovernmental entity.
 Further, sections tZO(a)(2) and I20(d)
 provide that EPA should use the same
 rules and criteria to evaluate Federal
 sites for the NFL as are applied to
 private site* However, today's policy is
 not inconsistent with those sections. As
 a threshold matter. It Is uncontroverted
 that an HRS score of Z&50 or greater is
 an eligibility requirement for both
 Federal and private sites. The question
  "Pomianl to Mctioa tt0(cj of CERCLA. EPA
pvbtidicd.llM Fedtnl Agcacy Huanfoac W««(«
Compliino* Dodbrt «a F*bm*rf 12.1908 (S3 PR
420}). The dodctt wu ««Ubti1d inciu«ioa on C£M NPL.
is. should NPL-ellgtble. Federal sites be
deferred from Hating as-a matter of
policy. As explained above, the Agency
does not believe that CERCLA section
1ZO{a}(2] can be read to require identical
treatment of Federal and private sites in
all circumstances; this fact that Congress
legislated a number of requirements in
addition to, orinstead of, those
applicable to private facilities (eg,.
sections 120 (c), (e)(2j. (h)},
demonstrates the legislators' recognition
of tha need to address certain unique
aspects of Federal facilities differently
than for private sites. Rather. EPA
Interprets CERCLA section 120(a) to
mesa that tha criteria to  list Federal
facility sites should not be more.
exclusionary tiian tha criteria (o list non-
Federal sites. fcr this ease, it isxdear that
if EPA were to'apply tha  non-Federal
RCRA deferred listing policy to Federal
facilities, very few Federal sites would
be considered for the NPL,.counter to
the spirit and intent of section020-(c)
and (d)'of CERCLA and the statute's
legislative history. Moreover.-one of the
key factors in EPA's decisionio adopt a
RCRA deferral policy for private Sites-^-
the need-to manage and conserve Fund
resources—does-not apply to Federal
facilities because'the remedies are-not
Fund-financed. EPA believes thatlt Is.
appropriate, and consistent with
Congressional Jntent,.to.tak« these
differences into account.-as Idhgas the
result is not to treat Federal agencies in
a more exclusionary mannenthan
private facilities.
 • Two commenters expressed concern
that listing Federal facility sites might.
interfere with enforcement activities
under RCRA-One commenter stated
that the policy-is inconsistent with
CERCLA section 120(iJ, which requires
that Federal facilities comply with all
RCRA requirements.
  In response; tha Agency's view is that
today's policy will facilitate
enforcement activities at Federalfadlity
sites, not Interfere with them. In effect,
by encouraging tha drafting of
comprehensive lAGs for  Federal
facilities, .this policy will advance the
goal of site remediation.-  In addition, the
IAG proces* allows EPA to take steps to
avoid duplicatioaand conflict; the IAG
may define areas of .a Federal facility
that  may efficiently be addressed under
RCRA (e.g, units that are distinct from.
and do not disrupt. CERCLA activities).
In addition. States will be encouraged to
became signatory parties to lAGs.
reducing the likelihood of
intergovernmental conflict over
jurisdiction and the selection of remedy.
  • In any event. It Is not the act of
placing a site on the NPL that creates a
potential conflict between CERCLA-and
RCRA; rather.-the corrective-action'
authorities of the two statutes overlap;
pursuant to sUtutory.deslgn. Indeed; the
alleged Interference with RCRA
corrective actions by CERCLA cleanups
can occur at any point In the process,
depending upon the specific £ads of the
case. In those cases where-the relevant
statutes do overlap; EPA believes that
one of the statutes must-aometimes be
chosen for practical teas
     ress has set out a procedure for
resolving such conflicts. In CERCLA
section 122reJ(6J.*' However, the goal of
today's policy Is to mfnftnfai any such
conflicts through the IAG process.
  The Agency acknowledges that in the-
case of Federal fscflities^Usting does
have a significance not present for
private sites. Foe Instance.CERCLA
section 120(e)(2) provides that for
Federal facility sites «n
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10526      Foderal Register /  VoL S4.  No. 47 / Monday. March 13. 1909 / Rules and.Regulations
  EPA also disagree* with the
commenter'a suggestion that today's
polt«—•*« inconsistent with CERCLA
•«K     20(1). which provide! that
       , in this •ectiaa (120| shall affect
   jnpair the obligation of any
department, agency, or instrumentality
of the United States to comply with any
retirement of the Solid Waste Disposal
Act [RCRA] (Inducting corrective action
requirements)." EPA-lnterptets-that
section simply to mean that section 120
does not impair otherwise applicable
RCRArequirements^thls mandata.U mat
.even If an action if«oodactod tmdet
CERCLA. ai CERCLA aection 121(d)(2)
tpedfically ptotrldM that ARAR* of
RCRA and State law anut 6« achieved
with regard to any (MMitft remedy. Evea
if • RCRA or State reqolrament that U
an ARAR l« waived by EPA (section
12I(d)(4)). the Slate may obtain Judicial
review of each a waiver, and even if
unaucccatfuL may require that the
remedial action conform to the
requirement In question by paying the
additional co«U of meeting auch
standard (CERCLA section 121(f}(3]);
thus, the intent of section 120(1) U
saUsOed,
  Ihla intetpretatioh of section!20(l)
folio ws.directly from the language of the
provtslonlUelC. which states that
"nothing In-lhls section"—-as compared
to ^nothing iatfalt AeCV-«hall«ffacV
RCRA obligations: This leave*In place.
limitations contained la after sections
of tha-statata, such as the permit waiver
provision, (section 121(e]); the process
for selecting and waiving ARARs
(section* 121 (dj(2) and (d)(4)): and the
ban on remedial actions not approved
by the President (section 122(a)(fl)).
  For all these reasons, the* Agency
believes that today's Federal facilities
listing policy i* appropriate, that it
reflect* Congressional Intent and that U
is consistent with CERCLA.
  Pursuant to the policy described In
this notice, the Agency will place-
eligible Federal facility sites on the JOT.
even if the site Is also subject to the
corrective action authorities of Subtitle
CbfRCRA.
  Oaf*cMafca6,UM.
Acting AttUtaatAdtiaJaittrotMrOffioief
Solid Watta and EmetfencrRetpoaf*.
|FR Doe. 80-8003 nisd S40-e%'84S am)

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 ,t
•or
      '|       UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
     -/                  WASHINGTON. O.C. 20460
     .


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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 irrelevantw

     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 and there
is no significant threat  to public health or the environment,
a CERCLA response should  not  be necessary.  (See 40
300.425(e) (i) (iii)).  In  effect,  where theJR£RAr-program takes
action at  an NPL  site,  the  CERCLA program pimply delays' the
start-up of  its Remedial  Investigation/Feasibility Study (RI/FS)
site assessment process,  in order hot 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 CERCLA action is required.
The Agency expects tl^at sites cleaned up under RCRA corrective
action would be considered  "no  action" sites under CERCLA.

     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 CERCLA 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 actiog situation,  the  remedy selection requirements in
CERCLA 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.  NCP Section 300.425{e)(2}(4) (55
FR 884^ .                                                '

     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 CERCLA (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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                                                         9476.1992(02)
     \       UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C. 20460
                                                       OFFICE OF
                             DEC  21 H92       SOLID WASTE AND EMERGENCY

Mr. Allen M. Carton
Deputy Director
Directorate of Military Programs
U.S. Army Corps of Engineers
Department of the Army
Washington D.C. 20314-1000

Dear Mr. Carton:

     This letter responds to your request of October  1, 1992  for
clarification of the ability of the U.S. Army Corps of Engineers
to perform engineering services for federal agencies, including
the Department of the Army.  More specifically, you asked two
questions related to the requirement that "independent,
registered, certified engineers" certify that a hazardous waste
management unit has been closed in accordance with the approved
closure plan as required by EPA's regulations implementing  the
Resource Conservation and Recovery Act  (RCRA).

      You first asked whether an authorized state can interpret
the regulatory language "independent, certified, professional
engineer", found at 40 CFR sections 264.115 and 265.115, to
require that the professional engineers be registered in the
state where the hazardous waste facility that they are inspecting
is located.  You noted that different authorized states have
different interpretations of this phrase.  You further pointed
out that the language does not appear to specify where the
engineer must be registered.  You request EPA's interpretation of
the phrase as it applies to the Corps.

     We agree that the regulatory language of sections 264.115
and 265.115 on its face does not require engineers to be
registered in the state where the hazardous waste management
facility is located.  However, if that same regulatory language
is adopted by a state and becomes part of that state's authorized
RCRA program, the state would be free to interpret this
regulatory language to have a more stringent effect than the
federal interpretation.  Therefore, if an authorized  state
interprets the registration requirement to require registration
within the state, the Army Corps of Engineers must comply with
such a requirement.

     The second issue concerned the regulatory requirement  that
certification of compliance be performed by an "independent"

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                                                           9476.1993(01)
              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C. 20460
                                                       OFFICE OF
                                              SOLID WASTE AND EMERGENCY RESPONSE
                         MAY 2 8 1993
Mr. Benito J. Garcia
Bureau Chief
Hazardous and Radioactive Materials Bureau
Hew Mexico Environment Department
Harold Runnels Building
1190 St. Francis Drive, P.O. Box 26110
Santa Fe, New Mexico  87502

Dear Mr. Garcia:

     This responds to your letter of December 14, 1992, to
Devereaux Barnes, requesting clarification of RCRA regulations
related to closure of hazardous waste management facilities.
Specifically, you noted that there is a minor difference between
the wording of section 264.112(by(3), which applies to permitted
facilities, and the analogous provision applicable to interim
status facilities, section 265.112(b)(3).  You expressed concern
that a literal reading of these provisions would result in less
stringent management of hazardous wastes at permitted facilities
than at interim status facilities, and asked whether the
difference in wording was an unintended omission.

     Section 264.112(b)(3) requires that closure plans of
permitted facilities provide "...identification of the type(s) of
the off-site hazardous waste management units to be used...."
However, section 265.112(b)(3) requires interim status closure
plans to include the "... identification of and the types(s) of
off-site hazardous waste management unit(s) to be used....1*   As
you noted in your letter, the result of this difference is that
owners and operators of facilities seeking a permit are required
to identify only the type of off-site unit that will manage waste
removed from the unit at the time of closure, whereas interim
status facilities must identify the specific off-site unit that
will be used.

     We believe that this distinction in the regulations is
reasonable because of the difference between the timing of
closure plan submittal for owners and operators of interim status
units and owners and operators seeking a permit,  owners and
operators of interim status units are not required to submit
closure plans to the Agency until immediately prior to closure
(see section 265.112(d)).  Facilities seeking a permit, on the
                                                          Printed on Recycled Paper

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                                                          9476.1993(02)
               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C. 20460
                           JUN -A 1993                   OFF.CEOC
                           ^*                   «m iniAiACfc «*.,n eueafti
                                               SOLID WASTE AND EMERGENCY RESPONSE
Ms. Joan Z. Bernstein
Vice President of Environmental Policy
     and Ethical Standards
Waste Management, Inc.
3003 Butterfield Road
Oak Brook, Illinois  60521

Dear Ms. Bernstein:

     This letter responds to your request  of March 26,  1992,  for
clarification cf requirements  in 40  CFR  264.115  and 265.115
related to certification of closure  by an  independent registered
professional engineer.  Specifically, you  asked  whether a
registered professional engineer employed  by a subsidiary can
provide an "independent" certification of  closure  for its parent
firm within the meaning of those sections.

     As your letter  indicated, the Agency  has interpreted the
requirement that engineers be  independent  in two preamble
discussions.  The preamble to  a 1986 final rule  promulgating
standards for closure established the principle  that the engineer
certifying the closure of a hazardous waste unit must be someone
who is "least subject to conscious or subconscious pressure"  to
certify inaccurately (§££ 51 FR 16433, May 2, 1986).  The
preamble to a 1986 rule promulgating standards applicable to
tanks established that an engineer employed by the owner or
operator of the hazardous waste unit cannot be considered
independent  (see 51  FR 25445-46, July 14,  1986).

     Applying these  principles to situations involving
parent/subsidiary relationships between  the company receiving and
the company providing certification, EPA believes  the
independence of the  certifying engineer  may be affected in some
cases but not in others.  We do not  beliefs that a parent company
typically has the means to compromise the  independence  of the
engineer in situations where the company that employs the
engineer is a less than majority-owned subsidiary.
          According to SEC regulations, the term  "majority owned
subsidiary"  means,  "a subsidiary more than 50% of whose
outstanding  voting  shares  is   owned  by the subsidiary's parent
and/or  one or more  of the  parent's other majority-owned
subsidiaries" (See  17 CFR  210.1-02).
                                                          Printed on Recycled Paper

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     However, we do believe that the certifying engineer's
independence may be affected in cases where the employer of the
certifying engineer is a majority owned subsidiary of the company
receiving certification — but not in all such cases.
Specifically, we believe that the engineer may be considered
independent in majority ownership situations if the following
criteria are met.

     First, the certifying company must offer its certification
services co ,ion-affiliated companies (i.e., its closure
certification services cannot be limited to companies within the
corporate family).  The fact that a company is actively solicited
by and provides the same certification services to non-affiliated
companies helps to establish the expertise, integrity, and
objectivity of the certifying engineer.

     Second, the management of the facility being certified and
that of the certifying engineer must exist and operate separately
of each other such that the engineer is completely free of any
reporting obligation to the management of the facility for which
he or she is providing certification and that management is not
responsible for the engineer's compensation.  The absence of any
managerial link between the two entities is essential to the
certifying engineer's ability to act independently.  The Agency
believes that these two conditions are both necessary and
sufficient to ensure the engineer's independence in majority
ownership situations.

     In summary, EPA interprets the language in section 264.115
and 265.115 to mean that an engineer employed by a less than
majority owned subsidiary may certify closure of a unit owned or
operated by its parent company.  In majority ownership
situations, the engineer may be considered independent if the
aforementioned criteria are met.

     I hope that this information is adequate to guide you in
deciding on a case-by-case basis whether it is appropriate to use
the services of registered professional engineers.  If you would
like to discuss this issue further or have questions on how this
policy applies to your specific situation, please contact Tina
Kaneen of the Office of General Counsel (202 260-7713)  or Becky
Daiss of the Permits and State Programs Division (703 308-7057) .

                              Sincerely Yours,
                                            ance,  Director
                                           id Waste

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Financial Responsibility Requirements

(Subpart H)
                                       so
                                       £t
                                       -J

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9477 - FINANCIAL
RESPONSIBILITY
REQUIREMENTS
Parts 264 & 265 Subpart H
                   ATKl/l 104/38 Icp

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                                          OSWER POLICY DIRECTIVE #9477.00-5
  ^        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                       WASHINGTON. D.C. 20460
  NOV23  T
                                                        OFFICE OF
       ,- Jj                                      SOUIO WASTE AND £ME«G£NCY RESPONSE
SUBJECT:  Risk Retention Groups  anoVTi-nancial Assurance

FROM:     Marcia E. Williams, Director j» ,.',
          Office of Solid Waste
TO:       Waste Management Division Directors,  Regions  I-K


     Attached  for your  information  is  a  letter  from  Bruce  Weddle,
Director of the Permits and State Programs Division,  to Harry Shuford
of the Environmental  Protection Insurance Company confirming  that
risk retention groups may qualify to issue  liability insurance
policies under RCRA regulations.  As the letter states, policies
issued by risk retention groups would satisfy the RCRA  requirements
if the group was licensed to transact business  in one or more states,
and if the policy otherwise met the RCRA financial assurance
requirements.

     Because the question of whether policies issued by risk
retention groups can  be used to satisfy  RCRA financial  assurance
requirements has been raised in a number of  scates,  I ask  that you
forward this letter to  the RCRA financial assurance  contacts  in each
of your states.

     If you have any  questions on the letter please  contact Matt Hale
(382-4740) or  Margaret  Schneider (382-4696)  of  my staff.

Attachment

cc:  Gene Lucero

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                                          OSHER POLICY DIRECTIVE 09477.C
                                                   9477.00-5
         UNITED STATES ENVIRONMENTAL PROTECTION AGEf.- .
                     WASHINGTON, D.C. 20460


                        MOV lore.;.-
                                                          OP
                                            SOUO WASTE AND EMERGENCY "6SPONSI
Harry Shuford
Environmental Protection Insurance Company
220 E. 42nd Street, Suite 500
New york, NY  10017

Dear Mr. Shuford:

     I am writing you, at Robert F. Schiff's request,  in
response to Mr. schiff's letter of November 2,  1987  to the
Office of Solid Waste.  In his inquiry, Mr. Schiff sought our
view of whether the Resource Conservation and Recovery Act
(RCRA) requirements that hazardous waste management  facilities
demonstrate financial assurance for liability can be satisfied
by a policy issued by a risk retention group.

     The RCRA regulations at 40 CFR Subpart H require, in part,
that to satisfy the financial assurance requirements,  an
insurance  policy must be issued fcy an insurer  licensed to
transact business in one or more states.   (40 CFR 264.147(a)
(IHii), (bHD(li) and 265.147UH1HU) ,  (b)U)(ii».   A  risk
retention group which meets the requirements of the  Risk
Retention Act of 1986 and which is licensed to  transact the
business of insurance in at least one state would satisfy this
regulatory requirement.  Your letter indicates  that  the
Environmental Protection Insurance Company  (EPIC) has met these
conditions. Accordingly, policies issued by EPIC in  conformance
with all other requirements of Subpart H could  be used to
satisfy the Federal RCRA requirements for  liability  coverage,  or
the requirements of an authorized state tha" adopted the  Federal
regulatory language.

     I should add, however, that compliance with Federal
requirements may not be sufficient to fulfill state
requirements.  State RCRA requirements may oe more  stringent
than the Federal requirements.  In states  authorized to

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                                           POLICY DIRECTIVE 19477.00-5
administer the RCRA  program,  therefore,  state  regulations  must
be examined to determine  whether your  specific mechanism
satisfies the RCRA financial  assurance requirements  and  is
otherwise consistent with state law.
                                    Sincerely,
                                    Bruce R.  Weddle
                                    Director
                                    Permits and State Division

cc:  Robert F.  Schiff
     RCRA Waste Management Division Directors, Region l-x

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                                              OSWER POLICY DIRECTIVE J9477.00-5
                         WELUTORD, WEQMAN & Horr

                           1701 PENNSYLVANIA AVCNUC. N.W.
                                   1UITC 1OOO
                              WASHINGTON. O.C. 2QQQ*
      . WC8MAN  *AUU •.

H»i»m«ON wcuLrono  TMOMAB H. •TANTOM

JOHN L. »ACM»     JANMC 9. 
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                                          OSWER POLICY DIRECTIVE #9477.00-5

WELLJX>RD, WEGMAN & HOFF
     Page 2
          EPIC is licensed as an insurance carrier in the state
     of  Illinois.  Pursuant to the Liability Risk Retention Act
     of  1986,  it has filed as a risk retention group in all 50
     states.   EPIC intends to comply with all RCRA regulations
     for  liability coverage.

          Based on the foregoing, please inform us whether, in
     EPA's view, EPIC can provide RCRA insurance to hazardous
     waste facility owners and operators.  We would appreciate
     your  transmitting your response to the appropriate EPA
     Regional  offices, and through them to state representatives.

          Thank you for your prompt attention to this matter.

                                        Sincerely,
                                        Robert P. Schiff

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                                                                 PINK


                                          OSWSR DIRECTIVE I  9477.00-6

           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, O.C.  Z04«0



                  23  NOV 87
                                                                    Of
                                                    SOLID WASTE AND EMERGENCY RESPONSE
SUBJECT:  Guidance for Reviewing Exclusions  for Pre- Existing Conditions -in
          RCRA TSDF Insurance  Policies'
FROM:     Marcia Williams ,  Director,  Office  of Solid Waste

TO:       Regional Wasce Management Division Directors,  Regions I-X
     Under 40 CFR Farts 264 and 265,  Subpart H,  owners and operators of RCRA
treatment, storage and disposal facilities (TSDFs)  may use insurance policies
to meet RCRA requirements for financial assurance for third-party property and
bodily injury damages.  Insurance policy language generally begins with broad
coverage for damages, which is modified through the use of inserted exclusions
to limit the scope of the policy coverage.  Because insurance is intended to
cover only possible future events, policies typically have exclusions limiting
the insurer's coverage of releases which occurred prior to the start of the
policy.  Such "pre-existing conditions* exclusions are acceptable provided
that they do not so limit a policy that it no longer provides the coverage
required by Subpart H.  While the Agency recognizes that it is inappropriate
to expect insurance to be provided to cover damage that is certain to occur or
that has already occurred, it does expect policies to cover future conditions
whose incidence is uncertain.  This guidance describes acceptable pre-existing
conditions exclusions based on the Agency's interpretation of the Subtitle C
regulations.
     On April 16, 1982 (47 £& 16554), EPA promulgated regulations to require
owners and operators of TSDFs to provide financial assurance for third-party
compensation for bodily injury and property damage caused by accidental
occurrences arising from facility operations.  Such damage should be "neither
expected nor intended* by the owner or operator of the facility (40 CFR
264.l41(g) and 265.141(g)).

     While the regulation defines accidental occurrence and other key terms.
it also provides that these definitions "are not intended to limit their
meanings in a way that conflicts with general insurance industry usage," but

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rather are intended to "be consistent with their common meanings within the
insurance industry."  Also, the definitions of bodily injury and property
damage would "not include those liabilities which, consistent with standard
industry practices, are excluded from coverage"  (40 CFR 264.141 (g) and
265.141(g)).

     Specific guidance on what constitutes industry practices was not deemed
necessary in 1982.  Of late, however, it has become difficult to define
standard industry practice regarding exclusions.  In response to court
decisions that interpreted policy language in a manner that expanded the
coverage intended by insurers, some insurers have tried to clarify the
coverage by modifying their pre-existing conditions exclusions.  A variety of
such modified exclusions have been developed, some of which are inconsistent
with the accidental occurrence definition in §264.14i(g).  This guidance is
intended to assist in determining which exclusions are permissible under
current regulations.
GUIDANCE

     Acceptable Exe lusiona

     The range of pre-existing conditions exclusions can be divided into broad
and narrow exclusions.  Broad exclusions are usually part of the basic policy
language used by an insurer, while narrow exclusions are added to specific
policies as endorsements Co limit the scope of  the basic policy for a
particular insured.  The Agency reviewed a variety of both types of exclusions
and identified acceptable language for both.  This guidance describes and
provides examples of that language.
     Broad pre-existing conditions exclusions  are  "generic" exclusions
applicable to all facilities covered by  a particular type of policy.  Such
exclusions generally apply to a specific type  of occurrence (e.g., a pollution
incident known or expected by the insured or a release occurring prior to the
policy's effective date) or a particular type  of damage  (e.g., contamination
of ground water).

     Permissible broad exclusions nay allow the insurer  to limit its liability
for current and certain damages present  at  the start of  the policy.  Policies
that make clear that pre-existing conditions  (releases likely  to result in
damages) must be known or reasonably foreseeable  to the  owner /opera tor would
be acceptable .

     The Agency has determined that the  following  provide examples of
acceptable broad pre-existing conditions exclusions:

          "Insurance does not apply where  the  insured knew or  could
          have reasonably foreseen that  claims would result."

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          "Insurance will pay on behalf of che insured . . .  provided
          always chat che claim is made during che policy period and
          thac the insured as of che 'First Coverage Dace'  did not
          know or might noc have reasonably foreseen chat such a claim
          would resulc. "

          "The policy will pay on behalf of che insured for damages
          caused by an occurrence . . . , " with occurrence defined as "a
          happening resulting in bodily injury or property damage
          neither expected nor intended from the standpoint of the insured."

          "The insurance does not apply to damages arising from any
          environmental impairment that was known or should have been
          known to the insured prior to the original policy inception
          date."

          "This insurance does not apply to 'bodily injury,' 'property
          damage' or 'environmental damage' expected or intended from che
          standpoint of the insured."

          "Insurance does not apply to damages from a release thac the
          insured knew or could reasonably have known had occurred."

The language in these examples is specific enough to provide guidance to
insurers and is consistent with the intent of the definition of accidental
occurrence in its focus on whether damage, rather than a release, was expected
or intended, or on whether the impairment was known or should have been known.
These exclusions are also consistent with industry practice since they are now
used by some insurers.

     The following sample language is representative of unacceptable broad
exclusions:

          "This insurance does not apply to releases either expected
          or intended by the insured. "

          "This insurance does not apply to groundwater contamination."

The first example, by excluding a release  "expected* by the insured, could
severely limit coverage because any releases from hazardous waste facilities
could be deemed "expected" by the very nature of the materials involved.  The
second example specifically excludes, in a blanket  fashion, a particular  type
of damage and therefore would be inconsistent with  Subtitle C regulations.
     Narrow exclusions  are  coverage exclusions  for damages  related to  a
 specific problem at a specific  facility.  Such  exclusions may be  written for  a
 particular area of contamination  (e.g., contamination from  waste  unit  X)  or
 for a  particular type of damage at a  specific facility (e.g., groundwater
 contamination at facility A).   Narrow exclusions are  generally  added,  in an

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accompanying endorsement, to the basic policy's broad exclusions and are
intended to tailor the policy to a specific facility.

     Narrow exclusions should be specific enough to prevent excessive
limitations of policy coverage.  A narrow exclusion should be described so
that there appears to be a basis for the exclusion (i.e., damage must be
expected from a known, actual release).  To ensure that such a basis exists,
narrow exclusions should refer to a facility assessment1  that identifies the
threatening contamination.  An acceptable exclusion should include a
description of the media, type of contamination, and specific location
involved.  Thus, such exclusions should specifically indicate a current and
reasonable belief that damage has occurred or is likely to occur.

     Given this need for specificity, the Agency has identified the following
sample language as representative of acceptable narrow exclusions:

         "All claims and costs resulting from  ...

          a)   groundwater contamination as identified in the
               facility assessment dated XX/XX/87  ...

               £or]

          b)   groundwater contamination by light and gross
               hydrocarbons as identified in the facility assessment
               dated XX/XX/87  ...

               [or]

          c)   contamination arising from a release at unit A and identified
               in the facility assessment dated XX/XX/87  ...

          at facility XYZ in Smalltown, Any State, axe not covered
          by this policy."

These types of exclusions specifically and clearly identify particular known
existing problem* constituting current and certain --  i.e., known or expected
.. damages that an insurer should not be required to cover.

     Less specific language, or  language excluding certain damages from
coverage due to facility conditions causing insurers to suspect, rather than
know, there ha* been or will be  a release, are unacceptable.  There should be
clear evidence Chat a pre-existing condition in  fact exists that has a
reasonable likelihood of resulting in damage.  The Agency reviewed, and found
     1 A facility assessment  is  similar £0.  a  CERCLA preliminary assessment or
the preliminary review portion of  the RCRA  facility assessment.   It  is
generally based on a search of the files  of the  facility and regulating
agencies, and a windshield site  review.   The  format for assessments  will vary,
and we are not suggesting that any specific format is required.   It  is also
not necessary to review  these assessments.

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unacceptable, the following language:

         "All claims and costs resulting from . . .

          a)   groundwater contamination . . .

               tori-

          fa)   groundvater contamination by light and gross
               hydrocarbons . . .

          at facility XYZ in Smalltown, Any State, are not covered
          by this policy."

These exclusions are insufficiently narrow to justify an exclusion of a pre-
existing condition.  They could be interpreted to exclude all groundwater
damage, even that initially occurring during the policy period.  The coverage
provided would thus be too limited to meet the §§264.141(g) and 265.l41(g)
definition of accidental occurrence.


     Implementation

     Current regulations (40 CFR 264.147 and 265.147) require the owner or
operator of a RCRA TSDF to submit a signed duplicate of the Hazardous Waste
Liability Endorsement or Certificate of Liability Insurance to the appropriate
EPA Regional Administrator (s) .  These certificates and endorsements state only
that coverage is provided in a particular amount and do not reveal specific
policy terms or endorsements.  Therefore, to implement this guidance, EPA or
the authorized State should review the pre-existing conditions exclusions of
the policies being used to demonstrate financial assurance.  Such a review
should routinely include the following steps:

          1)   Endorsements relating to pollution coverage should be
               routinely requested.  Any endorsements adding narrow
               exclusions for pre-existing conditions should be
               reviewed to determine if the exclusions are
               acceptable based on the criteria described above.

          2)   If the narrow exclusions are determined to be
               unacceptable, the owner/operator should be notified,
               so that it can seek an acceptable policy (enforcement
               action may also be determined to be appropriate) .

          3)   If reason for broader concern arises, the Regional
               Administrator or State may request signed copies of
               liability policies from owners/operators (this
               authority is granted under §§264.l47(*)(l)(i) and
                         and 2«.l47(a)(l)
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               broad pre-existing condicions exclusion is accepcable
               based on the criteria described above.

     Apart from che acceptability of any narrow exclusions, their presence in
a policy may signal a need for corrective action at the facility.  In some
cases, the need for corrective action will already have been determined by EPA
because exclusions are often written based on records from the RCRA permitting
and interim status programs.  However, if a review of narrow exclusions
indicates a potential need for corrective action, the following is applicable:

          5)   Appropriate EPA Regional or State staff should be
               notified if a narrow pre-existing conditions
               exclusion points to a potential need for corrective
               action.2
     For further assistance in implementing  this guidance, please contact
Margaret Schneider, Chief, Closure and Financial Responsibility Section,
Office of Solid Waste (202 or FTS-382-4640).
cc:  Regional Counsels
      2  The presence  of  a narrow exclusion is merely one factor to consider  in
 determining  the need for corrective  action decisions.   Consistent with
 established  priorities, these  releases should be addressed using any or  all
 corrective action  authorities.

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                                                    9477.1982(01)
May 24, 1982

MEMORANDUM


SUBJECT:  Part B Financial Responsibility Information
          Requirements for Owners or Operators in States with
          only Phase I Authorization

FROM:     John H. Skinner
          Director, State Programs & Resource
          Recovery Division  (WH-563)

TO:       Ira W. Leighton, Chief
          Hazardous Waste Section
          Region I


     This is in reply to your memo of April 13, 1982 (copy
attached) .  We agree with you that owners or operators in States
with only Phase I authorization are required to submit financial
instruments (as specified in Subpart H, Part 264) only prior to
the final permit decision.

     The requirement in §122.25 for submission of copies of the
financial instruments with the Part B application is, as you
point out, based on the premise that owners or operators of
existing facilities would have established the instruments in
compliance with Federal interim status standards.  The premise
does not hold in Phase I States.  For owners or operators in
these States, the effect of §122.25(a) (14)-(16)  would be to
impose financial requirements through the permit application
procedures.  This would be inappropriate since there would not be
an applicable standard (either in Part 264 or Part 265) in
effect.  Therefore the Regional Administrator may exercise the
discretion afforded in §122.25 (first paragraph)  to require
copies of the financial instruments only prior to permit
issuance.  However, these owners and operators should be required
to specify in their Part B applications the mechanisms they
intend to use to satisfy the financial requirements.

     Although these owners or operators are not required to
establish financial instruments until just prior to permit
issuance, they may find it distinctly advantageous to provide the
instruments by the time the draft permit is made available for
public comment.  Without providing financial assurances, they may
        This has been retyped from the original document.

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                               -2-

encounter significantly greater difficulty in obtaining public
acceptance of the facility.

     In view of the above,  we are advising the Regions as
follows:  Owners or operators in States with only Phase I
authorization should be required to specify, as part of their
Part B applications, the mechanisms they intend to use to satisfy
the financial requirements.  The instruments must be submitted to
the Regional Administrator prior to final permit decision.  We
strongly recommend that owners and operators be informed of the
advisability of establishing financial instruments prior to
public notice of the draft permit.

     Thank you for calling this matter to my attention.

Attachment

cc:  Solid/Hazardous Waste Branch Chiefs, Regions I-X
     Permit Branch Chiefs,  Regions I-X
     State Programs Branch, OSW
     Joseph Freedman, OGC,  A-131
        This has been retyped from the original document.

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                                                                   9477.1982(03)
I

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     These statements arc intended to clarify the meaninqs
nf t*r»n« used in t-.be Certificate *nd should not be  interpreted
*« * comment on the acceptability of coverage provided  by
any particular insurance policy in meeting the requirements
of 4n TFT?. 2K4.147 or 26«>.147.
     we hope thin letter responds to an'l alleviates  your
concerns,

                              Sincerely,
                              *ruce X.
                              Acting Director
                              State Progrsna and
                              Resource  Recovery Division

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            11 «W  1383
                                                    9477.1983(01)      t

                                                                    Ov
                                                                    (O
3
ffl
 MEMORANDUM                                                         o
 --                                                         X
                                                                    o
 SUBJECT:  April 20, 1983, Memorandum on Financial Requirements     ^
                                                                    s.
 FROM:     John R. Skinner, Director                                »
           Office of Solid Waste (WH-562)                           £
                                                                     i"
 TO:       Barry Seraydarian, Director                              lj
           Toxic* and Waste Management Division, Region IX. (T-l)    i^
      Your memorandum of-April 20, 19B3, suggested that a
 regulatory interpretation memorandum be written to clarify the
 exemption of States and the Federal government from the RCRA
 Subpart H, Financial Requirements (SS264.140(c) and 265.140(c)).
 However, the interpretation you suggest does not appear to be
 consistent with the regulations.  Our interpretation of the
 regulations, confirmed by Office of General Counsel staff, is
 that set forth in my January 5, 1983, letter sent to Mr. Bradley
 E. Dillon at OS Ecology, a copy 6f~Which is attached.  A copy
 of that letter was also sent to Richard Procunier, the Region
 IX financial contact.

      Your suggestion that EPA notify the various state and
 Federal agencies which may be affected by this exemption may
 be pursued at a later date.  However, since the owners and
 operators of hazardous waste facilities are jointly and
 severally liable for the other requirements of the Resource
 Conservation and Recovery Act (RCRA) regulations, I am not
 sure that such a narrowly focused letter would be appropriate.
 Rather, a letter broadly addressing the potential obligations
 of the states and the Federal government under the RCRA
 regulations would be sent.

      You can b« sure that as we make decisions on regulatory
 reporting to EPA Headquarters, this particular section will be
 k*pt in «ind.~  I am certain that ahould-^~ £*»*2 environmental
~prouJL'etM' caused or -yxnp••»•»•••• it ~**y--tl*ls exemption, we will make*
 cv«t/ ilf!t»r^ to rfeyizc. .tne regulations in a responsive manner.


 Attachment
                                                                     t—

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January 5, 1983

Mr. Bradley E. Dillon
Associate General Counsel
US Ecology, Inc.
3200 Melbville Road, Suite 526
P.O. Box 7216
Louisville, Kentucky  40207

Dear Mr. Dillon:

     Your letter of November 5, 1982,'raises a question about the
applicability of the Subpart H, Financial Responsibility
requirements to a US Ecology facility.   Your specific concern is
the extent of your responsibility for compliance in view of the
§265.140(c) exemption for States and the Federal- government and
the fact that your facility operates on land leased from the
State of Nevada.

     Section 265.140(c) states "States and the Federal government
are exempt from the requirements of this subpart."  The Subpart H
regulations apply to owners and operators; while either party may
fulfill the requirements, the Agency may take action against
either or both of the parties in the event of noncompliance.  The
Agency interprets this exemption to mean that where one party
(the owner or the operator) is an exempted party because it is a
State or Federal governmental unit, the other, private sector
party need not comply with the Subpart H requirements.  However,
a State or Federal agency owner may, of course,  require the
private sector operator by contractual agreement to demonstrate
financial responsibility.

     I suggest that you confer with staff of EPA Region IX and
the state of Nevada to determine the extent and applicability of
responsibility for the concerned parties under the Resource
Conservation and Recovery Act regulations.  You should be aware
that the RCRA Subpart G regulations, which stipulate the
        This has been retyped from the original document.

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                               -2-

reguirements for performance of closure and post-closure care, do
not contain any such exemption.  The exemption applies only to
the Subpart H regulations, which contain the requirements for
proving financial responsibility for closure and post-closure
care and for liability coverage.

                                        Sincerely,


                                        John H.  Skinner
                                        Acting Director
                                        Office of Solid Waste
cc:  Dick Procunier, Region IX
        This has been  retyped from  the original document.

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                                                                       9477.1983(02)
                RCRA/SUPERFUND  HOTLINE MONTHLY SUMMARY

                                FEBRUARY  83
Question:       Can the owner/operator of a facility cancel or terminate his
               policy without giving the insurance company the 50 or 30 days
               the insurance coitpany needs in order to give EPA 60 to 30 days
               notice of cancellation?

Answer:.        The insurance company is bound by the certificate or endorsement
               to give proper notice.  There is no requirement for the facility
               to give the insurance company advance notice.  The insurance
               company could protect itself against this in its contract with
               the facility.

               Source:    Karen Gale
               Research:  Irene Homer

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                                                              9477.1983(03)
                                                                   •-> 35
                                                                   3 •
                                                                   O,
                                                                   ,11 03
                                                                   X 0>
                                                                     H-
                                                                   NJ *—
                                                                   y\ (t>
Mr. Allan B. Mitchell                                                ^
Mitchell & Schultz, Inc.                                             »
P.O. Box 190                                                         a
310 E. Lee                                                           ^
Sapulpa, Oklahoma  74066                                             >-

Dear Mr. Mitchell:                                                   <
                                                                     CO
     Thank you for your letter of October  23  in which you            >
question the net working capital requirement  of che  financial        f
test for assurance of closure and post-closure care  at               ^
Hazardous waste managernent facilities.  The financial test           ~>
i? a T*ean« by which a financially sound firm  may  demonstrate         ^
its ability to cover the costs of closure  and post-closure.          ^
                                                                     X
     The financial test differs from other acceptable mechanisms     °
for assurance of financial responsibility.  In the event of          =
abandonment or bankruptcy, there is no special fund  of money
that FPA-can use to properly close and maintain a facility.
Therefore, it is imperative that the Agency be assured that
a firm passing the test is viable and that sufficient
funds would remain available even in the event of a  change
in the financial position of the firm.

     In developing the financial test, the Agency extensively
analyzed over 300 possible tests* applying them to known
bankruptcies to determine which test would provide the needed
safety margin while allowing as many viable firms as possible
to pass the test.  The result was the two  alternative sets
of criteria found in 40 CPR Parts 264 and  265.

     The first alternative, the 'ratios* testr requires a
net working capital of at least six times  the sum of the
closure and post-closure cost estimates.   To  assure  that the
closure and post-closure costs themselves  would not  cause
insolvency, the Agency originally determined  that a  firm
should have net working capital of at least twice the cost
estimates.  However, in studying bankruptcies, the Agency
discovered that many firms experienced a rapid deterioration

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of financial condition in the two to three years prior to
business failure.   In such cases, net working capital fell
by an average of 66% in two years.  Thu^V a multiple of six
(a factor of two -  to ensure ability to pay - times three -
to protect against  rapid deterioration) was found necessary.

     The second alternative, the "bond rating" test, is not
directly comparable to the "ratios* test.  While both options
provide EPA with the needed assurance, they do it in different
ways.  While the "ratios" are designed as predictors of bank-
ruptcy, the "bond rating" assures viability and credit-worthiness.
In fact, both Moody's and Standard and Poor's look at many factors,
including ratios, in assigning a rating.  For example, they
consider a firm's size to be very important.  Most firms assigned
investment grade bond ratings have net worth in the S100 million
to $200 million range and above.  Firms which pass the "bond
rating" test are able to raise money easily, and they have a
statistically lower business failure rate than those that pass
the "ratios" test.

     It is important to note that over 90% of those firms wishing
to use the financial test are able to pass it.  I can certainly
understand the frustration of -those unable to use the test, but
believe that our requirements are appropriate to meet our over-
riding responsibility to protect human healtit and the environment.

                               Sincerely yours,
                               William D. Ruckelshaus

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                                                                 3477.1983(04)
             RCRA/SUPERFUND HOTLINE  SUMMARIES

                          SEPTEMBER 83
If a State does  not have a required financial mechanism but has an
approved  financial mechanism, can a facility owner/operator use the
approved  mechanism under 40CFR 264.149?

    Section 264.149 of the regulations allows the substitution of a
    financial mechanism which the State requires for one of the EPA
    approved mechanisms.  This substitution requires the approval
    of the Regional Administrator.  A State approved (but not  required)
    mechanism can also be used in lieu of the Federal  mechanism if
    the facility owner/operator receives approval from the Regional
    Administrator.

        Source:  Scott Biehl

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                                                    9477.1984(01)
January 12, 1984

MEMORANDUM


SUBJECT:  Closure Cost Estimates Based on Third Party Costs

FROM:     John H. Skinner, Director
          Office of Solid Waste (WH-563)

TO:       James H. Scarbrough, Chief
          Residuals Management Branch
          Region IV

     This is in response to your memorandum of November 22, 1983,
in which you raise the issue of whether a closure plan for a
recycling facility can specify continuation of recycling in order
to reduce waste inventory during closure.  You raised this issue
in the context of a statement made in the September 19, 1983
RCRA/Superfund Hotline report.  The Hotline report stated that a
closure cost estimate cannot be reduced to reflect planned
recycling of waste at a facility or the planned sale of equipment
or property after closure begins.  The rationale given by the
Hotline is that the cost estimate must reflect closure at the
most expensive point in the facility's operating life, rather
than some point after the facility's inventory is reduced by
continued recycling of waste on site, or after sale of capital.

     While the Hotline memo is correct, your memo raises a
separate issue, which the Hotline report did not address.  That
issue is whether the closure cost estimate may reflect the cost
of closure activities carried out by the owner/operator (who may
use his own personnel and equipment if he desires) , or whether
the estimate must reflect the costs of closure activities carried
out by a third party, such as the government or a private
contractor.

     You referenced several statements in the regulations and EPA
guidance documents which you interpret to mean that the first
case is correct.  In the context of recycling facilities, you
have interpreted the regulations and guidance to mean that l)
continued recycling at a recycling facility is a form of
"treatment" and a legitimate closure activity, and 2) the closure
cost estimate for a recycling facility may reflect the
owner/operator's own costs of carrying out his closure plan.
        This has been  retyped from the original document.

-------
     I concur with these interpretations.  With regard to your
last point, please make note of an important requirement which
lessens the likelihood of a large, abandoned stockpile of waste
in the event of a forced closure.   Under §264.113(a), and
§265.113(a), the owner/operator has 90 days from the day closure
activities begin in which to "treat, remove from the site, or
dispose of on-site, all hazardous  wastes in accordance with his
approved closure plan".  Therefore, acceptable cost estimates for
recycling facilities could reflect labor and materials for up to
90 days of recycling plus the cost to dispose of the amount of
waste which could not reasonably by recycled with existing
throughput capacity during 90 days.  This, in effect, ensures
that recyclers do not stockpile more hazardous waste than they
have the ability to recycle in 90  days, unless they have made
provisions in their closure plans  and cost estimates for
disposing of the excess hazardous  wastes, either on-site or off-
site, by end of the 90-day period.

cc:  Bruce Weddle
     Eileen Claussen
     Carolyn Barley
     Hazardous Waste Branch Chiefs, Regions I-III,  V-X
        This has been retyped from the original document,

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                                             9477.1984(01)
                                             Attachment
DATE:     November 22, 1983

SUBJECT:  Closure Plans and Cost Estimates-Treatment of Waste
          Inventory As Part of Closure Activities

FROM:     Chief, Residuals Management Branch
          Region IV

TO:       John Skinner, Director
          Office of Solid Waste  (WH-563)
          The September 20, 1983 memo from Carolyn Barley
          transmitting Superfund hotline monthly status report
          for August contained a response with which we do not
          agree.  On page six the following statement is made
          "The Agency has interpreted these two statements to not
          allow a Closure Plan to include recycling of waste or
          sale of equipment or property in order to reduce the
          closure cost estimate."  Region IV does not totally
          agree with this response.  We agree that the money
          gained from the sale of recycled hazardous waste
          equipment or property can not be included in the
          closure cost estimate as a credit.  However we feel
          that the regulations and guidance are clear that a
          recycling facility can continue to treat its waste
          inventory as a part of its closure operations.

          The following citations from RCRA Regulations and
          Guidance Documents support this position:
          DOCUMENT CITED
          40 CFR 264.142
          Preamble to May  1980
          Reg.
SUPPORTING QUOTATION

Cost estimates for closure are
to be based on the closure
plan
"Closure is the period after
wastes are no longer accepted,
during which the owners or
operators complete treatment.
storage and disposal
operations, apply final cover
to all cap landfills, and
dispose of or decontaminate
equipment"
        This has been retyped from  the original document.

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                       -2-
  40 CFR 264.112(a)(4)
  40 CFR 264.113(a)
  EPA Draft Guidance
  Closure and Post
  Closure:   Interim
  Status Standards 40
  CFR 265,

  P. 2-8
  P. 2-9
  P. 2-11
  P. 4-2
"For example, in the case of a
landfill, estimates of the
time required to treat and
dispose of all waste
inventory.

"Within ninety days after
receiving the final volume of
hazardous wastes, the owner or
operator must treat, remove
from the site, or dispose of
on-site, all hazardous wastes
in accordance with the
approved closure plan.

"The Plan (Closure) should
also include a description of
the procedures for treating or
removing these wastes ..."
"It does ensure that an owner
or operator has prepared for
treating,  disposing or sending
hazardous waste off-site in a
timely fashion.

"In most cases, it is likely
that wastes awaiting disposal
will require varying degrees
of processing and treatment.
At an incineration facility,
for example, all wastes may be
incinerated on-site and the
residues hauled off-site."

"The schedule of closure
activities should include:
(e.g. dates for completing
treatment and disposal of all
wastes on-site,)

"An example would be the costs
of treating or disposing of
inventory on-site, which will
normally be a simple
continuation of the normal
operating practices of the
business.
This has been retyped from the  original  document.

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                               -3-

          P. 5-5                   "In the vast majority of cases
                                   at disposal facilities, the
                                   disposing or treating of
                                   inventory will take place
                                   on-site,"

From these documents we think the following conclusions can be
clearly drawn.  These conclusions reflect our Region's approach
to Closure Plans and cost estimates for Hazardous Waste recycling
facilities.

1.   The Closure Cost Estimate is based on the Closure Plan.

2.   The Closure Plan is based on a planned Closure that is
     carried out by the owner (who may use his own personnel and
     equipment if he desires).  There is no regulatory basis for
     requiring the closure plan and cost estimate to be based on
     a third-party or contractor handling the closure activities.

3.   The Regs and Guidance are clear that a facility that does
     treatment of Hazardous Waste may continue to provide
     treatment as a part of its closure activities as a means of
     reducing its inventory on hand at the time closure begins.
     For a facility that recycles spent solvents through
     distillation this would mean that the facility could distill
     spent solvents on hand when closure begins as a means of
     reducing the costs for final disposal.

4.   Once Closure begins the Closure Cost Estimate must reflect
     all operating costs, disposal costs, and clean-up costs
     incurred during the closure period including any costs
     associated with continued treatment during closure, such as
     all costs associated with the operation of facility.  The
     guidance manual indicates that the company should submit the
     previous years financial budget and put up the percentage of
     the year it will take for the treatment, ultimate disposal
     and decontamination in their closure fund.

There are many waste recycling facilities throughout the country
that are subject to the RCRA permitting requirements.  Because of
the significant impact which the financial assurance requirements
have on these facilities, it is important that EPA be consistent
nationwide in our application of the RCRA regulations for Closure
        This has been retyped from the original document.

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                               -4-
Plans and Cost Estimates.  We have issued and are about to issue
several permits to recycling facilities using the above stated
guidance.  If you disagree with our approach please call Douglas
C. McCurry of my staff at FTS 257-3433 before December 15, 1983.
James H. Scarbrough
cc:  Region IV State Directors
     Hazardous Waste Branch Chiefs,  Regions I-III,V-X
        This has been retyped from the original  document,

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                                                             9477.1984(02)



                                                                      7

                                                                      N.

                                                                      r
                                                                      r.
                                                                      c
                                                                      •v.
                                                                      c
                                                                      •C
MEMORANDUM                                                            \
                                                                      I
                                                                      v
                                                                      C.
SUBJECT:   U.S. Ecology's Nevada Facility and Financial               c
           Responsibility                                             •
                                                                      N
FROM:      John H. Skinner, Director
           Office of Solid Waste (wli-562)                             [

TO:        Harry Seraydarian, Director                                ^
           Toxics and Waste Management Division                       ^
             Region IX  (T-l)                                          c
                                                                      ;
                                                                      r-
                                                                      C
     Your memorandum of April 5 requested comments on the             k
Notice of Deficiency you sent U.S. Ecology.
                                                                      •
     While I sympathize with your desire to ensure that all           (
owners and operators demonstrate financial responsibility, EPA         ;
is not in a position to require such compliance in this instance*      :
Section 140(c) of the regulations clearly exempts the States           |
and the Federal government from the Subpart H regulations.             >
Therefore, EPA does not have authority to enforce compliance
with the financial requirements since the U.S. Ecology facility
is located on land owned by the State of Nevada.  Only the
State of Nevada may require U.S. Ecology to demonstrate
financial responsibility by contractual arrangement.

     This point is covered in both the January 5, 1983 letter
to U.S. Ecology and the Kay 11, 1983 memorandum to you (copy
attached).  I want to reassure you that my staff  had extensive
conversations with your staff before the January  letter was
issued.  I hope this clears up the natter for you.


Attachment

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                                                             9477.1984(04)
                               NO' 20  I'  •
                                                                      ro
                                                                      >«x
                                                                      '3>
Charles Vi. Shipley                                                    o>
1 Williams Center                                                     £
Suite  1770                                                            ^
Tulsa, OK  74172                                                      a
                                                                      to
Dear Mr. Shipley:                                                     w
                                                                      S3
     This letter is in response  to  your  question  to ray staff          S
regarding insurance coverage  limits required  under the KCRA           ^
Subpart K regulations.                                                ^
                                                                      I—'
     As you know, 40 CFK 264.147  and 265.147  require  all owners       i£
or operators of hazardous waste management  facilities to demon-       «
strate financial responsibility  for bodily  injury and property        "^
damage to third parties caused by sudden accidental occurrences
in the amount of $1 million per occurrence  and  $2 million annual
aggregate.  In addition, the  owner  or operator  of a surface
impoundment, landfill, or land treatment facility must demonstrate
financial responsibility for  bodily injury  and  property damage
to third parties caused by nonsudden accidental occurrences in
the amount of $3 million per  occurrence  and $$  million annual
aggregate.  An owner or operator  has several  options  to satisfy
this liability coverage requirement.

     An owner or operator who chooses to meet both the sudden
and nonsudden requirement solely  through the  purchase of insurance
may obtain a single insurance policy to  cover both sudden and
nonsudden accidental occurrences.   This  policy, however, must
provide coverage for at least the sup of the  sudden and nonsudden
mininmn limits.  In other words,  such a  policy  must provide
coverage for at least $4 million  per occurrence with  an annual
aggregate of at least $8 million.   The liability  limits
of $4/$8 million are consistent with our regulations  and provide
adequate coverage.  Of course, an owner  or  operator may satisfy
the liability coverage requirement  by obtaining two separate
insurance policies, one to cover  sudden  accidental occurrences
(with limits of a|. least $1 and $2  million) and one Co cover
nonsudden accidental occurrences  (with limits of  at least $3
and $6 million).

-------
     We are aware chat this option is not specifically addressed
in SSf 264.147 or 265.147 of the regulations.  The required
wording for the endorsement and the certificate of insurance
(SS 264.151(1)0) and 264.151 (j) (D) , however, states that:

     The coverage applies at [list EPA Identification
     Number, name, and address for each facility] for
     [insert "sudden accidental occurrences," "nonsudden
     accidental occurrences," or "sudden and nonsudden
     accidental occurrences*'] (emphasis added) .

     If you have further questions, please feel to contact me at
(202) 382-4761.

                               Sincerely,
                               George A. Garland
                               Chief, Financial.Responsibility
                                 and Assessment Branch

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                                                          9477.1984(05)

                         JUH   6B6A

Review of Financial Assurance Instruments                         "x

George Garland, Chief                                             £
Financial Responsibility and Assessment Branch (NH-562)           ^
                                                                  v.
Hazardous Mast* Branch Chiefs                                     *
          I-X                                                     »
     The purpose of this memorandum is to clarify our policy      ^
regarding th* review of financial assurance instruments.          o.
Lee Daneker and Tony Hontrone »ent a memorandum to the BWOMS      v.
Project Officers on December 20, 1983 to clarify the instrue-     »
tions for the Compliance and Enforcement Log and the Facility     K>
Status Sheet.  As a result of that memorandum, X am concerned     £
that reviews of financial instruments are being deferred          ^
until closure/post-closure plans and cost estimates are           \
determined to be adequate and in compliance with federal or       \
stste regulations.                                                «>

     It is our policy to review all financial assurance in-
struments regardless of decisions concerning the adequacy or
inadequacy of closure/post-closure plans and/or cost estimates.
He expect you to examine the financial instruments {wording/
issuer qualifications, etc.) for compliance with Federal
or State regulations*  We eonaider this distinct review
essential and, therefore* stress that it be conducted evtn
in the absence of a reviewed plan and cost estimate.

     The facility status sheets should reflect this policy.
Therefore, item number eleven— Closure Assurance Instruments—
and item number fourteen— Post-Closure Assurance Instruments-
should always be completed even when the plans and/or cost
estimates have been determined inadequate*  Mhen the plaos
and/or cost estimates are revised and reviewed, the adequacy
of the amount of the financial instrument should be reviewed
concurrently.

     I have made minor revisions to the facility status sheet
instructions to reflect this distinction.  The revised
instructions are attached to this memorandum.  Mease  inform
your States of our policy and explain the change in the
status sheet.  If you have any questions about adequacy
determinations on financial assurance instruments, please
contact Carole Ansheles on 382-4671.

Attachment

cct Carole Ansheles
    Susan Hughes
    Lee Daneker
    Tony Montrone

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                                   9477.1984(06)
2&NUV1984
                                           N3
                                           03
                                           0.
                                           CO
MEMORANDUM

SUBJECT:  Availability of Environoental Impairment Liability
          (EIL) Insurance

FROM:     John H. Skinner, Director
          Office of Solid Waste (WH-562)

TO:       Regional Division Directors
          Regions I-X-


     There has been some question raised in the Regions about
the availability of Environmental Impairment Liability (EIL)
insurance.  EIL insurance is necessary for owners and operators
of surface impoundments , landfills ,- and land treatment facilities
to meet the liability coverage requirement for nonsudden accidental
occurrences under 5S 264.147(b) and 265.147(b), if they are not
using che financial test.  Owners and operators with annual sales
or revenues of less than 55 million will become subject to this
requirement in January 1985.

     It is my understanding that this type of insurance is avail-
able, although there is a waiting list.  Attached is a list of
companies which offer EIL insurance and the limits of coverage
they provide.  The Agency has been advised that at this time
only two companies on the list, Shand Morahan and American
International Group, are talcing new customers.  The rest of the
companies are offering policies only in limited circumstances.

Attachment
                                           oo
                                           *"

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           UNITED STATES ENVIRONMENTAL PROTECTION AG          a.77  10B,/n,.
                                                             ' ' • A'w* IU / )
                       WASHINGTON, D.C. 20460
                                                        OFFICE OF
                                               SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM

SUBJECT:  Determination of a Facility's Operating Life
FROM:      George A. Garland, Chief
          Financial Responsibility and Assessment Branch  (WH-562B)

TO:       William H.  Taylor, Chief
          Enforcement Section, Region 6


     This memo addresses the questions raised by the State of
Oklahoma in their letter to Region 6 dated September 6, 1984.
Most of these questions concern how one determines the operating
life of a facility for the purpose of calculating the trust fund
pay-in-period.  As requested, I also address the separate issue
of how to treat recycling in the closure cost estimate.


1.   How does one calculate a facility's operating life for
     determine the pay-in-periodfor the trust  fund?

     For permitted facilities, "payments into the trust fund
must be made annually by the owner or operator  over the term of
the initial RCRA permit or the remaining operating life of the
facility as estimated in the closure plan, whichever period is
shorter" (SS264.143U) (3) and ,145(a)(3)).  For interim status
facilities, "payments into the trust fund must  be made annually
by the owner or operator over the 20 years beginning with the
effective date of these regulations or over the remaining operat-
ing life of the facility as estimated in the closure plan, which-
ever period is shorter" (SS265.U3(a) (3) and .145(a)(3)).

     For purposes of this requirement, the operating life of a
facility must be presumed to end in that year in which the owner
or operator currently expects to close his facility.  His expected
year of closure should be identified in his closure plan.

     EPA should be able to determine, after reviewing the facil-
ity's operating record, whether the owner or operator's estimate
of the year he expects to close his facility is reasonable.  If
EPA believes that the facility's operating life is less than
that stated, we may require the owner or operator  to change  the
closure plan.

-------
                              - 2 -


2.   Should, a facility's operating life be determined based on:
     existing, permitted unbuilt, or unpermltted unbuilt capacity?

     The capacity of both permitted and interim status facilities
to store or dispose of wastes for the purpose of determining the
facility's operating life should be based on "the maximum extent
of operation which will be unclosed during the life of the facil-
ity" as required in the closure plan under SS 264.112(a)(1) and
265.112(a)(l).

     Thus, for permitted facilities, operating life should be
based on permitted capacity which may include unbuilt capacity.
Operating life will not be based on unpermitted capacity.  If
the owner or operator later decides to increase capacity at a
permitted facility by building additional units or expanding
existing units, he must modify his permit.

     For interim status facilities, operating life should be
based on the capacity described in Part A of the facility's
permit application.  If the owner or operator later decides to
increase capacity beyond what is stated in the Part A, the owner
or operator must modify his Part A and his closure plan.


3.   Are payments to the trust fund based on each individual
     unit or the facility as a whole?

     Sections 264.1 43(a) (3), 264.145(a) (3) , 265.143(a) (3) , and
265.145(a)(3) state that the payments into the trust fund must be
made over the remaining operating Life of the facility  (if less
than the permit life or 20 years).  We cannot interpret "facility"
as it is used here to mean "unit".  Thus, the pay-in-period to
the trust fund must be calculated for the facility as a whole.
If the facility has more than one unit, the end of the facility's
operating life for purposes of calculating the trust fund pay-in
period will be that year when the owner or operator expects to
close the last unit (assuming this period is less than the permit
life or 20 years).


4.   How does one determine the operating life of a tank  or
     surface impoundment which can be refilled?  How do treatment
     processes affect operating life?

     During the operating life, the level of waste  in a tank or
an impoundment may vary.  Filling and emptying is part of a tank
or impoundment's normal operating life.  Wastes may be  treated,
sludges may settle out, liquids may evaporate or be drained off,
sludges may be dredged out  and disposed of.  While  the  level of
waste in a tank or impoundment may  fluctuate, the facility is
still operating until the year the owner or operator has  indicated
he expects to close the facility.

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                              - 3  -


     Prior,to the time the  facility  receives  its final volume of
waste, the owner or operator should  be able to determine the
year he expects to close based on  the  treatment or other storage
and disposal processes he employs.   If he plans to operate longer
than he had  originally intended, he  must modify his closure plan.


5.   Should  waste stored in tanks  prior to recycling be considered
     a salable asset or liability  for  disposal?

     Section 265.142(a) states that  the cost  estimate "must equal
the cost of closure at the point in  the facility's operating life
when the extent and manner of its  operation would make closure
the most expensive".  Since EPA has  no guarentee that there will
be a market for wastes stored prior  to recycling and that these
wastes will be in a salable condition  when recycled, such wastes
should be considered a liability.

     As discussed in the January 12, 1984 memo from John Skinner
to James Scarbrough on closure cost  estimates based on third
party costs, the owner or operator of  & recycling facility nay
continue to recycle wastes during the  closure period as a legiti-
mate closure activity.  While the owner or operator need not
include the cost of disposing of that  inventory of waste that he
anticipates will be eliminated because of recycling during
closure, his cost estimate must reflect the labor and materials
necessary for recycling that waste.   It is important to point
out that recycling may only continue for 90 days after the final
receipt of waste unless an extension of the closure period is
granted by the Regional Administrator.  The cost estimate must
also  include a reasonable estimate of the cost  to dispose of that
amount of waste which  cannot be recycled with  existing treatment
capacity in the 90  days of closure.


      If you have  further question, please contact Alyce Ujihara
of my staff at 382-4784.

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                                                    9477.1984(08)


             RCRA/SDPERFUND HOTLINE MONTHLY  SUMMARY

                           NOVEMBER 84


6.   The Agency requires owners or operators of hazardous waste
     treatment, storage, or disposal facilities to have liability
     coverage for accidental occurrences arising from the
     operation of their facilities.  These requirements are
     specified in 40 CFR §264.147 and §265.147 for permitted and
     interim status facilities, respectively.  The required
     coverage for sudden accidental occurrences is at least $1
     million per occurrence with an annual aggregate of at least
     $2 million, exclusive of legal defense costs.  The required
     coverage for nonsudden accidental occurrences applies to
     facilities with surface impoundments, landfills, or land
     treatment units.  These facilities must also have sudden
     accidental insurance coverage.  Nonsudden coverage is at
     least $3 million per occurrence with an annual aggregate of
     at least $6 million, exclusive of legal defense costs.  Must
     an owner or operator of several facilities have liability
     coverage in the amounts just stated for each facility?

          No; one policy will cover all facilities.  Liability
          insurance is required on a per firm basis rather than a
          per facility basis.  The requirement for the use of an
          annual aggregate liability coverage encompasses the
          risk of multiple occurrences among facilities belonging
          to the same owner or operator.  For example, an owner
          of six container storage facilities would only need
          sudden accidental occurrence coverage of $1 million per
          occurrence with an annual aggregate of $2 million.
          This issue is addressed in the April 16, 1982 Federal
          Register (47 FR 16546).

          Source:    Carole Ansheles  (202) 382-4761
          Research:  Hilary Sommer
        This has been retyped from the original document.

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                                                               9477.1985(01)
          RCRA/SUPERFUND HOTLINE  MONTHLY  SUMMARY

                           DECEMBER 84
The financial requirement regulations (40 CFR $264 and $265, Subpart H)
require that owners and operators of all hazardous waste management
facilities establish  financial assurance to cover, the cost of closing
their respective facilities.  The regulations provide six methods for
establishing financial assurance.  One method is a financial test and
corporate guarantee for closure ($264.143(f}(10> and $265.143(e)(10)).
Using this method, a  parent corporation (guarantor) can provide the
financial assurance for an owner/operator of a subsidiary ecrapany.  If  a
facility becomes a separate company, completely autonomous frcra the parent
ecrapany, nay the ex-parent company provide financial assurance for the
owner/operator of the newly independent company?

    No; the ex-parent company may not provide financial assurance for the
    newly independent company.  Sections 264.143(0(10) and 265.143{e) (10)
    state that The guarantor must be the parent corporation of the owner
    or opera tor." Therefore, the newly independent company oust establish
    its own financial assurance since its ex-parent company can no longer
    function as its guarantor.  This financial assurance must be in place
    upon independence*

    Source:    Joe Freedman  (202) 382-7700
    Research:  Gordon Davidson

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                                                                  9477.1985(02)
           RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION
                                  JANUARY  1985
    Financial Requirements for Inactive Surface  Impoundments


3.  A facility has a  surface impoundment which has not been used to store
    hazardous waste since July 1983.  The facility is still operating under
    interim status as a generator of hazardous taste.  Although the surface
    impoundment has not been closed in accordance with interim status require-
    ments,  the owner/operator of the facility canceled the liability insurance
    for the surface impoundment.  Is the facility in ccnpliance with Part 265
    Subpart H of  RCRA?


              Ine facility is not in ocnpliance with RCRA.   The facility should
              havt sudden and nonsudden liability insurance  for the surface
              Impoundment until certification of closure  is  received either by
              the Regional Jtainistrator or State Director, depending on which
              hat progran authorization (S265.147(e)).  Certification of closure
              is addressed won fully in $265.115.

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                                                         9477.1986(01)
Senator Charles £. Grassley
United States Senate
Washington, D.C.  20510

Dear Senator Grassley:

     Thank you for forwarding Mr. Gary Jaehnel's letter of
November 26, 1985, concerning the Riowa Corporation's transfer of
its hazardous waste storage operations to a new site.  Outlined
below is our understanding of how regulations under the Resource
Conservation and Recovery Act (RCRA) apply to Mr. Jaehnel's
facility.

     RCRA requires that hazardous waste storage facilities obtain
permits to ensure that the wastes are managed in an environmentally
protective manner.  RCRA regulations also allow facilities that
were in existence on May 19, 1980 to continue operation in "interim
status" until decisions are wade as to whether or not to permit
the facility (Kiowa is an interim status facility).  Regulations
prohibit, however, changes to an existing facility durinc interim
status which are so extensive as to amount to reconstruction of
the facility (see 40 CPR 270.72(e)].

     The proposed transfer of the Kiowa storage facility would,
in effect, amount to reconstruction of the facility.  As such,
it must be treated as a new facility.  In order to begin construc-
tion of a new facility, it must first be issued a permit, as
provided by 40 CFR 270.10(f).  In addition, closure of the exist-
ing Kiowa facility must be done in accordance with interim status
closure standards (contained in Subpart G of 40 CFR Part 265).

     We contacted Mr. Gene Evans, the EPA Reoion VIZ staff member
assigned to this project, who provided additional background
information.  Mr. Evans reviewed the revised closure plan submitted
by the Kiowa Corporation, and advised Mr. Jaehnel that the revised
closure plan was not acceptable as submitted.  Mr. Evans offered
to amend the submitted plan as provided for in the regulations.
Nr. Jaehnel preferred to amend the plan himself 'and reguested a
letter detailing the deficiencies in the plan.  This letter was
prepared and sent on November 20, 1985.

     We wish to apologize for any lack of responsiveness Mr. Jaehnel
may have encountered.  As an "interim" authorized State, the Iowa

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                                -2-                                    c
                                                                       •3
                                                                       r»
                                                                       1
Department of I'ater, Air, and Haste Manaqer>ent had been  inpleT*ent-     —
ing certain portions of the RCRA prooran, including closure            2
activities, in lieu of the Federal hazardous waste panagenent          £
program.  The Iowa State legislature voted to end fundina  of the       " ;
State's hazardous management program, effective July  1,  1985.          >'.
On that date, the State's hazardous waste management  prooran           ~£
ceased operating and EPA Region VII assumed responsibility for         •* •
the entire hazardous waste management program, including closure       2 £
activities.  This transfer of responsibility may explain some of       ~*
the problems Mr.  Jaehnel experienced.  Again, we apologize for        £~
any lack of responsiveness he may have encountered and regret any      o£
inconvenience.                                                         o ^
                                                                       ^ i
                                                                       n *
     If you or Mr. Jaehnel have any additional Questions or reouire    % *
further information, please call Mr. Gene Evans at (913) 236-2888.     £-
Thank you for your interest in this matter.                            o"!l
                                                                       3 tc
                                                                       CO t
                                Sincerely*                             •• ~
                                                                       a i
                                                                       .. a
                                                                       >- w
                                                                       N> ••
                                J. VJinston Porter                      t^S
                                Assistant Administrator                Y £.
                                                                       CD
cc:  Region VII                                                        i"«
     Congressional Liaison/Deremer                                     a^
                                                                       »"h  -
                                                                       M (fl
                                                                       i—
                                                                       KJ

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                                                     9477.1986(02)'
           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON, D.C. 20460

                            ,.*:; 3  '386
                                                           E Of
                                               SOUIO WASTE AND EMERGENCY RESPONSE
Honorable Charles E. Grassley
United States Senate
Washington, D.C.  20510

Dear Senator Grassley:

     Thank you for your  letter of  December 11,  1985,  forwarding
the November 15, 1985 comments from Mr.  Russell C.  Smith  of
Salsbury Laboratories.   Mr.  Smith  suggested that the  Agency
consider a corporate guarantee from a  parent corporation  or  an
indemnity agreement or letter of credit  as alternative means for
meeting the financial responsibility requirements for liability
coverage under the Resource  Conservation and Recovery Act.

     In the past, the Agency has not allowed a  parent company to
use the corporate guarantee  to meet the  requirements  for  liability
coverage; we have been concerned that  this use  of the corporate
guarantee might be declared  an invalid practice of  insurance
under State insurance law.   The Agency is now reconsidering  its
position, however.  Over the next  few  months, we expect to
promulgate regulations allowing the corporate guarantee where
the hazardous waste facility has obtained a letter  from the
State Attorney General or from the State Insurance  Commissioner,
indicating that this is  a valid practice under  State  law.  In
addition, the Agency intends to propose  the use of  indemnity
agreements and letters of credit at a  later time.

     Please let me know  if  I can provide any further  assistance.

                                    Sincerely yours,
                                    /s/ J.-ic:-: -  «cGraw

                                    J. Winston Porter
                                    Assistant Administrator

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                                                                  9477.1986(03)
                  RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY

                                  FEBRUARY  86
6.  Liability Requirements

    According to $265.147(a)(l)(ii>,  insurance  policies  held  by owners/operators
    of hazardous waste facilities must be issued  by an insurer  which, at a minimum,
    is licensed to transact tne business of insurance, or  eligible  to provide
    insurance as an excess or surplus lines insurer in one or more  States,   onder
    what circumstances, if any, would an off-shore  (foreign)  entity be able  to
    provide insurance for a domestic  treatment, storage, or disposal facility
    (TSDF)?

          Under Federal PCRA requirements, facilities must be insured by a company
          that in licensed in one or  more States.   The company  need not be licensed
          in the State in which the facility is located, unless stricter state
          regulations require in-State licensing.   The facility owner/operator
          should verify the qualifications of a company  by first contacting  the
          insurer about its licenses  and then confirming with insurance regulatory
          authorities of the appropriate State  or states.

          Regarding the off-shore entity, any captive or alien  insurers must meet
          the above requirements in order to provide insurance  satisfying the
          Subpart H regulations.  See SW-961, "Liability Coverage:  Requirements
          for Owners and Operators of Hazardous Waste Treatment, Storage ana Disposal
          Facilities: A Guidance manual,11 dateo November 1982 (pages II-3 and G-3).

          Source:    Carole Ansheles  (202) 332-4761

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              UK  10STATES ENVIRONMENTAL PROTEC >H AC         9477.1986(04)
                          MAR 201986
Honorable P. James Sensenbrenner, Jr.
House of. Representatives
Washington, D.C. 20515

Dear Mr. Sensenbrenner:

     Thank you for your letter of February  18,  1986 on  the
subject of liability insurance.

     You are correct In stating  that some industries  have
chosen to comply with EPA's liability requirement by  establishing
captive insurance companies.  The National  Solid Waste  Hanagenent
Association and the Synthetic Organic Chemical  Manufacturers
Association represent two such industries.  However,  we believe
these additional suppliers of insurance would add to  coronetit ion
in the insurance marketplace, rather than create a monopoly.

     Second, the Agency has recently contacted  all insurance
companies known to have been involved in the environmental
impairment liability market.  I  have enclosed a list  of all
companies who were willing to be named as potential suppliers of
environmental impairment liability coverage.  Of course, it is
possible that not all companies  named would be  able to  supply
all coverage needed, but may be  able to supply  partial  coverage.
This list was current as of January 24, 1986.

     Finally* the Agency requires coverage  for  bodily injury or
property damage .to third parties for hazardous  waste  facilities
in 40 CFR $264.147 and $265.147.  The Superfund reauthorization
bills would not waive these provisions.  You nay have in mind
HR« 3917, passed December 16, 1985, which would provide limited
relief from the required financial responsibility certification
in Section 3005(«)(2) of the Resource Conservation and  Recovery
Act (RCRA).  However, the Agency does intend  to amend the

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financial responsibility regulation in the next few months to
allow a corporate guarantee to satisfy this reauirenent.  The
Aqency also will propose indemnity agreements and letters of
credit at a later time*

     Please let me know if I can be of any further assistance

                                      Sincerely*


                                     Lee M. Thome*
                                      Lee H. Thomas

Enclosure

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                                                              9477.1986(05)
      RCRA/SUPERFUND/OUST  HOTLINE MONTHLY REPORT QUESTION
                               MARCH 1986
2. Financial Test Liabilities

   The financial test used to demonstrate  compliance with financial
   responsibility requirements under  $265,143 utilizes a ratio of total
   liabilities to net worth,  $265.143(e)(l)(i)(A).  What is to be included in
   the total liabilities estimate?  Would  accounts payable be included in
   the total liability number?

       Neither the regulations nor  the  statute contains any definition of
       total liabilities.  According  to the Glossary of Terms in "Financial
       Assurance for Closure  and Post-Closure Care:  Requirements for Owners
       and Operators of Hazardous Waste Treatment, Storage, or Disposal
       Facilities" (SW-955),  total  liabilities are defined as "total debts
       owed by a business or  individual including all liabilities."  (p.- 13)

       In that same glossary, EPA defines  "liabilities" as:

          "...probable future sacrifices of economic benefits arising from
          present obligations to transfer  assets or provide services to
          other entities in the future  as  a result of. past transactions or
          events."  (p. 8)

       The Agency uses the same definition of total liabilities as used in
       generally accepted accounting  practices.  Therefore, for further
       clarification, owners  or operators  should be directed to Financial
       Accounting Standards Board Concepts Statement No. 3 Elements of
       Financial Statements of Business Enterprises which stipulates
       three essential conditions that  an  item must fulfill to qualify as
       a "liability:"

          o  It must involve  a present  duty or responsibility to transfer or
             use assets at a  determinable  date;

          o  It must be unavoidable;  and

          o  The event obligating the transfer or use of assets must
             have already occurred.

       According to this definition,  owners or operators should not exclude the
       company's day-to-day payables, or any other current liabilities, from their
       computation of total liabilities.   Current liabilities are (1) payable at a
       certain date (i.e., within one year}, (2) are unavoidable, and (3) the
       obligating event occurred when the  company purchased the inventory, supply,
       or service associated  with the current  liability.   For purposes of the
       financial test, total  liabilities  should include any obligation of the
       company which meets the three essential characteristics  listed above.  The
       time period in which the obligation is  due,  whether short or  long-term,
       does not matter.

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                                                    9477.1986(09)
July 24, 1986

Mr. Gettinger
President
Midwest Oil Refining Co.
1200 Walton Road
St. Louis, Missouri  63114

Dear Mr. Gettinger:

     Thank you for your letter of June 25 addressing the effects
of the constrained insurance market on your business.  Although
we are aware of the difficulties in obtaining liability
insurance, EPA believes liability regulations are desirable for
several reasons.  First, the liability requirements assure that
funds will be available for third parties seeking compensation
for bodily injury and property damage arising from operation of
hazardous waste management facilities.  Second, without liability
coverage, many commenters to EPA believe that there will be
lessened public confidence in and greater opposition to proposed
and existing hazardous waste management facilities.  Third, these
regulations have the potential for inducing improved design and
operation of the facility resulting from the incentive of lower
insurance premiums and the oversight that insurers might provide
over facility operations.  Finally, when EPA published a proposal
on various methods of addressing the constrained insurance market
on August 21, 1985, we received many comments indicating
continued support for the liability requirements.

     While I understand that it is difficult to pay for a risk
assessment without prior assurance that insurance coverage will
be provided, we understand that most insurers will insist on
conducting a risk assessment before they make a decision to offer
coverage or not.  We believe that this is sound insurance
practice.  In addition, risk assessors and insurance companies
have quoted risk assessment costs as generally falling between
$5,000 and $25,000; your $5,000 cost therefore appears to be at
the low end.

     In response to this situation, EPA has several ongoing
efforts.  First, the Agency developed the February 25, 1985 list
of Environmental Impairment Liability providers, a copy of which
you obtained and enclosed in your letter.  We will update this
list soon.
        This has been retyped from the original document.

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                               -2-

     Second, we expect to publish final regulation allowing the
use of a corporate guarantee as a method of demonstrating
compliance with the liability requirements.  This regulation was
signed by the Administrator on July 3 and should be published
very soon.

     Third, we have begun work on developing a proposal to
authorize the use of other instruments to demonstrate compliance.
We expect to publish the proposal in approximately one year.

     Fourth, the Federal regulations allow both the state
assumption of this requirement (§§264.150 and 265.150) and the
use of state-required instruments (§§264.149 and 265.149), upon
meeting certain conditions.  You may wish to pursue this further.

     Finally, I urge you to consult with the appropriate
officials in Missouri, since the state has authorization to
administer these liability insurance regulations in lieu of the
EPA.

     With regard to your comment on the effect of a possible
listing of used oil as hazardous waste, we received many similar
comments on our November 29, 1985, proposed rule.  Although no
final determination has been made yet on this issue, these
comments will be fully considered and addressed before the
issuance of the final rule.

     I hope you find this information helpful.

                                             Sincerely,
                                             J. Winston Porter
                                             Assistant
Administrator
        This has been retyped from the original document.

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                                                         9477.1986(10)
            UNITED STATES ENVIRONMENTAL PROTECTION

                        WASHINGTON. O.C. *04fO
                           JUK25B85
MEMORANDUM


SUBJECT:  Union Carbide's March 1986 Financial Test
                   • •"" .  *^      1      J-X"
FROM:     Bruce WeddleT^Direc^ibr "**    *""*
          Permits and State Program* Division (WH-563)

TOs       Conrad Simon,  Director
          Air fc Waste Management Division (2AWM)


     I an responding to your May 2 memorandum concerning tne
Union Carbide financial test.  Your memo requests assistance
in determining whether the adjustments Union Carbide made are
consistent with the criteria of the Subpart H financial test.
Z recommend that you disallow Union Carbide's use of the
Financial test for five reasons.

     First, the firm fails the financial test because the
procedures used to compute the test ratio (sum of net income
plus depreciation, depletion and amortization (NIDDA) to total
liabilities) does not satisfy the procedures prescribed in the
Subpart h regulations.  Based on the information available to
us, if Union Carbide had followed those procedures, the firm
would not have passed.

     Second, the 0.1 cut-off value for the ratio of NIDDA to
total liabilities is premised on the RCRA definition of NIDDA;
incorporating other cash flow measures (e.g., fixed assets
write-offs) might invalidate the credibility of the cut-off
value as a predictor of firm viability.

     Third* the write-off of fixed assets is not equivalent to
asset depreciation (or depletion or amortisation) under generally
accepted accounting principles*

     Fourth* by adding back the value  of fixed asset write-offs
to MIDDA, Union Carbide allegedly "improves" the measure of cash
tlow by $€15 million.  However, as a result of reductions  in the
provision  for deferred taxee associated with the fixed asset
write-off, the net effect of the fixed asset write-off was
very likely a decrease in cash  flow in 1965.

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                              - 2 -


     Finally, data from Union Carbide's "Consolidated Statement
or Change* in Financial Position" reveals that using any one of
tnree measurements ot its casn tlow 10 tne casn xiow tu total
liabilities ratio of the financial test, wtll not provide the
tirm with a passing vaiue tor the ratio.

     Attached to tins memorandum ars copies of memos prepared by
icr, our consultants, which explain in greater detail -the rationale
cenind these tive reasons.

     In addition, although not strictly relevant to the question
ot acceptaomty ot union Carbide's financial test, I an concerned
aoout the amount ot some of the cost estimates listed in the
test.  l suspect closure cost estiji»tes that are listed as .$d,j7j
ana $4,&0« may not oe adequate.  Some ot the other estimates
aiso appear unusually low.  1 would suggest tnat an ^lans and
cost estimates oe reviewed for adequacy, if tnat has not y«t
oeen done.

     because Union Carbide owns or operates so many taciiities
across tne nation, l want to ensure that all Regions and States
with Union Carbide taciiities are aware of this issue.  I an
sending all Kegxonai Division Directors a copy ot your incoming
memorandum, my response, and a list, developed from their test
suomission and trom titwUMS data, ot their taciiities.  l appreciate
your cringing this matter to my attention.  It you have any
additional questions regarding this natter, please contact carol*
Ansneies on *'TS J82-4761.

Attachments

cct Hazardous Waste Division Directors, Regions I, III-X

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                                                             9477.1986(11)
          RCRA/SUPERFUND  HOTLINE MONTHLY

                            JUNE 86
3.  Financial Requirements/Closure Costs

    The regulations under 40 CFR 265.143(a)  apply to the use of  a trust
    fund as a financial assurance mechanism for closure of an interim
    status facility.  Section 265.143(a)(3)  requires the owner/operator
    to make annual payments into the fund throughout the "pay-in period."
    The "pay-in period" is defined as the 20-year period following July
    6, 1982 (the effective date of the regulation per 47 FR 15032) or
    the remaining operating life of the facility, whichever period is
    shorter.  An interim status facility with three surface impoundments
    has estimated different closure dates for each unit.  If the facility
    uses a trust fund for closure/financial assurance, how does it make
    adjustments in the pay-in period for the different closure dates?
    Do the new closure/financial assurance regulations, effective October
    29r 1986  (see the May 2, 1986 Federal Register)(51 FR 16422)), change
    these requirements?

         Assuming that the estimated closure dates fall before July 6,
         2002 for the units, the pay-in period for the facility would
         equal the pay-in period for the unit closing last.  Specifically,
         Section 265.143(a){3) states that the owner/operator must make
         payments  into the  trust fund "over the remaining operating life
         of  the facility as estimated in the closure plan...."  For

         example, if unit A closes in six years, unit B in eight years,
         and unit C in ten years, the pay-in period would be ten years.
         Closure of the first two impoundments would constitute partial
         closure, as defined in $260.10, so that the facility would
         continue operating until the last unit closed.  A definition
         of "final closure" was added to $260.10 by the May 2, 1986
         regulations.

         The new closure/financial assurance regulations published in
         the May 2, 1986 federal Register (51 FR 16422) do not directly
         affect the current pay-in period systsn.  EPA requested cements
         on the systan in the preamble to the proposed closure/financial
         assurance regulations published in the March 19, 1985 Federal
         Register (see 50 PR 11068).  Some comments suggested that the
         pay-in period should be as long as the shortest operating life
         of a unit at a multiple process facility.   EPA believes that
         the accelerated pay-in period may be cost-prohibitive for
         smaller facilities and discourage owners/operators fron conducting
         partial closures (51 FR 16438). " Presently,  EPA will maintain
         the existing pay-in period regulations and evaluate the situation
         further.

         Source:     Michael Northridge (202)  382-4790
         Research:   Jennifer Brock

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                                                           ,1986(12)

             UNITED STATES ENVIRONMENTAL PROTECTION A
                        JL
MEMORANDUM

SUBJECT:  LTV Bankruptcy

FROM:     Carole J. Ansheles, Chief
          Closure/Financial Responsibility Section (WH-563-A)

TO:       Addressees


     On July 17, 1986, LTV Corp. and nest of its sibsidiaries
filed for protection under Chapter 11 of the Bankruptcy Code.
In a Chapter 11 proceeding, the debtor generally rentains in
business during the bankruptcy action, retains his property, and
pays the creditors fron future earnings, in accordance with a
plan of rehabilitation approved by the court.  In a Chapter 11
proceeding, the debtor may be allowed to continue to operate the
business or a trustee may be appointed in the interest of the
creditors.

     The financial responsibility regulations require that an
owner or operator, or a guarantor of a corporate guarantee,
notify the Regional Administrator by certified nail of the
commencement of a proceeding under Title 11 (Bankruptcy), U.S.
Code, naming the owner or operator as debtor, within 10 days
after the commencement of the proceeding (see §§264.148(a) and
265.148(a)) Accordingly, LTV must notify appropriate officials
by July 27, 1986.

     Attached to this memorandum is a copy of information that
shows which facilities are owned by LTV or its subsidiaries,
according to our firm/facility data base.  Although it appears
that only Regions II, III, IV, V and VI have LTV facilities, I
am sending this to all Regional Subpart H contacts, in the event
this listing is incomplete (please notify ra» of such errors).
Many of the facilities are located in authorized states.

     I suggest that you watch for the required notification, and
in any case, ensure that  financial responsibility mechanisms for
the LTV facilities are in order.  Of course, the notices -for
facilities in authorized states are unlikely to be sent to you;
please c out act your counterparts in the those states.  I also
suggest that you inforjn your Regional Counsels of  this action, r
OSW developed a guidance document entitled  "Pursuing RCRA Subpart H
Interests in Bankruptcy Litigation*, dated  February, 1983, which
was provided to you at that time.

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                               -2-
     In a^aitioa, you nay 1* a*are that  the  General  Accounting
Office (GAC) recently publish*!  a  r*^>ort regarding the risks
pose-? by closing/closed  facilities  ("Hazardous  wa»tet  Environ-
nental Safeguards Jeopardised When Facilties Cease Operating',
February 1986, GAO/RCED-86-77).  As  pert of  the information
collection en<*. Analysis  that supported this  report,  CAO dewelope.
a list of RCP.A facilities ovned  or operated  ty  firm that hsvc
declared barkruptcy.  I  just receive* the attached neworarvlum
from XCF, %«tere thej- attested to  match  GAO«» iiat of facility
nanen with EPA identification mcibera*   Again,  please let no
know of any errora en the list.

     I will atter.pt to tracV: notices of  bankruptcies arv? provide
you with sintlar lists of facilities.  Call  c*  on FT=: 3i;2-47Cl
if ynu hav* artv questions or if  you  nee-i another copy of trie
gui. lance*

Attach nente
*tary Oos>>ee, Region  I
Lclia fr.ltzer, P.ecion  II
Pill Shr«r?, Peqion  III
J.F. f"inne\?, Pegion  IV
Dave Strinnhan,  Peaion V
Hill tfalla-lher,  region VI
^i*f« Wolfrar,, Pool or.- VI I
Carol Lee, Reoion, VI 11
P-honrfa Rothschilrt, IX
Chuck rice, ::
Jo« Freer! nan, CX?C
Ginny ??t«in*r, OVTE
Peott Parrish, c?l;Rn
Pan Sbar^ O£C.':
Mike Korthridge, or^'
Susan 3roran, O5VI

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              UNITED STATES ENVIRONMENTAL PROTECTION        9477.1986(13}
                         AUQUSt  IS,  19fc6
Mr. C.T. Hewlett, Jr.
Director, Government Affairs
Enviromnent, Health and Cheirleal Safety
Georaia-Paeific Corporation
International Square
1785 Eye Street, H.W.
Washington, D.C.  20006

Eear Mr. Hewletti

     I an responding to your  latter  of August  4,  1986, to
Mr. George Garland, since the Office of Solid  vteste has been
reorganized.  The specific  questions you  raised are addressee"-
belowt

OUrSTIOi.'i  Do these n«w provisions in  40  CFR Parts 2C4 am? 2££
autoiratically taV.e effect in California on Septenber 9, 1936?

     The corporate Guarantee  rule that appeared in the Federal
Register on July 11, 199C (51 FR 2535D) is an  interim final rule.
Cow-tents were requested fror. the regulated community on tno "for?."
of the guarantee.  If the Garments do not show a  need to modify
the rule, It will become effective for the Federal RCRA proqr;^
on Septenber 9, 198f>.  Compliance with any applicable California
State liability rcquirorients may also be  necessary; their regula-
tions may 

-------
                               - 2 -
their  rro-rra^s because  these  stand*re's,  or otiu letter', or: July 11,
19P6,  ar« consi.lere'*  to be l«e» stringent than the existinc;
F^^gral <*ar*i*4 r>«r.T««^ B -
QUFSTIQ-'t  Have you  also obtained  any response fron the California
Attorney General  about  the  legality of the approve! guaranty under
California's  insurance  law?

     As yat,  we have not received  sny response from either the
California or the Georgia (State of incorporation) State At torn d;-
General.

     I tnmt  that *iy answer1?  have  been helpfiJ..  If you have any
farther nuestions, please call Carlos Lago on (202) 332-47Gw.

                              Sincerely,
                              Carole J.  Anshel-s,  Chief
                              Closure/Financial Res pens ibilit/
                                Section  (WII-5G3A)
                              Pcrrits and State Programs Division
cct  Ceorrje Garlanr'

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              UNITED STATES EKYIRONMENTAL PROTECTION AGENC*
                                                          9477.1986(16)
                                 -4 1985
MEMORANDUM


SUBJECT!  Third-Party Letters of Credit, Convertible Bond*, and
          Subpart O Conference

FROMi     Carole J. Ansheles, Chief
          Closure/Financial Responsibility Section

TOi       Subpart H Contacts, Regions  I-X


     Ka have recently received questions and  researched the
following two subjects, which should be of interest to yous

(1) Third-Party Letter of Crediti  We  received  a question  fra/i
an individual who wanted to know if a  third party could obtain
a letter of credit for an owner or operator who raust comply vita
the Subpart H requirement*.  Our contractor,  ICF, looXed into tue
matter, and concluded that a letter of credit obtained by  a thitu
party on behalf of an ovner or operator would comply with  the
regulatory requirements of Subpart H if the language i* identical
to the language stipulated in 40 CFR $264.151(d).  OGC, CECii, OoPi.,
and OStf agr*e.  Attachment 1 explains  the reasoning behind the
response.

(2) Convertible Bonds*  We received *  question  concerning  whetncr
convertible bond rating* are acceptable for meeting financial test.
requirements.  Attachment 2 shove ICF's analysis.  They concludes
that a convertible bond issue should be acceptable in meeting
financial test requirements if it is rated investment grade by
either of the required rating agencies.

     Zn addition, the Subparta G and H conference, originally
scheduled fior this fall* has been postponed due to resource
problem*.  Me have not rescheduled yet, but will likely hold it
la the spring*

     Please pass this information on to year  State contacts.  Zf you
have any questions on these natters, call Deborah Wolpe at 382-7720.

Attachments

cci Joe Freeduwn
         e T«mi «ak

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                                                    9477.1987(01)


March 2, 1987


MEMORANDUM
SUBJECT:  Liability Requirements for Facilities Actively Seeking
          a RCRA Permit

FROM:     J. Winston Porter
          Assistant Administrator

TO:       Waste Management Division Directors
          Regions I - X


     As you know, before a treatment, storage, or disposal
facility is issued a RCRA permit, §270.14(b)(17) requires that
the facility demonstrate its ability to comply with the liability
coverage requirements of §264.147.

     We are aware that a number of facilities with Part B permit
applications currently undergoing review by EPA and the
authorized States do not have insurance coverage and cannot
otherwise demonstrate compliance with the §264.147 liability
coverage requirements.  The permit applicant's inability to
demonstrate compliance with this important financial
responsibility requirement is grounds for permit denial under
§270.10(e)(5).

     The constrained insurance market which currently exists
makes the §264.147 requirement difficult to meet.  We are
especially concerned about facilities that are actively seeking a
permit and can satisfactorily demonstrate compliance with the
other Part 264 regulations.  Some of these facilities face permit
denial solely because of the limited availability of insurance.

     As we agreed at the October, 1986 Division Director's
Meeting, we believe it is appropriate to grant such facilities
additional time prior to final action on the permit, to make
concerted efforts to secure insurance or provide an alternative
mechanism for lability coverage.  Six months is suggested as
sufficient extra time; however, facility-specific adjustments can
be made in order to be consistent with compliance orders issued
pursuant to the October 29, 1986, memorandum of "Enforcement of
Liability Requirements for Operating RCRA Treatment, Storage, and
Disposal Facilities."  Facilities that are close to either a
Notice of Intent to Deny  (NOID) or permit denial solely for
failure to meet the §264.147 liability coverage requirements
should be notified immediately that further permit processing
        This has been retyped from the original document.

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                               -2-

will be delayed for the duration of this final opportunity to
demonstrate compliance with §264.147.  Some of these facilities,
for instance, may be able to take advantage of the recently
promulgated corporate guarantee.  Others may now find it easier
to locate an insurer.  At the end of the additional period of
time, if the applicant still does not have an acceptable
financial instrument in place,  the permit is to be denied.

     It should be understood that approving an additional few
months for facilities to provide the necessary demonstration of
compliance with our §264.147 liability coverage regulations does
not justify delaying any land disposal facility's permit
issuance/denial beyond the November 8, 1988 deadline.

     To the extent facilities accorded this additional time are
approaching NOID or permit denial during the next few months, I
realize this policy may affect the Regions' abilities to meet
quarterly SPMS targets.  Regions should identify, on a facility-
specific basis, the permitting targets for the second and third
quarters of FY 1987 that will be missed due to the exercise of
this policy.  The revised schedules for draft and/or final permit
determinations should also be provided.  This information should
be submitted in writing to Susan Bromm, Acting Director, Permits
and State Programs Division, by March 30, 1987.  The Office of
Solid Waste (OSW) will use this information in the quarterly SPMS
briefings for me and the Deputy Administrator.  In this way,
managers at both the Regional and national level will continue to
focus on the liability coverage issue and the utility of this
policy.

     In addition to the near-term SPMS reporting information,
OSWER also needs to be able to accurately characterize the
problems that operating hazardous waste facilities are facing in
regard to insurance for liability coverage.  Whereas OSWER has
previously relied upon informally-gathered or anecdotal
information, it has become increasingly important for OSWER to
have more facts about the magnitude of the problem.  I am,
therefore, asking for an overall list of the land disposal
facilities in your Region that are currently seeking an operating
permit but are not in compliance with §264.147.  Among these, you
should identify the facilities which, in the judgment of the
Region, will not qualify for a RCRA permit due solely to their
lack of liability coverage.  This information should be submitted
to Susan Bromm no later than March 17, 1987.
        This has been retyped from the original document.

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                               -3-

     Please contact Matt Hale (FTS 382-4740} or Elizabeth
Cotsworth (FTS 382-4746) if there are questions regarding this
policy or the information being requested from each of you.

cc:  Susan Bromm
     Jim Michael
     Kim Ogden
     Susan Absher
     Thad Juszczak
     Jackie Terusak
     Sue Gladek
     Elizabeth Cotsworth
     Matt Hale
     Permit Section Chiefs, Regions I-X
     RCRA Branch Chiefs, Regions I-X
        This has been retyped from the original document.

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                                                          9477.1987(03}
           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON. O.C. 20460

                          APR I   |987
                                                           or
                                              •OtIO WASTf AMD f MCHQENCV RESPONSE


Honorable Robert Dole
United States Senator
636 Minnesota Avenue
Kansas City, Kansas  66101

Dear Senator Doles

     Thank you for your letter of March 6, 1987, concerning
the comments of your constituent, Mr. Gregory Shondell,
Secretary Treasurer of Heathwood Oil Company.  Mr.  Shondell,
had written to you expressing concerns with hazardous waste
financial responsibility regulations under the Resource
Conservation and Recovery Act (RCRA).

     A particular concern of Mr. Shondell with respect to his
parts cleaning business, is the reluctance of his insurance
company, Federated Insurance, to provide either a Hazardous
Waste Facility Liability Endorsement or a Certificate of
Liability Insurance to the Kansas Department of Health and
Environment (KDHE).  Either of these documents, if submitted,
is sufficient to indicate Heathwood Oil Company's compliance
with RCRA liability coverage requirements.  The Endorsement
and the Certificate were developed specifically to ease
compliance with the RCRA liability coverage requirements.
Insurance companies can rely on the standard language of the
Endorsement or Certificate rather than having to assure that
the language of individual policies meet the requlatory
requirements*  At the same time, for regulatory and enforce-
ment authorities who must evaluate facility compliance with
various design, operating and performance requirements,
compliance with the liability coverage can be easily verified.
We are not aware of any insurance company's reluctance to
provide the Endorsement or Certificate when the policies
being issued fully comply with the RCRA liability coverage
requirements*

     As stated above, authority for the RCRA program currently
belongs to the State of Kansas.  Under Section 3006 of RCRA,
EPA may authorize qualified States to administer and enforce
their own hazardous waste programs.  Kansas has been authorized
since 1985.  As such, Kansas imposes regulatory requirements
that are equivalent or more stringent than those of the
Federal RCRA program.  As part of its authorized hazardous
waste program, Kansas relies on receipt of the Endorsement or
Certificate as the mechanism for indicating compliance with
its liability coverage regulations.

-------
     We understand that Mr. Shondell'» situation is currently
under review by the KDHE.  A meeting was held between KDHE
officials, Mr. Shondell, and Federated Insurance representatives
to review possible deficiencies in the coverage provided and
suggest changes that nay bring Heathwood Oil Company back
into compliance with Kansas regulations.  A final decision
is pending.

     There is a concern on the part of KDHE that one existing
policy for Heathwood Oil Coapany does not cover all its
hazardous waste operations.  Our financial responsibility
expert, Mr. Mike Wolfram (913-236-2800) in EPA's Region VII
office, is also reviewing the Federated Insurance policy and
will be available to participate with KDHE officials and
Mr. Shondell's insurance company representatives to discuss
the policy in question.

     Mr. Shondell also commented on the difficulty of securing
liability insurance.  The EPA is aware of the constrained
environmental liability insurance market and is sensitive
to the problem for owners and operators of hazardous waste
management facilities seeking to comply with RCRA.  Enclosed
for Mr. Shondell's information is a list of companies that
offer Environmental Impairment Liability (EIL) Insurance.

     There are changes taking place in the insurance market-
place that are favorable to the regulated community.  For
instance, Business Insurance, the trade publication of the
insurance industry, reported in its December 8, 1986, issue
that the two major vendors for EIL insurance are looking to
expand the volume of EIL business they write.  In addition,
risk retention groups are being formed to offer EIL coverage.
The Agency has also made efforts to offer relief to RCRA
facilities unable to secure insurance.  On July 11, 1986,
EPA promulgated a rule allowing an alternative instrument,
the parent corporate guarantee, to be used to demonstrate
financial assurance for liability coverage.  The Agency is
also developing another rule that will authorize more instruments
for providing liability coverage and will also amend current
insurance requirements that may be limiting the availability
of insurance) coverage to hazardous waste facilities.

     I hop* this information on Mr. Shondell's situation and
on liability insurance is useful.  If I can be of any further
assistance* please let me know.

                              Sincerely,
                                 Winston Porter
                            V \Msistant Administrator
Enclosure

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                                                           9477-1987(05>
                RCRA/SUPERFUND HOTLINE  MONTHLY SUMMARY

                                  JUNE  87
7.  Liability Requirements of Subsidiaries
    EPA requires that all hazardous waste firms corply with the RCRA
    third party liability requirements.  Besides insurance, compliance can
    be obtained through  the use of the  financial test for  liability and
    the corporate guarantee for liability.  A hazardous waste company has
    six different subsidiary  firms.  This parent corporation has met the
    requirements of the  financial test.  Can all six subsidiaries obtain
    a corporate guarantee from the parent corporation?

      btothing in the regulation prevents the parent from using the
      corporate guarantee for more than one sub-contractor.  But, the
      required multiples for  the financial test must be based on a true
      aggregate of liability  guaranteed.
    Source:     Carlos Lago    (202) 382-4780
    Research:   Georga Kleevic

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                                                         9477.1987(09)
         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                     WASHINGTON, D.C. 204CO
                                                     Off 1C* Of
                                            •OLID WASTE AND EMlftOENCY RESPONSE
Harry Shuford
Environmental Protection  Insurance Company
220 E. 42nd Street, Suite 500
New York, NY  10017

Dear Mr. Shuford:

     I am writing you,  at Robert  F.  Schiff's  request,  in
response to Mr. schiff»s  letter of November 2,  1987 to the EPA
Office of Solid Haste.  In his inquiry, Mr. Schiff sought our
view of whether the Resource Conservation and Recovery Act
(RCRA) requirements that  hazardous waste  management facilities
demonstrate financial assurance for  liability can be  satisfied
by a policy issued by a risk retention group.

     The RCRA regulations at 40 CFR  Subpart H require, in part,
that to satisfy the financial assurance requirements,  an
insurance  policy must  be issued  by  an insurer  licensed to
transact business in one  or  more  states.   (40 CFR 264.147(a)
UXii), (bHlHii) and 26S.l47(a) (1) (ii),  (bMlHii)).  A risk
retention group which meets  the requirements  of the Risk
Retention Act of 1986 and which is  licensed to  transact the
business of insurance  in  at  least one state would satisfy this
regulatory requirement.  Your  letter indicates  that the
Environmental Protection  Insurance  Company  (EPIC) has met these
conditions. Accordingly,  policies issued  by EPIC in conformance
with all other requirements  of Subpart H  could  be used to
satisfy the Federal RCRA  requirements for liability coverage, or
the requirements of an  authorized state that  adopted  the  Federal
regulatory language.

     I.should add, however,  that  compliance with Federal
requirements nay not be sufficient  to fulfill state
requirements.  State RCRA requirements may be more  stringent
than the Federal requirements.  In states authorized  to

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administer the RCRA program, therefore, state regulations must
l>e examined to determine whether your specific mechanism
satisfies the RCRA financial assurance requirements and is
otherwise consistent with state law.
                                   Sincerely,
                                   Bruce R. Weddle
                                   Director
                                   Permits and State Division
cc:  Robert F. schiff
     RCRA Waste Management Division Directors, Region I-X

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                                                    9477.1987(10)
November 10, 1987

Honorable Nancy Johnson
House of Representatives
Washington, D.C.  20515

Dear Ms. Johnson:

     In my letter to you of March 19, 1987, I indicated that the
Office of Solid Waste was attempting to identify how many land
disposal facilities subject to the 1988 permitting deadline were
unable to meet the RCRA liability coverage requirements and,
among these, how many faced permit denial solely because of this
non-compliance.

     I am happy to be able to share the results of our inquiry
with you.  Information from our Regions indicates that the number
of existing land disposal facilities out of compliance with the
RCRA liability coverage requirement  (40 CFR Part 264.147) for
facilities totals no more than 19 and may, in fact, be as few as
13.  Unfortunately, difficulties in clearly separating liability
coverage violations from non-compliance with other RCRA financial
responsibility regulations prevents me from being more precise.

     In regard to the number of land disposal facilities for
which liability coverage is the only impediment to permit
issuance, according to the best judgment of our Regional experts,
only one facility falls into this category.  The remaining 12-18
facilities are either unable to comply with other RCRA permit
requirements or else are expected to decide to close instead of
pursuing an operating RCRA permit.

     This information is good news to me and, I hope, also to
you.  The results indicate that most land disposal facilities
actively seeking a RCRA operating permit at this time have made
concerted efforts to acquire insurance or otherwise demonstrate
their ability to provide coverage for third-party liability.
EPA's Regional offices, the States,  and my own office continue to
work with the non-complying RCRA facilities to secure the
necessary liability coverage to comply with current regulations.

     In our meeting of late March, you also inquired as to the
mechanisms that facilities rely on for demonstrating liability
coverage.  Although not all of our Regions have been able to
provide us this information yet, I can share some illustrative
information.  Region I, for instance, reported that six out of
eight existing land disposal facilities seeking a RCRA permit use
the financial test to comply with §264.147 liability coverage
requirements; the remaining two facilities use insurance
policies.   In another EPA region, almost half  (47%) rely upon the
        This has been retyped from  the original document.

-------
                               -2-

financial test while the rest are either insurance (43%) or the
corporate guarantee (10%), which became effective as a liability
coverage instrument in September 1986.  I will forward a more
complete tabulation of this information as soon as it is
available.

     Please feel free to contact me if I can provide further
information on this issue.

                              Sincerely,
                             J. Winston Porter
                             Assistant Administrator

Enclosure
        This has been retyped from the original document.

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                                                              9477.1987(11)
      ,        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                          WASHINGTON. D.C. 20460

*\ «»oii0
                                                          OFFICE OF
                                                 SOLID WASTE AND EMERGENCY RESPONSE

     Richard Grain,  Vice President
     R&D Fabricating &  Manufacturing,  Inc.
     Box 31225
     Lafayette,  LA  70503

     Dear Mr. Grain,

        Thank you for consenting  to participate in a pre-test of
     a questionnaire developed by the  Environmental Protection
     Agency (EPA) for the purposes  of  gathering information on
     difficulties associated with third-party liability coverage
     requirements of the Resource Conservation and Recovery Act
     (RCRA).  The RCRA  liability  coverage requirements, contained
     in 40 CFR  Parts 264.147 and  265.147, are briefly described
     below.

        The enclosed questionnaire  is  intended to help EPA better
     understand the  problems that owners and operators of
     hazardous  waste treatment, storage, and disposal facilities
     have encountered in obtaining  liability coverage, in
     particular through insurance,  to  meet the current RCRA
     requirements.  The information will provide EPA with a
     factual basis for  determining  necessary modifications to
     regulatory requirements and  policies.   Responses to our
     questions  will  not be used for enforcement purposes.  Your
     participation in our pre-test, along with that of several
     other hazardous waste management  facilities or firms, will
     enable EPA to determine whether our questions are clear and
     understandable, arid also whether  our instructions provide
     helpful guidance.   Because of  your willingness to
     participate in this pre-test,  you will not be required to
     respond to the final questionnaire.

        Currently, RCRA financial responsibility regulations in
     40 CFR Parts 264.147 and 265.147  (§§264.147 and 265.147)
     require owners or  operators  of hazardous waste treatment,
     storage, and disposal facilities  to provide liability
     coverage for third-party bodily injury and property damage
     by sudden  accidents arising  from facility operations. The
     RCRA regulations also require owners or operators of most
     types of hazardous waste land disposal facilities to
     maintain third-party liability coverage for bodily injury
     and property damage due to nonsudden accidents.  The
     respective coverage levels for sudden and nonsudden

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accidents must be at least Si million and $3 million per
occurrence, with annual aggregates of at least $2 million
and $6 million, exclusive of legal costs.  These
requirements apply to owners and operators of interim status
(§265.147) and permitted (§264.147) facilities or groups of
facilities.

   Financial instruments that can be used to provide
third-party liability coverage are also specified in the
264.147 and 265.147 regulations.  Insurance and a financial
test were initially included as allowable instruments for
liability coverage.  In July, 1986, in response to
difficulties that hazardous waste management facilities
experienced in obtaining liability insurance, EPA authorized
the corporate guarantee as an additional financial
instument.  We intend to further amend the regulations to
allow other instruments to be used to demonstrate compliance
with the RCRA liability coverage requirements.

   EPA has authorized most States to administer their own
hazardous waste programs in lieu of the federal RCRA  •
program.  While the liability coverage requirements of
authorized States may differ from the federal requirements
of §§264.147 and 265.147, they must be at least as
stringent.  Since your facility is located in an authorized
State, please base your responses to our questions on your
State's liability coverage regulations.

   You should answer all questions contained in the enclosed
questionnaire that are applicable to your facility or the
group of facilities owned or operated by your firm.  If a
response to a question requires more space than is provided
please use the back of the questionnaire or attach a
separate sheet of paper.  Please feel free to consult with
your insurance agent or broker, if necessary, to respond to
any of the questions.

   As a pre-test participant, any comments that you may have
regarding rephrasing either the questions or the
instructions for further clarity are welcome.  We encourage
you to note, on the questionnaire itself or on a separate
piece of paper, any additional instructions that might be
useful, or any particular difficulty you encountered  in
answering our proposed questions.  Your estimate of the
amount of time needed to respond, including preparation and
research time, would also be helpful to EPA in estimating
the burden that our inquiry places upon owners/operators.
At any time as you read through the questions or answer
them, you should feel free to contact Elizabeth Cotsworth at
202-382-4746 to discuss the purpose of the question, EPA's
expectations regarding the form or content of an answer, or
to provide general comments directly to us.

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                          -3-
   Upon completion of the questionnaire,  please return it  in
the enclosed envelope, along with any written comments,  to:

      Elizabeth Cotsworth
      Office of Solid Waste, WH-563
      U.S. Environmental Protection Agency
      401 M street, S.W.
      Washington, B.C.  20460

   We are requesting this information under authority of
Section 3007 of RCRA.  Information obtained under RCRA
Section 3007 must be made available to the public unless you
demonstrate to EPA that it is confidential.  The treatment
of confidential business information is provided for by
Section 3007(b) of RCRA and regulations contained in 40 CFR
Part 2.

   We look forward to your response to our pre-test.  We
expect it to provide EPA with useful information for
finalizing our questionnaire.

                               Sincerely,
                               Marcia Williams
                               Director
                               Office of Solid Waste

Enclosure

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                                                    9477.1987(12)
              RCRA/SUPERFOND HOTLINE MONTHLY SUMMARY

                           NOVEMBER 87
3.    Financial Assurance

     Corporation A owns 100% of the voting shares of corporation
     B.  Corporation B owns over 50% of the voting shares of
     corporation C.  Can corporation A fulfill the requirements
     as a parent company of corporation C for the purpose of
     financial assurance, via corporate guarantee as required in
     Sections 264.143, 264.145, 265.143 and 265.145?

          In this situation corporation A is a "grandparent"
          corporation which indirectly owns over 50% of the
          voting shares of corporation C.  Corporation A does not
          fulfill the definition of a parent corporation stated
          in Section 264.141(d) (see April 7, 1982 Federal
          Register, 47 FR 15037) as:  "A corporation which
          directly owns at least 50% of the voting stock of the
          corporation which is the facility owner or operator;
          the latter corporation which is deemed a ••subsidiary"
          of the parent corporation."

          The Agency adopted this definition to ensure that the
          connection between the two firms will be close and
          direct, and the parent company is likely to have a
          strong interest in the satisfactory performance of the
          subsidiary.

          Since corporation A is not a parent corporation, it may
          not be used to demonstrate financial assurance via a
          corporate guarantee for corporation C.

     Source:    Carlos Lago   (202) 382-4780
     Research:  Craig Campbell
        This has been retyped from the original document.

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                                                         9477.1988(01)
              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C. 20460
,
««
                                                          OFFICE OF
 FEB 25 IQRR                                       SOLID WASTE AND EMERGENCY RESPONSE
 MEMORANDUM

 SUBJECT:  OSWER Directive  No.  9477.00-6  Guidance for Reviewing
          Exclusions  for Pre-Existing Conditions in RCRA TSDF
          Insurance Policies

 FROM:     Jeffery D.  Denit, Acting Directok
          Office of Solid  Waste (WH-562)

 TO:       Robert L. Duprey, Director
          Hazardous Kaste  Management Division, Region-VIII


      This memorandum  is in response to your memorandum dated
 January 22,  1988 regarding OSWE."i Directive No. 9477.00-6 and
 Subpart H liability  insurance coverage.

      The guidance  ii!  this  Directive, "Reviewing Exclusions for
 Pre-Existing Conditions in RCRA TSDF Insurance Policies," was
 developed because  the Regions differed in their willingness to
 accept policies  that  contained pollution exclusions.  The
 guidance is  based  on  the Agency's interpretation of the existing
 Subpart H regulations.  Since the insurance certificate or
 endorsement  is a statement that the policy fulfills the
 "insured»s obligations to demonstrate financial responsibility
 under 264/265.147"  such certificates or endorsements should
 provide evidence that the issued policies do not contain
 unacceptable exclusions.

      As pointed  out in the guidance, you may continue to rely
 upon the insurance certificate and the  insurance endorsement
 required by  Subpart H regulations to ensure that insurance
 mandated by  RCRA is in place.  As part  of your oversight, role,
 however, the guidance suggests that you routinely  review the
 pollution exclusions endorsements to policies.  Directive No.
 9477.00-6 should provide adequate guidance in reviewing these
 contract endorsements.  If problems or  questions do arise,
 please do not hesitate to contact either OSW or OWPE for
 assistance.   OSW and OWPE are also currently ascertaining
 whether the  Agency has funds to retain  a contractor to assist  in
 the review of insurance policies.  If the  project  is undertaken,

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                               -2-
the task for the contractor would most likely entail an analysis
of one "form" contract from each of the companies issuing
liability insurance to RCRA TSDFs.

     In reference to your last point concerning the expansion of
liability insurance coverage for nonsudden events to all TSDFs,
there are currently no plans to revise the regulations.  In
developing the distinction between sudden and nonsudden
coverage, EPA relied on evidence contained in case histories
concerning damages associated with waste facilities.  As a
result of this analysis the Agency determined that storage and
treatment facilities were more likely to experience a sudden,
rather than nonsudden accident.  We believe that this
distinction is still appropriate; however, the regulations are
quite flexible.  If a Regional Administrator or State determines
there is a significant risk to human health and the environment
from nonsudden accidents at a treatment or storage facility,
such coverage may be required  (264/265.147(d)).

     Should your staff have further questions concerning these
issues, they may contact Mark Pollins at FTS 382-4780.

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                                                                  9477.1988(03}
               RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY

                                 JULY 88
1. Tank Replacement

  A permitted storage facility has several above-ground storage tanks that are
  managed in compliance with Subpart J of 40 CFR 264.  If the owner/operator
  replaces one of the tanks, would  he be subject to any closure requirements?
  Would it make any difference if it were a facility with only one tank?

    Section 264.112(d)  requires notification of  partial closure for surface
    impoundments, waste piles, land treatment units and landfills.  This same
    section  requires notification regarding treatment, tank storage,  container
    storage or incinerator facilities only in the case of final closure.  Replacement
    of a storage tank would not constitute final closure per Section 264.197, and
    partial closure is not applicable to a storage tank facility per Section 264.112(d).
    While not specifically required, the owner/operator  should decontaminate
    the  removed equipment and notify the state or region of the change.
    However, equipment that  is not decontaminated  must be managed  as a
    hazardous waste.

  Source:       Bill Kline         (202)382-7924
                Chester Oszman   (202) 382-4499
  Research:      Laurie Huber

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                                                 9477.1988(34)
             RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                             OCTOBER 88
2.  Financial Assurance

Three  treatment, storage and  disposal  facilities  (TSDFs)  are  wholly owned
subsidiaries of one company.  The three facilities need financial coverage for
nonsudden accidental occurrences:  $3 million per occurrence  and $6 million
annual aggregate.  Must the parent company provide the $3 million/$6 million
for each facility (a cumulative of $9 million/$18 million) or can all of  the
facilities be covered by the $3 million/$6 million?

   An  owner or operator of a hazardous waste treatment storage, or disposal
   facility, or a group of such facilities must demonstrate liability coverage in the
   amounts of $3  million per  occurrence and $6 million  aggregate  (40 CFR
   Section 264.147(b)). As explained in the April 16,1982 Federal  Register (47 FE
   16544), liability coverage is required on an owner or operator basis rather than
   a facility basis. The annual aggregate coverage requirement takes into account
   the  risk of multiple occurrences among facilities owned by one company (47
   FR 16546).  Therefore, the company that owns three  TSDFs as subsidiaries is
   only required to have $3  million/$6 million nonsudden accidental coverage,
   not  $9 million/Si8 million.

Source:        Mark Pollins       (202) 382-4780
Research:      Renee Pannebaker

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                                                9477.1988(05)



             RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                            NOVEMBER 88



1.  Adjustment of Post-Closure Trust Funds Used fpr Financial Assurance

A  TSD facility has been in post-closure care  for one year.  The facility owner or
operator had established a post-closure trust fund to meet their financial
assurance obligations. Can the facility owner or operator remove from the trust
fund the amount which exceeds the remaining cost of post-closure care?

   According to Section 264.145(a)(10)/ during the period of post-closure care, the
   Regional Administrator (RA) may approve a release of funds if the owner or
   operator demonstrates to the RA that the value of the trust fund exceeds the
   remaining cost of post-closure care. Therefore, the facility owner or operator
   must receive approval for the release of  excess funds from the RA, prior to
   removing that amount from the trust fund.

Source:        Mark Pollins      (202) 382-6259
Research:      Kim  Jennings

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                                                              9477.1988(06)
      RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION
                            DECEMBER  1988
3. Financial Assurance

Company X is identified on a RCRA Subtitle C permit or permit application as
owning three treatment, storage and disposal facilities  (TSDFs). These facilities
are  operated by wholly-owned subsidiaries of Cotrpany X.  "The three
facilities need financial coverage for nonsudden accidental occurrences:   $3
million per occurrence and $6 million annual aggregate.  Must the parent
company provide the $3 million/$6 million for each facility (a cumulative of $9
million/$18 million) or can all of the facilities be covered by the $3 million/$6
million?

   An owner or operator of a hazardous waste treatment, storage or disposal
   facility, or a group of such facilities must demonstrate liability coverage in the
   amounts of $3 million per occurrence and $6 million aggregate (40 CFR
   Section 264.147(b)).  As explamed in the April 16,1982, F_gQ*ejal Register (47 £R
   16544), liability coverage is required on an owner or operator basis rather than
   a facility basis. The annual aggregate coverage requirement takes into account
   the risk of multiple occurrences among facilities owned by one company (47
   FR 16546).  So, the company that owns three TSDFs as subsidiaries is only
   required to have $3 milIion/$6 million nonsudden  accidental coverage, not
   $9 million/$18 million.

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                                                       9477.1989(01)

            UNITED STATIS ENV1BONMCMTAL PROTECTION ACEMCY
MEMOPAMPttf

SUBJECT:  Acceptable Bond Ratings for Use in Subtitle c
          Financial Test

FROM:     Joseph S. Carra, Director
          Permits and state Programs Division

TO:       RCRA Branch Chiefs, Regions I - X


     We have recently received specific inquiries concerning
whether certain types of bond ratings meet the conditions
required by the bond rating alternative of the Subtitle C
financial test.  40 CFR SS264/265.143(f), 264.145.  Specifically, whether a BBB-
rating from Standard and Poor's  (S&P) or a Baad rating from
Moody's satisfies the minimum ratings required by regulation.
In brief, these ratings can be used to satisfy the bond rating
alternative of the financial test.

     Regulations relating to the bond rating alternative of the
financial test specify that the owner or operator must have a
bond rating "of AAA, AA, A, or BBS as issued by Standard and
Poor's or Aaa, Aa, A, or Baa as  issued by Moody's."  At the time
these regulations were promulgated, S&P had not yet begun the
practice of adding a "+" or "-" suffix to bond ratings, and
Moody's had not yet begun adding a "l", "2", or "3" suffix.  The
bond rating suffix indicates the relative standing of a bond
within a major rating category.  In other words, a BBB- bond has
a lower relative standing than a BBB bond or a BBB+ bond, but
all three bonds fall within the major rating category of BBB
bonds.  The BBB- bond would have been rated as a BBB bond prior
to the time when S&P began adding a rating suffix.  Similarly, a
bond rated Baa3 by Moody's would have been rated Baa prior to
the time when Moody»s began adding the rating suffix.
     In sunary, pursuant  to current  regulations,  a Moody's
rating of.Baa3 or better,  or a S&P  rating of BBB-  or  better
satisfiea^the legal requirements  of the  financial  test.  We note
that revisions to the financial test  are currently being
considered.  The question  of bond ratings will be  fully
re-examined during this  effort.

     If you have any questions, please call Mark Pollins on FTS
382-6259.

cc:  RCRA Hotline
     Regional Subpart H  contacts

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                                              PINK FILE COPY

                                                     9477.1990(01')
 JAN  2 5 1990                                                            8
                                                                       §
MEMORANDUM
                                                                       CD
                                                                       o
                                                                       a\
SUBJECT:  Clarification of 40 CFR § 264.147(a) (7) ,  (b) (7) ,
          and § 265.147(a) (7),  (b) (7)                                  tf
                                                                       ui
FROM:     Sylvia K. Lowrance, Director                                 £J
          Office of Solid Waste,  (OS-300)                              ^
                                                                       to
TO:       RCRA Branch Chiefs, Regions I-X                              g
                                                                       »"•
                                                                       £
                                                                       O
     This memorandum clarifies  the regulations at 40 CFR               5
§§264.147(a) (7), (b) (7) and 265.147 (a) (7) , (b) (7) , which require       "g
an owner or operator of a hazardous waste treatment, storage, or       n
disposal facility  (TSDF) to report to the Agency claims for            £
bodily  injury or property damage that result from operation of         o
the facility.  We  believe this  clarification is necessary because      -T
the Agency has been asked what  types of  information owners and         ^
operators must report to comply with those provisions.                 H-
                                                                       a
     The reporting requirement  in those  sections was promulgated       o
as part of a rulemaking related to liability coverage  on               HJ
September 1, 1988  and became effective on October 3, 1988.  Those      5
sections state that owners or operators  must notify the Regional       *
Administrator in writing within 30 days  (i) whenever a claim  for       H
bodily  injury or property damages caused by the operation of  a         z
TSDF facility is made against the owner  or operator or an              J?
instrument providing financial  assurance for liability coverage       ^
under this section, and  (ii) whenever the amount of financial          H,
assurance for liability coverage under this section provided  by a      ^
financial instrument authorized by this  rule is reduced.  We  have       *•
been asked to define the extent of the first requirement, that          »
is, the meaning of the language,  "whenever a claim  ... is made."        *°

     The purpose of the notification requirement is to provide
the Agency with early warning of  potential instrument  failure due
to pending claims  and to provide  the Agency with data  concerning
the incidence of valid third-party claims.  To achieve these

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goals the Agency envisions that TSDF facilities will report to
the Regional Administrator whenever:

     1)   a claim results in a reduction in the amount of
          financial assurance for liability coverage
          provided by an authorized financial instrument, or

     2)   a certification of a valid claim for bodily injury
          or property damages caused by a sudden or non-
          sudden accidental occurrence arising from the
          operation of a hazardous waste treatment, storage,
          or disposal facility is entered into between the
          owner or operator and a third-party claimant for
          liability coverage, or

     3)   a final court order establishing a judgment for
          bodily injury or property damage caused by a
          sudden or non-sudden accidental occurrence arising
          from the operation of a hazardous waste treatment,
          storage or disposal facility is issued against the
          owner or operator or an instrument providing
          financial assurance for liability coverage.

     The regulation is not intended to require owners or
operators to report all types of claims that potentially could be
filed against a facility.  Section 264.151, a related provision
promulgated in the same rulemaking, authorizes the payment of
funds from the financial instruments only for valid third-party
claims and expressly excludes payment for certain categories of
damages or obligations such as claims under worker's compensation
law or resulting from automobile accidents involving vehicles
owned by the facility.  Similarly, the Agency intended to require
owners or operators to report only valid claims to the Regional
Administrator.

     The Agency did not intend that the reporting requirement
extend beyond the three situations listed above and plans to
clarify the regulatory language in the near future.  This
memorandum interprets the provision, as it stands pending formal
clarification in the Federal Register.  It should be noted that
the Agency is clarifying this provision in the interim through
use of a memorandum because of the particular circumstances of
this case.

     If you have any questions about this issue, please contact
Barbara Foster at 382-4696.

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                                                        9477.1990(025
*
                UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                           WASHINGTON, D.C. 204SO
                                                            OFFICE OF
                                                    SOLID WASTE AND EMERGENCY RESPONSE
 MEMORANDUM

 SUBJECT:   Post-Closure Notices

 FROM:      Sylvia K.  Lowrance,  Oirector
            Office of Solid Waste  (OS-300)

 TO:        Robert L.  Duprey,  Director
            Hazardous Waste Management Division (8HWM-RM)

      This  responds to your memorandum dated 26 March 1990,  in
 which you  requested modification of the RCRA regulations
 regarding  release of owners  and  operators from financial
 responsibility requirements.  You expressed concern that owners
 and operators do not comply  with the deed notification
 requirements of the regulations, and that because such a deed
 notation has a negative effect on the value of the property,
 there is a strong incentive  for  them not to comply.  You
 suggested  that the regulations should explicitly require such
 compliance with the deed notice  requirements as a condition for
 release from financial responsibility requirements.

      As you discussed in your memorandum, sections 264.119  and
 265.119 require owners and operators to record notations on the
 property deeds within 60 days of certifying closure.  The deed
 notification must specify that:   (a) the land has been used to
 manage hazardous waste, (b)  use  of the  land is restricted under
 40 CFR Subpart G regulations,  and (c) a record of the hazardous
 wastes disposed of on the site has been submitted to the local
 zoning authority.  At the same time, sections 264.143(i) and
 265.143(h) require the Regional  Administrator to release owners
 and operators from financial assurance  requirements within 60
 days of receiving certification  that final closure has been
 completed  in accordance with the approved closure plan.   The
 certifications mentioned in  sections 264.143(i) and 265.143(h)
 are those  in sections 264.115 and 265.115.  Thus, there is no
 explicit language stating that release  from financial assurance
 requirements is conditioned  upon a demonstration that the owner
 or operator has fully complied with the requirements of sections
 264.119 and 265.119.

      We plan to amend the regulations to clarify that release of
 financial  assurance is conditioned on full compliance with
 sections 264.119 and 265.119 in the next available rulemaking
 vehicle.   Although enforcement is an available option to obtain
 compliance with sections 264.119 and 265.119, we encourage you to
 incorporate the requirements of sections 264.119 and 265.119 into

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closure plans to avoid the need for such enforcement action.
This will ensure that compliance with those sections will be
complete before the release from financial responsibility.

     If you have any questions or comments regarding this
memorandum, please feel free to contact Ed Coe at FTS 382-6259.

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C. 20460
                                                      9477.1993(01)
                                                       C?£ICE Or
                                              SOLID WASTE AMD FS-'CRGENCV RCSPONS.V

Mr. Doug MacMillan, Director
National Solid Waste Management Association
Suite 100
1730 Rhode Island Avenue, NW
Washington, DC  20036

Dear Mr, MacHillan:

     This responds to a question raised in your letter of May  16,
1993, regarding the potential liability of disposal  facilities
for disposing of contaminated debris that they believe to be
within the scope of the May 8, 1993 extension, but in fact  is  not
(e.g., because the generator failed to file the required report,
or failed to make a good faith effort to locate treatment
capacity).  This issue is not unique to the debris extension;  it
can arise under a variety of RCRA requirements (e.g., testing  and
recordkeeping) that are to be carried out by the  generator,  in
such cases/ it has consistently been EPA's position  that the
disposal facility remains responsible for ensuring that
restricted wastes are not disposed except in full compliance with
all applicable treatment standards.  See 51 Fed.  Reg. 40597  (Nov.
7, 1986).  A rule of strict liability applies under  RCRA, so that
a disposal facility can be liable for improper disposal  of
untreated waste even if it does so in the good faith belief that
the treatment standard does not apply.  As noted  above,  this is
no different from the regime under which disposal facilities
operate generally as to other RCRA requirements.

     Disposal facilities should use their own judgment on how
best to minimize their risk of liability in such  situations:
obvious possibilities include requiring a copy of the national
case-by-case report filed by the generator with EPA.  In
addition, as EPA has previously noted, generators and disposers
may enter into indemnification agreements to allocate liability
between them in the event that prohibited wastes  are land
disposed (see 51 Fed. Reg. 40597).  Finally, I note  that while
good faith efforts to comply are not a defense to liability, they
may be considered in the assessment of penalties  under EPA's 1990
civil penalty policy.

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     If you have further questions, please feel free to contact
Les Otte at (703) 308-8480 of this office.

                                   Sincerely,
                                   Jeff Denit
                                   Acting Director
                                   Office of Solid Waste
cc:  Matthew Straus, WMD
     Mike Taimi, WMD
     Les Otte, ALDRS
     George Wyeth, OGC
     Jim Thompson, OWPE

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C. 20460
 '"">"
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     If you have further questions,  please feel free to contact
Lea Otte at (703) 308-8480 of this office.

                                   Sincerely,
                                   Jeff Oenit
                                   Acting Director
                                   Office of Solid Waste
cc:  Matthew Straus, WMD
     Mike Taimi, WMD
     Lee Ott«, ALDRS
     George Wyeth, OGC
     Jim Thompson, OWPE

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C. 20460
                                                      9477.1994(01)
                                                          OFFICE OF
                                                     SOLO WASTE AND EMERGENCY
                                                          RESPONSE
Mr. Torger Dahl
Environmental, Health, and Safety Legal Staff
Eastman Kodak Company
343 State Street
Rochester, New York 14650-0207

Dear Mr. Dahl:

     Thank you for your letter to Matthew Hale,  dated March 3,
1994 regarding a recent statement issued by the  Financial
Accounting Standards Board  (FASB) that affects Kodak's  ability
to pass the RCRA financial test  for  its environmental
obligations.

     As your letter states, FASB statement 106:  Accounting for
Post-Retirement Employee Benefits other than Pensions  (OPEB),
requires that employers recognize these benefits after  December
15, 1993 by using either the  "immediate" or "delayed recognition"
alternative.  Your specific concern  is that since Kodak has
elected to use the "immediate recognition" method in accounting
for OPEB/ it may not be able  to  pass EPA's financial test for all
of its environmental obligations.  To address this  concern,  you
propose that, for Security and Exchange Commission  purposes,
Kodak continue to use the "immediate OPEB recognition"  method,
but for purposes of the Agency's financial test, Kodak  could use
the "delayed OPEB recognition" method, which it  calls an
alternate net worth calculation.  You state that when Kodak uses
the "delayed OPEB recognition" method, it can pass  the  financial
test for all of its environmental obligations.

     As you indicate in your  letter, the RCRA subtitle  C
financial test under sections 40 CFR 264.143(f), 264.145(f),  and
264.147(f) requires that, as  part of the test, the  owner or
operator's Chief Financial Officer must submit a certification
that "figures for the following  items marked with an asterisk are
derived from this firm's Independently audited,  year-end
financial statements for the  latest  complete fiscal year..." (see
section 264.151(f) for the  complete  language of  the
certification).  The owner  or operator must also submit a

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                               -2-

certification froai his or her independent certified public
accountant confirming the Chief Financial Officer's
certification.  In your letter, you ask for EPA's views on
whether a firm's Chief Financial Officer c—-ld make the required
certification, if the firm's audited year-  i financial statement
calculated net worth by the "immediate OPEL recognition method,"
but the figures in the financial test submission are based on the
"delayed recognition method."

     After a careful review of the materials you provided, we
have concluded that your proposal is within the scope of EPA's
subtitle C regulations, since both the "mediate" and "delayed1*
recognition methods are allowed under F£ 3 106.  Furthermore, we
agree that, under the circumstances you  :ascribe, the Chief
Financial Officer could reasonably mate che required
certifications under the regulations, on the grounds that the
alternative net worth calculation used for the RCRA financial
test is derived from the audited, year-end financial statements,
or would have been used to prepare the financial statement if the
company had chosen to use the "delayed recognition" approach.

     This letter provides EPA's interpretation of the Federal
RCRA regulations.  As you know, most States are authorized to
carry out the RCRA hazardous waste program, and these States may
choose to impose more stringent requirements than does the
Federal program.  Therefore, you should also contact the
authorized States in which your facilities are located to
determine whether your proposal is acceptable under authorized
State law.

     If you have any questions regarding this letter, please feel
free to contact Matthew Kale at  (703) 308-8404.

                              Sincerely,
                              Michael Shapiro, Director
                              Office of Solid Waste

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C. 20460

                                                      9477.1994(01}



  APR  |   1994
                                                          OFFICE Of
                                                     SOUO WASTE AND EMERGENCY
                                                          RESPONSE
Mr. Torger Dahl
Environmental, Health, and Safety Legal Staff
Eastman Kodak Company
343 Stata street
Rochester, New York 14650-0207

Dear Mr. Dahl:

     Than* you for your  letter to Matthew Hale,  dated March 3,
1994 regarding a recent  statement issued by the  Financial
Accounting standards Board (FASB) that affects Kodak's ability
to pass the RCRA financial test  for  its environmental
obligations.

     As your letter states,  FASB statement 106:  Accounting for
Post-Retirement Employee Benefits Other than Pensions (OPEB),
requires that employers  recognize these benefits after December
15, 1993 by using  either the "immediate" or "delayed recognition"
alternative.  Your specific  concern  is that since Kodak has
elected to use the "immediate recognition" method in accounting
for OPEB, it may not be  able to  pass EPA's financial test for all
of its environmental obligations.  To address  this  concern,  you
propose that, for  Security and Exchange Commission  purposes,
Kodak continue to  use the "immediate OPEB recognition" method,
but for purposes of the  Agency's financial test, Kodak could use
the "delayed OPEB  recognition" method, which it  calls an
alternate net worth calculation.  You state that when Kodak uses
the "delayed OPEB  recognition" method, it can  pass  the financial
test for all of its environmental obligations.

     As you indicate in  your letter, the RCRA  subtitle C
financial test under sections 40 CFR 264.143(f), 264.145(f),  and
264.147(f) requires that, as part of the test, the  owner  or
operator's Chief Financial Officer must submit a certification
that "figures for  the  following  items marked with an asterisk are
derived  from this  firm's independently audited,  year-end
financial statements for the latest  complete  fiscal year...14 (see
section  264.151(f) for the complete  language of  the
certification).  The owner or operator must also submit a

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                               -2-

certification from his or her independent certified public
accountant confirming the Chief Financial Officer's
certification.  In your letter, you ask for EPA's views on
whether a firm's Chief Financial Officer could make the required
certification, if the firm's audited year-end financial statement
calculated net worth by the "immediate OPEB recognition method,"
but the figures in the financial test submission are based on the
"delayed recognition method."

     After a careful review of the materials you provided, we
have concluded that your proposal is within the scope of EPA's
subtitle C regulations, since both the "immediate11 and "delayed"
recognition methods are allowed under FASB 106.  Furthermore, we
agree that, under the circumstances you describe, the Chief
Financial Officer could reasonably make the required
certifications under the regulations, on the grounds that the
alternative net worth calculation used for the RCRA financial
test is derived from the audited, year-end financial statements,
or would have been used to prepare the financial statement if the
company had chosen to use the "delayed recognition" approach.

     This letter provides EPA's interpretation of the Federal
RCRA regulations.  As you know, most States are authorized to
carry out the RCRA hazardous waste program, and these States may
choose to impose more stringent requirements than does the
Federal program.  Therefore, you should also contact the
authorized States in which your facilities are located to
determine whether your proposal is acceptable under authorized
State law.

     If you have any questions regarding this letter, please feel
free to contact Matthew Hale at  (703) 308-8404.

                              Sincerely,
                              Michael Shapiro, Director
                              Office of Solid Waste

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                          HOTLINE QUESTIONS AND ANSWERS
                                          June 1994
                                                                          9477.1994(02)
4.  Financial Assurance Cost
    Adjustments On a Quarterly Basis

    The financial assurance regulations of
§§264/5.142(b) require the owner I operator of
a TSDF to annualfy adjust closure and post-
closure costs. For a facility adjusting costs via
implicit price deflator (IPD), the cost
adjustments must be made within 60 days prior
to the anniversary of the establishment of the
facility's financial assurance (or within 30
days after the close of a facility's fiscal year
for owner I operators using the financial test or
corporate guarantee). If a facility's
anniversary date of financial assurance (or
fiscal year) does not coincide with the issuance
of the annual IPD, how should the facility
adjust its costs?

    If a facility's financial assurance
anniversary date or fiscal year does not
coincide with the issuance of the annual IPDs,
the owner/operator may use the latest IPD (for
example, if a facility must update their
financial assurance in February of 1994, the
facility may use the 1992 annual IPD, despite
the time lag).  The U.S. Department of
 Commerce usually publishes the annual IPD
 based on Gross National Product (GNP) in
 March, and the Gross Domestic Product (GDP)
 EPDs in February; the owner/operator may use
 either figure.  Alternatively, the owner/
 operator may use quarterly IPD figures
 published by the Department of Commerce,
 obtaining die inflation factor by dividing the
 current quarterly JPD by the EPD for the same
 quarter in the previous year (e.g., divide first
 quarter 1994 by first quarter 1993). If a
 facility's anniversary daze.or fiscal year does
 not coincide with the issuance of the annual
 IPD, the facility may use the most current
 annual or quarterly IPD, however owner/
 operators must be consistent in their use of
 either annual or quarterly EPDs to calculate the
 inflation factor. Some owner/operators may be
 required by their state regulations to update
financial assurance cost estimates on a
quarterly  basis.

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                       HOTLINE QUESTIONS AND ANSWERS
                                       June 1994
                       9477.1994(03)
 3.  GNP v. GDP for Cost Adjustments
    Under RCRA

    The RCRA financial assurance regulations
 at §§26415,142(b) require the owner or
 operator of a TSDF to provide financial
 assurance to cover closure and post-closure
 costs. The regulations require the owner or
 operator to calculate closure and post-closure
 cost estimates and adjust them annually by
 either recalculating the cost estimate in
 current dollars, or by multiplying the previous
 estimate by an inflation factor. The inflation
factor is calculated by dividing the current
 Implicit Price Deflator (IPD) by the previous
 IPD. For those owner I operators who choose
 this method, must the inflation factor be
 calculated using the IPD based on Gross
 National Product (GNP), or may the IPD
 based on Gross Domestic Product (GDP) be
 used instead?

    Although §§264/5.142(b) specifies using
 an  EPD based on GNP, EPA allows owners/
 operators to update cost estimates using the
 annual IPD based on GDP. The IDP based on
 GDP produces similar results to the IDP based
 on GNP, however, the IDP based on GDP is
 available to owners/operators two months
 before the IDP based on GNP. The IDP based
 on GDP was not available at the time this
 regulation was issued.  When financial
 assurance regulations were originally
 promulgated, the Department of Commerce
 used GNP figures to calculate the IPD, but in
 recent years has favored GDP as a basis for the
 IPD because the data better represent national
 output The EPD is a measure of the change in
 the relative nominal value of a dollar due to
 inflation as well as to changes in the
 composition of GNP or GDP. Because
 changes in inflation will affect the value of a
 dollar, IPDs are used to accurately compare
 costs over time.  Whichever type of deflator is
 used, be it the IPD based on GNP or GDP, the
 owner/operator must use only that type for all
 cost estimates and adjustments, since each
 deflator is based on different data. An owner/
 operator may choose to switch deflators, but
 must adjust previous cost estimates
 accordingly.  Annual IPDs based on GNP are
 usually published by the Department of
 Commerce each March; annual EPDs based on
 GDP are published each January. In the
 interest of maintaining as accurate records as
 possible, the Department of Commerce
 reviews IPDs for the previous three years each
 August, making any changes to previous
 figures as necessary. Facilities' cost
 adjustments should reflect as soon as
 practicable any changes to previous IPDs as a
 result of this review. Annual EPDs since 1987
 are as follows:
1987
1988
1989
1990
1991
1992
1993
 GNP
 100.0
 103.9
 108.5
.113.2
 117.7
 121.1
 124.1
100.0
103.9
108.5
113.3
117.7
121.1
124.2

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON. D.C. 20460
                                                   9477.1994(04)
                         JUL 2 5  1994

                                                          OFFICE OF
                                                     SOLID WASTE AND EMERGENCY
Ms. Ann Claassen                                         RESPONSE
Weinberg, Bergeson  & Neuman
1300 Eye Street,  N.W.
Suite  1000 West
Washington,  D.C.  20005

Dear Ms. Claassen:

     This letter responds  to your request of July 6, 1994  for
clarification of certain closure cost estimate requirements
applicable to facilities seeking a permit under 40 CFR 264.  In
your letter  you  request  .guidance on three approaches for
developing a cost estimate for a containment building.  As you
know,  containment buildings and other units subject to RCRA
permit requirements  must prepare cost estimates for closure as
specified in 40  CFR  264.142.

     In brief, Section 264.142  requires that cost estimates must
equal  the cost of closure  of a facility at the point where
closure would be most expensive.  Estimates must be based on the
costs  to an  owner or operator of hiring a third party to close
the facility.  The cost  estimate may not incorporate any salvage
value  for waste,  equipment,  land,  or other assets associated with
the facility.  Finally,  the owner or operator may not incorporate
zero cost for hazardous  or non-hazardous wastes that might have
economic value.

     In the  first approach you describe a situation where the
costs  to an  owner or operator of performing part of the facility
closure would be  factored  into the closure cost estimate.  In 40
CFR 264.142(a)(2) the regulations specify that, "... the closure
cost estimate must be based on the costs to the owner or operator
of hiring a  third party  to close the facility."  Since this
approach would base  the  closure  cost estimate on the owner or
operator performing  part of the  closure, the cost estimate would
not reflect  the  costs of a third party closing the•facility.
Therefore, this  approach would not meet the requirements of 40
CFR 264.142.

     The second  approach describes a situation where an owner or
operator would hire  a third party to close the facility.   The
third party  would complete closure as specified in the closure
plan.  Closure activities  performed by the third party would
include removing  all waste and decontaminating the facility.
Since the cost estimate  in this  approach would be based on the


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                                                     Prim*d with Soy/Canon Ink on P*M> mat
                                                     contain* «l !«•*« 50% r*cvcf«o ntw

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costs to an owner or operator of hiring a third party to close
the facility, this approach would meet Part 264 requirements for
closure cost estimates.

     Finally you ask if the third party that provides the cost
estimate could be the sister corporation of the closing facility.
You define a sister corporation as a corporation that shares the
same corporate parent as another corporation.  According to 40
CFR 264.142(a)(2), a third party is defined as, ".  . .a party
who is neither a parent nor a subsidiary of the owner or
operator."   A parent corporation and subsidiary are defined in
40 CFR 264.141(d) as, ". . . a corporation which directly owns at
least 50 percent of the voting stock of the corporation which is
the facility owner or operator;  the latter corporation is deemed
a 'subsidiary' of the parent corporation."  Therefore,  a sister
corporation would qualify as an acceptable third party under
Section 264.142.

     In summary, under 40 CFR 264.142 facilities that manage RCRA
hazardous waste must provide a closure cost estimate that is
based on a third party conducting the closure.  The third party
providing the estimate may be a corporate sister of the facility
requiring the closure cost estimate.  Your letter describes a
hypothetical situation only.  Therefore, the actual cost estimate
may vary depending on the circumstances at a specific facility.

     Please be aware that under Section 3006 of RCRA (42 U.S.C.
Section 6926) individual States can be authorized to administer
and enforce their own hazardous waste programs in lieu of the
Federal program.  When States are not authorized to administer
their own program, the appropriate EPA Regional office issues the
permit and is the appropriate contact for any case-specific
determinations.   Please also note that under Section 3009 of RCRA
(42 U.S.C. Section 6929) States retain authority to promulgate
regulatory requirements that are more stringent than Federal
regulatory requirements.  In this letter,  we have answered your
questions in terms of Federal requirements.  To determine the
status of specific facilities in an authorized State you should
consult the appropriate State regulatory agency.

     If you have any questions concerning this response, or would
like to discuss the issue further,  please contact Timothy
O'Malley of the Permits and State Programs Division at  (703)  308-
8613.
                                   Sincerely,
                                   Michael Shapiro, Director
                                   Office of Solid Waste

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                 WEINBERG, BERGESON  <& NEUMAN
                           I3OO EYE STREET. N.W.
                             SUITE IOOO WEST
                        WASHINGTON,  D. C. 2OOG5

ANN CLAASSEN                                            TELEPHONE: 202-962-8585
                                                       FACSIMILE: 203-963-8599
                                July i>, 1994
  Via Hand Delivery
  Mr. Michael H. Shapiro  (5301)
  Director, Office of Solid Waste
  U.S. Environmental Protection Agency
  401 M Street, S.W.
  Washington, D.C. 20460

            Re:  Closure Cost Estimate for Secondary
                 Smelter Containment Building	

  Dear Mr. Shapiro:

            We  are  writing  to  request  clarification  of  certain
  closure  cost  estimate requirements under  rules  implementing the
  Resource Conservation and  Recovery Act  (RCRA) as  applied  to the
  hypothetical facts described  below.  Your expedited response to the
  questions set forth below would be greatly appreciated.

                          Hypothetical  Facts

            Assume that a secondary smelter,  which recovers the lead
  value from lead-acid  batteries  and other lead-bearing materials,
  has constructed a containment building.  The facility has applied
  for a permit  modification  to include the containment  building in
  its Part B permit, which is being processed.

            After  cracking,  lead-bearing  battery  parts  and  other
  lead-bearing  material   would  be  temporarily   staged  in  the
  containment building,  prior to smelting into lead  ingots.  The lead
  ingots are sold  as commodities.   The total  time  period from the
  receipt  of a batch  of used  batteries  and other  lead-bearing
  materials to the  manufacture of lead ingots  is approximately thirty
  days.   The total  maximum  inventory of  hazardous wastes  in the
  containment building  is approximately 10,000 cubic yards.

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                    WeiNBERG, 3ETGESON & NEUMAN
Mr. Michael  H.  Shapiro
July  6,  1994,
Page  2
                           Regulations

          The  RCRA regulations for containment buildings provide
that the closure plan for the building must comply with Subparts G
and H  of  Part  264. i'   Subpart G requires that, "[w]ithin 90 days
after  receiving the final volume  of hazardous wastes  .  .  .  the
owner or operator must treat, remove from the unit or  facility, or
dispose of  on-site, all hazardous  wastes  in accordance with the
approved  closure  plan."-/   Subpart H requires  that the owner or
operator  have  a detailed  written estimate  of  the closure cost,
subject to the  following:^'

                (1)  The estimate must equal  the cost  of
          final closure at the point in the  facility's
          active life when the extent and manner  of its
          operation  would   make   closure   the   most
          expensive,  as  indicated  by  its  closure plan
          .  .  .; and

                (2)  The closure  cost estimate  must  be
          based on  the costs to the owner or  operator  of
          hiring a  third party to close  the  facility.  A
          third party is a party who is  neither a  parent
          nor  a subsidiary  of the owner  or operator.
          •  "  • r

                (3)  The closure  cost estimate  may not
          incorporate  any salvage value  that may  be
          realized  with the  sale  of  hazardous   wastes
                (4)  The  owner   or  operator  may  not
          incorporate a  zero  cost for hazardous wastes
          .  .  . that might have economic value.
     40 C.F.R. § 264.1102(a).

-1   40 C.F.R. § 264.113(a) (emphasis added).

1/f   40 C.FJR. § 264.142 (a).

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                    WEINBERG, BERGESON £• NEUMAN
Mr. Michael H. Shapiro
July 6, 1994
Page 3
                            Questions

          In  light  of  Che  above  hypothetical  facts   and  the
regulations,  we  request  your  guidance  on whether  any  of  the
following  three  approaches  to preparing a  closure  plan  and  a
closure cost estimate would be acceptable to EPA.

          1.   May  the  closure plan include  the provision that,
after receipt of  the  final  volume of hazardous waste (i,e., used
lead-acid batteries and  other lead-bearing materials) ,  the owner or
operator will continue  to process its  inventory into lead ingots
which will  be  sold as  commodities?   As stated above,   complete
processing of batteries  usually can be accomplished in  a thirty-day
period,  and  it  certainly can  be accomplished within a ninety-day
period,   even  for  the  maximum  possible  inventory  under  the
hypothetical facts  set  forth  above.   Thus,  within ninety days of
receipt of  the  final volume of hazardous waste, no lead-bearing
materials used as  feedstock in the manufacture of lead would remain
in the containment  building.   The closure  cost estimate for the
containment building would be  the  costs to the  facility to process
the inventory into lead  ingots, plus the costs for a third party to
remove or decontaminate  all hazardous waste  residues, contaminated
structures, contaminated equipment, and so  forth.

          Memoranda written in 1983 and 1984, and included in the
RCRA  Permit  Policy Compendium,  indicate that  this  would  be  an
acceptable  approach to  the  closure  plan  and the closure  cost
estimate.-'   Copies of these memoranda  are appended.
     The memoranda are:  John H. Skinner,  Director,  Office of Solid
     Waste, to  James H. Scarbrough,  Chief,  Residuals Management
     Branch, Region  IV, "Closure  Cost  Estimates  Based  on Third
     Party Costs"  (January 12, 1984); Chief, Residuals Management
     Branch, Region IV,  to  John Skinner,  Director,  Office of Solid
     Waste, "Closure  Plans and Cost Estimates-Treatment  of Waste
     Inventory As Part of Closure Activities"  (November 22, 1983);
     and George  A. Garland,  Chief,  Financial  Responsibility and
     Assessment Branch, to William H.  Taylor,  Chief, Enforcement
     Section,  Region  6, "Determination of a Facility's Operating
     Life"  (Dec. 3. 1984).  '

     These three memoranda  are  contained in:  U.S. EPA, Solid Waste
     and   Emergency   Response   (OS-343),   RCRA   Permit   Policy
     Compendium,  Volume 7, EPA/530-SW-91-062G,  (1991).    In the
     compendium,   the  memoranda   are   numbered  9477.1984(01),
     9477.1984(01) Attachment, and  9477.1984(07),  respectively.

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                    WEINBERG, BERGESON & NEUMAN
Mr. Michael H. Shapiro
July 6, 1994
Page 4
          This  approach (reduction of the waste inventory during
closure  by  the  owner  or  operator)   is  not  contrary  to  the
prohibition  against  incorporating salvage value into the closure
cost estimate, because the continued processing  and reclamation of
the lead battery parts and lead-bearing materials is not "salvage"
of the parts, but merely constitutes the continued and legitimate
recycling of those materials,  and  the value of any lead ingots sold
from the facility after receipt of the final volume of hazardous
waste  is  not being  used to  offset  closure costs.    Rather,  the
closure cost estimate is based on  the  costs associated with the
facility processing the batteries into,commodity lead  ingots, plus
necessary  decontamination after  these recycling activities  are
complete.   For  the same reasons,  this  approach does not involve
setting a zero  cost for hazardous wastes.

          This  approach, wherein  the estimated costs of continued
recycling would be  those  of  the owner/operator, may no longer be
acceptable,  however,  in light of  the 1986 amendments to the RCRA
regulations  requiring  that  closure cost  estimates  be based  on
third-party costs.-/  We would appreciate clarification of whether
the 1984 memoranda are  still  valid interpretations.

          2.   As an alternative  to the above approach, could the
closure  plan for the  containment building  specify that,  upon
receipt  of  the  final  volume of  hazardous  waste,   the  existing
inventory  of lead batteries,  battery  parts,  and  lead-bearing
materials  will  be  removed within  ninety days by  the owner  or
operator of a separate (i.e.,  third party)  secondary smelter which
will then  reclaim the  materials at  their smelter?   Under  this
scenario, the closure cost estimate  would be based  on the amount
charged by the third-party smelter to remove the lead battery and
lead-bearing  materials,  plus  the costs  necessary  to remove  or
decontaminate waste  residues, building equipment,  and  so forth.
The closure  plan  could  include a fully-executed contract  between
the facility and  the  third-party smelter that would obligate  the
latter  to  remove  all  lead   battery  and  lead-bearing  materials
whenever closure  occurs and  that would  specify the cost to  be
charged by the third party for this service.

          Again,  this approach would  not involve using  salvage
costs  or  economic  value  to  offset  closure  costs.   Rather,  it
involves removal of the hazardous waste from.the  facility within
s/
     See 51 Fed. Reg. 16422, 16436-37 (May 2, 1986).

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                    WEINBERG, BERGESON & NEUMAN
Mr. Michael H. Shapiro
July 6, 1994
Page 5
ninety  days,  in  accordance  with  the  closure  plan   and   the
requirements of 40 C.F.R. § 264.113(a).   The closure  cost  estimate
is then the  costs  charged by the third-party smelter to  take  the
wastes  {as  specified in an  enforceable  contract),  plus costs to
remove  or  decontaminate  all waste residues   and  contaminated
materials remaining  after waste  inventory.has been reduced during
closure.

          3.   Assuming the second approach is acceptable, may  the
third-party smelter be a. sister corporation of the  facility?  That
is,  assume  the  facility,  XYZ,  is a wholly-owned  subsidiary of
corporation  ABC.    ABC  has  a  separate wholly-owned  secondary
smelter, PQR.  Thus,  XYZ and PQR  are  sister  corporations,  with  the
common parent  of ABC.   May the  closure plan specify that,  upon
receipt of  the final volume of  hazardous waste  at XYZ,  PQR will
remove all existing  inventory within ninety days?


          Thank, you  for you  assistance  with these  matters.   We
request an expedited reply.   If you have any questions, please call
me at (202)  962-8547.

                              Sincerely,
                              Ann Claassen
cwh
Attachments
cc:  Mr. David Hockey  (5301)
     OSW Special Assistant

     Mr. Tim O'Malley  (5303W)
     Financial Responsibility Section
     Permits Branch
48LT001 .211(04)

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>  Ok         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                         WASHINGTON, D.C. 20460



                                 ' 9 199^             9477.1994(05)
 _     „  „                                                 OFFICE OF
 James M. Kuszaj                                      SOLID WASTE AND EMERGENCY
 Ogletree, Deakins, Nash,  Smoak & Stewart                  RESPONSE
 P.O. Box 31608
 Raleigh, NC 27622

 Dear Mr. Kuszaj:

      This letter responds to your request of July 26, 1994 for
 clarification of certain  financial assurance requirements
 applicable to permitted hazardous waste facilities under the
 Resource Conservation and Recovery Act (RCRA).   You inquired
 whether changing financial assurance mechanisms during the term
 of a permit would require a permit modification.

      As you know, the Federal RCRA regulations  provide several
 mechanisms for ensuring financial assurance (see 40 CFR 264
 Subpart H and 265 Subpart H).   These regulations are designed to
 ensure that owners and operators provide financial assurance for
 their closure, post-closure and corrective action obligations on
 i continuous basis.  However,  t*..e specific mechanism used to
 demonstrate financial assurance is usually not  identified in a
 facility's RCRA permit.   As long as the financial assurance
 mechanism is not specifically identified in the permit,  changing
 the financial assurance mechanism does not require a permit
 modification.

      Please be aware that under Section 3006 of RCRA (42  U.S.C.
 Section 6926) individual  States can be authorized to administer
 and enforce their own hazardous waste programs  in lieu of the
 Federal program.  In this letter,  we have answered your questions
 in terms of Federal requirement-.   To determine the status of
 specific facilities in an authorized State,  you should consult
 the appropriate State regulatory agency.

      If you have any questions concerning this  response,  or would
 like to discuss the issue further,  please contact Timothy
 O'Malley of the Permits and State Programs Division at 703/308-
 8613.


                                          Sinceisely,
                                             hatel  Shapiro,  Director
                                               e of Solid Waste
                                                      Recycted/Recyclabto
                                                      Printed wttn Soy/Canoto Ink on p»p*f that
                                                      contains it l««tt 50% racyctod fiber

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                                           LAW OFFICES
                  OGLETREE, DEAKINS, NASH,  SMOAK & STEWART
                                            LAKE BOONE TRAIL
                                       POST OFFICE BOX 3I6O8

                                   RALEIGH, NORTH CAROLINA 27622

                                      TELEPHONE (919) 787-97OO

                                         FAX (919) 783-9413
JAMES M. KUSZA-J, PH.D.
      PARTNER
                                            July 26, 1994
                       OTHER OFFICES
                       GREENVILLE. SOUTH CAROLINA
                       WASHINGTON. O. C.
                       ATLANTA. GEORGIA
                       COLUMBIA. SOUTH CAROLINA
                       NASHVILLE. TENNESSEE
                       ALBANY. NEW YORK
       Michael Shapiro
       Director
       Office of Solid Waste and Emergency Response
       U.S. Environmental Protection Agency
       401 M Street, S.W.
       Washington, DC  20460
                                               RE:
Permit Modification for Change
in Financial Assurance Mechanism
       Dear Mr. Shapiro:
              I am seeking your confirmation that a permittee need not obtain a permit modification
       to change financial assurance mechanisms under 40 CFR Part 264 Subpart H.

              The financial assurance requirements in 40 CFR Part 264, Subpart H allow the owner
       or operator of a facility to choose the mechanism for providing financial assurance for closure
       (§264.143), post-closure (§264.145) and liability (§264.147). If a permittee decides during the
       term of his permit to change the financial mechanism,  must  this change be accomplished by a
       permit modification?  If a permit modification is not required, can the permittee simply change
       mechanisms by  notifying the Agency?

              The only guidance I have found on this question is in the preamble to a March 15,  1984
       proposed rule.  That preamble states:

                    ...  the  regulations already allow permittees to make minor
                    changes to the financial responsibility mechanisms [FN4] absent a
                    permit modification.

                    [FN4] The responsibility requirements are found in 40 CFR Part
                    264, Subpart H.  The regulations provide that permittees must
                    choose  from  the several   financial  mechanisms  specified  in

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Michael Shapiro, Director
Office of Solid Waste
 and Emergency Response
U.S. Environmental Protection Agency
July 26, 1994
Page 2 of 2	__^
             §264.143.   Permit conditions  implementing this  requirement
             provide that the permittee must establish and comply with  the
             specified financial mechanisms; however, the specific mechanism
             is not incorporated in the permit. The permittee currently has the
             flexibility to change or revise the financial mechanism without
             going through permit modification procedures.

             [49 Federal Register 9852]

       I would appreciate confirmation that the 1984 preamble still reflects EPA's position.  If
it does not, I would appreciate EPA's current guidance on this question.

       Thank you for your attention to this matter.  I look forward  to hearing from you.

                                       Yours truly,

                                       OGLETREE, DEAKINS,  NASH,
                                        SMOAK AND STEWART
                                       Jame's M. Kuszaj
Enclosure
jlg\wp5 l\*4Metters\finassur.ltr

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C. 20460
                                                   9477.1994(06)


 OGT   7 J994                                                OFFICE OF
                                                      SOLID WASTE AND EMERGENCY
                                                           RESPONSE

Mr. A. E. Moffitt, Jr.
Vice President,  Safety, Health,  and Environment
Bethlehem Steelm Corporation
Bethlehem, PA  18016

Dear Mr. Moffitt:

     Thank you for your letter, dated September 22,  1994,
regarding a recent statement  issued by the Financial Accounting
Standards Board (FASB) that affects Bethlehem Steel  Corporation's
ability to pass the RCRA financial test for  its environmental
obligations.

     As your letter states, FASB  statement 106:  Accounting for
Post-Retirement Employee Benefits Other than Pensions (OPEB),
requires that employers recognize these benefits after December
15, 1993 by using either the  "immediate" or  "delayed recognition"
alternative.  Your specific concern is that  since Bethlehem Steel
Corporation has elected to use the Nimmediate recognition" method
in accounting for OPEB, it may not be able to pass EPA's
financial test for all of its environmental  obligations.   To
address this concern, you propose that, for  Security and Exchange
Commission purposes, Bethlehem Steel Corporation continue  to use
the "immediate OPEB recognition"  method, but for purposes  of the
Agency's financial test, Bethlehem Steel Corporation could use
the "delayed OPEB recognition" method.  You  state that when
Bethlehem Steel Corporation uses  the "delayed OPEB recognition"
method, it can pass the financial test for all  of its
environmental obligations.

     As you indicate in your  letter, the RCRA subtitle C
financial test under sections 40  CFR 264.143(f), 264.145(f), and
264.147(f) requires that, as  part of the test,  the owner or
operator's Chief Financial Officer must submit  a certification
that "figures for the following items marked with an asterisk are
derived from this firm's independently audited,  year-end
financial statements for the  latest complete fiscal  year..." (see
section 264.151(f) for the complete language of  the
certification).  The owner or operator must  also submit a
certification from his or her independent certified  public
accountant confirming the Chief Financial Officer's
certification,  in your letter, you asked for EPA's  views  on
whether a firm's Chief Financial  Officer could make  the required

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certification, if the firm's audited year-end financial statement
calculated net worth by the "immediate OPEB recognition method/1
but the figures in the financial test submission are based on the
"delayed recognition method."

     After review of the questions you raised, we have concluded
that your proposal is within the scope of EPA's subtitle C
regulations, since both the "immediate1* and "delayed" recognition
methods are allowed under FASB 106.  Furthermore, we agree that,
under the circumstances you describe, the Chief .Financial Officer
could reasonably make the required certifications under the
regulations, on the grounds that the alternative net worth
calculation used for the RCRA financial test is derived from the
audited, year-end financial statements, or would have been used
to prepare the financial statement if the company had chosen to
use the "delayed recognition" approach.

     This letter provides EPA's interpretation of the Federal
RCRA regulations.  As you know, most States are authorized to
carry out the RCRA hazardous waste program, and these States may
choose to impose more stringent requirements than does the
Federal program.  Therefore, you should also contact the
authorized States in which your facilities are located to
determine whether your proposal is acceptable under authorized
State law.

     If you have any questions regarding this letter, please feel
free to contact Matthew Hale at (703) 308-8404.
                                    incerely,
                                         1 Shapiro, Director
                                          of Solid Waste

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TSDF Technical Requirements

(Parts 264 and 265)
                                   SO

                                   £
                                   o

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9480 - TSDF
TECHNICAL
REQUIREMENTS
Parts 264 & 265
                    ATK1/1104/39 Iqp

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                                                                  9480.00-14


                                MAR  ! 3  '"'
TO THE STATES AND COMPACT REGIONS:

SUBJECT:  COMBINED NRC-EPA SITING GUIDELINES FOR DISPOSAL OF  MIXED LOW-LEVEL
          RADIOACTIVE AND HAZARDOUS WASTE


As you are aware* the Low-Level Radioactive Waste Policy Amendments Act of  1985
(LLRWPAA) established milestones (and penalties for not meeting  these
milestones) to ensure adequate development of future disposal capacity for
commercial low-level radioactive waste (LLW).  The penalties  are quite severe
and the deadlines do not leave much room for slippage.

We would like to call to your attention the January 1, 1988 milestone {Section
5(e)(l)(8)) which requires that each non-sited compact or non-member state
develop a siting plan for a LLW disposal facility.  These siting plans must
include detailed procedures and a schedule for establishing a disposal facility
location and preparing a license application.  Among other things, Section
5(e)(l)(B)(iii) provides that the siting plan shall:

     "... identify, to the extent practicable, the process for (1) screening
     for broad siting areas; (2) identifying and evaluating specific candidate
     sites; and (3) characterizing the preferred site(s), ..."

This letter serves four purposes:

(I) to inform states and compacts that, under current Federal law, the U.S.
Nuclear Regulatory Commission (NRC) and the U.S. Environmental Protection
Agency (EPA) have dual Jurisdiction over mixed low-level radioactive and
hazardous waste (Mixed LLW); (2) to state that both NRC and EPA do not consider
the absence of EPA's final comprehensive location standards to be justification
for states and compacts to not meet their obligations under the LLRWPAA;  (3)  to
convey that both NRC and EPA art committed to providing guidance to states  and
compacts who request help In their efforts to meet the January 1988 LLRWPAA
milestone for siting plans; and (4) to jointly transmit the NRC-EPA combined
siting guidelines for Mixed LLW (enclosed).

Dual statutory authority exists for Mixed LLW, which 1s regulated by  the  NRC
under the Atomic Energy Act (AEA), as amended, and by EPA under the Resource
Conservation and Recovery Act (RCRA), as amended.  Mixed LLW is defined  as
waste that satisfies the definition of LLW in the LLRWPAA and contains
hazardous waste that either 1s listed 1n 40 CFR Part 261 Subpart 0 or causes
the LLW to exhibit any of the hazardous waste characteristics Identified  1n 40
CFR Part 261 Subpart C.  Both the NRC and EPA staffs consider that Mixed LLW

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can be disposed of in accordance with the above statutes  and NRC and EPA
regulations.

In 1982,  the NRC promulgated regulations containing minimum site suitability
requirements for LLW land disposal  facilities under 10 CFR Part  61.   In 1981,
EPA promulgated minimum location standards for hazardous  waste treatment,
storage,  and disposal facilities 1n 40 CFR Part 264.  Section 3004(o)(7) of
RCRA, which was added by the Hazardous and Solid Waste Amendments of 1984
(HSWA), requires EPA to publish guidance identifying areas of vulnerable
hydrogeology; this guidance was completed and issued In July 1986.  Section
3004(o)(7) of RCRA also requires EPA to specify criteria  for the acceptable
location  of new and existing hazardous waste treatment, storage, and disposal
facilities as necessary to protect human health and the environment.  EPA
anticipates proposing these location standards in September 1987 and
promulgating them by September 1988.  This schedule provides affected states
and compacts with a preview of the final standards and an opportunity to
comment on the standards before promulgation.

Because of uncertainty about the precise content of EPA's future location
standards, states and compacts may nave questions regarding the  site selection
process.  Both NRC and EPA are committed to providing guidance to states and
compacts  who request help in developing their siting plans by the January  1.
1983 deadline.  Technical questions pertaining to siting  a disposal  facility
for Mixed ILW should be submitted in writing to either the NRC or EPA contacts
listed below, as appropriate.
For questions about the LLRWPAA
siting deadline or. NRC's site
suitability requirements* contact:
For questions relating to
EPA's location standards
contact:
Dr. Sher Bahadur
Division of Vast* Management
Mail Stop 623-SS
U.S. Nuclear Rtgulatory Commission
Washington, D.C.  20555
Mr. Burnell Vincent
Waste Management Division
Mail Code WH-565
U.S. Environmental Protection
  Agency
Washington, D.C. 20460

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                                     - 3 -
In summary, if states and compacts observe the enclosed NRC-EPA combined siting
guidelines and keep abreast of the developing EPA location standards, the
absence of final RCRA location standards should not prevent states and compacts
from meeting their obligations under the LLRWPAA.

                                        Sincerely,
                                        Hum I/. Thompson,   .f
                                        Off1_c^ of Nuclear Material
                                          Safety ana Safeguards
                                        U.S. Nuclear Regulatory Commission
                                         J. Winston Porter
                                         Assistant Administrator
                                         Office of Solid Waste
                                          and Emergency Response
                                         U.S.  Environmental  Protection Agency
Enclosure:
As stated

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          COMBINED  NRC-EPA SITING GUIDELINES FOR DISPOSAL OF COMMERCIAL
               MIXED LOW-LEVEL RADIOACTIVE AND HAZARDOUS WASTES


 Introduction

 The Low-Level  Radioactive Waste Policy Amendments Act of 1985 (LLRWPAA)
 requires  states  and compacts to develop siting plans for low-level radioactive
 waste  (LLW) disposal facilities by January 1, 1988.  These disposal facilities
 may receive commercial mixed low-level radioactive and hazardous waste (Mixed
 LLW), which 1s regulated by the U. S. Nuclear Regulatory Commission (NRC) under
 the Atomic Energy  Act (AEA), as amended, and by the U. S. Environmental
 Protection Agency  (EPA) under the Resource Conservation and Recovery Act
 (RCRA), as amended.  Mixed LLW is defined as waste that satisfies the
 definition of  LLW  in the LLRWPAA and contains hazardous waste that either 1s
 listed in Subpart  0 of 40 CFR Part 261 or causes the LLW to exhibit any of the
 hazardous waste  characteristics identified 1n Subpart C of 40 CFR Part 261.  To
 assist in applying that definition, NRC and EPA recently developed joint
 guidance entitled  "Guidance on the Definition and Identification of Coimercial
 Mixed Low-Level  Radioactive and Hazardous Waste and Answers to Anticipated
 Questions" (Jan. 8, 1987).  NRC has promulgated LLW regulations and EPA has
 promulgated hazardous waste regulations that pertain to the siting requirements
 for disposal facilities for Mixed LLW.  Because of uncertainty about the
 precise content  of EPA's future location standards, states and compacts may
 have questions regarding the site selection process.  This document provides
 combined NRC-EPA siting guidelines, to be used before EPA's new location
 standards are  promulgated, to facilitate development of siting plans for
 disposal facilities that may receive Mixed LLW.

Section 5(e)(l)(B) of the LLRWPAA requires states and compacts to develop
 siting plans for LLW disposal facilities by January 1, 1988.  In addition to
other Information, these siting plans must identify, to the extent practicable,
 the process for  (1) screening for broad siting areas, (2) Identifying and
evaluating specific candidate sites, and (3) characterizing the preferred
 site(s).  It 1s  anticipated that this process will be based primarily on the
site suitability requirements that apply to LLW disposal.  If facilities also
 receive Nixed LLW, their siting requirements will reflect additional
requirements that  apply to disposal of hazardous waste as defined by RCRA.

 In 1982, NRC promulgated regulations which contain minimum site suitability
requirements for LLW land disposal facilities in 10 CFR 61.50.  EPA has also
 promulgated minimum location standards for hazardous waste treatment, storage,
and disposal facilities in 40 CFR 264.18.  Considerations affecting siting are
also found in  40 CFR 270.3, 270.14(b) and (c).  Although both NRC and EPA have
 incorporated siting requirements 1n existing regulations for LLW and hazardous
waste disposal,  respectively, the 1984 Hazardous and Solid Waste Amendments
 (HSWA) to RCRA require EPA to publish guidance identifying areas of vulnerable

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hydrogeology.  In July 1986, EPA published this guidance in  "Criteria for
Identifying Areas of Vulnerable Hydrogeology under the Resource Conservation
and Recovery Act—Statutory Interpretative Guidance, July 1986, Interim Final
(PB-86-224953)."  The 1984 HSWA also requires (in Section 3004(o){7)) that EPA
specify criteria for the acceptable location of new and existing hazardous
waste treatment, storage, and disposal facilities.  EPA anticipates  proposing
these location standards 1n September 1987 and promulgating  them in  final form
by September 1988.

EPA's scheduled date for promulgating its final location standards  is nine
months after the LLRUPAA January 1, 1988, milestone for non-sited states and
compacts to develop siting plans.  Therefore, states and compacts may require
some assistance in their efforts to develop siting plans for LLU disposal
facilities that may receive Mixed LLW.  The two agencies are issuing these
combined guidelines to promote the development of siting plans by states and
compacts.  Both NRC and EPA consider that the absence of EPA's final
comprehensive location standards for hazardous waste disposal facilities 1s not
an adequate basis for states and compacts to delay development of siting plans
for LLW disposal.

States and compacts should proceed at this time to develop siting plans in
accordance with the existing NRC and EPA requirements.  The following combined
NRC-EPA guidelines are provided for use by the states and compacts,  and are.
based on existing NRC regulations in 10 CFR Part 61 and EPA regulations in 40
CFR Parts 264 and 270.  As EPA continues its development of location standards,
both agencies will strive to keep states and compacts Informed about the status
of the developing siting requirements.

Combined NRC-EPA Siting Guidelines

Site suitability requirements for land disposal of LLU are provided in  10 CFR
Section 61.50.  These requirements constitute minimum technical requirements
for geologic, hydrologic, and demographic characteristics of LLU disposal
sites.  Several of these requirements Identify favorable site characteristics
for near-surf ace disposal facilities for LLU.  The majority of the  site
suitability requirements, however, Identify potentially adverse site
characteristics that must not be present at LLU disposal sites.  The site
suitability retirements 1n 10 CFR Part 61 are Intended to function
collectively with the requirements for facility design and operation,  site
closure, waste classification and segregation, waste fora and packaging,  and
institutional controls to assure Isolation of LLU for the duration of the
radiological hazard.  The NRC Technical Position entitled "Site Suitability,
Selection, and Characterization" (NUREG-0902) provides detailed guidance on
implementing the site suitability requirements 1n 10 CFR Part 61.

EPA has also promulgated certain minimum location standards  for hazardous waste
treatment, storage, and disposal facilities.  These standards  are provided In

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40 CFR Section 264.18.  As previously noted, the hazardous waste regulations
also Include other  location considerations as well as applicable provisions cf
other Federal statutes.  For example. Subpart F of 40 CFR Part 264 requires
establishment of ground-water monitoring programs capable of detecting
contamination from  land disposal units.  While not a siting criterion per se,
this requirement can preclude siting 1n locations that cannot be adequately"
monitored or characterized.  A further description of location-related
standards and applicable provisions of other Federal statutes can be found 1n
the "Permit Writers' Guidance Manual for Hazardous Waste Land Storage and
Disposal Facilities:  Phase I Criteria for Location Acceptability and Existing
Applicable Regulations" (Final Draft - February 1985).  This guidance manual
describes five criteria for determining location acceptability:  ability to
characterize, exclusion of high hazard and unstable terrain, ability to
monitor, exclusion  of protected lands, and identification of areas of
vulnerable hydrogeology.  The first four of these criteria have a basis in the
regulations and are fully described in the manual.  The fifth criterion,
vulnerable hydrogeology, Is defined in the RCRA Interpretive guidance manual
mentioned above (Criteria for Identifying Areas of Vulnerable Hydrogeology
under the Resource  Conservation and Recovery Act—Statutory Interpretive
Guidance, July 1986, Interim Final (PB-86-224953)).

However, since HSUA also added other requirements In addition to location
standards to prevent or mitigate ground-water contamination, EPA recognizes
that vulnerable hydrogeology must be considered in conjunction with design and
operating practices.  Vulnerability should not be the sole determining factor
in RCRA siting decisions.  Rather, this criterion provides a trigger for more
detailed evaluation of sites that are identified as having potentially
vulnerable hydrogeology.  The extent of necessary site review and evaluation is
related directly to the extent to which a location "fails" or "passes" the
vulnerability criterion.  Sites that are determined to be extremely vulnerable
will require much closer examination than sites that are deemed non-vulnerable
The results of this more detailed review nay then provide a basis for eventual
permit conditions or modifications in design or operating practices.

By combining the above technical requirements, standards, and guidance of both
agencies, NRC and EPA have formulated the eleven guidelines listeo below.  The
use of terns in the guidelines 1s consistent with their regulatory definitions
in 10 CFR Fart 61 and 40 CFR Parts 260 and 264.  The combined set of location
guidelines 1s Intended by the agencies to apply only as guidance to states and
compacts developing siting plans for LLW disposal facilities that may receive
Mixed LLW.  These combined guidelines are not intended to displace existing
standards and guidance.  In addition, the independent guidance of both agencies
should be considered in any application of the combined siting guidelines.

The combined siting guidelines for a cocinerclal Mixed LLW disposal facility are
as follows:

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1.  Primary emphasis In disposal site suitability should be given  to
isolation of wastes and to disposal site features that ensure that the
long-term performance objectives of 10 CFR Part 61, Subpart C are  met.

2.  The disposal site shall be capable of being characterized, modeled,
analyzed, and monitored.  At a minimum, site characterization must be able
to (a) delineate ground-water flow paths, (b) estimate ground-water flow
velocities, and (c) determine geotechnlcal properties sufficiently to
support facility design.  At a minimum for site ground-water monitoring,
disposal site operators must be able to (a) assess the rate and direction
of ground-water flow in the uppermost aquifer, (b) determine background
ground-water quality, and (c) promptly detect ground-water contamination.

3.  The disposal site must be generally well-drained (with respect to
surface water) and free of areas of flooding or frequent ponding.

4.  The disposal site shall not be in the 100-year floodplain.

5.  The site must be located so that upstream drainage areas are minimized
to decrease the amount of runoff that could erode or inundate waste
disposal units.

6.  Disposal sites may not be located on lands specified in 10 CFR Section
61.50(a)(5), including wetlands (Clean Water Act) and coastal high hazard
areas (Coastal Zone Management Act).  Location of facilities on the
following lands must be consistent with requirements of applicable Federal
statutes:  archeological and historic places (National Historic Places
Act); endangered or threatened habitats (Endangered Species Act);  national
parks* monuments, and scenic rivers (Wild and Scenic Rivers Act);
wilderness areas (Wilderness Protection Act); and wildlife refuges
(National Wildlife Refuge System Administration Act).

7.  The disposal site should provide a stable foundation for engineered
containment structures.

8.  Disposal sites must not be located in areas where:

(a) tectonic processes such as faulting, folding,  seismic  activity, or
vuleanism may occur with such frequency and extent to affect  significantly
the ability of the disposal facility to satisfy the performance objectives
specified 1n Subpart C of 10 CFR Part 61, or may preclude  defensible
modeling and prediction of long-term Impacts; in particular,  sites must be
located more than 200 feet from a fault that has been active  during the
Holocene Epoch;

(b) surface geologic processes such as mass wasting, erosion,  slumping,
Ur.cslidlng, or weathering occur with such frequency and extent to affect

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significantly the ability of the disposal facility to meet the performance
objectives  in Subpart C of  10 CFR Part 61, or may preclude defensible
modeling and prediction of  long-term  impacts;

(c) natural resources exist that, if  exploited, would result in failure  to
meet the performance objectives in Subpart C of 10 CFR Part 61;

(d) projected population growth and future developments within the region
or state where the facility 1s to be  located are likely to affect the
ability of  the disposal facility to meet the performance objectives 1n
Subpart C of 10 CFR Part 61; and

(e) nearby  facilities or activities could adversely impact the disposal
facility's  ability to satisfy the performance objectives in Subpart C of
10 CFR Part 61 or cculd significantly mask an environmental monitoring
program.

9.  The hydrogeologic unit  beneath the site shall not discharge ground
water to the land surface within the  disposal site boundaries.

10.  The water table must be sufficiently below the disposal facility to
prevent ground-water intrusion Into the waste, with the exception outlined
under 10 CFR Section 61.50(a)(7).

11.  In general, areas with highly vulnerable hydrogeology deserve special
attention in the siting process.  Hydrogeology Is considered vulnerable
when ground-water travel tine along any 100-foot flow path from the edge
of the engineered containment structure is less than approximately 100
years (Criteria for Identifying Areas of Vulnerable Hydrogeology Under
RCRA—Statutory Interpretive Guidance, July 1986, Interim Final
(PB-86-224953)).  Disposal  sites located 1n areas of vulnerable
hydrogeology may require extensive, site-specific Investigations which
could lead to and provide bases for restrictions or rodificatlors to
design or operating practices.  However, a finding that a site 1s located
in an area of vulnerable hydrogeology alone, based on the EPA criteria, is
not considered sufficient to prohibit siting under RCRA.

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                                                          9480.1984(01)
                                                JUN 12 I984
«r. Lou A. bellone, »
Eastham Unit
P.O. Box 16
Lovelady, TX  75851

Dear Mr. Belionet

     Thar* you foe your recent letter to Administrator Ruckelshaus
regarding the use of cavities produced as * result of nuclear
weapons testing for the disposal of hazardous waste*  Mr. Ruckelshaus
has asked ne to respond to your letter*

     The major concern in the disposal of hazardous vaste ii in
containing the waste so that the potential for Migration of
hazardous constituents is minimized.  ?or this reason, EPA
generally requires the installation of a liner that will prevent
migration of hazardous constituents during the active lite of
the land disposal facility and a cover to minimize infiltration
of precipitation at facility closure.

     The deposition of hazardous waste* in deep underground rock
formations tnat are capable ot containing the wastes without use
of liners or covers is not currently aaong the options that EPA
allows, althouyh we are actively developing reyulations to address
this type of disposal.  However, severe fracturing of underground
rock formations can be expected as a result of underground nuclear
testing*  Such fracturing would likely provide conduits through
which hazardous constituents could migrate*  Furthermore, predic-
tion of tne routes of migration would be ii^ossibl*.  Additional
detonation where hazardous wastes have been placed could result
in the generation of hazardous byproducts of unknown character
and contribute to the dispersal ox hazardous constituents under-
ground.  Nuclear test cites, theretore, are j»roD*frly unsuitable
for hazardous wasto disposal.

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      I hope that this  information  is helpful to you.
Mr. Ruckelshaus deeply  appreciates  your  concern for the proper
disposal of hazardous waste.

                                     Sincerely yours.
                                     Kenneth A. Shuster
                                     Chief, Land Disposal  Branch
                                     Office of Solid waste
WH-565E:Rich Stessel :pj :S206 :382-4654 :WSM:6/12/84

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                                                    9480.1985(01)
April 1, 1985

MEMORANDUM
SUBJECT:  Applicability of the HSWA Minimum Technological
          Requirements Respecting Liners and Leachate Collection
          Systems

FROM:     John H. Skinner, Director
          Office of Solid Waste (WH-562)

TO:       Waste Management Division Director
          Regions I - X


     We have received numerous inquiries regarding the
applicability of the HSWA-imposed minimum technological
requirements for liners and leachate collection systems at
hazardous waste landfills, surface impoundments, and waste piles.
This memorandum outlines the most critical factors for
determining the applicability of the minimum technological
requirements.  The guidance contained herein will be incorporated
into an upcoming version of the Reauthorization Statutory
Interpretation (RSI) for the minimum technological requirements.
Other important applicability issues, such as definition of the
term "replacement unit," will be addressed in the RSI.

     As you know, the new minimum technological requirements are
contained in sections 3004 (o) and 3015 of RCRA.  Among other
things, these sections require that (a)  new landfill and surface
impoundment units and lateral expansions and replacements of
existing landfill and surface impoundment units must have two or
more liners and a leachate collection system above (in the case
of a landfill) and between the liners; and (b) new interim status
waste pile units and lateral expansions and replacements of
existing interim status waste pile units must meet the current
regulations for new, permitted waste piles.  RCRA Subtitle C
permits issued after November 8, 1984, must include these
provisions, and interim status facilities must meet the
requirements with respect to waste received after May 8, 1985.
        This has been retyped from the original document.

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                               -2-

     The key term in understanding the applicability of the
minimum technological requirements is "existing unit," because
all other types of units  (i.e., new units, lateral expansions,
and replacements) are required to meet the minimum technological
requirements.  (However,  interim status units that do not receive
hazardous waste after May 8, 1985, are excepted.  In addition,
units permitted prior to  November 8, 1984, are not addressed
under section 3004(o).)

     In order for a unit  or portion of a unit to qualify as an
"existing unit" and, therefore, be exempt from the minimum
technological requirements, all of the following criteria must be
met.

     1.   The unit must have received solid or hazardous waste in
          some portion of the unit as of November 8, 1984.

     2.   The area was identified in operating records, closure
          plans, state permits, etc., as being part of the unit
          as of November  8, 1984.

     3.   The area was "operational" as of November 8, 1984
          (i.e., the area was constructed by that date in
          accordance with Federal, State, and local requirements,
          including licenses and permits).

     The attached memorandum, regarding a facility in Region 7
that has recently proposed to place waste above a landfill trench
that is reaching its physical capacity, may provide you with
additional useful guidance.

Attachment
        This has been retyped from the original document,

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                                                             9480.1985(02)
                            JUL 1 7 1985            **' WIBCJ0285
MEMORANDOM                       *    "'•'*


SUBJECT;    Status of Sludges in Surface Impoundments or
            Land Treatment Units when wastewater Treatment
            Sludges are Listed in $261.31 i $261.32

FROM:       John H. Skinner/ Director
            Office of Solid Waste

TO;         Janes U. Scarbrough, Chief
            Residuals Management Branch, Region XV


     In your June 20, 1985 memorandum, you asked if vastevater
treatment sludge listings under S261.31 or 1261.32 would
apply in all situations where land disposal or storage of
the associated wastewaters was practiced,  rou cited a previous*
memorandum from this office dated November 23* 1984, wherein
a determination was made that wastewaters from wood preserving
facilities treated in spray irrigation fields generated
listed K001 wastewater treatment sludges, and that such
units are subject to the hazardous waste facility permitting
standards.

     Any pollution abatement technique such as the land
treatment, disposal, or storage of a vastevater will invariably
generate a sludge.  The mechanisms for sludge formation
involve either precipitation, adsorption, or accumulation
of biomass.  These units would be subject to regulation
if the associated wastewater treatment sludges are listed in
$261.31 and 1261.32, if the sludges exhibit a characteristic,
or if the vastewaters themselves are listed or exhibit a
eharaotisC&mSBU  BMMS units would therefore be subject to
5264, JtS sWUm requirements.
cci  Regional Administrators
     Regional Branch Chiefs

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                                           9480.1987(01)
          RCRA/SUPERFUND  HOTLINE MONTHLY  SUMMARY

                             MAY  87
A tank" owner closed a tank which contained waste solvent  in  1977.
The waste solvent was an unlisted, ignitable waste (D001) which
was pumped out of the tank.  Some ignitable residues remained  in the
tank.  The tank was sealed and has not been used since 1977.   Is
the tank a RCRA disposal facility?

   The preamble of the May 19, 1980 Federal Register (40  CFR 264 and
   265, page 33170) specifically states that the regulatory  scheme
   of Subtitle C is prospective, i.e., it applies to hazardous waste
   management which takes place after the effective date  of  the
   Subtitle C regulations.  Inactive (either closed or abandoned)
   disposal facilities could be subject to RCRA §7003 enforcement
   authorities and CERdA.  If the tank was closed in accordance with
   existing industry practices, it would be an inactive disposal
   facility not subject to RCRA Subtitle C regulation unless the
   waste in the tank is subsequently managed in a manner  that  would
   constitute treatment storage or disposal.

   Source:    Chet Oszman         (202) 382-4499
   Research:  Becky Cuthbertson
                                   -4-

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                                                     9480.1987(02)
              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                         WASHINGTON. D.C. 20460
                        OCT 2 9 ;
MEMORANDUM
                                .
                                                 SOLID WASTE AND 6MEaCEMC~ RES?i
SUBJECT:  Union Carbide Agricultural Products Company Waiver
          Request Under §3004(o)(2)  jof^

PROM:     Marcia Williams,  Directo^/f JL^
          Office of Solid Waste   v\  J

TO:       Robert 2. Greaves,  Acting'Chief
          Waste Management Branch (3HW30)


     Per your memorandum of September 16, 1987 requesting our
assistance in responding to Union Carbide Agricultural Products
Company's (UCAPCO) application for a variance under §3004(o)''(2)
of RCRA, our views are set forth below.

     Section 3005(j) requires the installation of double liners
and a leachate collection system by November 8,  1988 for all
surface impoundments that existed on November 8,  1984 and that
qualified for interim status.  Certain exceptions from these
requirements, however,  are authorized under §3005(3)(2),(3).(4) &
(13).  One other means of obtaining a waiver of §3005(j) require-
ments is set forth in §3004(o)(2).  That section authorizes
the Administrator to grant variances from the double liner
and leachate collection system requirements if:

     the owner or operator demonstrates  to the
     Administrator, and the Administrator finds for
     such landfill or surface impoundment,  that
     alternative design and operating practices
     together with location characteristics,  will
     prevent the migration of any hazardous consti-
     tuents  into the ground water or surface water at
     least as effectively as such liners and leachate
     collection systems.

     Unsuccessful  in its attempt to obtain an exemption pursuant
to §3005(j)(3), UCAPCO now proposes to satisfy the requirements of
obtaining a  variance under §3004(o)(2) by a combination of
intragradient cut-off walls and the removal and treatment of
contaminated ground water within such walls.  UCAPCO submits  that
these design and operating practices coupled with the particular
hydrogeologic setting of its facility will ensure that the
ground water and surface water beyond the waste management
area will be protected as effectively as it would with the

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                              — 2 —


installation of liners and a leachate collection system.   A
fundamental premise of UCAPCO's proposal is that an evaluation
for effectiveness occur at the edge of the waste management area
and not at the point hazardous constituents enter the ground
water.  Whereas hazardous constituents will be allowed to
contaminate ground water beneath the units, UCAPCO claims that
its proposed system will not allow migration beyond the waste
management area.  In UCAPCO's view, "any degree of contamination
[of the ground water] within the waste management area is authorized"
provided that the ground water outside the area is protected.
Accordingly,  UCAPCO's proposal attempts to demonstrate that the
system will control the escape of hazardous constituents from
the ground water beneath the unit to ground water beyond the
waste management area as opposed to the escape of hazardous
constituents to the ground water beneath the unit.

     In our view,  UCAPCO's proposal fails to meet the requirements
of §3004(o)(2) on its face.  Section 3004(o)(2) authorizes a
waiver of the double liner and leachate collection system require-
ments only upon a demonstration that a proposed alternative will
"prevent the migration of any hazardous constituents into the
ground water or surface water" at least as effectively as a double
liner and leachate collection system.  UCAPCO's proposal, however,
is specifically designed to allow migration of hazardous consti-
tuents into the ground water.  The term "ground water" in §3004(o)(2)
is not qualified by the phrase "beyond the waste management
area."  Nor is there any evidence of Congressional intent that
the term "ground water" means only ground water beyond the waste
management area.  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 §3004 of RCRA, Congress devised
a threefold scheme to ensure protection of human health and the
environment from 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.  And,
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 not
only by the language of §3004(o)(2) in authorizing waivers of such

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                              - 3 -
requirements only for methods equally effective  at  preventing
migration to ground water but also by the language  of  §3004(o)(5)(B).
That section provides that the liner requirement of §3004(o)(1)(A)(i)
can be satisfied pending issuance of regulations by construction
of a liner system" ...  to prevent the migration  of  any constituent
through suoh liner...."  Any system,  therefore,  that only  controls
constituent migration after it enters ground water  cannot  meet
the equivalency test of §3004(o)(2).   The system proposed  by UCAPCO
fully allows migration of hazardous constituents to the ground  water
beneath the 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,  UCAPCO's proposed system cannot  be "as
effective as" a double liner and leachate collection system
in preventing migration to the ground water.

     UCAPCO's argument that SPA regulations express an intent
on SPA's part to "write off" ground water beneath hazardous waste
management units because they only require compliance  with
ground-water standards at the edge of the waste  management area
demonstrates UCAPACO's fundamental misunderstanding of EPA
regulations.   Compliance with ground-water standards is determined
at the edge of the waste management area simply  because the
installation of ground-water monitoring wells directly through a
unit was considered to put at risk the effectiveness of containment
devices underlying such unit.  As the preamble to the  regulations
establishing the ground-water monitoring system  stated:

          EPA does not believe that the placement of
     wells required in this regulation presents  a
     significant risk that monitoring wells will
     become conduits for leachate passing to ground
     water.... [T]he regulation calls for monitoring
     at the edge of the waste management area rather
     than under the solid waste itself.  This is to
     eliminate any suggestion that the wells should be
     drilled through any natural or artificial barrier
     that may contain the waste.  The problem of
     migration of leachate will be reduced by plac[ing]
     monitoring wells outside of any containment barrier.
     ... 45 PR 33066, 33193 (May 19,  1980).

Thus, this requirement in no way evidences an intent on EPA's part
to allow contamination of ground water beneath a unit.  Accordingly,
any reference to SPA regulations in the legislative history of
§3004(o) cannot support the conclusion that Congress intended to
forfeit the quality of ground water beneath hazardous  waste manage-
ment units.  In fact, EPA has expressly stated its contrary views with
respect to the meaning of "ground water" in guidance addressing a

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waiver provision similar to §3004(o)(2).  Section 3005(J)(4)
authorizes a waiver from the double liner and leachate collection
system requirements upon a showing of, among other things:

     that such surface impoundment is located, designed
     and operated so as to assure that there will be no
     migration of any hazardous constituent into ground
     water or surface water at any future time.  The
     Administrator or the State shall take into account
     locational criteria established under Section 3004(o)
     (7).

EPA's guidance regarding the meaning of "ground water" states:

     EPA Interprets this provision as referring to the
     closest source of ground water or surface water,
     whether contaminated or noncontaminated, usable or
     nonusable, as the point to which there must be no
     migration of any hazardous waste or constituents.
     As used in this provision, "ground water" includes,
     but is not limited to, all USDW's and all aquifers;
     it encompasses "all water below the land surface in
     a zone of saturation" (40 CPR 260.10).  A demonstration
     of no migration in saturated soil would not be appro-
     priate for this exemption because waste migration into
     the saturated zone is interpreted as ground-water
     contamination.  Because Section 3005(j) is concerned
     with migration that could be prevented through the
     installation of a double liner and leachate collection
     system and because the escape of hazardous wastes or
     constituents through overtopping, surface water runon
     and runoff, and/or erosion are addressed independently
     in various sections of 40 CPR Part 264, the demonstration
     of no migration to surface waters for this exemption
     should address migration in subsurface soils.  The
     demonstration of "no migration" to both ground water
     and surface water should therefore be made for the
     unsaturated soil beneath the facility.  Interim Status
     Surface Impoundments Retrofitting Variances, EPA/530-SW-
     86-017 (July 8, 1986).

     In sum, §3004(o)(2) allows for waivers of the liner and
leachate collection system requirements only for alternatives at
least as effective as the first line of defense against migration
of hazardous constituents, I.e., containment within the unit and
maximizing the collection and removal of leachate before It can
migrate out of the unit.  Congress did not authorize substitution
of a corrective action type system that is responsive only to
the further migration of hazardous constituents as a substitute
for initial containment requirements.  See Senate Report No.
98-284 at 28.  In fact, Congress specifically amended §3004 "to
correct the deficiency in existing regulations allowing double
liners and ground-water monitoring to be alternatives." H.R.
2867, Conf. Rep. at 89.  Accordingly, substitution of UCAPCO's

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                              - 5 -


proposed system for the double liner and leachate collection system
requirement would undermine Congress1  and the Agency's carefully
crafted, tiered strategy for ensuring protection of hunan health
and the environment.

     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 constituents
into the ground water.

cc:  Bruce Weddle
     Susan Bromm
     Joe Carra
     Bob Tonetti
     Suzanne Rudzinski
     Bob Kayser
     Les Otte
     Tina Kaneen
     Charles Openchowskl
     Pamela Savage
     Chris Rhyne

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               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                          WASHINGTON, D.C. 20460
                              FEB 2 0 1995
                                                             OFFICE OF
                                                        SOLID WASTE AND EMERGENCY
                                                             RESPONSE
                                                          9480.1996(01)
Barry L. Vedder
2014 Austin Place
Richland, WA  99352

Dear Mr. Vedder:

     Thank you for  your letter of January 11, 1996 requesting
clarification on several aspects of the RCRA corrective  action
program.  The following are responses to the four questions  that
you raised in your  letter:

1)   Are operating  RCRA TSD units (e,g., hazardous waste tank
     systems,  surface impoundments,  etc.) considered  solid waste
     management  units?

     Yes.  RCRA  regulated units are defined in 40 CFR 264.90 as
     surface  impoundments,  waste piles, land treatment units,  and
     landfills that received hazardous waste after July  26,  1982.
     RCRA regulated units are a subset of the universe of solid
     waste management units (SWMUs).


2)   Is RCRA  corrective action authority applicable to such  units
     in the event that the unit has had a release to  the
     envi ronmen t ?

     Yes.  The 1984 HSWA amendments extended corrective  action
     authority to all solid waste management units at TSDFs  which
     received solid or hazardous waste at any time; as described
     above, the  universe of SWMUs includes regulated  units.

     At the same time the HSWA corrective action provisions  were
     enacted,  corrective action for releases to ground water from
     RCRA regulated units was already provided for under 40  CFR
     264 Subpart F.  As specified in 264.90(a)(2), all regulated
     units must  be  in compliance with §§264.91 through 264.100 in
     lieu of  §264 ..101 for purposes of detecting, characterizing
     and responding to releases to the uppermost aquifer. In
     practice, cleanup of groundwater and other contamination
      (e.g., source  materials or contaminated soils) at regulated
     units is often accomplished under one administrative
     vehicle.  For  example, a single Federal §3008(h) corrective
          Recyciecl/R«eyclaM« • Printed wtm Vegetable Ol Based Inks on 100% Recycled Paper (40% Postconsumer)

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     action order, or §3004(u)  corrective action permit
     condition, can compel cleanup of groundwater and other media
     at regulated units.  However, in other cases, such as when a
     state is authorized for the RCRA groundwater requirements
     but not for corrective action, cleanup at a regulated unit
     may be undertaken under more than one administrative
     vehicle, with groundwater cleanup conducted under a state
     permit and other cleanup under a Federal corrective action
     permit or order.

3)    .Regulations at 40 CFR 270. 72 (b) (5) remove the reconstruction
     limit at interim status facilities with regards to changes
     necessary to comply with an interim status corrective action
     order.  If corrective action is mandated at an operating
     RCRA TSD unit at an interim status facility, would changes
     necessary to comply with the order be exempt from the
     reconstruction limit?

     Yes.  The exemption listed at 270.72(b)(5)  from the
     reconstruction limit applies to corrective action activities
     that originate within the boundaries of an interim status
     facility, including from within regulated or solid waste
     management units.

4)    Application of corrective action authority to closing TSD
     units could result in significant overlap.   Is it EPA's
     intent that corrective action requirements be spelled out in
     the closure plan for the unit, or will the closure
     activities be held in abeyance pending completion of
     corrective action?

     EPA has long recognized the need to more effectively
     integrate corrective action and closure activities.   Toward
     this end,  the Agency proposed a rule entitled "Standards
     Applicable to Owners and Operators of Closed and Closing
     Hazardous Waste Management Facilities; Post-Closure Permit
     Requirement; Closure Process; State Corrective Action
     Enforcement" (59 FR 55778, November 8, 1994).  In this
     notice, the Agency proposed and sought comment on revisions
     to the current requirements applicable to facilities with
     closed and closing land disposal units,  as well as revisions
     to the requirements for State authorization for corrective
     action.  These provisions were proposed as part of the
     Agency's efforts to create a consistent approach to cleanup
     at RCRA facilities.  EPA is completing its review of
     comments on these proposed provisions and plans to proceed
     with promulgation of the final rule in the near future.

     The current regulations at 40 CFR Part 270.1(c) require
     owners and operators of surface impoundments, landfills,
     land treatment units, and waste pile units that received
     wastes after July 26, 1982, or that certified closure after
     January 26, 1983 to obtain a post-closure permit for the
     facility, unless they demonstrate closure by removal at

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     those units  (commonly referred to s.s "clean closure") .  For
     facilities that did not receive an operating permit, and
     closed under interim status standards,  this post-closure
     permit serves to impose several critical statutory and
     regulatory requirements, including the requirement for
     facility-wide corrective action.

     At the present time, the agency does not intend that closure
     activities need be held in abeyance pending completion of
     corrective action activities in all cases, or that
     corrective action requirements need always be specified in a
     closure plan.  Given the interrelationship of many closure
     and corrective action activities (e.g., both closure
     activities and corrective action at closing units typically
     involve removal of wastes or contaminated media) ,  the agency
     encourages coordination between these. activities that
     results in the most effective and expedient approach to
     cleanup and closure of regulated units.    This coordination
     may take several forms, including specification of
     corrective action activities in closure plans,  concurrent
     activities under closure and corrective action, or
     incorporation of closure activities into corrective action
     permits or orders.  Which approach is taken depends upon
     site-specific factors including state authorization, extent
     of site contamination, and types of remedial activities.

     I hope that this has helped to clarify the issues that you
have raised.  If you have any further questions,  please contact
Hugh Davis at (703)  308-8633.

                              Sincerely yours,
                                      Shapiro,  Director
                                     of Solid Waste

cc:  Dave Bartus, EPA Region X
     Moses Jaraysi, Washington State Department of Ecology
     Joe Witczak, Washington State Department of Ecology

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                                                              2014 Austin Place
                                                            Richland, WA 99352
January 11, 1996

Michael Shapiro
Director, Office of Solid Waste
U.S. Environmental Protection Agency
401 M Street, SW  5301
Washington, DC 20460

Dear Mr. Shapiro,
The purpose of this letter is to request clarification regarding EPA's interpretation of the
RCRA corrective action authority. There seems to be some confusion in the regulated
community regarding whether this authority applies to RCRA TSD units, or only to non-
TSD solid waste management units (SWMUs) at a RCRA TSD facility. This confusion
may result, in part, as a consequence of the pre-HSWA corrective action authority
applicable to "regulated units." Indeed, the regulations indicate that there may be two
corrective actions - one applicable to regulated units (including certain TSDs)
promulgated at 40 CFR 264.100 and a second corrective action for all other SWMUs
pursuant to 40 CFR 264.101. This appears to be clarified at 40 CFR 264.90(a)(2),
which imposes the standards of 40 CFR 264.101 to all SWMUs, with the requirements
of 40 CFR 264.91 through 264.100 applicable to regulated units with regards to
releases to the uppermost aquifer.  The discussion at 50 Federal Register 28714 (July
15,1985) appears to support this interpretation.

In any event, your response to the following questions is requested in order to help
clarify RCRA corrective action authority as applied to RCRA TSD units:

      1.    Are operating RCRA TSD units (e.g., hazardous waste tank systems,
            surface impoundments, etc.) considered solid waste management units?

      2.    If the answer to question  1 is "yes," does that mean that RCRA corrective
            action authority is applicable to such units in the event that the unit has
            had a release to the environment?

      3.    Regulations at 40 CFR 270.72(b)(5) remove the reconstruction limit at
            interim status facilities with regards to changes necessary to comply with
            an interim status corrective action order. If corrective action is mandated
            at an operating RCRA TSD unit at an interim status facility, would
            changes necessary to comply with the order be exempt from the
            reconstruction limit? (This question and question 4 assume that
            questions 1 and 2 are answered in the affirmative.)

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      4.     Application of corrective action authority to closing TSD units could result
             in significant overlap. Is it EPA's intent that corrective action requirements
             be spelled out in the closure plan for the unit, or will the closure activities
             be held in abeyance pending completion of corrective action?

Your response to these questions will enhance my understanding of EPA's
interpretation of the federal corrective action authority.  I recognize that state
requirements may impose additional scope or stringency to the corrective action
requirements, and that the responses you provide will necessarily be based upon
interpretation of the federal standards of 40 CFR 264 rather than any state "add-ons."

Thank you in advance for your time and consideration on the issues raised in this
request.

                                                                 Sincerely yours,
                                                                  Barry L Vedder

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                      HOTLINE QUESTIONS AND ANSWERS

                                     February 1996
                          9480.1996(02)

 1.  Frequently Asked Questions on the
    40 CFR Part 264/265, Subpart CC
    Air Emission Standards

    Are large quantity generators subject to
 the RCRA Subpart CCair emission standards
for tanks, surface impoundments, and
 containers?

    Yes, large quantity generators are subject
 to the Subpart CC air emission standards if
 managing hazardous waste in 90-day
 accumulation units (§262.34(a)).

    Does Subpart CC affect containers used
for satellite accumulation under §262.34(c)?

    Subpart CC does not apply to containers
 used for satellite accumulation (59  FR 62896,
 62910; December 6,1994).

    Are large quantity generators subject to
 the Subpart AA and BB air emission standards
for process vents and equipment leaks?

    Yes, in addition to establishing the Subpart
 CC air emission standards, the December 6,
 1994, Federal-Register also extended the
 applicability ofSubparts AA and BB to large
quantity generators accumulating hazardous
waste in permit-exempt units (§262.34(a)).

    Do the Subpart CC regulations specify the
types of control equipment that must be
installed to comply with the air emission
standards?
   The Subpart CC standards do not require
the use of any specific type of equipment or
add-on control device. Instead, the standards
allow owners/operators the flexibility of
choosing a control device that is best suited
for a particular wastestream (59 FR 62896,
62918; December 6,1994).

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                       HOTLINE QUESTIONS AND ANSWERS

                                      March 1996
                            9480.1996(03)
 I
 2. Removal of Hazardous Waste
    Management Unit for Subpart CC
    Compliance

    The effective date of the 40 CFR Pans 2641
 265, Subpart CC air emission standards is
 June 6,1996. Owners and/or operators who
 are unable to install the appropriate air
 emission controls on affected tanks, surface
 impoundments, and containers by the effective
 date of the rule are given the opportunity to
 establish an implementation schedule for the
 installation of required equipment. In all
 cases, owners anal or operators must have all
 controls installed by December 8,1997
 (§265.1082). Is the removal of an affected unit
from service an acceptable means of
 compliance with the Subpart CC standards?  If
 so, can the owner and!or operator continue to
 manage hazardous waste in the unit without
 the appropriate air emission controls if he or
 she is unable to remove the unit from service
 prior to the June 6,1996;provided that
 documentation of the intentions to remove the
 unit from service by December 8,1997, is
 placed in an implementation schedule?
   Removal of a tank, surface impoundment,
or container from service is an acceptable
means of compliance with the Subpart CC
standards.  If, however, removal of the unit.
does not occur before the June 6,1996,
effective date, all required air emission
controls must be installed on the unit if it
continues to manage hazardous waste. When it
is not possible to install the appropriate
controls by the effective date of the rule,
owners and/or operators must prepare an
implementation schedule in accordance with
the guidelines established in §265.1082.

   Preparation of an implementation schedule
is not an automatic extension to the effective
date of the Subpart CC standards until
December 8,1997.  In all cases, owners and/or
operators must document in the schedule the
reasons why required controls cannot be in
place by the effective date and must make all
efforts to install the equipment as soon as
possible, but no later than December 8,1997.
Thus, in order to continue managing hazardous
waste after the effective date of the air
emission requirements in a unit scheduled for
removal without the required controls, an
owner and/or operator must be able to
demonstrate why the unit cannot be removed
before June 6, 1996, and why the necessary
controls cannot be installed. An
implementation schedule describing the
removal of an affected unit must be prepared
and placed in the facility's operating record.
The owner and/or operator can continue to
operate the unit without air emission controls
while he or she is implementing the schedule.

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Ground Water Protection Standards
(Subpart F)

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9481-
GROUND-WATER
PROTECTION
STANDARDS
Parts 264 & 265 Subpart F
                     ATK1/1104/40 kp

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                                                        9481.1985(01)
                              CCT 15 ::•;:
MEMORANDUM
SUBJECTr     Requirements for Analysis of Appendix VIII
             Constituents in Groundvater

FROMt        Marcia Williaas, Director
             Office of Solid Waste (V.H-562)

TO:          Stephen a. Uassersuq, Director
             Hazardous Waste Management Division (3HWOO)


Your memorandum of September 20 relating the problems associated
with the analysis of Appendix VIII constituents in ground water
raises a number of valid concerns.  The adequacy of the current
SW-846 methods for routine determinations of all constituents is
bsing evaluated, and th« rationale for requiring a complete)
Appendix VIII analysis in ground water is being reexamined*

As you know, the existing permit regulation* (f270.14(c)(4))
require toe permit applicant to identify the concentration of
each Appendix VIII constituent in any plum* of contamination.
In response to numerous requests for selective waivers of the
regulatory requirements, the Office of Enforcement and Compliance
Monitoring (OECM) and OSWEX issued a joint memo to the Regions
(Price/Thomas, August 16* 1984).  This, memorandum, however, only
exempted a small number (21) of the 375 Appendix VIII constituents
from monitoring requirements through enforcement discretion,
based on the constituents' instability in water or the lack of
EPA-accepted, standardised test procedures.  The Agency has also
proposed to eliminate the nsed to test for these substances in
ground water in a proposed rule (49 PR 38786* October 1*  1984).

Currently» several Agency activities are undsrway that should
address many of the- concerns outlined in your memorandum.  A
workgroup, has been formed to examine the nsed for changes in
the regulatory requirement for the analysis of all Appendix VI11
constituents.  la ordsr to justify a regulatory amendment, the
workgroup is gathering data and considering several options that
may lead to a more limited sst of parameters for ground-water
analysis*  This work and the subsequent regulatory development
process could lead to a proposed nils by lats 1986, and the promul-
gation of a final nils a ysar later.  For more dstails on the
progress of the Appendix VIII workgroup, contact Bob April, Land
Disposal Branch (382*4684).

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                               -  2  -

In support of the workgroup effort th-j Agency  ia examining which
constituents  (beyond those cited  in  the trice/Thomas ^eraorancura)
should be dropped frcra the ronitoring requirement becaues o£
instability in water or  lack of  analytical methods,  .".athods
evaluation work is also  underway  to  support  promulgation of the
analytical nethoda assigned to tha Appendix  VIII constituents  in
the rule proposed on October  1,  1934.  Additional tuethods evaluation
Is being conducted throuqh the Superfund program and the Ground-
water Monitoring Task force.   Any  questions  concerning these
efforts, or other questions on the adequacy  of current SPA methods,
should be directed to Paul Priedr.an, Studies and Methods dranch
(3*2-4796).

The current regulations  are very  specific  in requiring that each
Appendix VIII constituent be determined.   Therefore, a strict
reading of the regulations would  not allow either of the alterna-
tives put forward by the Array  to  be  deemed acceptable under
current EPA policy.  The Agency  is aware of  the inplementation
problems involved in permit issuance that  arise from the current
rigid regulatory approach.  Other  Regions  ar«  also wrestling
with the implementation  question*  you are  facing in Region III.
For assistance in resolving perm it-related Appendix VIII questions,
you way contact Sob Kayser of  th*  Permit Assistance Tsasi (382-4536).

As noted above* any regulatory changes in  the  Appendix VZIZ
monitoring requirement would not become effective until the end
of 1987.  X realise, however,  that permitting  needs are more
immediate.  As increasing numbers  of facilities are required to
submit Appendix VIII analyses, the lack of a realistic policy
nay create a slowdown in the permitting process as well as
inconsistent compliance.

Therefore, I have initiated efforts by OStf to  expand the number
of Appendix VTII constituents  exempted from  ground-water monitoring
requirements beyond those listed  in  the proposed rule of October
1, 1984.  I intend to issue some  fora of Interim guidance early
next year.  In addition, X have made the completion of the tasks
supporting a regulatory  change a high priority.

Finally, in regard to your concern about whether the- Army facility
can certify compliance with applicable ground-water monitoring
requirements) by November 8, X  would  refer  you  to the Federal
Register notice) of September 25,  198S (SO  PR 38948).  That notice
indicates) that the applicable  requirements are those in Part
26S.  Therefore, compliance with Part 2C4  or 270 requirements
involving Appendix VIII  should not be an issue for certification.

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                               - 3 -
cc: naste f!anac,e»ent  Division  Directors, Per;ions  I,  II,  snd IV-X
    Pruce '.,'eddla
    Jack Lehnan
    Eileen Claussan
    ?eter Guerrero
    Terry Groqan
    Eob April
    Bob Kayser
    Paul Friedman
    Dave friddman
    Lloyd Guerci
    .'like Barclay
    .M.ark Greenwood
    £ohraim Kinq

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                                                                       9481.1985(01a)
              RCRA/SUPERFUND/OUST HOTLINE  MONTHLY REPORT QUESTION
                                     FEBRUARY 1985
Groundwater Monitoring


A 274 acre interim status landfill has 20 downgradient groundwater monitoring wells.
Contamination has been detected in five of the wells.  For the last five years the
remaining 15 wells have shown no contamination.  In  the facility's Part B application,
nust the compliance monitoring or corrective action  program be applied to all 20 wells
or just the five wells which show contamination?

    If, after thorough site-specific review of interim status compliance, it has
    been determined that all 20 assessment program wells are necessary .to properly
    detect and characterize any plumes of contamination which may come from the
    facility, the caipliance monitoring program must be carried out at all of the
    20 wells which are at the point of compliance, not just those wells that have
    shown contamination (S264.98(h)(2)).  However, the way the;question is worded
    gives some doubt that the existing wells comply  with interim status assessment
    requirements.  Usually more wells will be needed after detection to determine
    rate and extent of migration ($265.93(d)(4)(i)). It is unlikely that five
    wells will fully characterize a five .year old plume of contamination from a 274 acre
    site.  Wells may be needed in the vicinity of each of the five wells now showing
    contamination to demonstrate that the highest concentrations are detected, and to
    establish the plume boundaries and the rates of  migration.  Additionally, it must
    be shown that the failure to detect contamination in the remaining 15 wells is not
    a false negative.

    Information  including additional analytes from the 20 wells should be fully
    evaluated andr based on this analysis,  a monitoring array should be designed.

    In general,  the same high standards for the number and location of wells apply to
    both interim status and permitted facilities implementing ground water monitoring
    programs. Interim status standards include requirements for detection and
    assessment programs.  Permitting standards include requirements for detection,
    compliance,  and corrective action programs.   Both detection programs are essen-
    tially the same.  Data gathered from the interim status assessment program should be
    sufficient for characterizing the plans for the  purposes of fulfilling Part B
    application  requirements.  However, there is no  interim status equivalent to com-
    pliance monitoring under Part 264.  In a compliance monitoring permit,  wells must
    be located at the intersection of any plume and  the point of compliance;  both the
    periphery and the point of highest concentration within that plume must be monitored.
    monitored.

    Finally, both applicants and permit writers should weigh the opportunity to improve
    the monitoring system under the permit  against the need for maintaining data
    continuity.   Upgrading to teflon wells, installing new wells at plume centers, and
    other improvements may need to be phased in over several sampling cycles to
    establish correlations between old data and new  data.

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                                                                   9481.1985(01b)
            RCRA/SUPERFUND/OUST HOTLINE  MONTHLY REPORT QUESTION
                                     APRIL 1985
Groundwater Sample Analysis

5.  $264.97(h)  describes the procedure required to determine whether concentration
    limits have exceeded background levels during groundwater detection monitoring
    and compliance monitoring programs.  In this instance, the owner/operator (o/o)
    is in a detection monitoring program and must compare the levels of constituents
    at the compliance point to the background values.  These background values have
    been determined to  have sample coefficient of variations less than 1.00.  The
    o/o compares the constituent levels at the compliance point to the background
    levels, as  described in S264.97(h)(l)(i), and finds there is a significant
    difference  in the values for certain constituents.  In order to statistically
    substantiate these  results, the.o/o must repeat the sane sampling and analysis
    procedure with a new sample.  Must this second analysis cover all the constituents,
    or may the  o/o limit the analysis to only those constituents which showed a
    significant difference over background in the first sampling?

       Since the objective of the second analysis is to confirm the first, the second
       analysis need only cover those constituents which showed a significant
       difference over  background.

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                                                           9481.1985(03)
                             03T 2 8


MEMORANDUM
SUBJECT!  Ground-Water Monitoring Variance Requirements
                                      Original Sijnad By
          Harcia Williams, Director   „_,.„<„ B
          Office of Solid Waste  (WH-Ssfcf cla *'
FROM:
TO i       Conrad Simon, Director
          Air and Waste Management  Division  (2AWH)
     This memorandum  is  in  response  to your memorandum of
May 29, 1985, concerning the  possibility of a ground-water
monitoring variance at the  CECOS  site in Ponce, Puerto Rico
(EPA I.D. Number PRD000010231).   The variance your memorandum
describes is based on engineered  safeguards at the waste
management unit.  The standards for  ground-water monitoring
variances based on engineered structures for landfills
operating under permits  are set by new Section 3004(p) of
the Resource Conservation and Recovery Act.  Ae EPA explained
in the preamble to the final  "codification" rule for the 1984
KCRA amendments. Section 3004(p)  invalidated the "engineered
structures" variance  regulations  for land disposal units EPA
promulgated on July 26,  1982, and substituted more stringent
standards.  See SO Fed.  Reg.  28716-2371? (July 15, 1935).

     The "codification"  rule  deleted the existing variance
rules for landfills in 40 C.F.R.  264.302. It inserted the new
variance standards required by the statute into 40 C.F.R.
264.90(b)(2) (copy attached). This  regulation also delegates
the authority to grant variances  to  the  Regional Administrators.

     The standards you have outlined in  your memorandum resemble,
but do not precisely  natch  the new variance regulations.  For
example, the regulations also require the Regional Administrator
to find, to a reasonable degree of certainty, that the unit will
not allow migration of hazardous  constituents beyond the outer

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layer of containment before the end of the post-closure care period.
You will need to evaluate the Ponce landfill against the regulatory
requirements*  The regulation does not appear to grant the Regional
Administrator authority to impose more stringent requirements.

     If you or your staff have any questions concerning this
matter, please telephone Bob April of ray staff (FTS-382-4654).

Attachment

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                                                    9481.1985(04)
              RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                            OCTOBER 85
Definition of "Physical Compliance"

Owners or operators of land disposal facilities which have
interim status prior to November 8, 1984, will have their interim
status terminated on November 8, 1985, unless a Part B permit
application is submitted prior to that date and the
owners/operators certify that the facilities are in compliance
with all applicable ground-water monitoring and financial
responsibility requirements per §270.73(c), of the July 15, 1985,
Federal Register (50 FR 28753).  The notice of implementation and
enforcement policy for this provision in the September 25, 1985,
Federal Register (50 FR 38946), states that to certify compliance
a facility must be in "physical compliance" with the Federal or
State ground-water monitoring and financial responsibility
requirements.  What is "physical compliance" for the Federal
ground-water monitoring requirements?

     Owners or operators must certify "physical compliance" with
     applicable ground-water monitoring requirements defined in
     40 CFR Part 265, Subpart F (see Appendix A, 50 FR 38949).
     "Physical compliance" for purposes of certification under
     §3005(e) means that unless the owner/operator meets the
     waiver requirements under §265.90, the facility must have a
     ground-water monitoring system which meets all of the
     specifications of §265.91.  This system must be physically
     in place at the unit for which certification is required and
     sampling and analysis under §265.92 must be underway.

Source:  Jackie Tenuszak (202) 475-9328
        This has been retyped from the original document.

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                                                    9481.1985(05)
              RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                           OCTOBER 85


6.    Ground-Water Monitoring Well Construction

     A bladder pump is used instead of a bailer to obtain ground-
     water samples.  What construction material is required for
     the bladder pump and the sample tubing in the well?

          When a bladder pump is used, it is connected to a
          sample tube that runs inside the well casing to the
          surface.  The RCRA Ground-Water Monitoring Technical
          Enforcement Guidance Document (Draft) (Sections 3.2.1 &
          3.6) dated August 1, 1985 recommends that the well
          casing, bladder pump, and sample tube be made of Teflon
          316 stainless steel.  In the case where an existing
          well is constructed of different materials, this
          guidance document recommends that the enforcement
          official decide if the well allows for the collection
          of representative ground-water samples as it is built
          or whether another well should be built with more
          inert, resistant materials (Section 3.7) adjacent to
          it.

          Source:  Ken Jennings (202)  475-9328
        This has been retyped from the original document.

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                                                    9481.1985(06)


             RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                           DECEMBER 85


Compliance to Detection Groundwater Monitoring

6.   As part of his RCRA permit,  the owner/operator of a land
     disposal facility must conduct compliance monitoring in
     accordance with §264.99.   If,  after several years of
     compliance monitoring, the owner/operator can show that
     Appendix VIII constituent levels are no longer present above
     background levels, is it possible for the owner/operator to
     revert to detection monitoring levels per §264.98?

          Once the facility has been triggered into compliance
          monitoring and it becomes part of the permit, the
          owner/operator must conduct compliance monitoring for
          the number of years equal to the active life of the
          facility (including any waste management activity prior
          to permitting, and the closure period per §264.96(a)).
          Upon conclusion of the compliance period, the
          owner/operator may be able to return to detection
          monitoring for any remaining period of post-closure
          care, provided that:  (1) no corrective action is
          required (§264.99(i) or §264.100); (2) the constituent
          levels are at or below background levels; (since the
          detection monitoring program is designed to detect
          increases over background levels, a facility which was
          meeting a ground-water protection standard set at a
          level above background would continually be required to
          switch from detection monitoring to compliance
          monitoring; hence, the return to detection monitoring
          would not have any practical value unless constituent
          levels were at or below background levels); and (3) the
          owner/operator submits an application for a permit
          modification  (§270.41(a)(5)(v)).

          Source:  Mark Salee  (202)  382-5742
        This has been retyped from the original document.

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                                                    9481.1986(01)


May 15, 1986


MEMORANDUM


SUBJECT:  Identification of Uppermost Aquifer in Fill

FROM:     Marcia E. Williams, Director
          Office of Solid Waste  (WH-562)

TO:       Harry Seraydarian, Director
          Toxics and Waste Management Division
          Region IX

     I am^writing in response to your memorandum of February 27,
1986, concerning ground-water monitoring at the IT Corporation's
Vine Hill facility.  I agree that the IT Corporation must monitor
the uppermost saturated zone regardless of whether the saturated
zone is manmade fill or natural rock.

     The intent of the regulations is to monitor the first
ground-water contamination, not to link monitoring to a
commercially productive aquifer.  The preamble to the regulations
(33192 FR. May 19, 1980) states "The monitoring program seeks to
detect contamination of the uppermost aquifer because that will
be the first ground water affected by a leaking disposal
facility."  The draft Technical Enforcement Guidance Document
(August 1985) states "The uppermost aquifer extends from the
water table to the first confining layer (or ten feet into
bedrock) and includes any overlying perched zones of saturation."
Such monitoring provides essential information on the direction
and concentration of the flow of contaminants from hazardous
waste units since formations of low permeability (e.g., aquitards
and aquicludes) may divert the flow of contaminants to surface
water, upgradient wells, or beyond downgradient wells so that the
contaminants are not discernable to lower monitoring wells at the
waste boundary.

     The arguments of the IT Corporation seem to center around
semantic arguments over the nature of a "geologic formation."
Instead, IT should focus on the saturated zone and early
detection of contaminant flow from the site.  As a policy matter,
this office supports the location of wells so as to most
efficiently detect contamination.
        This has been retyped from the original document.

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                               -2-

     If you have any further questions concerning this matter,
please telephone me (FTS-382-4627) or have your staff telephone
Arthur Day of my staff (FTS-382-4658).

cc:  Regional Waste Management Division Directors,
       Regions I-VIII, X
     John Lehman
     Bruce Weddle
     Kenneth Shuster
     Arthur Day
        This has been retyped from the original document.

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                                                              9481.1986(02
I ^Sg-
\Vr~

  
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                                                                   9481.1986(04)
              RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY

                                JULY  86
3.  Ground-Water Monitoring;   Establishing Background Values

    According to 40 CFR 264.98(c)  the owner/operator (o/o) of  a  land
    disposal facility must establish background  values  for the ground-
    water monitoring parameters  specified  in  the facility permit.  The
    o/o must establish these  background  values usinq the  procedure
    specified in 40 CFR 264.97(g)  which  reguires that background data be
    based on guarterly sampling  of uoqradient wells for one year.

    (a) Interim status facilities  may not have the  necessary ground-water
    monitoring data needed for a permit  since the 40 CFR  265 ground-water
    monitoring reguirements are  very general  and not specific  for
    individual constituents.   How  does an o/o of an interim status
    facility meet the 40 CFR  264.98(c) standard?

    (b) Mew facility owner/operators must obtain a  permit prior  to
    construction of the facility per 40  CFR 270.10(f)  (50 FR 28751).  Does
    drilling ground-water monitoring wells constitute construction?  If
    so, how does the o/o meet the  40 CFR 264.98(c)  standard?

         (a) An interim status facility  may  fulfill the background data
         reguirement for permitting in a number  of  ways.  Assuming the
         facility o/o has been conducting  an  indicator  evaluation program
         as reguired by 40 CFR 265.92 and 265.93(b), the  o/o may
         submit the data that have been  collected to that point  with the
         permit application.   As reguired by  40  CFR 270.14(c) (6), the o/o must
         also submit a proposed  list of  indicator parameters or  hazardous
         constituents which could  reasonably  appear in  the ground-water
         at the site, and background values  for  each proposed  constituent
         (40 CFR 264.98).  If the  o/o cannot  submit background val_es  for every
         one of the proposed  constituents, the o/o  must submit procedures to
         calculate these values (40 CFR  270.14(c)(65(iii) and  (iv».  The o/o
         would then generate  the background data during the  first year
         of the permit.  The  final background values would automatically
         become part of the permit.  (See  the July  26,  1982 Federal
         Register, 47 FR 32306.)

         (b) 40 CFR 270.14(c)(6) reguires  owners and operators of new
         facilities to submit only plans for detection networks  prior  to
         permit issuance.  Well installation may take place  after the
         permit issues.  Well construction could constitute  facililtv
         construction.

         Source:    Vernon Myers (202)  382-4658
         Research:  Jennifer Brock

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            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                                                      9481.1986(06}



                              6 AUG 86
Honorable Boh Dole
United States Senator
444 S.E. Ouincy
Topeka, Kansas  66683

Dear Senator Doles

     Thank you for vour June 24, 1986, letter on behalf of
Ms. Sharilyn Dienat.  Ms. Dienst expressed concern about the
use of alternate concentration limits at RCRA/CSRCLA sites.
Specifically, Ms. Oienst raised questions regarding the
RCRA/CERCLA consent orders on the N.I.B.S. facility in Kansas.

     The ground-water protection standard (GWPS) under Subpart
F of 40 CFR Part 264 requires a concentration limit for each
hazardous constituent entering the ground-water from a RCRA
regulatory unit.  This concentration limit is established in
the facility permit and serves as a concentration limit beyond
which degradation of ground-water guality will not be allowed.
These concentration limits determine when corrective action
is required.

     There are three possible concentration levels that can be
used to establish the GWPSt

     1.  Background levels of the hazardous constituent;

     2.  Maximum concentration limits listed in Table 1
         of Section 264.94(a) of the regulations; or,

     3.  Alternate concentration limits (ACLs).

The first two levels are established in the facility permit
unless the facility owner or operator applies for an ACL.

     To obtain an ACL, a permit applicant must demonstrate
that the hazardous constituents detected in the ground-water
will not pose a substantial present or potential hazard to
human health or the environment.  The factors used to evaluate
ACL requests are nineteen specific  items related to potential
adverse effects on ground-water quality or hydraulically-
connected surface water quality*

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     An ACL demonstration is essentially a risk assessment
and risk management process in which a determination of
acceptable ground-water contamination is made.  If the ACL
demonstration relies on a showinn that adverse effects on
human health and the environment will be delayed rather than
prevented, then the ACLs will not be nranted.   The permit
applicant must provide evidence that the adverse impacts will
be prevented.

     The Agency has a draft ACL Guidance which includes six
case studies; including the case study which Ms. Dienst requested,
The draft guidance is subject to change and is not EPA's official
policy.  The guidances, when finalized will serve to elaborate
on the ACL criteria and to provide examples of acceptable ACL
arguments through case study examples.  We expect to finalize
the guidance by the end of October, 1986.

     EPA's Region VII office in Kansas City, Kansas, has the
lead role in reviewing the NIES facility ACL application and
makina the final decision on the concentration limits.

     Regarding Ms. Dienst's question about appeal rights, I
suggest she call Mr. Lloyd Guerci, Director of EPA's RCRA
Enforcement Division.  His telephone number is (202) 382-4808.
The process for orders under RCRA is presently under review.
However, the RCRA process is expected to operate in the same
manner as that for CERCLA orders.  Under the CERCLA order
process, public comment is sought by the respective EPA
Regional Office.  Once corrective action alternatives have
been agreed upon by EPA and the responsible party, a draft
consent order is usually published for public comment*  Based
on public comments EPA may renegotiate the order.  In this
way the public's views are taken into account.  There often
are ongoing discussions, such an public meetings, with the
public involved throughout the process.

     ACLs are usually granted through the permit process.
Nationally, neither EPA nor authorized States have approved
any- ACL applications to date.  However, Region IV, with
Headquarter1s concurrence, has given tentative approval for
an ACL for nickel at a facility in Alabama.  This ACL is
awaiting permit issuance.  The CERCLA program has made ACL-
like decisions at one site: Sylvester, NH.

     I hope this letter addresses Ms. Dienst's concerns.
If I can be of any further assistance, please let me know.

                              Sincerely,
                              U7. Winston Porter
                              Assistant Administrator

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           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                                     9481.1986(08)
                            SEP 2 6 1986
Honorable Mewt Ginqrich
^ouse of Representatives
uashinqton, D.C.  20515

near Mr. Gingrich:

     Thank you for your Rentember 8, 1936, letter concern inn
the State of Georgia's choice of analytical methods for ground-
water nonitorina.  Georqia Environmental Protection Division's
reauirement that only qas chromatography/mass soectrowetry
(qc/ms) be used for organic analysis is not inconsistent
with the Federal oroqram.

     As Mr. Friedman explained  in his July 25 letter to which
you referred, the Environ«nental Protection Agency (EPM has
approved both methods:  qc and gc/«"s.  It is- possible to"
perform Appendix VTII (40 CPR Part 261) organic analysis
using only gc«  However, EPA'a Ground-Water Task Force chose
to use qc/ms, as the State of Georgia has.  In many cases
conventional qc detectors cannot discriminate between the
compounds of interest and the interfering compounds that are
oresent.  we prefer oc/ms because it provides certain struc-
tural information that can minimize  interferences.  Using
qc only, it may be possible for a laboratory to demonstrate
the ability to overcome the problem  by emoloying a second
column containing a different stationary phase.  However, in
the case of analyzing complex samples for a number of pollu-
tants, this technique would be guite expensive.  The qc/ms
allows for the simultaneous or rapid sequential measurement
of large numbers of different organic oollutants.  This
method is especially useful in the Appendix vili analyses to
which you referred.  Thus, it is BPA's preference to use
qc/ms.

     Under Section 3006 of the Resource Conservation and
Recovery Act* EPA has granted authorization to the State of
Georgia.  Therefore* it Is Georgia's, rather than EPA's,
analytical requirements that apply.  Consistent with its
authorization, Georqia may reguire use of the qc/ms method.
Please contact Georgia's Department  of Natural Resources
Commissioner, Leonard Ledbetter, for further information on
Georgia's requirements.  He can be reached on  (404) 656-4713.

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     I hop* I have clarified this situation for you.   If
can be of any further assistance, olease let me know.

                              Sincerely,
                                  Lee M, Thomas

                              Lee M. Thomas
WH-562/GARMAN/T.MCMANUS - 475-8613/sld/9-l8-B6/Control
No: AL602860/Due Datet 9-22-86/CONTROLLEn CORRESPONDENCE

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                                                                     9481.1986(10)
                  RCRA/SUPERFUND HOTLINE  MONTHLY SUMMARY

                                   OCTOBER 86
7.  Corrective Action for New Facilities

    Is an owner/operator seeking a pre-construction permit  for a new RCRA treatment,
    storage,  or disposal facility subject to corrective  action under Section 3004(u)
    of RCRA?

         Yes, Section 3004(u) states that corrective action is required "for all
         releases of hazardous waste or constituents from any solid waste management
         unit at a treatment, storage,  or disposal facility seeking a permit..."
         under Subtitle C of RCRA, "... regardless of the time at which waste
         was  placed in such unit..." Therefore,  any solid  waste management
         unit located.on a site which is involved in a permit application is
         subject to corrective action (§264.101)  even if there has never
         been any previous authorization for hazardous waste activity at the
         site.  Examples of units which could be  included in corrective
         action under these circumstances are sanitary landfills, dumps, and
         units in which waste which is  normally exempt from RCRA regulation
         have been stored or disposed.   Releases  of hazardous waste would
         include releases of listed (§261.31-33)  or characteristic hazardous
         wastes.  Releases of hazardous constitueuts from both hazardous and
         solid wastes are also covered.  This would include any of the
         hazardous constituents listed  in 40 CFR  Part 261,  Appendix VIII.

         Source:   Dave Pagan  (202) 382-4740
         Research: Betty Wilson

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                                                    9481.1987(01)


February 25, 1987


MEMORANDUM

SUBJECT:  Applicability of Vulnerability Guidance

FROM:     Arthur Day, Chief
          Technical Guidance Section

TO:       Doug McCurry
          Residuals Management Branch, Region IV


     During the question and answer period at the recent seminar
on Land Disposal Technology, you asked whether the guidance on
ground-water vulnerability was applicable to the RCRA permitting
standards.  I took you questions to refer to whether a permit
should be denied solely because the facility is located in a
vulnerable setting.  My reply stated that the guidance was not
intended to be a national siting policy, and that it was, in this
sense, not applicable to the RCRA permitting standards.  I
believe that this response failed to fully convey the purpose of
the guidance.

     The intended use of the guidance by the RCRA permit writer
is stated in Section 1.2 of the guidance (attached).   You should
carefully note that the guidance is applicable to the RCRA
program in at least the following ways:

     •    It provides the permit writer with a standardized
          method for assessing the adequacy of hydrogeologic
          aspects of a Part B application.  An adequate site
          characterization is a permit application requirement,
          as explained in the so-called Phase I Location Guidance
          (note attached copy, see section 2.1).  Adequate site
          characterization is needed for ensuring that ground-
          water monitoring wells are properly located.

     •    Permit writers should consider requiring a contingent
          corrective action plan in permits issued to facilities
          in vulnerable settings, when such facilities are not
          already conducting corrective action.  This is meant to
          reduce the time between plume detection and response
          that is associated with permit modification.  The TOT
          method also provides a trigger for more detailed review
          and evaluation by the permit writer.  The results of
          this review may provide a basis for changes in design
          or operating practices.
        This has been retyped from the original document.

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                               -2-

     •    The vulnerability definition can be used by a Region to
          prioritize site analyses, although the existing
          Facility Management Plan system would take precedent.
          It is also referenced in the guidance on Interim Status
          Impoundment Retrofitting Variances, under the "no
          migration" exemption.

     •    It provides a framework for assessing leachate
          migration potential and impact along each of the three
          pathways of concern (i.e., water well, discharge to
          surface water,  basement seepage).   The last pathway has
          often been overshadowed by concern for water well
          protection.

     Let me elaborate on these points.  First, I recommend that
your permit writers ensure that data on hydraulic conductivity
are collected in accordance with the methods presented in
Appendix A.  This is important, because such information
influences monitor well placement and corrective action plan
design.  These methods are about to also appear in SW-846.  I
also think that permit writers should approach their reviews of
site characterization/monitorability using the flow net methods
presented in Appendix B.   Please note that the TEGD also
recognizes the role of flow net analysis for this purpose.  The
vulnerability guidance recommends  (pages 1-6) that an objective
method that can reduce the number of negotiations with an
applicant's site characterization be tested by installing
additional piezometers (in order to verify a flow net), this is
an applicant to reach closure on the adequacy of site
characterization.  Finally, the flow net methods will also help
reveal to permit applicants and permit writers whether
significant migration pathways exist beyond the aquifer
contamination route; this can be particularly important where
above-grade or shallow trench landfills are constructed in low-
permeability sediments or rocks, such as in parts of the Atlantic
and Gulf Coastal Plan.

     I recognize that the analytical methods presented in the
Guidance (such as flow nets) may be unfamiliar to many permit
writers.  I do not maintain that permit writers should evaluate
flow nets for all of their projects.  The method might be most
immediately useful where site characterizations are in dispute.
However, I think that you will find that a one-time effort made
by your staff in applying these tools will be productive in the
longer term.  I am pleased to note that one member of the EPA
Science Advisory Board particularly praised Appendix B (flow
nets) as the best discussion on this common geotechnical tool
that he had seen for hazardous waste facility analysis.

     As I mentioned  in response to another question, OSW is
developing additional location standards for TSDs, which we plan
        This has been retyped from the original document.

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                               -3-

to propose by 9/87.  We are considering whether a "degree of
vulnerability" concept should be incorporated into these
standards.  We are also considering incorporating the flow net
verification concept described above as a site characterization
performance requirement.

     I hope that these comments clarify our earlier discussion.
Please contact me at FTS-382-4680 if I can provide further
information.
Attachments

cc:  James Scarbrough
     Bob Tonetti
     Terry Grogan
     Suzanne Rudzinski
     Matt Hale
        This has been retyped from the original document.

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                                                    9481.1987(02)


March 10, 1987


MEMORANDUM

SUBJECT:  International Paper Company, Wiggins, Mississippi

FROM:     Susan Bromm, Acting Director
          Permits and State Programs Division

TO:       Patrick Tobin, Director
          Waste Management Division


     I am writing in response to your January 29, 1987 memo to
Marcia Williams concerning "alternate concentration limits"
(ACLs) in a draft HSWA permit for International Paper Co.  (IP),
Wiggins, MS.  The materials you sent were reviewed by Mark Salee,
Janette Hansen, and Bob Kayser of the Land Disposal Permit
Assistance Team (PAT).  The PAT also consulted with the
corrective action work group.  The comments below are based on
the PAT's recommendations for approaches to corrective action for
continuing releases to ground water at solid waste management
units.  Final Agency regulations and guidance may be different on
some issues.

     The draft HSWA permit contains ground-water cleanup
standards (concentration limits) for 15 hazardous constituents.
Seven of the concentration limits are based on an ACL-type
demonstration, set at human health criteria levels.  These
concentration limits are consistent with currently available EPA
Verified Reference Doses and proposed recommended maximum
contaminant levels.

     Your memo highlighted two issues of concern in the draft
permit.  The first issue dealt with the use of human health
criteria versus taste and odor criteria as the basis for the
concentration limit for pentachlorophenol.  This issue has been
analyzed by the Region IV Ground-water Technology and Management
Section.  Their conclusions were summarized in a November 5, 1986
memo from B. Stallings Howell to Doug McCurry.  Their rationale
for the use of taste and odor thresholds is consistent with the
most recent draft ACL guidance and policy.  However, their
application of the rationale does not appear to be fully
consistent with the ACL guidance and policy.  For example, the
memo states,

     ... ACLs based on human health criteria be adopted for
     phenol and pentachlorophenol at International Paper for the
     following reasons:
        This has been retyped from the original document.

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                                -2-

     1.   The probability  that  concentrations above the taste and
          odor threshold will reach a drinking water well is low
          at the site...

Although not explicitly addressed in the draft ACL policy and
guidance, we believe that  concentration limits can be set at
human health criteria  levels that are above taste and odor
thresholds if the resource value of the ground water is not
degraded.  In this case, it must be shown, to a reasonable degree
of certainty, that attenuation  of the contaminant plume between
the point of compliance and the property boundary will result in
contaminant concentrations at the property boundary equal to or
below the taste and odor thresholds.  This type of evaluation
should be performed for the IP  site to ensure the protection of
the ground water for future use in the area.

     The second issue  identified in your January 29, 1987 memo
concerned the use of the minimum detection limit (MDL) to
establish background as a  ground-water protection standard.  This
is a valid approach to establishing background.  However, to
ensure that the permittee  follows a method acceptable to EPA, the
permit should contain  a specified method to determine the MDLs,
or specify criteria to follow when choosing a method.  A method
that could be used is  presented in Section 1.3 of the latest
version of Test Methods for Evaluating Solid Waste. SW-846.
Copies of this document will be available for distribution in
late March.  The permit should  include a reference to this SW-846
method or a more appropriate method for establishing MDLs.

     During our review of  the draft permit, we identified an area
of concern in addition to  the issues highlighted in your memo to
Marcia Williams.  The  comments  below focus on Section II.C.,
Corrective Action Procedures of the permit, specifically, the
concentration limit for creosote, the identification of
additional Appendix VIII constituents, the lack of any
requirements for the treatment  of the contaminated ground water,
and the termination of monitoring at a well upon reaching the
concentration limit at the well.

     The concentration limit for creosote in Section II.C.I. is
defined by an analysis for phenanthrene and carbazole.  Another
definition may be more appropriate for two reasons.  First,
carbazole is not listed on Appendix VIII of Part 261 or on the
proposed Appendix IX to Part 264 (51 FR 26632) for ground-water
monitoring, and there  is no standard method for analyzing
carbazole in SW-846.   Second, creosote was not included on the
proposed Appendix IX list.  Instead, a list of polynuclear
aromatic hydrocarbons  (PAHs) representative of the major
components of creosote was included in Appendix IX.  A more
appropriate analysis for creosote would be to analyze for a list
of PAHs.  Such a list  should include chrysene, fluoranthene,
        This has been retyped from the original document.

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                               -3-

naphthalene, acenaphthene, phenanthrene,  fluorene, and pyrene.
The permit should include concentration limits for all of these
PAHs.

     Section II.C.I.e. of the draft permit lists requirements to
be performed by the permittee if additional Appendix VIII
constituents are identified.  However, the permit lacks a
specific condition requiring the permittee to identify any
additional Appendix vill constituents.  The draft permit only
requires quarterly monitoring for the 15 hazardous constituents
listed in Section II.C.I.  Assuming that an initial Appendix VIII
(or proposed Appendix IX) scan was performed to identify these 15
constituents, we recommend that the permit include explicit
language requiring periodic (i.e., annually or less) monitoring
for a comprehensive list of hazardous constituents from Appendix
VIII (or proposed Appendix IX) reasonably expected to be in or
derived from waste in the solid waste management units.

     The permit does not address any treatment standards or
methods for contaminated ground water that has been pumped from
the subsurface.  While ground water in itself is not a hazardous
waste,  ground water that contains hazardous waste must be handled
as if it were hazardous waste because the contaminants in it are
subject to regulation under Subtitle C.   Once the hazardous waste
is removed from the water, the water is no longer subject to
Subtitle C regulation (see memo from Marcia Williams to you,
dated November 13, 1986).  The permit should, at a minimum,
contain a schedule of compliance for the submittal of plans for
the handling and/or treatment of the contaminated ground water.
(The Agency's authority to stipulate treatment standards as part
of a corrective action permit condition comes from §264.101 and
Sec. 3005(c)(3) of HSWA) .  As was stated in the permit, the
permittee should comply with all other State and Federal laws
regarding treatment and discharge of the water.  You should also
be aware that "source control" can be an important aspect of RCRA
corrective action.  You may also want to consider directing the
permittee to study source control options.

     Part II.C.5. of the permit states that:  "Upon reaching the
concentration limits at any monitoring well further monitoring of
that well may be terminated...."  This condition may not be fully
protective of human health and the environment, as contaminants
in the ground water do not necessarily occur in one continuous
plume.   There may actually be several plumes of varying
compositions.  A ground-water sample which indicates allowable
concentrations of contaminants may just represent an area between
two plumes.  I suggest that the permit require some type of less
frequent, short-term verification monitoring (i.e., three
consecutive years as discussed in §264.100(f))  before monitoring
and/or corrective action is terminated.
        This has been retyped from the original document.

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                               -4-

     If you or your staff have any questions or concerns about
any of the comments or recommendations presented in this memo,
feel free to call Mark Salee of my staff at (FTS) 382-4692.

cc:  Marcia Williams               Doug McCurry, Region IV
     Suzanne Rudzinski             Beverly Spagg, Region IV
     Matt Hale                     Vernon Myers
     Terry Grogan                  Mark Salee
     James Scarbrough, Region IV   Janette Hansen
     Lloyd Guerci
        This has been retyped from the original  document.

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                                                          9481.1987(03)
  'I        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                       WASHINGTON, O.C. 20460
                            RIM   3 195?                 OFP.CEOF
                            OUI^               SOLIO WASTE AND EMERGENCY RESPONSE
Mr. Richard J. GimeLlo
Executive Director
Hazardous Waste Facilities Siting Commission
State of New Jersey
CN 406, Trenton, New Jersey 08625

Dear Mr. Gimello:

     This is in response to your letter dated April 27, 1987,
requesting the Environmental Protection Agency's (EPA) opinion
on the applicability of EPA's vulnerable hydrogeology guidance
criteria to the Millstone, New Jersey proposed incinerator
site.

     I must first point out that the document referred to in
your letter titled, "Criteria for Identifying Areas of Vulner-
able Hydrogeology Under RCRA - Statutory Interpretive Guidance"
(issued in July, 1986), is simply an Agency guidance.  It
does not have the force and effect of law that would require
full compliance with the stated criteria.  Further, the
guidance is applicable only to landfills, surface  impoundments,
and waste piles (i.e., land-based units) and does not apply
to incinerators.  It is the Agency's opinion that  the potential
for ground-water contamination resulting from an incinerator
is typically not a concern due to the manner that waste is
contained during incineration.  It is unclear from your
letter, however, whether other waste management units associated
with the incinerator will be present.  The vulnerability
guidance might be relevant to the facility if one of these
additional units were land-based.

     Your letter contained questions on the extent of site-
specific investigations and types of restrictions or modifica-
tions to design or operating practices that would  result in
response to a finding that the hydrogeology of a site was
considered "vulnerable".  If a site were found "vulnerable"
using the Agency guidance, further site-specific investigations
may be appropriate.  For example, a site owner or  operator
may be requested to install additional groundwater piezometers
in order to verify hydrogeologic information provided in the
permit application or to construct a groundwater flow net for
the site in order to more fully document flow patterns.  These
investigations would aid in verifying plans for ground-water
monitoring.  Similarly, the owner or operator might be directed

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                            - 2 -
to establish a contingent corrective action plan prior to any
actual, release to ground water, in order to more quickly :
respond to any release in the future.  More stringent unit
design and operating controls might be appropriate in certain
locations.  For example/ additional engineered barriers may
be appropriate in shallow, subsurface flow areas.  In another
case, an increase in the length of the post-closure care
period may assure that ground-water contamination will be
prevented or responded to quickly.  Finally,  we do not believe
these investigations are more extensive than those required
under Title 40 of the Code of Federal Regulations (CFR) Part
270.

     As you know, we ace now developing location standards for
hazardous waste management facilities in response to Section
3004 (o)(7) of RCRA.  The relationship (if any) between the
vulnerability criteria  (and any associated site investigations
or design and operating measures) and the nature of these
future standards has not yet been established.  I welcome
your continued participation in the workgroup helping to
develop these standards, as well as your suggestions on this
specific topic.

     I hope this information responds to your concerns.  How-
ever, if you need more specific information,  please contact
Arthur Day in the Office of Solid Waste, at (202) 382-4680.

                              Sincerely,
                                 Winston Porter
                            f Assistant Administrator
                            r

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               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY       9481.1987(04)
                      JUN 19667
MEMORANDUM


SUBJECT:  Review of Alternate Concentration Limits Proposed
          by Union Carbide Corp., Institute, West Virginia

FROM:     Bob Kayser, Acting Chief
          Land Disposal Permit Assistance Section (WH-563)

TO:       Robert E. Greaves, Acting Chief
          Waste Management Branch, Region III


     As requested, the Land Disposal Permit Assistance Team (PAT)
has reviewed the ACL proposal submitted by Union Carbide Corp. (UCC)
in September, 1984.  The review was performed by Mark Salee of
the PAT.  The following comments and recommendations have been
developed based upon the PAT's interpretation of the current
draft ACL guidance and policy.

     The ACL Guidance document has gone through the Agency's Red
Border review and is currently being reviewed by the Office of
Management and Budget.  A number of issues were raised during Red
Border review of the ACL Guidance document.  Decisions on these
issues have been made and the document has been revised to reflect
the recent decisions.  An issue that impacts the Union Carbide
ACL proposal pertains to ACLs based on discharge of contaminated
ground water to surface water bodies.  Part of the ACL policy
is that contaminant plumes in usable ground water will not be
allowed to increase in size.  This applies to the areal extent
of the contamination and contaminants at concentrations above
allowable health or environmental exposure levels within the plume.
Contaminants at concentration levels below allowable health or
environmental exposure levels at the point of compliance could
have ACLs established at the allowable health or environmental
exposure levels*

     ACLs based on contaminant discharge into a surface body can
be set at current contaminant concentrations that are above
allowable health or environmental exposure levels at the point
of complia'nce if the following conditions are met: 1) the facility
property boundary is immediately adjacent to the surface water
body, 2) the contaminant plume must have already reached the
surface water body, and  3) the hazardous constituents are not
causing a statistically  significant increase in constituent
concentrations over the  background concentrations in the surface
water body.

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     The following discussion assumes that all of the contaminant
plume is discharging into the Kanawha River.  However, from the
information submitted in the proposal, it appears that the contami-
nant plume may be migrating off-site along the eastern property
boundary, near well 6 (Well 6 has shown bis(2-chloroethyl) ethe>r
levels between 26 and 59 ppb).  The proposal does not contain
any information on the ownership, land use, or ground-water use
off-site in this area.  A more detailed investigation into the
extent of migration of the plume in this area, and the land and
water uses io tohis area is needed to fully evaluate the impacts
from the ground-water contamination.

     The ACL* proposed by UCC have been evaluated based on the
above policy*  After a comparison of the highest constituent
concentration* detected in the monitoring wells, the allowable
health or environmental exposure levels for those constituents,
and the proposed ACLs (see Table I), the PAT concludes that the
proposed ACLs for the three constituents are unacceptable.  The
proposed ACLs are greater than the highest detected concentrations
of the constituents in the monitoring wells.  Also, the highest
detected concentrations of bis(2-chloroethyl) ether and antimony
are greater than the allowable exposure levels for these constituents.

     The concentration limits for these constituents could be set
at the highest concentrations detected in the ground water if the
constituents are not causing a statistically significant increase
in their concentrations over their background concentrations in
the Kanawha River.  The reviewed proposal does not contain adequate
surface water quality data to make this determination, nor does the
proposal contain sufficient information to verify that all of the
contaminated ground water is discharging into the Kar.awha River.

     Union Carbide states that,

     "no information exists within the wastewater treatment plant
      area concerning the piezometric surface in the underlying
      bedrock.  However, the Kanawha River valley is known to be
      a major ground-water discharge area.  Consequently, ground
      water in the bedrock flows vertically upward, entering the
      alluvium and ultimately the Kanawha River."

Additional information concerning the horizontal and vertical
migration of ttxe contamination is needed to verify this claim.
Additional ratface water quality data is also needed to determine
if the discharge of contamination into the Kanawha River  is causing
a statistically significant increase over background concentrations
in the surface miter*  Samples should be collected within the
discharge ZOVMT of the contaminant plume during a period in which
stream flow ifl near average conditions for the specific season.
These samples should  include water samples  taken at mid-depth
and sediment samples.

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                                                    9481.1987(05)


June 17, 1987

MEMORANDUM

SUBJECT:  Ground-Water Monitoring at Regulated Units Near SWMUs
          That Have Impacted Ground-Water

FROM:     Marcia E. Williams, Director
          Office of Solid Waste (WH-562)

          Gene A. Lucero, Director
          Office of Waste Programs Enforcement (WH-527)

TO:       Robert Duprey, Director
          Waste Management Division
          Region VIII


     We are responding to your memorandum of March 19, 1987, on
the above subject.  Your inquiry has raised several good
questions.  Situations in which either the background ground-
water quality at a regulated unit is highly contaminated or the
regulated unit is constructed on an old solid waste management
unit (SWMU) that has affected ground water are common.  Your
memorandum contained a series of questions but did not include
sufficient detail for us to specifically respond to each question
for each site.  Instead, we offer a general approach for each
site, to which you may apply site-specific considerations.

     In the case of the refinery which has an interim status land
treatment area downgradient of an unlined, non-regulated surface
impoundment, you may issue a permit, if the following conditions
are satisfied:

     •    The land treatment unit is in compliance with
          applicable land treatment requirements, including those
          involving unsaturated zone monitoring  (especially soil
          care monitoring);

     •    The unsaturated zone monitoring indicates that there
          has been no migration of hazardous constituents from
          the treatment zone;

     •    Upgradient ground-water monitoring well(s) are not
          affected by the land treatment unit (a showing by soil
          core monitoring that there has been no migration would
          be an important indication that the upgradient well(s)
          are unaffected by the regulated unit); and

     •    Ground-water contamination is being addressed through
          HSWA corrective action provisions (either §3004(u) or
          §3008(h)).
        This has been retyped from the original document.

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     In the case where the regulated unit is an interim status
landfill that is constructed on a SWMU, you may issue a permit,
if the following conditions are satisfied:

     •    Upgradient ground-water monitoring well(s) are not
          affected by the regulated landfill (this will probably
          require use of background wells upgradient of the SWMU,
          because of the apparent stability to determine whether
          contamination is from the landfill or the SWMU);

     •    Downgradient ground-water monitoring wells represent
          the quality of ground water passing the point of
          compliance (this approach assumes for regulatory
          purposes that all releases are from the regulated
          unit); and

     •    Ground-water contamination is being addressed through
          HSWA corrective action provisions and §264.100 (the
          permit could include a reopener clause to modify the
          ground-water standard if corrective action is able to
          clean up the contamination).

     In both of these cases, we would like to emphasize the
importance of dealing with the ground-water contamination problem
at the sites.  Corrective action for these releases is the
critical element of any site strategy.

     For further guidance on the subject of various regulatory
requirements of ground-water monitoring, we would refer you to
the RCRA Ground-Water Monitoring Compliance Order Guidance (Final
- August 1985).

     We appreciate the opportunity to be of assistance to you.
If you have any further questions, please contact Suzanne
Rudzinski at  (FTS) 382-4206 or Ken Jennings at (FTS) 475-9874.

cc:  Bruce Weddle
     Joe Carra
     Elaine Stanley
     Amy Svoboda
     John Haggard, Region VIII
     Jean Bolinske, Region VIII
     Debbie Sherer, Region VIII
        This has been retyped from the original document.

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                                                            9481.1987(06)
             RCRA/SUPERFUND HOTLINE  MONTHLY SUMMARY

                               JUNE 87
 roundwater Monitoring For Radionuclides
    are radionuclides, which are present in mixed  low- level radioactive
waste, monitored in the groundwater at an interim  status disposal
facility?

   When the facility is in interim status,  the initial background
   monitoring required by 40 CFR 265. 92 (b)  and (c) consists of monitoring
   for drinking water parameters specified in §265.92(b)(l)-(3) Appendix III
   and 265.92(b)(l) references.  One of the parameters specified in Appendix
   III is gross Alpha radiation.  The regulations  require quarterly monitoring
   for these constituents for one year.  Part 265  does not address the
   requirement to monitor the groundwater for radiation beyond the original
   four background measurements.


Source:    Burnell Vincent  (202) 382-4658
Research:  Becky Cuthbertson

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y'lT"^                                                       9481.1987(07)

      I         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                           WASHINGTON. D.C. 20460
                                                                OP

                                      '
                               jlj-  24 'PZl          SOLID WASTE AND EMERGENCY RESPONSE


  MEMORANDUM


  SUBJECT:  Alternate Concentration Limit (ACL) Policy
            for HSWA Provisions

  FROM:     Marcia E. Williams, Director /
            Office of Solid Waste (WH-562)

  TC:        Robert E. Greaves, Acting Chief
            Waste Management Branch (3HW30)
            Region III


       This is in response to your June 19, 1987, memorandum
  concerning the applicability of alternate concentration limits
  (ACLs)  to the surface impoundment retrofitting provision under
  §  3005(j)(3).  The facility in question is located  in West
  Virginia, which has a ground-water nondegradation policy under a
  delegated RCRA program (pre-HSWA).

       The retrofitting exemption in § 3005(j)(3) for aggressive
  biological treatment surface impoundments requires  that the interim
  status  impoundment be in compliance with ground-water monitoring
  requirements that are generally applicable to permitted facilities.
  For  facilities that have not been issued a final Part B permit,
  we have interpreted this requirement, in the July 1986 guidance
  entitled "Interim Status Surface Impoundments Retrofitting
  Variances," to mean compliance with 40 CFR Parts 264 and 270.

       Facility permits must include either a detection, compliance,
  or corrective action monitoring program.  Facilities that have
  detected leakage of contaminants to the .ground water must propose
  concentration limits, which could include ACLs, for each hazardous
  constituent detected in the ground water.  The ACLs, like the
  other concentration limits, are used to determine which ground-
  water monitoring program (i.e., compliance or corrective action)
  should  be included in the facility permit.  Therefore, ACLs should
  be considered part of the ground-water monitoring requirements
  that are generally applicable to permitted facilities.

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                                -2-


     Section 3005(j)(7)(c) states that if a qualified waste-watar
treatment impoundment  is  found to be leaking, the impoundment
must retrofit unless EPA  determines retrofitting is not necessary
to protect human health and the environment.  One way for an
owner/operator of a  leaking surface impoundment to demonstrate
protection of human health and the environment is to obtain an
ACL.  Generally, ACLs  are applicable and should be reviewed to
determine compliance with § 3005(j)(7)(C).

     For a facility  in a  State authorized for RCRA,  the
applicability of ACLs  in  EPA's evaluation of an exemption request
under §§ 3005(j)(3) and (j)(7)(C) is governed by State law and
regulations.  As previously stated, the statutory language under
§ 3005(j)(3) states that  to qualify for this exemption the facility
must be "in compliance with generally applicable ground-water
monitoring requirements for facilities with permits ..."  The
retrofitting exemption should be reviewed based on West Virginia's
ground-water monitoring permit requirements, which include a
nondegradation standard (i.e., they do not provide for the setting
of ACLs).  As a result, ACLs would not be applicable under the
§§ 3005(j)(3) and (j)(7)(C) provisions for this specific case.

     Should you have any  questions on this matter please contact
either Paul Cassidy of  the Land Disposal Branch at 8-382-4682 or
Mark Salee of the Technical Assistance Branch at 8-382-4755.

cc: Joseph Carra
    Bruce Weddle
    Bob Tonetti
    Suzanne Rudzinski
    Art Day
    MarX Salee
    Paul Cassidy

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                                                            9481.1988(01)
            UNITED STATES EN VIRON.MI7NTAL PROTECTION AGENCY

                        WASHINGTON D.C. 20460
                               o •:
                               (_ ,i
                                                       OFFICE >r

                                              SOLID WASTE AND EMEf GENCY RESPONSE
MEMORANDUM

SUBJECT:  New Jersey Zinc Company
                                '
FROM-     Marcia E". ^Williams , Director
          Office of Solid Waste  (WH-562)

TO:        Robert E. Creaves, Chisf
          Waste Management Branct (3HW30)
    This is in response to your nonio dated November  3,  1987,  in
which you requested that the Off'<:e of Solid Waste  (OSW)
provide  assistance on a number of regulatory  issues surroui-ding
the N-2W Jersey Zinc Company site  -,n Palmerton,  PA.
    A Federal Register notice  (attached)  interpreting  the AMC
decision was signed by the Administrator  December  31,  1987.   Our
reading of the AMC opinion is  that the New  Jersey  Zinc Compan/'s
operation is not affected by the AMC. opinion,  i.e..  it still
involves solid waste management  (at least up until it  is  bur ,ed
in an industrial furnace) and  the company must still obtain n
RCRA permit for their K061 storage pile.  Further, we  do  not
think the opinion affects EPA's  speculative accumulation
provisions at all.  {You should  note, however, that the
speculative accumulation provision determines  when certain
secondary materials are solid  wastes; it  does  not  distinguish
between storage and disposal.  "Disposal" is defined in the
regulations at Section 260.10.)

    The last of your first set o* questions concerned  parti;, lly
reclaimed zinc oxide that requires further  reclamation.
Normally, a partially reclaimed  solid waste remains a  solid
waste as long as it must still be reclaimed before use, and the
Section 261.3(c)(2)(i) "derived-from" rule  would make  the
partially reclaimed material a hazardous  waste.  As I  understand
the situation at New Jersey Zinc, the partially reclaimed zi-tc

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                               •-2-
oxide is both a solid and a hazardous waste.  However, as is
discussed below in the context of the Waelz Kiln residue, i: New
Jersey Zinc were to change their process so that the only
hazardous waste they were to burn in the kiln was K061, the
residues from that kiln may th&n not be hazardous waste.

Regulatory Status of Waelz Kiln Residue

    The regulatory status of the kiln residue (and the partially
reclaimed zinc oxide) depends on. the type of feed to the k3ln.
As I understand the process currently employed at New Jersey
Zinc. I concur with Sam Rotenberg's assessment that the residue
is a hazardous waste via the derived-from rule, and further,
that the residue has been a hazardous waste since 1980.  The
following are the factors upon vhich this determination is
based.

    o    The kiln residue is not exempt under RCRA Section
         3001(b)(3)(A)(ii) because the K061 feedstock is a uaste
         from the primary stee.lmaking industry.  Steelmakimi
         constitutes an alloying process, which the Agency ivs
         determined not to be "processing of ores or mineralo."
         Waste produced by recl.air.ation of other minerals from
         non-Bevill waste is nox. itself a Bevili Waste.

    o    The "indigenous secondary material" discussions that
         have appeared  in the Federal Register over the last  3
         years  (see 50  FR 630-1, January 4, 1985; 50 FR 49167,
         November 29,  1985; and  52 FR 16989-91, May 6,  1987)  are
         not applicable to this  unit because I understand that
         F006 and F019  are introduced to the furnace — these
         wastes  are certainly not  indigenous to a zinc  smelting
         process.-^-/
I/  Your  letter also stated that K062 is  added  to  the  furnace.
We would  not view K062 as indigenous to zinc  smelting  either,
but as  I  understand it, what is actually  introduced  to the
furnace is  sludge from lime stabilization from  waste pickle
liquor  that is exempt from the derived-from rule under Section
261.3(c)(2)(ii).   Therefore, introducing  this exempt sludge into
the furnace does not affect the regulatory status  of the  kiln
residue.

-------
    You should note that New Jersey Zinc might be able to change
the status of the kiln dust by ceasing to add any hazardous
waste but K061 to the kiln.  Under the May 6, 1987 proposal ;52
FR 16990) , K061 would be considered indigenous to a zinc
smelting operation because K051 ie generated in furnaces use:'; \n
primary steel production (i.e. , totn are forms of metal smelt-
ing).  If this rule is finalized as proposed, then the derived-
from rula will no longer apply to residue from smelting of
K061.  Of course, if New Jersey Zinc continues to add F006 and
F019 to the kiln, the kiln residue would continue to be hazard-
ous no matter what is decided concerning K061.  In fact, as a
final point, the introduction of F006 and F019 to the kiln calls
into question the kiln's status c-s a reclamation device.   (li-ie.
50 FR 630-1, January 4, 1985.)  That is, the F006 and F019
wastewater treatment sludges are not ordinarily associated with
zinc smelting, and these wastes may contain Appendix VIII
constituents different than normal zinc smelter feed materials.
(I_d. )  The kiln, as it is currently operated, may be more
properly classified as a hazardous waste incinerator as opposed
to a reclamation furnace.

    Regulating Exempted Waste UnderJRCRA CorrectiveAction

    Your second set of questions concerned the applicability of
RCRA Section 3004(u) corrective action authority to releases
from exempt units.  The units you asked about are:

     1.   Beviil exempt;
     2.   Pre-RCRA inactive units, and
     3.   AMC opinion exemptions.

     (1) The question about units containing Beviil wastes  we;;
     settled recently when  EPA issued the second HSWA codifica-
     tion Rule, signed by the Administrator on November  16,
     1987.  EPA determined  that the RCRA Section 3001(b)(3)
     exemptions  (i ^ e. . those established for  "Beviil wastes") do
     not extend to Section  3004(u).  This decision  is explained
     fully  in the preamble  of  the second Codification Rule.   (See
     FR 45790, December  3,  1987.)

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                              - 4 -
    (2)  Releases from pre-RCRA inactive units are certainly
    within the authority of RCRA Section 3004(u).  40 CFR
    Section 264.101 provides that an owner or operator of a
    facility seeking a RCRA permit must institute correction
    action for releases from units at the facility,
    "...regardless of the time at which waste was placed in such
    unit."

    (3)  Releases from units excluded from RCRA jurisdiction
    under the AMC opinion, should there be such exclusions,
    would be handled the same as other product or process
    releases.  That is, the unit holding the  product is not a
    SWMU, but areas contaminated by "routine  and systematic
    discharges" from the unit are SWMUs.

    If you have further quest ion? in these areas, contact
Michael PetrusJca of my staff at FTS 475-98E8.

Attachment

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               RCRA/SUPERFUND HOTLINE  MONTHLY SUMMARY        9481.1988(02}

                                 APRIL 88
7.  Ground-Water Monitoring—Assessment Monitoring/Corrective Action
   at Closed Facilities

   An interim status landfill must comply with the requirements in Part 265, Subpart F,
   Ground-Water Monitoring, during the post-closure care period  (see 40 CFR Section
   265.90(b)).  Section 265.93(d)(7)(i) states that  the owner  or operator conducting an
   assessment monitoring program must determine the nature and extent of contamination
   in the uppermost aquifer below the facility "on a quarterly basis until final closure of the
   facility (emphasis added).. .if such a program was implemented prior to final closure of
   the facility." Section 265.93(d)(7)(ii) states that the owner or operator may cease to make
   regular analyses of the ground-water quality if the assessment plan is  implemented
   during the post-closure care period. An interim status landfill stopped receiving waste
   before July 26,1982, and certified closure closed prior to January 26,1983.  The facility is
   now performing post-closure care activities. The facility recently "triggered into" an
   assessment monitoring mode. With what ground-water monitoring requirements must
   he comply? What authority may be used to institute corrective measures?

     After the owner/operator implements the specific assessment plan detailed in Section
     265.93(d)(l)-(5) no further monitoring would be required.  According to EPA, if the
     confirmed detection of hazardous constituents in the ground-water first occurs during
     the post-closure care period, "the sources of contamination are expected to be rela lively
     stable [as no additional wastes are currently being placed in the unit] such that repeated
     assessments would only confirm the initial determination of contamination. For this
     reason only one ground-water quality assessment which demonstrates contamination
     is required during the post-closure care period" (see May 19,1980 Federal Register, 45
     FR 33195). The post-closure monitoring requirements referred to in Section 265.90(c)
     would therefore include only any detection monitoring and this one-time assessment
     of the ground-water quality. A facility who stopped receiving waste on or before July
     26,1982, and who dosed on or before January 26,1983, would not be required to obtain
     a post-closure permit (see December 1,1987 Federal Register. 52 FR 45798). This being
     the case, EPA could not require additional ground-water monitoring under these
     regulations alone.

     EPA may compel the owner or operator of such a facility to perform ground-water (or
     other media) monitoring via a RCRA Section 3013 order. A Section 3013 order may be
     issued when the Administrator gains knowledge of the presence of a hazardous waste
     at a facility,  or knowledge of the release of any waste from a facility. The corrective
     action authority applicable to interim status facilities (RCRA Section 3008(h)) may also
     be applied if any remedial activities are desired. This order may be issued when the
     Administrator has information that there has been a release of hazardous waste into the
     environment from an interim status facility.

   Source:      KirstenEngle            (202)382-7706
                Vemon Myers           (202) 382-4685
   Research:    Deborah McKie
                Andy CKHare

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                                                  9481.1988(03)
              RCRA/SUPERFUND  HOTLINE MONTHLY SUMMARY

                                APRIL  88


8. Ground-Water Monitoring—Compliance Period /Post-Closure Care Period

   The "compliance period" is defined in 40 CFR Section 264.96(a) as "the number of years
   equal to the active life of the waste management area (including any waste manage-
   ment activity prior to permitting, and the closure period)/' The compliance period
   begins when a compliance monitoring program is initiated (40 CFR Section 264.96(b)).
   Section 270.1 (c) states that the regulations in Part 264, Subpart F apply during the post-
   closure care period if the land disposal facility received wastes after July 26,1982, or
   certified closure after January 26,1983 (see December 1,1987 Federal Register, 52 FR
   45798). The post-closure care period "must begin after completion of closure of the unit
   and continue for 30 years after that date" (emphasis added). (See 40 CFR Section
   264.117(a).) If the compliance period ends before the post-closure care period ends, do
   the requirements to perform ground-water monitoring also cease at the facility?

    No. The July 26,1982 Federal Register. (47 FR 32287) discusses the concept behind
    the establishment of the compliance period. EPA views the active life of a land unit
    as the "time period during which the release of leachate to the [ground-water] is
    likely to be greatest." Therefore the  timeframe for the ground-water compliance
    period must be at least equal to the active life of the facility to allow sufficient time
    to track the plume of contamination.


            Compliance Period/Post-Closure Care Period


BE(
-* 	 COMPLIANCE

PERIOD fc

ACTIVE LIFE
SIN
HAZARDOUS
WASTE
ACTIVITIES
BE<

COMPLIANCE PERIOD


3IN
COMPLIANCE
MONITORING





CLOSURE







POST-CLOSURE CARE




End
Hazardous Begin
Wast* Post-Ctosurw Et



>d
Activities cam Compliance
Period;
Begin
Cycfe
Aflain

END
POST-CLOSURE
CARE






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            RCRA/SUPERFUND  HOTLINE MONTHLY  SUMMARY

                              APRIL 88
  The July 26,1982 Federal Register (47 FR 32294) also states that when the compliance
  period ends before the dose of the post-closure care period, a detection monitoring
  program must be reinstated. Section 264.90(c)(2) infers that a detection monitoring
  program (Section 264.98) should be conducted during the post-closure care period
  when the facility is not implementing a compliance or corrective action program.
  Once the detection monitoring program is reinstated, the facility could conceivably
  proceed to a compliance or corrective action program. If a statistically significant
  increase over background values for the parameters and constituents of concern is
  identified, a compliance program or a corrective program must be initiated (see 40
  CFR Section 264.98(h)). If, after the compliance period ends, there are still "hazard-
  ous constituents under Section 264.93.. .at the compliance point under Section 264.93,
  the owner or operator must institute a compliance monitoring program under Section
  264.99" (Section264.91(a)(l)). Once the post-closure compliance monitoring program
  recommences, the compliance period "clock" would begin anew. (See 40 CFR Section
  264.96(b).)

Source:       KirstenEngle      (202)382-7706
             Vemon Myers     (202) 382-1685
Research:    Deborah McKie
             Steve Campbell

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                                                                     9481.1991(01)
                UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                             WASHINGTON, O.C. 20460
                                                                   OFFICE OF
                                                       SOLID WASTE AND EMERGENCY RESPONSE
                                 October 16,1991

Glen D. Johnson
Commonwealth of Pennsylvania
Dept of Environmental Resources
P.O. Box 2063
Harrisburg, Pennsylvania 17105-2063

Dear Mr. Johnson,

      Four questions were raised in your letter of August 21. Hopefully our responses
will be satisfactory. If you still have any concerns please feel free to contact us again.

      First, concerning the "Analysis of Retesting Procedures" paper, we have re-
examined our simulation code used to generate the power results given in that paper and
have examined the code you provided as well. It seems that the discrepancy between
our results can be traced to the method by which you generate future values for
comparison to the simulated prediction  limits.

      The theory behind prediction intervals assumes that not only are the background
measurements drawn at random from a (Normal) distribution, but that the future values
to be compared against the prediction limits are also randomly drawn from the same
population. That is, two sources of variability are built into the equation used to
calibrate the width of a prediction interval: variability in the background measurements
(accounted for by the quantity t^j and by 1/n under the root symbol) and variability in
the future values (accounted for by  adding 1 to 1/n under the root symbol).

      In your SAS code, the future values for a given effect size are always fixed at the
expected mean level of the downgradient well. No variation is built into these numbers;
consequently  our power results differ. We have made an  additional run of our
simulations (based again on 10,000 iterations) to give you approximate power levels in
the table below for each of the effect sizes you used. These results make sense from the
standpoint that if the alternative mean is close to the background mean, adding variation
to the future values should increase how often these numbers fall above the prediction
limit and hence increase the power  over what you derived. The reverse situation should
Ire true when the background and alternative means are far apart, as seen in the table,
for then the alternative mean will generally be above the prediction limit, and variability
in the future values will tend to lower the power somewhat
                                                                       Printed on Recycled Paper

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EFFECT   YOUR POWER    OUR POWER

0.0          0.0000            0.0100
0.5          0.0008            0.0257
1.0          0.0051            0.0613
1.5          0.0301            0.1189
2.0          0.1116            02073
26          02698            03319
3.0          0.4756            0.4802
3.5          0.6946            0.6256
4.0          0.8473            0.7570
4.5          0.9386            0.8568
5.0          0.9801            0.9223
      With regard to the article by Robert Gibbons in Ground Water (Vol. 29, No. 4,
1991), our basic reaction to the method Gibbons proposes for monitoring large networks
of downgradient wells is not wholly unfavorable. There do seem to be advantages to
employing some type of retesting strategy in order to verify results from wells that show
possible contamination.  EPA has in fact already approved a proposal from the State of
California that adopts a retesting strategy. However, the specific strategy put forward by
Gibbons, that is, an initial tolerance interval followed by a prediction interval on any
resampled wells, may or may not be the best retesting strategy. The approved California
proposal, for instance, consists only of prediction intervals  with double resampling of
downgradient wells that initially exceed the prediction limit  Both resamples must be
immediately collected from the monitoring well, and both must pass the retest to verify
that the initial failure was a false positive.

      In addition, Gibbons' article raises a few questions concerning the statistical logic
used.  First, Gibbons' basic example hypothesizes a network of 20 downgradient wells,
each being monitored quarterly for five constituents. As Gibbons notes, this results in
100 sample measurements per quarter that must be tested statistically. It is not true,
however, that all 100 values would be compared to single tolerance (or prediction) limit
calculated from the  background data. Rather, each constituent would have to be tested
separately,  leading to five separate tolerance (or prediction) limits each used to test 20
measurements.  Clearly, it would not be the  case that all five constituents would have
similar distributions of concentration values. This point is not crucial to Gibbons case,
but it is worth emphasizing that his hypothetical framework should actually lead to more
conservative prediction limits than he describes.

      Another point is that Gibbons' discussion of Type I error rates when comparing
the performance of tolerance and prediction limits without resampling, particularly in

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regard to Figure 1 on p. 568, is somewhat misleading. Gibbons argues for instance that
"the 95% prediction limit for the next 1000 measurements achieves its nominal error rate
of 5%.  However, the false positive rate for the 95% confidence 95% coverage tolerance
limit is over 70%. Even 99% coverage produces a false positive rate of approximately
17%."  What Gibbons means by false positive rate here is not the traditional Type I
error probability; rather, it represents the frequency with which any of the 100 sample
measurements falls above the prediction or tolerance limit

      For prediction limits these two definitions of error are the same, since the
prediction limit is designed to contain all of the 100 samples. For tolerance limits,
however, Gibbons' definition of the false positive rate is not correct, because a tolerance
limit is designed to "miss" a certain fraction of the tested measurements. Under 95%
coverage, a tolerance limit is expected to miss approximately 5 out of every 100 new
samples. The tolerance limit only fails in the Type I error sense, if the actual coverage
of the limit is less than expected amount (e.g., 10 out of 100 samples fall above the limit
instead of the expected 5 or less).  It is true enough that some measurements in a large
enough sample will fall above the tolerance limit; however, this does not indicate a
failure of the tolerance limit to do its job.  If 100 new measurements were collected from
a single downgradient well, and at least 95  of those values fell below the tolerance limit,
there would be no need to designate the well as possibly contaminated.

      Granting the  above comments, Gibbons does recognize a basic problem in
applying a tolerance limit approach to a set of measurements taken one per
downgradient well That is, measurements which fall above the tolerance limit may
indeed indicate contamination at particular wells, because distinct wells may have
different distributions of the constituent being tested. If data from many downgradient
wells are pooled together, the tolerance limit approach  assumes that each well has the
same distribution of sample values and that values fall above the tolerance limit only
because a large enough sample from any (normal) distribution will have a few extreme
measurements.  This assumption may not be true if just one or two downgradient wells
have been contaminated, so that some of the  extreme values are the result of
contamination rather than just random variation in a large set of measurements.  In
other words, by allowing a certain fraction of the values to be above the tolerance limit
(typically 1% or 5% of the concentrations), actual contamination at a very few wells
could be missed.

      One solution to this problem is as Gibbons suggests to retest each well for which
the sample measurement falls above the tolerance limit A more practical alternative
not discussed in the article relates to the likely nature of contaminated wells for many
constituents. Experience with monitoring data suggests that an actual spill or leak from
a monitored facility results in  concentration levels elevated typically by one or more
factors of magnitude above background levels. Samples from wells contaminated in this
way should be much  greater in concentration than even extreme values from
uncontaminated wells.  Consequently, it may be easy to identify contaminated wells by

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comparing the relative magnitudes of those samples which fall above the tolerance limit,
even in the absence of any retesting strategy.

      Your inclination concerning ground-water sample independence with respect to
quarterly measurements is consistent with our experience in evaluating ground-water
monitoring data. Keep in mind, however, that the 40 CFR Part 264, Subpart F
regulations require at least semiannual sampling, which may improve the likelihood of
sample independence in slow moving ground water.  Further, well purging procedures
that are implemented prior to sample collection also improve sample independence.

      EPA is in the process of developing software for assisting Regional and State
personnel in evaluating ground-water monitoring data. The system (GRTTS-ground-
water research information system) is an enhancement to an EPA Region VII data base
that uses Lotus files for data input and will perform all of the Subpart F statistical
procedures.  We plan to provide training on the system and the included statistical
procedures throughout the late summer and fall of 1992 (Philadelphia or a nearby
metropolitan area will be a host training site).

      I hope that these comments have been useful.  Please contact me at (202) 260-
3240 if I can be of further assistance.

                                                        Sincerely,

                                                        -^Wl/
                                                        James R. Brown

cc    Denise Keehner
      Vernon Myers

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                                                                          9481.1992(01)
          RCRA/SUPERFUND/OUST  HOTLINE MONTHLY REPORT  QUESTION
                                     APRIL 1992
 1.  Groundwater Monitoring at Newly
    Regulated Facilities

    The regulations in 40 CFR Part 265,
 Subpart F require owners and operators of
 interim status surface impoundments, landfills,
 and land treatment units to implement
 groundwater monitoring programs. Section
 265.92 requires these facilities to establish
 initial background concentrations for three
 groups of indicator parameters. Background
 concentrations are established based on the
 results of quarterly groundwater sampling
 during the first year.  For newly regulated
 interim status facilities or units, when must the
 background concentrations be established ••
 during the first year of interim status, or the
first year the groundwater monitoring, system is
 operating?

    Owners and operators of newly regulated
 interim status facilities or units must begin
 establishing background concentrations for the
 indicator parameters in §§265.92(b)(l)-(3) as
 soon as  the groundwater monitoring system is
 installed. These facilities then have one year
 from the date the system is operable to
 establish these background levels. When
 interim status is triggered, §270.73(d)(2)
 requires owners and operators of land disposal
 facilities to certify compliance with all
 applicable groundwater monitoring
 requirements within 12 months. Land disposal
 facilities that do not certify compliance with
 these requirements within 12 months
 automatically lose interim status. The
 September 27,1990, Federal Register (55 Fj£
 39411) clarifies §270.73(d)(2) by stating that
 facilities newly subject to the Part 265, Subpart
 F groundwater monitoring requirements must
 complete site characterization and design and
installation of groundwater monitoring systems
within 12 months of receiving interim status
(also see October 1985 Hotline Monthly Report
question on loss of interim status).  In other
words, a newly regulated interim status facility
must have characterized the hydrogeology of
the site and installed a groundwater monitoring
system capable of determining the facility's
impact on groundwater quality by the end of the
first year of interim status at the latest.

    Once owners or operators have completed
the installation of groundwater monitoring
systems, they must then immediately begin
establishing background concentrations for the
three groups of indicator parameters specified
in §§265.92(b)(l)-(3). These  background
concentrations are established during the first
year of operation of the groundwater
monitoring system. For newly regulated
facilities or units, background concentration
levels must be established by the end of the
second year of interim status at the latest
(sooner if the facility's groundwater monitoring
system was installed and operating before  the
end of the first year of interim status). For
example, a facility with a surface impoundment
that became subject to RCRA  regulation for the
first time because of the TCLP final rule had
until September 25,1991  (one year after the
effective date of the regulations), to certify that
a groundwater monitoring system was installed.
The facility then has until September 25,1992,
to establish background concentration levels
pursuant to §265.92. -If this facility finished
installing its groundwater monitoring system
before September 25,1991 (e.g., on July 15,
1991), background concentrations for the
indicator parameters would have to be
established/within one year of the date the
groundwater monitoring system became
operable (by July 15,1992).

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                                                                            9481.1992(02)
             RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION
                                        JUNE  1992
2. Groundwater Monitoring Resampling
   Requirements

   Owners or operators required to establish a
compliance monitoring program under 40 CFR
§264.99 must sample all groundwater
monitoring wells located at the point of
compliance for any chemical parameter or
hazardous constituent specified in the permit
pursuant to §264.99(a) at least semiannually,
and for all Appendix IX constituents at least
annually (§§264.99(f) and (g)).  If the
groundwater contains any additional Appendix
IX constituents that are not already identified in
the facility permit as monitoring constituents,
the owner or operator must report the results of
the analysis to the Regional Administrator
within seven days or resample within one month
after the initial sampling. If the owner or
operator chooses to resample, must he or she
resample for all Appendix IX constituents?

   The owner or operator is not required to
resample for all Appendix IX constituents.
Since the purpose of resampling is to verify the
presence of the additional constituents
discovered in the initial sampling, resampling is
only performed on those Appendix K
constituents the owner or operator wishes to
contest. If the owner or operator chooses to
resample and confirms the presence of the new
constituents within seven days of the second
 sampling, he or she must report the
 concentrations of these additional constituents
 to the Regional Administrator and, through a
 permit modification, add them to the
 monitoring list required by §264.99(a)(l). The
 owner or operator must then monitor for these
 constituents at least semiannually pursuant to
§264.99(f). If, after resampling, the second
analysis does not confirm the initial analysis,
then Ac "unconfirmed" constituents are not
gdj<-^ to the monitoring list and notification to
the Regional Administrator is not necessary.
This, however, does not exempt the facility
owner or operator from the annual Appendix
DC analysis pursuant to §264.99(g). In the
event that the owner or operator chooses not to
resample, he or she must report the results of
the initial sampling to the Regional
Administrator and modify the monitoring list
no later than seven days after the initial
sampling.

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Containers (Subpart I)

-------
9482 - USE AND
MANAGEMENT OF
CONTAINERS
Parts 264 & 265 Subpart I
                      ATKl/l 104/41 kp

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               UfilT£0 i'TEi-ENVIRONMENTAL

                                                              9482.1985(01)
                               2 6 1995
Honorable Bill  Alexander
Member, United  States
  House of Pepresentatives
Gathinas Building,  Room 211-A
615 South Main
Jonesboro, Arkansas  72401

Dear Mr. Alexander!

     This is  in response to your letter of October  21,  1985,
requesting assistance  for your constituent, Mr* Jack Rendricks,
President of  Crown  Rotational Molded Products  Inc., regarding  the
development of  a container for the safe and economical  storage,
transport, and  disposal of hazardous waste.

     While EPA  does not directly regulate the manufacturing of
containers, we  do regulate the storage of hazardous waste in con-
tainers (40 CPU, Part  264, Subpart I).  A copy of these standards
is enclosed.  These performance standards require that hazardous
waste not be  stored in containers that leak or are  incompatible
with the wastes.  Anyone who stores hazardous waste in containers
must obtain a RCPA pernit and comply with these standards.

     In many  cases hazardous wastes are stored in containers made
to meet Department of  Transportation (DOT) standards.  For waste
handling and  safety reasons, it is freguently cost effective for
a Generator to  store his hazardous waste in the same container
in which it will be transported and, often, ultimately disposed.
As a result, most containers storino hazardous waste are ulti-
mately slated for transfer to a disposal or treatment facility
(e.g., landfill, incinerator).  EPA has concluded that containers
that meet DOT standards for the transportation of containerized
materials (49 CFP, Part 173) are also acceptable from an environ-
mental protection persoective for the storaae of hazardous waste.

-------
     If Mr. Hendricks is interested in pursuing EPA assistance
with his research project, his first step in the process of
seeking a grant is to submit an application for Federal assistance.
Mr. Hendricks can obtain the necessary forms from:

                    Grants Operations Branch (PM-216)
                    Grants Administration Division
                    Environmental Protection Aqency
                    401 M Street, S.W.
                    Washington, D.C.   20460

     However, it pay be to Mr. Hendricks benefit to discuss the
technical aspects of his research project with EPA's Office of
Research and Development prior to- submitting any paperwork to the
Grants Administration Division.  Such a discussion would ensure
that the salient technical points are addressed in Mr. Hendrick's
application and roicht also give him an indication of the merits of
his proposal.  If Mr. Hendricks is interested, he should contact:

                    Mr. Don Carey (RD-675)
                    Office of Exploratory Research
                    Office of Research and Development
                    Environmental Protection Agency
                    401 M Street, S.W.
                    Washington, D.C.  20460
                    Phone»"  202/382-7899

Since regulations addressing container  design specification are
primarily within the realm of DOT, Mr. Hendricks may also want to
contact DOT regarding his proposal for hazardous waste containers.
If you need further information on this topic from EPA, please call
Mr. William Kline in the Office of Solid Waste at (202) 382-7917.

                                  Sincerely*
                                  J. Winston Porter
                                  Assistant Administrator

Enclosures


bcc: Don Carey

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              UNITED   TES ENVIRONMENTAL PROTECTION/   NCY      9482.1986(01)
Nr. Joseph J.  Donahue,  President
Connelly Containers,  Inc.
Bale- Cynwyd,  Pennsylvania   19004

Dear Mr. Donahue:

     At the request of  Mr.  Irvin A.  Lavine of Mason, FenwicX and
Lawrence law offices, I an  writing to you to explain the role of
the Environmental Protection Agency  (EPA) with regard to approving
containers for the storage  of hazardous waste, particularly with
respect to the design of such.  EPA  promulgated interim status
and permitting standards for the storage of hazardous waste in
containers on  May 19, I960,  and January 12, 1981, respectively.
A copy of these standards is enclosed.

     These standards arc simply performance standards that
require containers used to  store hazardous vaa£J^an?r to be com-
patible with the hazardous  waste stored.  In the process of
developing these regulations, EPA considered promulgating design
standards for  containers.   Since most containers storing hazardous
wast* arc ultimately slated for transfer to a disposal or treat-
ment facility  (e.g.* landfill, incinerator), however, it is nost
cost effective for the  generator to  store his hazardous waste in
the same container in which it will  be transported.

     EPA has concluded  that containers that meet Department of
Transportation (DOT) standards for the transportation of contain-
erized Biat.erials (49  CFR,  Part 173) are also acceptable from an
environmental  protection perspective.

     As part of the permit  application, the owner or operator
must indicate  that the  container he  plans to use will be com-
patible with the waste  to be stored, as required in $264.172.
If compliance  with this and the other Subtitle C requirements is
demonstrated,  EPA can then  approve the permit to store hazardous
waste in containers.

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     To- confirm the point made in your letter, a manufacturer of
container* cannot, apply for a storage permit in lieu of the actual
owner or operator of the facility seeking the permit.  It woul<*,
however, be advisable that the owner or operator obtain confirma-
tion from the container manufacturer that the containers being
purchased will be compatible with the waste to be stored.

     I hope that we have satisfactorily addressed your concern.
If you should have any questions, please feel free to call Bill
Kline of my staff at (202) 382-3081.

                                  Sincerely,
                                  John P. Lehman
                                  Director
                                  Waste Management and
                                    Economics Division
Enclosures

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                                                               9482.1993(01)
                      HOTLINE QUESTIONS AND ANSWERS
                                November  1993
                 RCRA
1. Containment Buildings as
   independent Hazardous Waste
   Management Units

   EPA recently promulgated standards for a
new hazardous waste management unit called
a containment building under 40 CFR Parts
•264 and 265, Subpart DD (57 ER 37194;
August 18,1992). EPA also amended
§262.34(a)(l). allowing large quantity
generators to accumulate and treat hazardous
wastes on-site in containment buildings for 90
days or less without a permit or interim status.
Must large quantity generators accumulating
hazardous waste in containers or tanks under
§§262.34(a)(l)(i) or (ii) now construct
containment buildings to house their container
or tank accumulation areas?

   No, the new containment building
regulations do not affect hazardous waste
container, tank, or drip pad management
standards at generator facilities and treatment
or storage facilities operating under permits or
interim status.  EPA developed the
containment building standards to provide
large quantity generators and treatment and
storage facilities with a new management unit
for bulky, nonliquid hazardous wastes (e.g.,
lead-bearing materials from batteries) not
amenable to accumulation, storage, or
treatment in containers or tanks.  Although a
containment building can serve as a secondary
containment system for hazardous  waste tanks
under certain conditions, there is no federal
regulatory requirement to house existing
containers, tanks, or other RCRA hazardous
waste management units within a containment
building (57 ER 37215; August 18,1992).
Containment buildings are intended to serve as
independent hazardous waste management
units. A large quantity generator accumulating
hazardous wastes solely in containers, in tanks.
or on drip pads in accordance with 40 CFR
§§262.34(a)(l)(i), (ii), or (iii) is not required to
comply with the standards for containment
buildings specified in §262.34(a)(l)(iv).

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                                                              9482.1993(01)
                     HOTLINE QUESTIONS AND ANSWERS
                                November  1993
                 RCRA
1. Containment Buildings as
   Independent Hazardous Waste
   Management Units

   EPA recently promulgated standards for a
new hazardous waste management unit called
a containment building under 40 CFR Pans
264 and265, Subpart DD (57ER37194;
August 18,1992). EPA also amended
§262J4(a)(l), allowing large quantity
generators to accumulate and treat hazardous
wastes on-site in containment buildings for 90
days or less without a permit or interim  status.
Must large quantity generators accumulating
hazardous waste in containers or tanks under
§§262.34(a)(l)(i) or 
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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, O.C. 20460
                                                  9482.1994(01)


                          SEP 2   \QQ4
                                                       OFFICE OF
                                              SOLID WASTE AND EMERGENCY RESPONSE
Mr. Raymond P. Berube
Deputy Assistant Secretary
 for Environment
U.S. Department of Energy
Washington, D.C.  20585

Dear Mr. Berube:

     I am pleased to respond to your July  13,  1994,  latter,  in
which you identify concerns about the  applicability  of  a  proposed
hazardous waste regulation to certain  of the Department of
Energy's (DOE's) radioactive mixed wastes.  Your  lettar
references the Environmental Protection Agency's  (EPA's)  May 19,
1994, workgroup draft of a final rulemaking notice which  would
address the control of organic air emissions from hazardous  waste
tanks, surface impoundements, and containers (RCRA docket F-91-
CESP-S0509).

     In particular, your letter takes  issue with  that provision
of the May 19, 1994, draft final rule  (40  CFR  264.108S(b)(i)(i))
that would require that hazardous waste must be placeJ  in a
container that is eguipped with a "tight"  cover that oermits no
detectable organic emissions when it is closed and sealed.
According to your letter, such a container could  give rise to an
explosive risk when used to contain certain of DOE's  radioactive
mixed wastes.  This risk arises from the potential generation of
hydrogeri gas within the container as plastics  and othsr organic
materials undergo radiolytic decomposition.  Your let:er  requests
that the final rule allow alternative  approaches  for  facilities
managing mixed wastes in containers.

     In response to the comments that  were submitted lay the
Department to EPA in October 1991, language was added in  section
265.1087(d) of the May 19, 1994, draft final rule tha".  would
allow one or more safety devices that  vent directly to  the
atmosphere to be used on a container.  This provision would
require that the safety device not be  used for planned  or routine
venting, and would also require that the safety devic-i  remain in
a closed and sealed position, except in cases where opening  the
device during an unplanned event is necessary to  prevent physical
damage to the container.  When this provision was add
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     Your July 13, 1994, letter clarifies several additional
mixed waste management practices required under the Waste
Acceptance Plan for the DOE's Waste Isolation Pilot Plant  (WIPP)
in Carlsbad, New Mexico;'  Under these practices, the nixed waste
drums are punctured to release any buildup of hydrogen gas, and a
NUCFIL filter vent is attached to the drum to retain the
radionuclides.  As your letter suggests, this procedure would not
appear to be in compliance with the May, 1994, draft rule's
requirements, since it allows volatile organic compounds to be
released to the atmosphere.

     Please be assured that I am aware of the Departments
concerns about the safety of storing mixed wastes in tightly
covered containers.  As we continue to develop the final rule, we
will attempt to address the situation appropriately.

     Thank you for your interest in Air Emissions Standards
rulemaking, and for sharing the Department's concerns with me.
                               Sincerely,
                                       H. Shapiro

                                      of Solid Waste
cc:  Matt Hale
     Michele Aston
     Docket Rulemaking
      (F-91-CESP-S0509)

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                                Department of  Energy
                                    Washington, DC 20585
                                        July 13,  1994
Mr. Michael H. Shapiro, Director
Office of Solid Waste (OSW-3QQ)
U. S. Environmental Protection Agency
401 M Street SW
Washington, DC 20460

Dear Mr. Shapiro:

On October 21, 1991, the Department of Energy (DOE) submitted comments to the
Environmental Protection Agency (EPA) on the "Hazardous Waste Treatment, Storage, and
Disposal Facilities; Organic-Air Emission Standards for Tanks, Surface Impoundments, and
Containers: Proposed Rule," 56 FR 33490, July 22,  1991. In its October 1991 comments, the
Department raised a number of issues with respect  to the application of the proposed
requirements to tanks, surface impoundments, and containers utilized for the management of
radioactive mixed wastes at DOE facilities.

While DOE's concerns regarding the proposed VOC standards have been partially addressed in
the May 1994 version of the draft final rule, we are concerned that one particular issue specific to
the management of radioactive mixed waste (RMW) has not been addressed.  This outstanding
issue constitutes the most serious concern raised in  the original comments (i.e., the potential
explosion, hazard associated with the management of RMW in unvented containers). Proposed
provision 40 CFR 264.1086(b)(l)(i) indicates that hazardous waste must be placed in a "container
that is equipped with a cover which operates with no detectable organic emissions when all
openings (i.e.,  lids, bungs, hatches, and sampling ports are secured in a closed, sealed position."
As noted on page 22 of our original comment package, RMW containers cannot be tightly sealed
due to unacceptable pressure buildup of hydrogen gas to levels which can potentially cause
rupture of the drum or create a potentially serious explosion hazard.

The generation of hydrogen gas is a result of the radiolytic decomposition of organic compounds
(i.e., plastics) and/or aqueous solutions within the container.  Plastics are commonly used as a
barrier to alpha radiation both in handling operations and in waste packaging.  Over time, the
alpha particle causes the hydrolysis of chemical bonds within the plastic material which  results in
the release of hydrogen gas.  Likewise, radiolysis of aqueous solutions will yield hydrogen.
Additionally, radiation induced degradation and biodegradation of organic ion-exchange resin
waste, which are also RMW, generated during water treatment at nuclear facilities, can result in
the production of gaseous products (i.e., hydrogen and carbon  dioxide) which in turn can result in
pressure buildup and failure of containers. High integrity containers arc used as alternative to
solidification as a means of stabilizing ion-exchange  resin wastes for disposal.

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 Because of pressure buildup inside the container, a vent for gaseous compounds may be necessary
 to prevent failure of a high-integrity container (i.e., vent designs incorporated into high integrity
 containers, restrict the release of radionuclides from the container into the environment).1

 The Department believes a requirement for "tight" covers on containers of RMW may ultimately
 be more harmful to human health and the environment than the current practice of venting these
 containers.  If the Department is required to maintain tight covers on RMW containers, there will
 be an enhanced potential for explosion due to a buildup of gas in the container. In addition, if an
 explosion involving radioactive and hazardous waste components were to occur, the personnel
 exposures to radiation and the costs associate with the cleanup of the radioactive and hazardous
 components released would offset any benefit realized as a result of requiring closed "tight"
 containers.

 Finally, numerous DOE nuclear facilities produce and store a variety of RMW, including
 transuranic (TRU) radioactive  mixed waste.  Since 1970, TRU wastes have been packed in drums
 for temporary storage at certain DOE sites.  Much of this waste is  ultimately destined for final
 disposal/storage at the Waste Isolation Pilot Plant (WIPP), Carlsbad, New Mexico.  In accordance
 with the WIPP Waste Acceptance Plan (WAP), wastes that are to  be shipped to the WIPP must
 be in containers that are vented to prevent the buildup of pressure.2 The vents must be filtered
 to ensure that no radioactive waste components are released.

 In order to comply with these requirements, at the Idaho National  Laboratory Drum Vent
 Facility, a drum lid is punctured to release any buildup of potentially explosive hydrogen gas  and a
 NUCFIL filter vent is attached. The function of a NUCFIL filter vent is to retain radionuclides
 inside a container while allowing hydrogen and other gases to pass  through to the atmosphere. In
 particular, the carbon composite membrane used in the filter vent does not inhibit the passing of
 VOC's from the container into the atmosphere.

 Because it is an unsafe practice to store RMW drums with tight covers, and because the WIPP
 WAP requires that containers be vented for shipment to the WIPP, many DOE facilities may be
 unable to meet the tight cover control device criteria as specified in the draft final rule.
    1 P. L. Piciulo, "Technical Considerations for High-Integrity Containers for the Disposal of
Radioactive Ion-Exchange Resin Waste," United States Nuclear Regulatory Commission,
NUREG/CR-3168, p. 76, October 1983.

    2 Section "3.4.7.2 TRANSPORTATION: WASTE PACKAGE REQUIREMENTS
(TRUPACT-II Requirements) of the Waste Acceptance Criteria for the Waste Isolation Pilot
Plant CWIPPX WIPP/DOE-069, Revision 4, UC-70, December 1991, requires that the gas
generation and release characteristics of the waste containers of the waste containers shall be
controlled by requiring that (1) all waste containers, including overpacks, shall be vented with
filters, and (2) any rigid drum liners used in the waste containers shall be either be filtered or
punctured meet the specifications described in the TRUPACT-II SARP (NuPac, "Safety Analysis
Report for the TRUPACT-II Shipping Package (SARP), Docket No. 71-9218, Revision 9, or
current Revision.  The TRUPACT-II SARP limits are based on the radiolytic gas generation
capabilities of the waste and a requirement for ensuring that any hydrogen generated in the
innermost waste bag will not exceed five volume percent over a 60-day transport period.

-------
Therefore, DOE is requesting that the final rule be modified to allow alternate approaches to
compliance for TSDFs managing RMW containers subject to the Subpart CC requirements for
"no detectable organic emissions." The modifications would allow these facilities to comply with
the proposed regulations in a safe and cost effective manner while also complying with WIPP
requirements.
                                  Sincerely,
                                  Raymond P. Berube
                                  Deputy Assistant Secretary
                                   for Environment
cc:  Ms. Sally Katzen, Administrator
   Office of Information and Regulatory Affairs
   Office of Management and Budget
   New Executive Office Building
   Washington, DC 20503

   Mr. Matthew Hale
   Deputy Division Director
   Permits and State Programs Division
   Office of Solid Waste
   U. S. Environmental Protection Agency
   401 M Street SW
   Washington, DC 20460

   Ms. Michele Aston
   Chemical and Petroleum Branch
   Emission Standards  Division (MD-13)
   U. S. Environmental Protection Agency
   Research Triangle Park, North Carolina 27711

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DIVIDER PAGE

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C. 20460
                                                  9482.1995(01)
                           JUH301995
                                                           OFFICE OF
                                                     SOLD WASTE AND EMERGENCY
                                                           RESPONSE
William C. Hopper
Industrial Hygienist
Brown & Davis, Incorporated
1201 Main Street, Suite  1915
Columbia, SC  29201

Dear Mr. Hopper:

     This is in response to your May 30,  1995 letter requesting
clarification of regulatory language with 'respect to permitted
hazardous.waste container storage facilities.  You specifically
request clarification  regarding the term "sufficiently
impervious", as it occurs in  40 CFR 264.175(b)(1),  and ask
whether coatings and liners are required in conjunction with
concrete containment pads.

     The regulations at  Section 264.175 address containment
requirements for container storage areas only.  Specifically,
§264.175 (b) addresses  the desi.gn and operational requirements for
containment systems, and requires that  container storage areas
consist of a base underlying  the "containers which is free of
cracks or gaps and is  sufficiently impervious to contain leaks,
spills, and accumulated  precipitation until the collected
material is detected .and removed."  There is no specific
definition of "sufficiently impervious" with respect to container
storage areas provided in the regulations,  and there is no
mention that liners or coatings must be used with concrete pads.

     However, the intent of "sufficiently impervious" may be
understood by considering preamble language from the January 12,
1981 rule  (46 FR 2802).   Specifically,  at 46 PR 2829,  the Agency
states that bases underlying  containers be "constructed of
concrete or asphalt but  latitude has been incorporated to allow
for other materials of construction."   Further,  "the important
consideration is that  the containment system in its entirety be
capable of collecting  and holding escaped wastes and contaminated
precipitation."  The container storage  regulations also require
that the base must be  sloped  or the system must be designed so
that liquids resulting from releases can drain and be removed,
and that any waste that  has spilled or  leaked into the secondary
containment area, or any accumulated precipitation, must be
removed in a timely manner.
                                                     PrtnMMt wfltfi Soy/DHMNi IMC on
                                                     conMn* « IMM «0* ncydM fltar

-------
     Your letter mentions that certain policy correspondence
regarding surface impoundments and waste piles indicated that
concrete is not considered sufficiently impervious.  Those
statements addressed the appropriate materials for primary
containment units are that are designed to operate in direct
continuous contact with hazardous waste.  This is fundamentally
different than the question you ask regarding a container storage
area where the concrete pad functions as a secondary containment
device to catch any spillage of hazardous waste in the event of
container failure.  The container provides the primary
containment, while the concrete base provides the secondary
containment .

     Finally, although the regulations at §264.175 do not
specifically require a liner or coating to be used in conjunction
with a concrete base, States may. have more stringent requirements
for container storage areas, as deemed necessary to protect human
health and the environment.  For site-specific requirements, you
should contact the appropriate Stat« regulatory agency.  If you
have 'any further questions, please call Jeff Gaines of my staff
at (703) 308-8655,

                                   Sincerely ;
                                   Frank McAlister, Chief
                                   Permits Branch  (S303W)
                                   Office of Soliti Waste
cc:  Matt Hale, OSW
     Jim Michael, OSW
     Jeff Gaines, OSW
     Ross Elliott, OSW
     Brian Grant , OGC
     G. Alan Farmer, Region IV

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                                  Brown & Davis,  Inc.
1201 Main Street, Suite 1915           Phone: (803) 748-1226 • Fax (803) 748-1288          Columbia, S.C. 29201

                                          May 30,1995
         Sylvia K. LowranfiefDirector
         Office of 3eU3 Waste
         United^tates Environmental Protection Agency (USHPA)
         _Washington, D.C. 20460
         Dear Mrs. Lownnce,

                I am writing you in regards to the .container, storage standards for permitted
         facilities as specified in Part 264, Subpart I in title 40 of the Code of Federal Regulations.
         Specifically,.! am confused about the-words "sufficiently impervious1* found in 264.175
         (bXD-  My understanding as to the meaning of the word impervious is. that it means.
         something that is incapable of being penetrated, or, incapable of being affected . This
         would indicate to me that containment -for.a storage area used to' store liquid Volatile
         organics would require an .impervious coating or liner. ,In addition, the Sept 2,1988
         Federal Register, which discusses the containment requirements for "new" tanks systems,
         states that concrete is not sufficiently impervious. Also, several'policy letters I have read
         regarding  waste  piles and surface impoundments  also  stele that  concrete  is  not
         sufficiently impervious.  Are permitted container storage areas required to have coating
         or liner covering over a concreted pad? If so, is this a requirement in every case or only
         under certain circumstances?

                I appreciate your time and effort in providing me with assistance regarding this
         matter. If need be, I can be reached at (803) 748-1226.
                                                William C. Hopper
                                                Industrial Hygienist

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