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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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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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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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
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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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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
-------
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
-------
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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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.
-------
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
-------
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)
-------
9470 — TSDF
ADMINISTRATIVE
REQUIREMENTS
Parts 264 & 265
A.T. Kearney 1/3590/4 cr
-------
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
-------
9471 - GENERAL
Parts 264 & 265 Subpart A
ATKl/1104/32kp
-------
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.
-------
-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.
-------
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-
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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)
-------
(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
-------
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
-------
9473 - PREPAREDNESS
AND PREVENTION
Parts 264 & 265 Subpart C
ATKl/l 104/34 kp
-------
Contingency Plan And Emergency
Procedures (Subpart D) _^
SO
-------
9474 -
CONTINGENCY PLAN
AND EMERGENCY
PROCEDURES
Parts 264 & 265 Subpart D
ATK1/1104/35 kp
-------
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
-------
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.
-------
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
-------
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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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
-------
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
-------
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«
-------
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.
-------
• 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
-------
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.
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-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.
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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.
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- 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
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- 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
-------
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
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-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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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
-------
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.
-------
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.
-------
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.
-------
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.
-------
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.
-------
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
-------
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
-------
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
-------
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.
-------
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)
-------
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.
-------
-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.
-------
9477.1982(03)
I
-------
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
-------
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—
-------
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.
-------
-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
-------
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,
-------
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.
-------
-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.
-------
-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,
-------
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
-------
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.
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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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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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•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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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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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
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- 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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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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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.
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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.
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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
'"">"
-------
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
Rccyctai/Rtcyda b !•
Prim*d with Soy/Canon Ink on P*M> mat
contain* «l !«•*« 50% r*cvcf«o ntw
-------
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
-------
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
-------
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
-------
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
-------
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.
-------
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.
-------
-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
-------
•-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
-------
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
-------
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
-------
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
-------
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
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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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