SDMS DocID 2009096

BBI:BLASLAND, BOUCK & LEE, INC,engineers & scl&ntlsts

Transmitted Via Email and First Class Mail

June 13,2003

Matthew T. MellonU.S. Environmental Protection Agency (U.S. EPA)3HS231650 Arch StreetPhiladelphia, PA 19107

Re: Former Koppers Company, Inc. (Newport, Delaware) SiteRevised Draft Feasibility Study ReportBBL Project #: 388.27 #2

Dear Mr. Mellon:

This letter responds to the questions posed in your May 27, 2003 email to Jane Patarcity and MaryannNicholson regarding the revised draft Feasibility Study (FS) for the Former Koppers Company Inc. Site,which is located in Newport, Delaware. Your questions are repeated in bold, followed by our response.

Could you please provide more (detailed) information regarding where and how Beazer hasimplemented in-situ S/S remedies at other creosote sites?

Over the past four years, in-situ solidification/stabilization (S/S) has been performed at two FormerKoppers Wood Treating sites to treat soils containing creosote, non-aqueous phase liquids (NAPL). Atboth sites, the NAPL containing soils were shallow enough that in-situ S/S could be performed usingexcavator-mounted mixing equipment. A monitoring program is being implemented to evaluate the long-term effectiveness of in-situ S/S at each site. A summary of the in-situ process performed at each site isprovided below.

1. Port Newark, New Jersey SiteAt the Port Newark, New Jersey site, approximately 52,000 cubic yards of dense NAPL-impactedsoil present at depths up to 12 feet were treated using in-situ and ex-situ S/S techniques. The upper4 to 6 feet of soil was excavated, mixed with a cement-based S/S agent in a pug mill and ultimatelyplaced back on-site and regraded. While the shallow soils were being treated ex-situ, a cement-based slurry was mixed in-situ with the deeper (6 to 12 feet) soils using proprietary equipmentprovided by the Lang Tool Company, consisting of a hydraulically-powered mixing head mountedon an excavator. The average volumetric increase of the deep soils following treatment and curingwas 23 percent.

Besides being selected to reduce the potential mobility of NAPL at the site, S/S was specificallyapplicable, considering the benefits rendered in support of site redevelopment. Specifically, the

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volumetric increase of site soils resulting from S/S activities reduced construction costs byoffsetting imported fill requirements, and the cement-based S/S agent improved the bearing strengthof the soils.

2. Port Reading, New Jersey Site

In-situ stabilization of soils containing NAPL was performed at the Port Reading Site in NewJersey. The purpose of the treatment was to immobilize the NAPL, minimize future dissolution ofconstituents to groundwater, and expedite natural attenuation. A total of 15,000 cubic yards of soilwere stabilized to a depth of up to 7 feet using Portland cement and specialized excavator-mountedmixing equipment.

What are your opinions about the potential presence of NAPL in the railroad track ballast alongthe Site?

As discussed during our meeting with you on February 26, 2003, we do not currently have data toconfirm or refute this possibility. The geostatistical model presented in the FS used the on-site samplingdata to depict the presence of NAPL. The model should not be used in making predictions beyond thesite sampling locations. If the Agencies have a concern regarding the ballast, these concerns may best beresolved during the pre-design phase of the project.

And north of the railroad tracks? [And if we were to clean up sediments, could this material leakout if it is there?]

NAPL was not detected in sediment samples obtained from the northernmost reach of Hershey Run, bothimmediately south and north of the railroad tracks. No data are currently available which would suggestNAPL is present north of the railroad tracks that might compromise a remedy performed in lowerHershey Run.

Does the saturated NAPL zone depicted along the railroad tracks actually follow the line of thetracks, or a somewhat offset line, as shown?

To first clarify, the NAPL zones delineated in Figure 1-4 of the FS are not entirely saturated with NAPLas you suggest. As described in the text of the FS and a letter to you dated April 4, 2003, NAPL zonesare distributed heterogeneously throughout the soils as weathered NAPL, blebs, thin seams, sheens and/orsaturated soil pores. The saturated pores encompass only a portion of the zone depicted in the figure.

The border of the NAPL zone delineated along the railroad tracks does not follow the line of the tracks. Itfollows the extent of NAPL based on kriging of the available data in that area. Therefore, if the railroadtracks were not present, the kriged NAPL boundary would remain as depicted.

As you are aware, kriging is an estimation procedure that determines unknown values by averagingknown values around the point of interest. The averaging technique incorporates measures of error anduncertainty by weighting the data used. Using this approach, the depicted NAPL extent was not truncateddue to the presence of the railroad tracks.

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In addition to where Beazer has used S/S before, what was its purpose at those sites?

As noted in a prior response, in-situ S/S has been used at other Beazer sites to reduce NAPL mobility andsupport site redevelopment. A monitoring program is currently in place to assess the effectiveness of in-situ S/S at reducing NAPL mobility. At these sites, application of in-situ S/S has been limited torelatively small sized areas and shallow depths. As noted, in-situ S/S was accomplished at these sitesusing excavator-mounted mixing equipment. A similar approach would likely not be feasible forstabilizing the deeper NAPL soils at the Newport site.

As noted in the FS Report, there are several potential implementability concerns which may limit and/orpreclude the use of in-situ S/S to address NAPL in subsurface soils at the Newport site. The evaluation ofin-situ S/S to treat soils down to 30 feet was included in the FS for consistency with other technologiessuch as in-situ steam injection and NAPL/soil removal which were assessed for materials at depth.Additionally, the evaluation of in-situ S/S to treat all estimated NAPL areas was included in the FS forconsistency with other comprehensive remedial alternatives considered therein. With the objective ofreducing NAPL mobility, in-situ S/S is most applicable to those areas where NAPL mobility is a potentialconcern. In-situ S/S may not be relevant to all potential NAPL areas of the Site, since, for example, Sitegroundwater data has not indicated any impacts to the Potomac aquifer.

Has introducing the S/S material given rise to any other concern?

As noted in the FS, there are several implementability concerns with the application of S/S at this Site.Use of S/S to address PAHs is limited, success is highly site-specific and its utility at this site issomewhat questionable. It would likely be quite challenging to deliver the S/S binding agent to thedepths necessary over a very large volume; therefore there are concerns that areas would be missed.Previous use of in-situ S/S has been in relatively shallow areas and potential application at depth wouldpose several challenges. Further, complete mixing of the binding agent could be problematic, and even ifareas are overlapped, the potential exists for ineffective treatment. The addition of the binding agent willalso increase the volume of materials in these areas, so in order to restore treated locations to grade, someexcavation or grading may be necessary to remove excess materials and accommodate a soil cover. Thereis also the potential for soil pH change depending upon the type and amount of additive being used. Theextent of these issues would be identified during treatability testing and could be evaluated duringremedial design, if S/S is included as a component of the Site remedy.

For any material that would be stabilized and consolidated into on-site cells, how would youstabilize it without triggering placement?

It would be necessary for U.S. EPA to designate the Site as a single Area of Contamination (AOC) whichwould allow consolidation of waste within the AOC. OSWER Directive 9347.1-0 (dated April 1989)entitled "Policy for Superfund Compliance with RCRA Land Disposal Restrictions" states that"movement of waste within the AOC does not constitute placement..." An S/S agent would be added tomaterial intended for on-site consolidation, as necessary, to reduce moisture content and increase materialstrength so that it would support equipment during placement of subsequent lifts. The addition of the S/Sagent was not included as a means to meet land disposal requirement nor is it a requirement for on-siteconsolidation within an AOC.

Designation of an AOC is a function performed by the regulating agency (letter from Don Clay toRichard Stall dated January 7, 1991.) The Superfund LDR Guide #5 entitled "Determining When Land

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Disposal Restrictions (LDRS) are applicable to CERCLA Response Actions" states that an AOC isdelineated by the areal extent (or boundary) of contiguous contamination. The guide gives an example ofan AOC as "a waste source, and the sediments in a stream contaminated by the source, where thecontamination is continuous from the source to the sediment." Although the Corrective ActionManagement Unit (CAMU) regulations have been changing, and "... was historically an outgrowth of theAOC concept, it has a separate statutory and regulatory basis; therefore it supplements rather thansupersedes the AOC concept. The AOC concept was not altered when the final CAMU rules werepromulgated, and it does not depend on the existence of the CAMU rule" (March 1996 memorandumfrom M. Shapiro, S. Luftig, and J. Clifford to RCRA Branch Chiefs).

Designation of an AOC is a fairly common mechanism for managing impacted materials including atwood treating sites. One example is the American Crossarm and Conduit Company Site in LewisCounty, Washington. A major component of the remedy selected for this wood treating site wasexcavation of contaminated soils and consolidation within the AOC. Another example is theGalesburg/Koppers Company Site in Knox County, Illinois. An AOC was designated and contaminatedsoil was consolidated on site, following excavation.

Based on the foregoing information, excavated material can be stabilized, if necessary, and consolidatedon-site once U.S. EPA designates the Site as an AOC, as have been done at other sites. As requestedduring our June 4, 2003 telephone conversation, several of the available U.S. EPA guidance documents Iidentified on the subject of AOCs, are attached.

We hope these responses adequately address your questions. Please contact us if you need any moreinformation or have any additional questions.

Sincerely,

BLASLAND, BOUCK & LEE, INC.

Kendrick Jaglal, P.E.Senior Engineer

KJ/dmn

Enclosure

cc: Peter Ludzia, U.S. EPARandy Sturgeon, U.S. EPASteve Johnson, DNRECJane Patarcity, BeazerMaryann Nicholson, DuPontStuart D. Messur, BBL

BLASLAND, BOUCK & LEE, INC.

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCYWASHINGTON. D.C. 20460

APR I 7 1989OFFICE OF

SOLID WASTE AND EMERGENCY RESPONSE

OSWER Directive 9347.1-02

MEMORANDUM

SUBJECT: Policy for Superfund Compliance With the RCRA Land DisposalRestriction

/vFROM: Jon-atria1/! Z|

Acting Assistant Administrator

TO: Regional Administrators, Regions T-X

To transmit the; Superfund policy for complying with the RCRA landdisposal rest.rictions (LDRs) at Superfund sites.

Background

CERCLA section 12L(d) requires on-site Superfund remedial actions tocomply with Federal, and more stringent State, environmental requirements thatare determined to be applicable or relevant and appropriate requirements(AJRA.RS). Section 121 also identifies six ARAR waivers: 1) interim remedy;2) greater risk to human health and the environment; 3) technicalimpracticability; A) equivalent standard of performance; 5) inconsistentapplication of State standard; and 6) Fund-balancing.

With regard to Superfund removal actions, the current NCP requires on-siteremoval actions to comply with Federal ARARs to the extent practicable,considering the exigencies of the situation. The preamble to the proposed NCPcontains gxiidance on how to determine whether compliance is "practicable."

On-site removal and remedial actions must comply with substantive aspectsof both applicable and relevant and appropriate requirements. Off-site removaland remedial actions must comply with both substantive and administrativeaspect:; of applicable requirements only.

The RCRA land disposal restrictions are a potential ARAR for Superfundactions. As you may know, OF.RR is developing; a guidance document to assist theRegions in complying with the LDKs. Although several issues must be resolved

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before this guidance is issued, this memorandum will summarize one of the majorissues that has been decided, namely, how to determine whether the LDRs are"applicable" to a Superfund response action. This policy will be discussed ingreater detail in the guidance document.

Objective

In order to assist Regional removal and remedial staff in making currentsite decisions about the LDRs, this memorandum will explain: 1) how todetermine when the LDRs are "applicable" to a Superfund removal or remedialaction, and 2) the Superfund approach for complying with the LDRs when they aredetermined to be applicable. (This memorandum does not address how to make"relevant and appropriate" determinations.)

Implementation

Section A below explains how site managers (OSCs, RPMs) should determinewhether the LDRs are "applicable" to a Superfund response action. Section Bexplains how Superfund intends to comply with the LDRs when they aredetermined to be applicable.

A. Application of the LDRs to CERCLA response actions

To determine if the LDRs are applicable to a given response action at aSuperfund site, the site manager must answer three questions. The answer toeach question must be "yes" for the LDRs to be applicable.

1. Does the CERCLA action constitute "placement"?

The LDRs are triggered as applicable requirements by "placement" ofrestricted RCRA hazardous wastes in land-based units.^ Placement occurs whenwastes are land disposed (or placed) in land-based RCRA units, such aslandfills, surface impoundments, waste piles, and land treatment facilities.Placement does not occur if wastes are moved within a unit or are left in place(e.g., capping, in—situ treatment, consolidation within a unit). Placementdoes occur when wastes are moved from one unit and placed in another unit. Forexample, if wastes from a CERCLA site are disposed at an off—site landfill,this action constitutes placement.

However, the concept of a RCRA unit may be less useful for uncontrolledhazardous waste sites, which often involve widespread and dispersedcontamination. Therefore, to assist in defining when placement occurs for on—site disposal at Superfund sites, the Agency has developed the concept of an

Several LDR requirements (the storage restrictions, dilution prohibition,and off-site notification requirements, in particular) are triggered whenrestricted wastes are generated, or picked up, rather than when the wastesare "placed." However, the major LDR restrictions discussed in theremainder of this memorandum are triggered only if wastes are "placed."

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"area of contamination" (AOC). An AOC is delineated by the extent ofcontinuous contamination, although one AOC may contain varying types andconcentrations of conta-mination. For example, a waste pit with the surroundingcontaminated soil is one AOC and may be viewed as a single "unit," e.g., asingle landfill. For the purposes of the LDRs, therefore, AOCs are equivalentto RCRA units.

Movement of waste within the AOC does not constitute placement, butmovement of waste out of the AOC into another unit will trigger placement.Placement would occur if wastes from different AOCs are consolidated into oneAOC or if wastes are removed and treated outside the AOC and returned to thesame or a different AOC. Placement would also occur if wastes are excavatedfrom the AOC, placed in an incinerator or tank located within the AOC, and thenredeposited into the AOC, because the incinerator and tank are consideredSeparate units from the AOC.

2. Is. the CERCLA waste also a RCRA hazardous waste,!

The LDRs are applicable only to RCRA hazardous wastes (i.e., listed andcharacteristic wastes identified under §261). However, not all wastes atSuperfund sites are RCRA hazardous wastes. Therefore, the site manager mustdecide if it is reasonably ascertainable, within the scope of the Superfundsite investigation, that the CERCLA waste is also a RCRA hazardous waste.Reasonable efforts must be used to collect the information needed to determineif a waste is a RCRA listed or characteristic waste. (It is expected thatcurrent data collection efforts at Superfund sites should be sufficient forthis purpose.) The site manager should have affirmative evidence (e.g.,manifests, records, knowledge of process) to demonstrate that the Superfundwaste is a RCRA hazardous waste for the LDRs to be potentially applicable.

To determine whether a CERCLA waste is a RCRA characteristic waste, sitemanagers may test the waste or use their knowledge of the properties of thewaste. To determine if a waste is a listed waste, sampling alone will not besufficient. The RCRA listing descriptions will generally require that the sitemanager have knowledge about the source of the waste (for example, did thesludge on site result from a wastewater treatment operation?) or its prior use(e.g., was the waste unused when it was discarded?).

If the site manager determines that the site waste is a RCRA hazardouswaste, he/she must also determine if that waste is a "California list" waste.The California list wastes are a distinct category of RCRA hazardous wastesregulated under the LDRs. The LDR regulations describe the California listwastes and they will be discussed in the forthcoming guidance document.

3. _._Is the RCRA wa_ste restricted _under_thg_LDRs_.at the time of placement!

The land disposal restrictions are being phased in for the RCRA hazardouswastes over a period of time. Attachment 1 presents the LDR statutorydeadlines established by section 3004 of the 1984 RCRA amendments. A RCRAwaste becomes a restricted waste under the LDRs on its statutory deadline, orearlier if EPA chooses to promulgate treatment standards for a waste prior tothis deadline. Note that after May 1990, all. RCRA hazardous wastes (that were

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listed or characteristic as of the 1984 RCRA amendments) will be restrictedunder the LDRs.

To determine if the LDRs are applicable, site managers should determine ifthe RCRA waste will be restricted under the LDRs at the time the waste is to beplaced.

To summarize Section A, the LDRs are applicable when three conditions aremet: 1) the CERCLA action constitutes placement, 2) the CERCLA waste is a RCRAhazardous waste, and 3) the RCRA waste is restricted at the time of placement.If these conditions are met, the CERCLA action must comply with the LDRs,unless an ARAR waiver is granted (remedial actions) or compliance with the LDRsis determined not to be "practicable" (removal actions).

B. Superfund compliance with the LDRs

Section B briefly describes the different types of LDR requirements andprovides an overview of the Superfund approach for complying with these LDRrequirements when they are determined to be "applicable." Section B describesonly the major LDR restrictions; the upcoming guidance document will give acomplete description of all LDR provisions.

1. Summary of the maj o r _LDR requirements

When a waste becomes "restricted" on its statutory deadline (or possiblyearlier), one of four types of restrictions will take effect:

Treatment standard (§268.40-43) - The RCRA amendments direct EPA topromulgate treatment standards for all RCRA hazardous wastes by thestatutory deadlines. To date, most of the standards set by EPA areconcentration levels that must be achieved prior to land disposal. (Theregulations specify whether a total waste analysis or the ToxicityCharacteristic Leaching Procedure (TCLP) must be used to measure theconcentration levels.) For concentration-based treatment standards, anytechnology may be used to achieve these standards. However, in limitedcases, EPA has also promulgated a specific technology as a treatmentstandard, or has established a "no land disposal" treatment standard wherea waste was no longer generated, no longer being land disposed, or wascapable of being totally recycled.

National capacity extension (§268.30-33) - When EPA sets a treatmentstandard for a waste, it must also determine if there is sufficientcapacity available nationwide to t-reat the waste to that standard. Ifnot, EPA may grant a nationwide capacity extension for the waste for up totwo years. During the extension, the waste does not have to meet thetreatment standard. However, if waste that does not meet the standard isdisposed in a landfill or surface impoundment, the receiving unit mustmeet the RCRA §3004(o) minimum technology requirements (e.g., doubleliner, leachate collection system, ground water monitoring). Because ofthese limitations on disposal, wastes are still considered "restricted"during national capacity extensions.

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Attachment 2 highlights the national capacity extensions that EPA hasgranted to date for CERCLA soil and debris wastes that are contaminatedwith RCRA restricted wastes.

Soft hammer (§268.8) - If EPA fails to set a treatment standard for aFirst or Second Third waste on the statutory deadline, the soft hammergoes into effect automatically. The soft hammer places two requirementson the disposal of wastes in landfills and surface impoundments: 1) thereceiving unit must meet the RCRA minimum technology requirements, and2) the generator must demonstrate and certify that he has investigatedtreatment options for the waste, and, where treatment is practicallyavailable, that the waste has been treated using the best practicallyavailable treatment method. The soft hammer remains in effect until EPAsets a treatment standard for the waste, or until the hard hammer falls inMay 1990, whichever comes first.

Har_d_hammer (RCRA §3004 (g) (6) (C) ) - If EPA fails to set a treatmentstandard for a solvent, dioxin, or California list waste by the statutorydeadlines for these wastes, or for any "Third" waste by May 1990, the hardhammer falls. The hard hammer prohibits all land disposal of the affectedwaste.

Compliance with RCRA and the LDRs may also be obtained through severaloptions other than meeting the restrictions above. It is important to notethat these options constitute compliance with RCRA; they do not require an ARARwaiver under CKRCLA.

A Treatabilitv Variance (§268.44) is available when a treatment standardhas been set for a waste. The variance can be used where, because thesite manager's waste is significantly different from the waste used by EPAto set the treatment standard, the standard cannot be met or the BOATtechnology is inappropriate. The variance can be granted eitheradministratively, for a particular waste at a particular site, or througha rule-making procedure, which establishes a new nationwide waste categoryand associated treatment standard.

An Equivalent Treatment Method Petition (§268.42) can be used where atreatment standard is a specified technology, but the site manager candemonstrate that another technology can achieve an equivalent measure ofperformance .

A No-Migration Petition (§268.6) can be used as an alternative to any ofthe four restrictions above. The site manager nvust demonstrate that therewill be no migration of hazardous constituents above health-based levelsfrom the disposal unit or injection zone for as long as the waste remainshazardous.

De.li.st,ing (§260.20 and §260.22) can be used as an alternative to any ofthe four restrictions above, when the RCRA hazardous waste is a listedwaste. The site manager must demonstrate that: 1) the waste does not meetany of the criteria under which the waste was listed, and 2) other factors

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(including additional constituents) would not cause the waste to behazardous.

2. Suoerfunj approach for complying with the LDR requirements

The present Superfund approach for complying with the LDRs when they areapplicable requirements is illustrated below:

CASE A: CERCLA liquid or sludge wastes that are also RCRA restrictedhazardous wastes

CERCLA liquidor sludge

RCRA restrictedhazardous waste

+ Placement = LDR is applicable. Mustcomply (unless CERCLAARAR waiver is granted).If the LDR restriction isa treatment standard,evaluate whether it canbe met. If not,determine if aTreatability Variance orother RCRA option isappropriate.

CASE B: CERCLA soil or debris wastes that contain RCRA restrictedhazardous wastes

CERCLA soilor debris

RCRA restrictedhazardous waste

Placement = LDR is applicable. Mustcomply (unless CERCLAARAR waiver is granted).If LDR restriction is atreatment standard, willgenerally be appropriateto seek a TreatabilityVariance. Other RCRAoptions may also beappropriate.

CERCLA response actions often address waste matrices, such as contaminatedsoil and debris, that are different from the RjCRA industrial wastes used to setthe LDR treatment standards. Therefore, the Agency is undertaking a rulemakingthat will set LDR treatment standards specifically for contaminated soil anddebris. Until that ruleinaking is completed, site managers should use the datacollected during the removal and remedial site investigations to support aTreatability Variance for soil and debris where necessary. As part of thisinterim approach, the Agency is developing specific guidance for obtaining aTreatability Variance for soil and debris, which establishes alternatetreatment levels or methods for soil and debris.

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If you have further questions, you may call the Headquarters SuperfundRegional Coordinators, Carolyn Offutt of the CERCLA program (FTS 475-9760), orMichaelle Wilson of the RCRA land disposal restrictions program (FTS 382-4770).

Attachments

cc: Regional Counsel, Regions I-XDirector, Waste Management Division., Regions I, IV, V, VII, and VIIIDirector, Emergency and Remedial Response Division, Region IIDirector, Hazardous Waste Management Division, Regions III and VIDirector, Toxics and Waste Management Division, Region IXDirector, Hazardous Waste Division, Region XEnvironmental Services Division Directors, Regions I, VI, and VIIHenry LongestSylvia LowranceBruce DiamondLisa FriedmanSuperfund Branch Chiefs, Regions I-XOil and Hazardous Materials Coordinators, Regions I-XBettie Van Epps, OERR Document Coordinator

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Attachment 1

LDR STATUTORY DEADLINES

RCRA HAZARDOUS WASTE STATUTORY DEADLINE*

Spent solvent wastes (F001-F005)

Dioxin wastes (F020-F023 and F026-F028)

California list wastes- Any RCRA hazardous waste- Liquid (except for HOCs)

andand

- Exceeds statutory prohibition level forcertain cyanides, metals, corrosives,PCBs or HOCs

CERCLA/RCRA corrective action soil and debris(Solvent-containing, dioxin-containing, andCalifornia list wastes only)

First Third wastes (listed RCRA hazardous vastes)

Second Third wastes (listed RCRA hazardous wastes)

Third Third wastes (listed and characteristicRCRA hazardous wastes)

New RCRA wastes (any RCRA hazardous waste listedor identified under RCRA 3001 afterNovember 8, 1984)

November 8, 1986

November 8, 1986

July 8, 1987

November 8, 1988

August 8, 1988

June 8, 1989

May 8, 1990

Within 6 monthsof listing oridentification**

* These dates are statutory deadlines in HSWA. On this date, some typeof LDR restriction will apply (i.e., treatment standard, minimumrequirement during national capacity extension, soft hammer, hardhammer). However, the Agency also has the authority to restrict a wasteearlier than its statutory deadline. Currently, the Agency is planningto restrict certain Third Third wastes in the June 1989 Second Third rule,so individual regulations must be crhecked. ~

** If EPA misses the 6 month deadline, the waste will not be restricted underthe LDRs because HSWA contained no hammer provisions for newly identifiedwastes.

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Attachment 2

LOR NATIONAL CAPACITY EXTENSIONS FOR CERCLA SOIL AND DEBRIS

Waste CategoryStatutoryDeadline

Treatment StandardEffective Date

Solvent (F001-F005;

Dloxin (F020-F023 and F026-F028)

California list (HOCs)

First Third:

Wastes where BOAT is incineration

Wastes where BDAT Is other than incineration

Soft hammer wastes - treatment standard notset; must meet soft hammer restrictions as of8/8/88

November 8, 1988

November 8, 1988

November 8, 1988

August 8, 1988

August 8, 1988

August 8, 1988

November 8, 1990*

November 8, 1990*

November 8, 1990*

August 8, 1990*

August 8, 1988**

N/A

* The effective date is based on the granting of a. national capacity extension. During the capacityextension, the soil and debris do not have to meet the promulgated treatment standards. However, if soilor debris that does not meet the standard is disposed In a landfill or surface impoundment, the receivingunit must meet the RCRA minimum technology requirements (double liner, leachate collection system, groundwater monitoring).

** Except for K048-K052 and K071, which were granted capacity extensions until August 8, 1990.

Area of Contamination Policy (AOC)

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UNITED STATES BNVWONMENTAL PROTECTION AGENCY

WASHINGTON. O.C. 20460

MAR 2 5 J996OFFICE OF

SOLID WASTE AND EMERGENCYRESPONSE

Norman H. Nosenchuck, P.B., DirectorDivision of Solid fc Hazardous Materials . . .New York State Department of ';':. .Environmental Conservation -V "V-50 Wolf Road '*Albany, New York 12233-7250

Dear Mr. Nosenchuck:

Thank you for your letter requesting additional informationon the scope and applicability of the Area of Contamination (AOC)concept. Independent of your request, EPA recently Completed.guidance on application of the AOC concept during cleanupsregulated under the Resource Conservation and Recovery Act (RCRA)and other cleanups. This guidance is attached.

As you requested, we have reviewed the June 11, 1992 letterfrom Sylvia K. Lowrance to Douglas H. Green regarding applicationof the AOC concept to routine earthmoving and grading activities.The discussion in the June 11,. 1992 letter continues to reflectAgency policy on areas of contamination. •

The area of contamination concept was discussed in detail inthe preamble to the National Contingency Plan. (55 Z& 8758-8760,March 8, 1990). Through the AOC concspt, SPA recognizes thatcertain discrete areas of generally dispersed contamination maybe equated to RCRA landfills. Just as movement of hazardouswastes within a landfill would not typically constitute a new actof treatment, storage or disposal. for purposes of RCRA, movementof media contaminated by hazardous wastes within an area ofcontamination does not typically trigger RCRA requirements.While the area of contamination concept was first explained inthe CERCLA NCP, it is based on an interpretation of RCRA. it.applies equally to RCRA .corrective action sites and other-act ions. '

In most cases the AOC concept is applied in the context of agovernment overseen cleanup action, and delineation of AOCs are•reviewed, overseen and approved as part of those actions.However, since the AOC concept is ah interpretation of currentFederal statutory and regulatory requirements, its applicationoutside overseen cleanup actions does not require oversight or

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advance approval at the Federal level. When the AOC concept isapplied outside the context of an overseen cleanup action, EPAencourages consultation with the appropriate agency and routinelycautions individuals that mia-application of the AOC conceptcould, potentially, result in substantial fines and penaltiesassociated with improper disposal of hazardous waste. EPA alsoroutinely cautions individuals that state standards may be morestringent and may require oversight or advance approval of allAOCs.

In your letter, you mention the specific concern thatindividuals could store soils contaminated with hazardous wastesin temporary piles anywhere within an overall area ofcontamination while installing pipelines or. foundation footingsand then replace the soil, "all with no RCRA'.regulatoryrequirements or governmental oversight.* tfexntite that, whilemovement of soil contaminated with hazardoua^waste within an areaof contamination would not typically trigger RCRA, the AOCconcept in no way shields individuals from otherwise applicablecleanup requirements. For example, in many states discovery ofcontaminated soils triggers reporting requirements under thestate cleanup program. In these cases, if a state, determinedthat cleanup was warranted it could require management or removalof contaminated soils, independent of RCRAi . We believe that,addressing potential cleanup needs for contaminated soilsdiscovered during normal earthmoving and grading activities usingcleanup laws is more appropriate than imposing the RCRApermitting procession these activities.

Thank you for your concern regarding the AOC concept. EPAcontinues to believe that proper application of this concept willsupport appropriate remedies and expedite cleanup processes, notencourage avoidance of legitimate cleanup obligations. Foradditional information, your staff may wish to contact ElizabethMcManus or Hugh Davis, of my staff, at (703) 308-8657 and (703)308-8633, respectively. .

i

Sincerely yours,

l Shapiro, Directorof Solid Waste-

Enclosure

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. UNITED 3TATBSINV1KONMINTAL PROTECTION AGENCYWASHINGTON, D.C. 20460

AR 1 3 !995

OFFICE OfSOLO WASTE AND EM6M6NCY

RESPONSE

MEMORANDUM

SUBJECT: Use of the Area of Contamination (AOC) Concept During RCRA Cleanups

FROM:

Stephen D.Luftig, DirectorOffice of Emergency and Remedial Response

e^* AAfr^ JiT*^^^^

Jtny Clifford, Director c^WSl^Office of Site Remediation raforcement

»TO: RCRABiaachChiefil

CERCLA Regional Managers

This memorandum conflnnj diat, under cunent legulatioas, certain broad areas ofcontamination (AOCs) may be considered RCRA landfills. Under certain conditions, hazardouswastes may he moved within such ana? wtthojtt triggering RCRA land disposal mt&tions or

the final Corrective Action Management Unit{CAMU) regulations and the Area ofContamination (AOC) approach, and encourages appropriate use of both options to expediteremedial actions. . • •

Area^of Costasrisatioa Approach .

TV "Wffl fff ^nM^riff ^ni 1*™**!$* ™99 «««qn«M<l in A*mil m ttut pn tnhl* to tha N«rinna1

Contingency Plan (55 EL 8758^760, March », 1990). la this discussion, EPA clarified thatcertain discrete areas of generally difp^rf^nTfitumlr***^ {f*\\^ "areas of contamination" or" AOCs") could be equated to a RCRA tadfiUand that movement of hazardous wastes withmthose anas would not be considered land disposal ai^ would not trigger die RCRA land disposalrestrictions. The NCP also discuaseairequirements might apply within an AOC The concept of "placement11 is important becauseplacement of hazardous waits into a landfill or other land beW unit Uconiidtttd. land disposal.

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which triggers the land disposal restrictions, and may trigger other RCRA requirements includingpermitting (at a non-CERCLA site), closure and post-closure, In the NCP, EPA stated,"placement does not occur when waste is consolidated within an AOC, when it is treated in situ,or when it is left in place." Placement does occur, and additional RCRA requirements may betriggered, when wastes are moved from one AOC to another (e.g., for consolidation) or whenwaste is actively managed (e.g., treated ec situ) within or outside the AOC and returned to theland. Additional information on when placement does and does not occur is provided in theattached guidance document, Determining Whenlfand Disposal Restrictions (LDRs) AreApplicable to CERCLA Response Actions* OSWER Directive 9347.3-05FS, July 1 989.

Although the AOC concept was initially discussed in the context of the CERCLAprogram, it applies equally to RCRA corrective action sites, cleanups under state law, aridvoluntary cleanups1. For additional information on the AOC concept, see, for example, theOctober 9, 1990 memorandum from Sylvia1 Lowrance to David Ullrich, "Replacement ofContaminated Soil and Debris Treated under a Treatability Variance," the January 7, 1991 letterfrom DonClay to Richard StoU, and the June 11, 1992 letter from Sylvia Lowrance to DouglasGreen (attached): ..... .....

The interpretations of landfill, placement and the area of contamination concept discussedin the NCP preamble were reiterated by EPAin the 1990 subpart S proposal (55 ES 30798, July27, 1990). In the 1990 proposal, EPA termed AOCs at RCRA facilities "Corrective ActionManagement Units" or "CAMUs." Although the name was changed, from AOC to CAMU, theCAMU concept discussed GS the ifefrprojiosai waa equivalent to the^iOC concept (although, asdiscussed below, the CAMU concept was broadened when u^ final CAMAJnile was issued). Inresponse to great interest in. the CAMU/AOC concept as discussed in the 1990 proposal, EPAissued a ftct sheet titled Cte ofth* Corrective Action Management Unit Concept \n \ugvM 1992(attached). In the August, 1992 fact sheet, EPA further reiterated the AOC concept by explainingthat broad areas of containinatioa, uicluduigSDe^inosubunita'.cc^ be consideredunder the RCRA regulation and o^additional RC^LArcuu^emsntsu^bjn

- • _ •_ T • <f*» . - • — • •*« ' _

Thediscus*kHwcfth»AOCappioadrmtheNCTpthe August, 1992 fact sheet continue to reflect EPA's iuiaptetajLion of current statutory andregulatory provisiottf. They remain useful goidaoce dc«umen&Vwhn & AOC approach is

apBtevalatttehdfriiltye^' » mats (fcey kapliaae tat AOC coecejt

staodv^wWcliraqaineoaMlttdMaad/or prior *peivwl«f«AOC

^Not%tfihesebaaft«OTaRCRAri|nlai»ie liKiasic«

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under consideration at RCRA corrective action sites, Superfund sites and during other cleanupactons involving the movement or consolidation of hazardous waste, or media and debriscontaminated with hazardous waste.

Relationship ef the AOC Concept to the Final CAMU Roles

On February 16, 1993, EPA published final Corrective Action Management Unitregulations (58 £& 8658, February 16, 1 993). The final CAMU rule differs from the AOCapproach in important respects. First, the CAMU regulations create a new type of RCRA unit • a"Corrective Action Management Unit" or "CAMU." CAMUs are distinct from the type of unitslisted in RCRA Section 300400*. Second, only EPA and authorized states may choose todesignate CAMUs for management of remediation waste during RCRA corrective action andother cleanups. Third, the CAMU regulations expanded the flexibility available for managementof remediation wastes beyond that offeredby the AOC approach. Under the CAMU regulations,certain activities which would normally be considered placement are allowed when carried out inan agency-approved CAMU, including: remediation waste4 may be removed from a CAMU andreplaced (before or after treatment) in the same or a different CAMU; remediation waste may beconsolidated into a CAMU before or after treatment; and, remediation waste may be moved(again, before or after treatment) between two or more CAMUs at the same facility.

While the CAMU concept contained in the final CAMU rule was historically anoutgrowth of tiie AOC concept, it has a separate statutory and regulatory basis; therefore, itsupplements rather than supersedes tine AOC concept The AOC concept was not altered whenthe final CAMU rates were promulgated and it does not depend on the existence of the CAMUrule.

As you may be aware, several parties challenged die CAMUrule. The lawsuit has beenStayed pending P rmrtg***0" «f **»* *"•' W«»«tAin« W*«t» 1A*nri«f*tJnn gtiUmedia ("HWIR-Media"). At the time the stay was issued, EPA stated that the HWIR-Mediamlewas expected to replace a substantial portion of the CAMU rule; however, as long as the CAMUnUereniaiiJsrn effect, CAMUs may be ustd toCERCLA, and state cleanup authorities. If a CAMU U under coosideratic^ we recommend youtake the following steps, in addition to the CAMU approval steps required at 40 CFR § 264.552:

' RCRA3«*» 300400 (teftoM *• HOBtend dbpOMi. whw «Md wkfe rwp*tto«ip«cffi«itwaniotawMt*,

finality, utt dome fcmatloii. late bed fctmrtlne, or imigyound taSem or on*.

^•••dLukA U* * M -—H.- ^M^ A x ^ ^ *a\ ^ uA js auavnirnct ww, fout, aw Mooana) •>• otera,haardous wMit efaeMBtistie, out an iCFR 5 264.10! sod RCRA nedtt300S(h). .Pars jfrm ftdltty,

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1) explain the potential risks associated with CAMUs to facility owner/operators by informingthem that the CAMU rule has been challenged and that EPA may issue a proposal to withdraw it;2) where possible, mitigate potential risks associated with CAMUs by, for example,implementing a CAMU remedy within the shortest possible time frame; and 3) document allCAMU decisions completely, emphasizing how the CAMU provides support for the best site-specific remedy.

Continued Use of the AOC Concept

Both AOCs and CAMUs can be used to expedite effective and protective remedialactions; however, EPA encourages the use of the AOC concept in cases where the additionalflexibility provided in the final CAMU regulations is not needed. For example, the AOC conceptis particularly useful for consolidation of contiguous units or areas of contaminated soil. Usingthe AOC concept, a RCRA facility owner/operator with a large contiguous area of soilcontamination could consolidate such soils into a single area or engineered unit within an AOCurifhniit tngg*n>g tha RCft A l"*l diapnaaJ TeatrictJona or minimi^ tg;hn«k?gy "qW"»m'fnfrUse of the AOC concept would not be affected by the pending litigation over CAMU or any.changes in the CAMU rule. In addition, please note, the AOC and CAMU concepts only addressmanagement of materials which would otherwise be subject to RCRA (i.e,, hazardous wastes, ormedia and debris contaminated with hazardous waste). RCRA regulated materials are a subset ofthe materials managed during site cleanups.

•We know you will continue to use the AOC and CAMU concepts to support appropriate

remedies and to expedite cleanup processes. If you have any questions regarding the AOC orCAMU concepts, please contact Elizabeth McManus, Hugh Davis or Robin Anderson at (703)308-8657, (703) 308-8633, and (703) 603-8747, respectively.

attachments

cc: Susan Bromm, OECAElizabeth Cotsworth, OS WLarry Reed, OERRJim Woolfbrd, FFRROBarbara Pace, OGCGeorgeiWyeth,OGCEarl Sab,'QGCRCRA Regional Division DirectorsSuperfund Regional Division Directors

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UNITED STATES ENVIRONMENTAL PROTECTION AQgNCK• WASHINGTON. O.C 20480

- 6 09.19484.1994(01)

SOIIOWASTC AMOIMIRQtNCV

'Mr. scott H.- DuBoff . 'WINSTON 4 6TRAHW . • ' . - /1400 L Street, H.W* .' • .'

0.0 20005-3302

• .

D«ar Hr. MBofCs

clarification o< tfee Agency's interpretation . of : "activenaaageaent1* in tbe closing of waste management , f acilitiw(eur£ac« DapouRdaenta) tnat contain vaste*" sludges meetingdascmiption of waata types that .became subject to 'Subtitle C ofth« Rttcourca ceruMrvation and Recovery Act (SC8A) after the • .impoundments bad brfe« peraanontly reaoved from serviced ' '•Specifically t this request seeXs verification of a .site-specif iccase dasczibecT in tnet letter.. . "__ ' • . .

In the specific case of an impoundment vhica. stoppedreceiving or generating any Hazardous wastes prior to the•£ fective date of tne newly identified characteristic or navlyidantif led listing, and the impoundment is the final disposal•It* for the vmatfts, the unit- is not subject to regulation undazr40 CFXt parts 264 or .2*5 (See S$ nt 39410, September 27, 199 o and55 FR 46383,, November 3, 1990). However, it should be noted thatinactive -units that are located at facilities othanriso cubjeetto Subtitle C interim status er'permittiag requirements are solidwaste management unite subject to corrective action* requirementsunder sections 3008 (n) and 3004 (u) of RCMU. Any treatment,storage, or disposal of wastes (i.e. , active management) in theunit •£ tar the effective date of the new listing orcharacteristic could subject ths unit and wastes to Subtitle ccontrol.

Section 3 DOS of RCRA prohibits the operation of hazardouswaste treatment, storage, or disposal facilities without apermit. EPA interprets th« term "disposal** for purposes of RCRASubtitle c regulation to have tlM earn* moaning as ths tern "landdisposal*1 as defined under section RdtA 3004 (k). Therefor*,conducting «ny of the activities that constitute "land disposal"of hazardous waste will subjtct the unit -to • subtitle C permittingand land disposal r •strietions . "Land disposal" occurs whenhazardous waste* are placed into a unit, including when hazardous

\\

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wastes from different units aria consolidated into one unit, orremoved and treated outside a unit and redeposited, or treatedwithin the unit in an incinerator, impoundment, or tank and thenredeposited* "land disposal" does net occur, for example, whenhazardous wastes are moved or consolidated within a unit, treatedin situ, or capped in place, or whan non-hazardous solid wast* i»added to the unit. As noted in the final rule which identifiedwastewater treatment sludges from petroleum refining as hazardouswastes (33 n 463S3, November 2, 1990), EPA does not (viaw the onetime removal of wastes during closure as ohahging the! status bz

as long es there has notidment.- One«-been ongoing management of the waste in the

time removals do "generate* waste, and this waste must complywith treatment standards prior to final land dlsposaJL,.. ......

It also should be noted that although the v movement of wastewithin a unit would nfijfe constitute 'land disposal under' KCRA 3005or 3004 (X) (as described above); this activity yo ldgenerally bedefined as "disposal" under RCRA section 1004(3) and. thus, be ...subject to «CR& section 7003 authorities. " . ; •**•.-*-..:---Vr-- -

During closurs~in-!-place, the sludges often mixed with a-stabilizing material designed to stabilize the kludge- either-•chemically or .physically to provide sufficient bearing capacityfor the placement of an impervious cap and* to prevent migration .of any contaminants to groundwster from a unit. Conqueringactivities that constitute hazardous waste •treatment* (includingin situ treatment) would subject the unit to permit requirementsas a hazardous waste treatment- facility.

Because "treatment.* may be occurring during activitiesdesigned to stabilize the wastes prior to capping. Subtitle cpermitting- may be triggered. -However, whether or not the

determination. Therefore, we will forward you* letter to Regionv and help the appropriate Regional staff obtain any additionalnational guldancs they may require.

Sincerely

David Bussard, DirectorCharacterization and Assessment Division

cc: David Fagun, OSW/PSPD, 5303WRichard Witt, OOC, 2335 .MiXa Ribedy, Region V

AR315368

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY- WASHINGTON, O.C. 20460

AU8J IO2

OMICI O*SOWIO WAST« AND »Mt*Q«NCV MI5PQN4I

HBHQBXNP°?f

SUBJECT: Use of the Corrective Action Management Unit (CAMU)Concept .

TO: waste Management Division Directors, Regions I - XRCRA Branch Chiefs, Regions I-XRCRA Regional Counse , jRaa pns} I - X

FROM: sylvia Lowrance, oOffice of Solid We

Diamond, Director? _(I offi.ce of Waste Programs Enforcement

At the February 1992 Stabilisation Conference in ColoradoSprings, we discussed the, possibility Of implementing thecorrective action management unit (CAMU) concept before finalpromulgation of the subpart 3 regulations. At that tiae OSNERaade a commitment to provide further' guidance to tha Regions) onhow to use existing *CRA regulations .to achieve SOSM of the)remedial benefits of thst CAMU. The attached document, "Us« ofthe Corrective Action Management .Unit Concept,* provide* thatguidance, v • ,'......_ . . . . ' . . . ' ,

The CAKO portion or Subpart s is on m current schedule to befinalised by December 1992. The) attached guidance, which vacdeveloped jointly by OSHBB and OGC, olarifiee the. Agency's legalauthority for utilising a CAMU-lJJce approach before) the CAMU ruleis finalised, and provide* guidance on when and how to us* theconcept. ' The concept can be applied during final remedies, andin tha implementation of stabilisation actions to.reduce imminentthreats and contain releases. Wa encourage tha usev of this)concept whenever the success of tha remedial option at aparticular facility Will be enhanced* - ' •

It you have any questions regarding tha content of thisguidance, plaasa call Dave Fagan at (202) 260-4497.

cc: Lisa Friedman, OGCHenry Longest, QtRRKathie Stein, o*

AR3J5369

Offlei rf S«U4 WMB ia4

D.C a**

Use of the CorrectiveAction Management UnitConcept

BACKGROUND

Be|inaln| in 1992, EPA beganImplementing a new stnttgf to lacrease the pacaof cleanup and to achieve positive eaviroaneatalresults at RCRA treatment, ttonss and dapouifiuUities (TSDR) requirlni corrective solos.Wliile comprehensive facility deaaup at Mill thelong-term goal tor the RCRA .Corrective Action!Program, tab new lajtfurv* eaphsibM theimportance of tubtlixlaf site* by cpaaotUa|releases and preventing the further spread ofcontaminant}. »

At moM RCRA (adlitfev ttaMUauioe orfinal remedial acdomt will Invohri eacmtioa aadoa-sita management of contaminated sofav dudaejand other wastes that are subject to the RCRASubtitle C hazardoai wem rtfitooom lataeas

a ameer of Isseai cat arise reprdtaf«ppiiobtllty of esmia RCRA reasjicteeam,

and how these reo^dnssmUi saay aflact theremedial activities. Spedflcafly, gperiaace fat the.RCRA aod CERCLA PSSJSdm profraam hatshow* that the RCRA lam* esfoaal femkttoet(LDRi) aad mlaisiosi tMMHsJfjr i»qelfem<am(MTRj) may Uarnt the typsi of rsairtlil opttoeaavailable at tits*, at. wen at aotet the types of

of materials that teaof remedies

aad otter flmam

Reoofnldtt|thatttrict»ppfcadoe of theseRCRA requiremcats say Usdt or comttnisdesirable remedies, ladvdisf stabilizatiosprofraaa, EPA is devetopiai aa Importaairefuiacory coacepi, .kaowa as 'the CorrectiveAaioa Maoafemeat Unit (CAMU), to (adlltatseffective aad protective remedtal action*. This

concept, first dsnared to the propowd Subpan ScorrecUve acttoa refHatkXM (33 FR 3079S, July27,1990), is ilmilar to the Saptrroad concept ofthe *area of ooaomiaatioa,' la which broad areas'cYconramtnatioa, often iadodlaf spedflc jubualu,arecon«idefed(obeasta|lebaddtapcealaalt lorremedial pttrpotsv

CAMUs may be parocolariy wefml forspedfic remedial tctMues <aca H consolidation ofaaittorcoatamdaaiedsatfldaiioib. ForezuDBle,a irocp of Hahsed inactive Utpoc* thai are

be best renndlund by removing and treating theconrrafratrtwnBsi la another intt,iad»nr«vatlng'the remaining low eoecentratioe .contaminatedtods front •ndemeath the mama,, These toilscoaU then be nrssoUihMd and placed (ana aprotectivn tee cotMflicdvn ihgVa ripped tuit,thereby controlling .-farther 'ralease* toiroundeeur. la other rifnatiom sat rcmetliirinruwifl reoidre enawaaoe of tarsi e^natitisi offnatr^low^Qflatnnmmtinlsnraciaisote Intheje CSMI a pioiaalwn aad east-etfnedvs remedymight be » enetvtsi the aotts and.coasoUdatniheni laao a t^agN ami or engineered unit withinthe area c/ connmlnartoe Pot both of tbew

woaU resell ta a awe con* andootnoto remedy, that may delay teaadUrtna tad

tor the tits, ' •

As proposed la tba Sobpan S role, nhcrcmay be certain typea of tltaabon* in **kaappUcadoi of the CAMU eoeojet (53 FR 30M2)would be Loapproersm la additiom, several

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factors (55 FR 30883) nay b< considered bydecision-makers in determining bow CAMU*would actually be designated at sites. Althoughowner/operators may propose a specific ana as aCAMU. it is toe responsibility of EPA or theauthorized State to determine whether a CAMU isnecessary and appropriate, and, if so, to determinethe boundaries of the unit.

The Siibpan S regulation* have not yetbeen finalized. However, although the CAMUconcept ha* been presented only in proposedregulation*, exfetinf regulatory authority may b*used to implement this type of approach in tit*remediation* and stabUIzttion actions. TheAgency's experience with the RCRA and CERCLAremedial programs indicate* that the CAMUconcept could be spotted immediately to greatadvantage at a sipiflcant aumber of RCRAcleanup site*. Thtt guidance s prateared to clarifythe use of the CAMU concept prior to finalregulation*.

USE OP LANDFILL DESIGNATION FOEREMEDIAL PURPOSES

Specifically, ceraia contaminated area* atsites that require remediation, Indudiag groan* ofunit* in such area*, may be designated as alandfill* under the current RCRA tandffidefinition (40 CFR12«X 10% Deetfsstiagtucaasarea of a mcflfty at a tadSO wttnia the emutiafregulatory framework can scaieva remedial benefitssimilar to those that would be obtained by wagCAMU* under th* Subpan S propoaal Prior tothe promulgation of final CAMU ralnt, EPAencourage* the UM of that appiosfe atcontaminated stew when it a

contaminaMdaresi

and generally in

ana

«*• the CAMUpfovttion* in the Subpan S yrepimai

certain areas at a messy at a tingle lanoflB farremedial pufpoant shonM reaseN approval fromEPA or the asthoriasl Smen ansjcy, TheRegional Ausaasuaiot or tan amthorhsd StateDireoor will be the nitinwa elecWoe-eaier a* aowhether such a tandSB us* wOl beta* arhh*e theremedial objective* at the facility. EPA

waivers, or variance)» achieve many of the sameobjective! at tha popes* Snbaan S rale CAMUprovWons thonld leaeraOy toflow the proposedregulntory provWon* (53 PR 30K1) and preamble

««»cimion (55 FR 3OJ»2) « deAmng UMtouadane* of UM remedial unit. The Region orautbortted Staw may also look to Superfaatfguidaact In thedmignation of AGO (55 FR «73g.S760).

Designating an area of contamination as alandfill* win require that ib* unit comply withcertain RCRA requirements that art applicable tolandfill*. The jpecufe requirements that apply wflldiffer, depending on whether the landfill isconsidered to be: (1) an editing non-regulatedlandfill, or (2) a regulated baardou* waste landfilLThis distinction la determined by the regulatoryitans of the eaia or area* that ire iadudei a*pan of tha beam The tallowing discussioneniains further UM requirement* usodaied withUMM two type* of landfill*.

Figure I shown en area of conouninatlonat a mcflfty that mctnde* several land-bated solidwatte numaesMt unit* (SWMUt) that an notregulated at ansudons wnsw unit* under RCRA(e.g, becauM all of the dvpoaa) occurred beamthe RCRA hesjfdom* wane regulation* went intoeffect). BydaaignutingthsareeacasiaglelaadSIlEPA can aptrova aoiement an4 consolidation of

cottU be

wtthin the unit boundary, withoutMTRa, For caapte.rowa4SWMU* land 2

tnto SWMU 3 and capped

Ths iBnen would not be subject to UMRCRA Part 2*4 or Pan 245 dtnign and operating

ilaadfllm. To**

In the24* or 245

Dnrmntgn

19,19*1 (See 40of spedscPaft

tot tuch unio,closure

byEPA or the Stem as part of the corrective action

Th*MIce anameaMnent of

titeieedflcishe hyaionMtB0. eanomm potantini. and othermcttts. Tah aflowu the regutow further fietibfliiy

and protectiw based on actual dts condttion*.

Then* non-regukted landfiU* wouldremain eismft Dem regulation under Part* 264and 245, under the Mowing <

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FIGUttlEXBT1NC NON-R1GULATBD LANDFILL

Cotrtaminabad Soil

FadUty Boundary UncDatamiitahtd Sofl

The UndflBwatte from other units, either os-cta* oroff-Uta, The landm coutd. however,

the deanvp action*, If k wan to receive

become a regulated nek (40 CPR |27Q.t(c)) subject to the teajninsenai ofSubp*mP(40CPR|264^rj)andO(40CFR § 264.110). The mdkkywould hate to be

woold have 19 be anejovei nensr e) CPU»——^~^^ •_ j» ^M^kaITBeWajO V9 QDrnVBe

standardt prior to

Ifln-4itnlandmihawith aU Part 264 or 2«3appUothtt IB the tfentsanet imodify thepeisittor Part A tothe

Similarly,haxnrdou* waste* that nevefrom the taadflU and treated in a

LDRi.

**n* ftiA fl^^^^M^I*^^ . ---nnot ee ruoeaoanen tatothe raridunl* meet ths

If the lejMnnh) were ttiffl

the remdnnt) into the landfiD wouldraasJn ths mndftl to be Kaipated a

at the ante wonht havewatte after July 26.

I9«L

front the

an ana ofat a

LDR

onttmtaartowhich

defined tn 40 CFRI264JO).i.wastnt to be

at a wonht allow

trtgntrtng the LDRa. However,regelated units, the

be contastnd a regulated unit.would

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FIGURE!REGULATED LANDFILL

Impoundment*

jninatedSofl

Facility Boundary Unccnti d Sell

The onrt bouadariet of the originalregulated units that were specified on thePan A or Pan B appttcatioa waaM have

applicable procedure* fat 40 CPR H270.72,270.41 or 270.42.

The leadfln woald have to comply wifeappttaMe Pan 264 or 245 lenaliamteisfor toadfllm, inctadatf the Snbnen P

and Subpan O

would generally

Cjmputnce witii Sebpsn O would UhtrymUO ffBfltttn'SJ sjn^OessawflBeVQeiB m9 CnsV vsjOeneVst

and pesvckmern ptnet tar tea nek.

MTRswonU sot neotntnrOy apply to thawnewly itmlpatsl regnHurt Jaadfflm. Vtheoriginairegulated unit located wftftJa the mwemt was notsubject to the MTRt (iA, thelnsdflnwat not newor expanding after 19S4). the landSfl could be

a redotignatioa of that exmtiag unrt, rather than*lateral expansion. At tnch, the landM would notbe subject 10 the MTRs. Howsw*r,tftt«ref«laied

umft escontpaawd by the taadflfi was orignattysubject 10 MTRs, the entire area of the landOOwonat be rebjact» MTRs.

SUMMAKT

trlgssa the LDRt) cthe CAMU coaoan

EPAs

(«•*.retiduammtotiMCAMU

prior to a final CAMUgiaamliigsoeMof

i the nant rale, fronefhele**,theramcybea

itheuMoflnndostcanylntn taesaemal baenfls) at temiedsntisn sites*EPA reoonuMeei that tea gnMnnoa pfovUed inthat met sheet be atel hi evnbsnting the ute oflaadSOi to iaqMemeei tamely aad protactrvecorrective actiont at RCRA mctttties.

PURTmlR INfOtMATION

tsnejriat cceceraias the guidancecontained hi tarn ma sheet should be directed toDnve Pagan (202) 260-4497, or Anns Price (202)2604725.

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ro.UNJT80 STATES INVmONMINTAL WOTttTWW AGSNCY

• WASHINGTON. O.C

JUH I i 1832 "'""'. sovio w*srt A*e swsHCt Net at-yonsa

Mr. Douglas. &V Green*Piper i atarbury •1200 Xineteanth Street, H.W.Washington, D.C. 20036-2430

Dear Kxu Green i

Thank yea for your letter of ftptll ao, lisa, requestingclarification of the Xnvirontental Protection *gsncy*m (XPA'a)interpretation of the applicability «f certain iescmrceconservation ancl Recovery ajBt (RCRA) recjoijraanentm to eomnvdn

motivities. •

Xha particular situation vhieb yqa presented in year letterinvolves exeava^on of soils, suclj aa trenchine; •operatioan forpipeliani inftallation, vhere the soils say be aasavdeoai bycharacteristic, or may contain lis^sd haxardoos vastes. ' *Ws

' that your questions specifically relate to excavation*being conduoted oft pablic roadweym or at other similar locationsthat are not n««eesmrily asspeimted vith ox axe part, of a.regulated treavtmemt, storacje.o or disposal Xaoility.

Zn the eacample vhieA you- cit^ in your' Ijttter/ the soilsfrom the excavation cw.construct^ , activities], era tanrierarilymoved within the area of .con^bastinatibw/ and subsequentlyredeposited into the* same e^cexvated area.; Zn tibese oitostions,ve agree that smoh activity dee* not constitute treatment,arteracte, or dispose! of a hasaXdooji waste under RCSA. theactivity of placing; waste in the ground vould not normally meetthe regulatory.definitions of ."trsataent" or "storage" (<o era26O.10). in addition, as you noted in year letter, movementof wastes within an area of contamination does not constitute"land disposal" and thus does) not trigger RCRA hazardous wastedisposal requirements (59 Q «•<«. March s, 1590). Thus, sourequirements cuds as -land disposal .restrictions would not apply.

With respect to generator'rocj&ritsents, as you indicate*!,a hazardous waste "generator11 is one, by aite, who produoes ahaxardoua wasree or first causes ths waste to be regulated ashazardous (40 CSH 2«0.10). In the ctrcasstanca* yqu described,th.e «xc«vation does not "produce" the haxardous waste, nor doesit subject tha waste to hazardous waste regulation since, asj

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S "—"" * .

discussed above, the activity van clesevikee is not ""treatment."storage,*, or "land disposal" of featardonf vastt. Therefore, veagree that the activity is not subject to any generatorretirement*.

Please let mm know it you have any farther ojuestiona '•ding this issnae. . .

K. Levramw, Directorffice of solid tfaate

TCTPU *•«

TOTRL p.ea

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D.C. 20460

APR I 6 lytM OFFICE OFGENERAL COUNSEL

MEMORANDUM

SUBJECT: LDR Applicability for Investigative Derived Waste

FROM: Caroline H. WehlingCMWAttorneySolid Waste and EmergencyResponse Division (LE-132S)

TO: Steven C. GolianChiefRemedial Guidance Section (OS-220)

This is in response to your request for guidance oncompliance with land disposal restrictions for investigative-derived wastes which are temporarily stored in drums within anAOC pending response selection. Specifically you have askedwhether a drum is in itself a RCRA "unit" such that, if waste isremoved from the drum, it must meet LDR requirements prior toredeposition in the AOC.

I agree that, in certain circumstances, the placement ofhazardous waste from an AOC into a drum within the AOC, followedby replacement in the AOC would not constitute "land disposal"for RCRA purposes. For RCRA regulatory purposes, "land disposal"is the placement of waste into a land disposal unit (such as anAOC). Land disposal of hazardous wastes is subject to thepretreatment requirements of the LDR program. Movement ofhazardous waste from a storage unit (such as a tank or containerstorage area) into a land disposal unit constitutes "landdisposal" of hazardous waste.

As we have discussed, a drum is not in itself a RCRA unit.See 40 C.F.R. 260.10 (definition of "hazardous waste management,unit"). However, drums and the land on which drums are placednay constitute a RCRA storage unit, specifically a "containerstorage area". Thus, if the drum storage you described involvedthe placement of hazardous waste into drums within a separatestorage or treatment area, either on land within the AOC or on apad, the removal of waste and replacement into the AOC could

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constitute land disposal. On the other hand, EPA does notgenerally consider drums placed within a landfill to form"container storage areas". Thus, if waste is placed into drumswhich remain within the AOC and which are not placed into aneparate storage or treatment area, such placement would not beconsidered a unit distinct from the landfill itself. As aresult, removal of waste from the drums and redeposition withinthe landfill would not constitute land disposal.

Please call me if you have any additional questions aboutthis. I can be reached at FTS 382-7720.

cc: Tina Kaneen, OGCLarry Starfield, OGCGeorge Wyeth, OGCJohn Hollister, OERRI'Dave Fagan, OSW

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UNITED STATES BNVlHONMSNTAl. PROTECTION AGENCYWASHINGTON, O.C. 204*0

JW T

OFIMCI Of, ' • SQVIOW«*rC A*O<MIM<MMOV ft«

i

Richard G. Stoll .Freedman, Levy, Kroll * Simonds1050 Connecticut Ave. N.W.Washington, D.C. 20036-5366

Dear-Mr. Stoll,

This letter ia in re*pon»e to your inquiry dated August 22,1990 'concerning the applicability of SPA'a *Superfund LDRGuide*.* As you asserted, thoae interpretation* of RCRA'werefound in the 1990 NCF and other CCRCLA document*, but you1 askedwhether those interpretations apply at all site*,- regardless ofwhether the cleanup activity is being conducted under federalCBRCLA authorities.-

The preamble to the 1990-MO represents an official Agency-wide position concerning the interpretation of RCRA and otherstatute* relevant to federally-mandated CBRCLA cleanups (see 53£S 51394, 51443-45 (December-21,19**) and 55 £& 8666, 8758-62(March 8,1990)). The LDR Guides implement these Interpretationsin more detail. These interpretations of RCRA would apply atSuperfund .aiten and at notv-Superfund sites. Therefore, ingeneral, the answer to your question about the applicability-ofthe. LDR Guides and MCP interpretations is that they apply •'wherever the cleanup involves a RCRA, waste. However, it isconceivable that some of the interpretations of RCRA developed toapply to federal CmmCTA sites may not exactly match non-CERCLAcircumatancea because- of different statutory constraints orauthorities. With that caveat, let me address the specific .issue* and. questions raised in your letter.

first, your coanaenta focus on the* interpretations of Area ofContamination (AOC), "placement,* and the presumption ofentitlement to treatability variances for contaminated coil anddebris. Tour principal concern focused on whether theinterpretations offered of these issue* in the NCP and LDR Guidesapply at all sites. The answer is yea.

Second, you also questioned whether the KC9 interpretationsand the LDR Guides noted above apply equally where "a party maywant to move or treat contaminated coil and debris as part of. a

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RCRA corrective action, a* part of a cleanup carried out underState law, and/or as part of a voluntary cleanup,H The answer i*yos.

third, you asked whether jn ait u treatment that is not"placement" at « CSRCLA site 1* also not placement at a non-CERCLA tihe (alte A in your letter). The answer ic yes.

fe-urth, you question whether excavation and-movement ofcontaminated aoil within a certain area would be "placement" at anon-CKRCUi site (aits B), since you interpret it not to beplacement at a CBRCLA aita. The limited facts given in thatquestion do not allow u* to unambiguously ntate whether there is"placement" at either nite, although as a general • rule the AOCconcept is operable at BCRfc corrective action nitea. It shouldbe -noted, however, that designation of an AOC i* a functionperformed by the regulating agency.

fifth, you asked .whether .the presumption in favor oftreatability variances and definition of appropriate alternativetreatment would be the name for a aon-CBRCLA nite (site C). The •annwe'r in that any presumption in favor of a treatabilityvariance would be the «ame whether the site 1* a RCRA site or afederal or private party CBRCLA site. •

I hope that this msponse meet* your needs, if you needadditional information or clarification, please contact SteveGolian at (703) 300-U60.

Don R.Assistant Administrator

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCYWASHINGTON, D.C. 20460

OCT 91990 OFFICE OFSOIIO WAS'6 4.NO EMEfGENCV «E5PO\£

MEMORANDUM

SUBJECT: Replacement of Contaminated Soil and DebrisTreated under a Treatability Variance

FROM: Sylvia K. Lowrance, DirectOffice of Solid Waste

TO: David Ullrich, Acting DirectorWaste Management Division, Region V

This memorandum is in response to your correspondence ofApril 25, 1990, in which you requested'guidance in relation to sixspecific questions dealing generally with how the RCRA landdisposal restrictions may affect certain remedial situations. Weapologize for the delay in responding to your request; however, itwas necessary for us to insure consensus at Headquarters in order-to address the questions you have posed. He offer the followingresponse to those six questions:

1. Q: Can soil and debris which has been treated in a tankwithin the area of contamination (AOC) in accordancewith a treatability variance be replaced within the areaof contamination without meeting any additional 40 CFRPart 264 requirements?

A: If contaminated soil and debris is treated to meetstandards specified in a treatability variance that hasbeen approved by the Agency, the treated soil/debris maythen be placed in any treatment, storage or disposalunit that is in compliance with RCRA Subtitle C. Thiscould include an "area of contamination" (i.e., a RCRAlandfill) that has been designated by the RegionalAdministrator for the purpose of remediating thefacility or site. Thus, as a regulatory matter, therewould be no real distinction between soil/debris that istreated to the standard(s) set in the treatability

-•-variance and then placed in another unit, as opposed to"pure" hazardous waat.es that are treated to theapplicable Part 268 standards, and placed in anotherunit, except as discussed in the response to Question 15(concerning contaminated media which no longer containsany waste).

By stating in your question that the treated wastesare to be redeposited into the AOC, we assume there is an

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implied question as to what design and operatingstandards would then be applicable to the AOC itself.This is discussed in our response to question 16, below.

2. Q: Has the policy set forth on Page 5.12 of the documentImplementing the Land Disposal Restrict-.ifflisf October1989, been revised?

A: This policy has not been revised. The policy statesthat once an owner/operator receives a treatabilityvariance, completes treatment, and has a treatmentresidual to be land disposed, the residue can bedirected to any permitted or interim status unit.

3. Q: For the purpose of land disposal, is the residue of soiltreated under a treatability variance to bedistinguished from the residue of waste treatedaccording to treatment standards?

A: No. See response to Question 1, above.

4. Q: For the purpose of land disposal, is the residue of soiltreated under a treatability variance in a tank withinthe area of contamination to be distinguished from theresidue of soil treated under a treatability variance ina tank outside of the area of contamination?

A: No. The location of the tank in relation to the "areaof contamination" would not create a distinction as tohow or where the treatment residuals could be landdisposed. This assumes, of course, that the wastes havebeen treated to the standards specified in thetreatability variance. A tank cannot be considered apart of the AOC (landfill), regardless of where it isphysically located; thus, its location would have nobearing on the standards that would apply to managementof the contaminated soils (or other hazardous wastes,for that matter) after they have been treated in thetank.

5. Q: Is a treatability variance for soil and debris to beconsidered in effect a delisting? Do the principles ofthe "contained in" policy for the treatment ofcontaminated ground water have any applicability to the

--treatment of contaminated soil and debris?

A: A treatability -variance for soil/debris does not havethe effect of a delisting approved for the waste. Thetreated residuals typically will still contain hazardouswastes, and thus must be managed as such. In contrast,when wastes are delisted they are generally no longersubject to Subtitle C regulation.

The "contained in" policy applies to ground water

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and other contaminated media such as soil which arecontaminated with listed hazardous wastes. Thus, ifground water or soil are treated such thatconcentrations of the listed wastes are at or belowhealth based levels, the ground water or soilwould no longer "contain" the hazardous wastes, andwould therefore be no longer subject to Subtitle Cregulation.

6. Q: If an AOC can be considered a RCRA unit for the purposeof closure, would an AOC ever be considered equivalentto a RCRA compliant unit for the purpose of disposal?(See page 6 of OSWER Directive 9234.2-04FS RCRA ARARH;Focus on Closure Requirements.)

A: As outlined in the cited ARARs manual, the AOC is aconcept which can be applied in the context ofremediation under CERCLA response actions or RCRAcorrective actions. It is in many ways analogous tosituations where two or more regulated surfaceimpoundments would be treated as one unit in the contextof closure of the impoundments.

When applied in the context of RCRA correctiveactions or CERCLA remedial actions, the AOC conceptwould allow the Regional Administrator to designate abroadly contaminated contiguous area to be a RCRA "unit"(i.e., a landfill) for the purpose of implementing theremedy. In an existing landfill, the movement orconsolidation of hazardous wastes within thedesignated area would not by itself trigger Subtitle Crequirements (including the land disposal restrictionsand the RCRA minimum technology requirements) since thatmovement or consolidation does not constitute"disposal" for Subtitle C purposes. If, however, wastesare excavated from the designated area, treated inanother unit, and subsequently redeposited into the samearea or unit, disposal has occurred, and the landfillwould have to comply with applicable Part 264 or 265requirements, including the .LDRs, MTRs, closure standards(264.310), and the ground water monitoring requirementsof Subpart F, Part 264 or 265.

The proposed Subpart S corrective action rule~ "explains the AOC (described therein as the "correctiveaction management unit-") concept in more detail.However, if you have more specific .questions or issuesregarding AOCs, we will be glad to work with you or yourstaff to resolve them.

If there are any questions on the above responses to yourquestions, please contact Dave Fagan (FTS 382-4497) or Judy

AR315382

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View Record Detail

UNITED STATES ENVIRONMENTAL PROTECTION AGENCYWASHINGTON, D.C. 20460

Septembers, 1990

Richard G. StollFreedman, Levy, Kroll & SimondsWashington Square1050 Connecticut Ave., N.W.Washington, D.C. 20036-5366

Dear Mr. Stoll:

This is in response to your request for confirmation that certain activities do not require ahazardous waste management permit under the Resource Conservation and Recovery Act("RCRA"). Specifically, you have asked whether movement of hazardous waste that doesnot constitute "land disposal" would nonetheless require a hazardous waste disposalpermit. It would not.

Section 3005 of RCRA prohibits the operation of a hazardous waste treatment, storage ordisposal facility without a permit. EPA has interpreted the term "disposal" for purposes ofRCRA Subtitle C regulation to have the same meaning as the term "land disposal" asdefined under Section 3004(k). 53 Fed. Reg. 51444 (December 21, 1988) (defining"treatment", "storage" and "disposal" under Subtitle C of RCRA); 55 Fed. Reg. 8759,8760 (March 8, 1990). Moreover, EPA has interpreted "land disposal" under Section3004(k) to include movement of hazardous waste into a unit, but not movement withinthe unit. 55 Fed. Reg. 8759, 8760 (March 8, 1990). As a, result, movement of hazardouswaste within a land disposal unit — for instance, the transfer of waste from one part of ahazardous waste disposal unit to another part of that unit — would not constitute"disposal" under Section 3005 and thus would not require a permit. See 55 Fed. Reg.8760 (March 8,1990) (earthmoving operations within a land disposal unit would not besubject to Subtitle C disposal requirements or permitting).

Note, however, that if such transfer were associated with land treatment activities, the unitmay be subject to permit requirements as a hazardous waste treatment facility. Inaddition, the movement of waste within a unit would generally constitute "disposal" asdefined under Section 1004(3) and thus be subject to Section 7003 authorities.

If you have further questions about this issue please feel free to contact me or CarrieWehling of my staff.

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Sincerely,

Lisa K. FriedmanAssociate General Counsel

Solid Waste and EmergencyResponse Division (LE-132S)

LAW OFFICESFREEDMAN, LEVY, KROLL & SIMONDS

July 10, 1990

Lisa K. Friedman, Esq.Associate General CounselU.S. EPALE-132SRoom 503, West Tower401 M Street, S.W.Washington, D. C. 20460

Dear Lisa:

I am seeking your confirmation that certain types of hazardous waste movement will nottrigger the need for a disposal permit under RCRA. If you agree with my analysis andconclusions, I ask that you please send me a letter stating this.

EPA has recently explained in some detail how to determine whether various types ofactivities constitute "placement" for purposes of triggering land disposal restrictions(LDRs) under RCRA. EPA's interpretations may be found in (1) OSWER Directive9347.3-05FS, July 1989, also known as "Superfund LDR Guide #5;" (2) the proposedNCP preamble of December 21, 1988, particularly at 53 Fed. Reg. 51444, and (3) thefinal NCP preamble of March 8,1990, particularly at 55 Fed. Reg. 8758-60.

In these documents, the concept of "placement" within or outside an "Area ofcontamination" (AOC) is pivotal. Essentially, EPA has stated that the act of movinghazardous wastes within a single AOC will not be considered "placement" that triggersLDRs (unless such movement also includes placing the waste in a separate unit such asincinerator or tank within the AOC).

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While these documents deal with placement in the LDR context, they do not generallyaddress the equally important issue of whether certain activity triggers the need for apermit under RCRA. Based upon my review of the statute, EPA regulations, and variousEPA preamble statements, I have the following conclusion: any moving of hazardouswaste not placement for purposes of triggering LDRs similarly trigger the need for aRCRA disposal permit. My analysis follows.

First, RCRA §1004(3) defines "disposal" quite broadly, and goes well beyond active"placement" to include passive leaking, leaching, etc. The statutory requirement to obtaina permit, however, is not triggered merely by any such disposal. Rather RCRA §3005(a)requires only that disposal facilities have permits. See first sentence of §3005(a).The statute does not define the term "disposal facility." EPA's regulations, however, havedefined this term consistently since 1980:

Disposal facility means a facility or part of a facility at which hazardous waste isintentionally placed into or on any land or water, and at which waste will remainafter closure.

40 CFR 260.10 (emphasis added).

Even at this early stage of the analysis, one can detect the basis for my conclusion."Placement" of waste is a key to the definition of a disposal facility, and a disposalfacility is necessary to trigger the requirement for a disposal permit.

Recent EPA discussions provide strong support for this conclusion. In the final "firstthird" LDR preamble, EPA made the following statement in responding to a comment:

Thus, only facilities where hazardous waste is intentionally placed into land orwater after November 19, 1980 require a RCRA disposal permit.

53 Fed. Reg. 31149, cols. 1-2, August 17, 1988 (emphasis added).

This statement may still beg the question whether EPA defines "placed" (or "placement")in the same way for both LDR-triggering and disposal permit-triggering purposes. In thefinal NCP preamble of March 8, 1990, however, EPA moves clearly in this direction:

Under RCRA section 1004(3), the term "disposal" is very broadly defined andincludes any "discharge, deposit, injection, dumping, spilling, leaking, or placing"of waste into or any land or water. Thus, "disposal" (in a statutory, rather than theregulatory subtitle C meaning of the term) would include virtually any movement ofwaste, whether within a unit or across a unit boundary. In fact, the RCRA definitionof "disposal" has been interpreted by numerous courts to include passive leaking,whore no active management is involved (see, e.g., U.S. v. Waste Industries. Inc.

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734 F.2d.l59 (4th Cir. 1984)). However, Congress did not use the term "disposal"as its trigger for the RCRA land disposal restrictions, but instead specificallydefined the new, and more narrow, term "land disposal" in section 3004(k). Thebroader "disposal" language continues to be applicable to RCRA provisions otherthan those in subtitle C. such as section 7003.

55 Fed. Reg. 8759, emphasis added.

In this passage, EPA makes quite clear that the broad definition of disposal in RCRA§1004(3) not only is inapplicable to LDRs but also is inapplicable throughout the entiretyof Subtitle C. Instead, EPA relies on the term "placement" as it appears in RCRA §3004(k) to define disposal for all purposes throughout Subtitle C. 55 Fed. Reg. 8759, col. 2.

If there were any further doubt about the linkage of the concept of "placement" in theLDR context and the concept of "placed" in the permit context, EPA appears to haveresolved it in an example hi the same preamble. After noting that certain movement ofwastes within a unit would not be placement that triggers LDRs, EPA says that therequirement to obtain a RCRA permit would similarly not apply. 55 Fed. Reg. 8759-60.

I submit that all this points to only one logical conclusion: when one appropriatelydetermines that a particular act is not placement for LDR purposes, such act will thereforenot trigger the need for a disposal permit under RCRA.

I ask that you please confirm in writing the validity of my conclusion. I look forward tohearing from you.

Very truly yours,

Richard G. Stoll

FaxBack#ll950

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T

Thur»dayJAarch 8, 1990

Part H

EnvironmentalProtection Agency40 CFR Part 300National Oil and Hazardous SubstancesPollution Contingency Plat? Final Rule

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•8758 Federal Register / Vol. 55, No. 46 / Thursday. March a. 1990 / Rules and Regulations

requirements. Hither, given the need toensure finality of remedy selection inorder to achieve expeditious cleanup ofsites, and given the tenjih of time tmenrequired to design, negotiate, andimplement remedial actions. EPAbelieves that this U the nest reasonableinterpretation of the statute,

As EPA discusses elsewhere to thispreamble, one variation to this policyoccurs when a component of the remedywas not identified whenlhe ROD issigned In that situation. S>A w2Jcomply with ARARs Jn effect when (hatcomponent is identified (e-g^durifigremedial design), which could includerequirements pnarwlgeted both beforeana after the ROD was signed. EPAnotes that newly promulgated ormodified requirements may dtactlyapply or be more relevant andappropriate to certain locations, actionsorcontamraantc than existing standardsand, thus, may be potential ARARs forr-Dtore responses-!: is important to note that a poKcy of

freezing ARARj at the mne of the RODligning vriO not sacrifice protection ofhuman health and the environment

' because the remedy wfll be reviewed forprotfictiveness every five yean,

' conaidering new ormodffied.wpjfawnentsst thai point, or more '

• frequently. If there is reason to believethat the remedy is no longer protectiveof health and environment.

Ta response to the spedSe commentsreceived. EPA notes that aider thispolicy, EPA does not intend that *remedy must be ;p«vf'**** solely toattain a newly promulgated or modifiedrequirement. Rather, a remedy maat bemodified if necessary to protect humanhealth and the environment; newlypromulgated or modified requirementscontribute to that evaluation ofprotactiveness. For axasopte. a newrequirement for a chemical at a site mayIndicate that the cleanup level selectedfor die chemical corresponds to a cancer

^risk of I0-*rather than «r», asoriginally thought The original remedywould then have to be modified becauseit would result in exposures outside theacceptable risk range that generallydeSae* what is protective.

This policy that newly promulgated ormodified requirement* tftwH beconsidered during protee&venessreviews of the remedy, but should notrequire a reopening of the ROD duringimplementation every time a new state. or federal standard is promulgated or •modified was discussed fa the preambleto the proposed rule (53 FR at SI440J batnot fa the rule section ttsett For liereasons ootli&ed above, EPA believesthat this concept is critical to the

'expedition* and cut-effective .

accomplishment of remedies dulyselected under CERCLA and the NCP.and thus is appropriate for inclusion ini 300430(fKlM»i)(B) of the Bnal NCP.This will afford both the public andImplementing agencies greater clarity asto when and how requirements must beconsidered during CERCLA responses,and thus will allow the CERCLAprogram to carry -out selected remedieswith greater certainty and efficiency. Ofcourse, off-rite CERCLA remadialactions are subject to the substantiveand procedural requirements «fapplicable federal stale, and local lawsat the time of off-site treatment storageor disposal.

Final rule: EPA is adding thefollowing language to the rale at\ 300430(0(l}(ii)(B):

(B] On-iite remedial actions selected in aROD most ittain those ARAXs that areidentified at (he time of ROD signature or

. provide grounds far invoking a waiver uncer

(7} Requirement* that are promulgated ormodified after ROD sJgoarore Bust be

. attained (or waived) only when determinedto be applicable or relevent aad appropriate«nd nocesnry to ensure that feefaaedy l»protective of human health «nd UM

(21 Components of the remedy notdescribed in the ROD most stain (or waive)KquiniMet* that an identified a* applicableor relevant and appropriate si the time theamendment to the ROD or the explanation ofHjnifiCBnt difference* describing thecomponent if signed

Name: Applicability of RCRArequirements.

Proposed rule: The preamble to the.proposed rule discussed when RCRAsubtitle C requirements wfll beapplicable for site cleanups (53 FR51443). U described the prerequisite* for""applicability" at length, which are that(1) The waste must be a listed orcharacteristic RCRA hazardous wasteaad (2) treatment, storage or disposaloccurred after the effective date of theRCRA requirements under consideration(for example, because the activity at theCERCLA site constitutes treatment.storage, or disposal, as defined byRCRA).

The preamble explained bow EPA willdetermine when a waste at a CCRCLAsite is a listed RCRA hazardous waste.It noted that it is often necessary toknow the origin of the waste todetermine whether it is a listed wasteand tha tof such documentation islacking, thelead agency may assume it

' is not a listed waste. • . •. •The preamble discussed how EPA will

determine that a waste is a. .. .characteristic ha_r-4tta waste voder .RCRA. It stated that EPA can test to

determine whether a waste exhibits acharacteristic or can use bestprofessional Judgment to determinewhether testing is necessary, "applyingknowledge of the hazard characteristicin light of the materials or processused."

The preamble also discussed when- aCERCLA action constitute* landdisposal** defined a* placemen! into aland disposal unit under section 30Mf»of RCRA, which uiggets seven)significant requirements, includingRCRA land disposal restriction* (LDRs)and closure requirements (when a unit isclosed). It equated an area ofcontamination (AOC). consisting ofcontinuous contamination of varyingamounts and types at a CERCLA site, toa single RCRA land disposal anil, andstated thai movement within the unitdoes not constitute placement. It alsostated that placement occurs whenwast* is redeposited after treatment in aseparate unit (e.g, incinerator or lank),or when waste la moved from one AOCto another. Placement does not occurwhen waste is consolidated within anAOC when it is treated In situ, or whenit is left in place.

Response to comments: EPA receivedmany comments on its discussion ofwhen RCRA requirements can beapplicable lo CERCLA response actions.On the issue of compliance with RCRAin general most of these comme&tersargued thai RCRA requirements are notintended for site cleanup actions, thaisuch compliance will result in delaysand that RCRA requirements are oftenunnecessary to protect human healthand the environment at CERCLA sites.Other commenters argued, however,that EPA is trying to avoid compliancewith RCRA retirements. Most of thecomments, however, focused on whenLDRs are applicable to CERCLA actionsand on EPA's discussion of what actionsassociated with remediation triggerLDRs.

Some commenters opposed EPA'sinterpretation of land disposal™ or"placement" as too lenient, believingthai EPA is trying to avoid compliancewith RCRA laws, particularly LDRs>These commenters argued that LDRsshould be applicable when hazardouswastes are managed excavated, ormoved io any way. One argued thatARARs waivers are available to addresssituations when the LDR levels cannotbe achieved and should be used asnecessary, rather than trying tonarrowiy define the universe of ARAKsto avoid waivers. This commenier wasalso concerned with EPA's use of theterm "unit'* calling it an inappropriateconcept for Superfund sites because it

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will allow the excavation andredeposition of waste within very largeareas without ever meeting RCRAdesign and operating standards andLDR. One commenter asserted that EPAconcerns on LDRs stem from anunjustifiable belief that LDR cleanuplevels cannot be achieved.

Other commenters believed that thedefinition of "placement- should•provide more flexibility. One assertedmat replacement of treated residuals Inthe proximate area should not constituteplacement. The commenter argued mat

. Congress intended to address,preventively or prospectivtly, theoriginal act of disposal, and that aninnocent government or public entityihoold not be required to assume theentire environmental responsibility ofthe original disposers. The commenteralso argued that establishing thatreplacement of treated waste triggersLDRs will be a serious disincentive totreating wastes. Some commentersargued that LDRs should not be relevantand appropriate where the CERCLAwaste to be disposed on land is merelysimilar in composition to RCRA bannedwaste.

Other commenters argued that LDRs. an inappropriate for CERCLA remedialactions. They noted an inherent conflictbetween LDRs, which require treatmentto BOAT levels, and the CERCLAprocess, and claimed thatLDRa willsupplant CERCLA's "carefullyarticulated and balanced approach toremedy selection." Cormnentenasserted that compliance with LDRs willcraata technical problems because ofdifferences between CERCLA wastesand those evaluated far LDRs. Thesolutions recommended by thesecommenten primarily focused onnarrowing or «KintnaHnj RCRAapplicability, but included suggestionsfor creating treatability groups forCERCLA-type waste and seekinglegislative waivers from LDRs, e-g-. awaiver from LDRs for Superfund actionsat NFL sites.

One commenter believed that theconcept of •"unit" is not readily .transferable to CERCLA sites due to theage and former uses of many of the site'.undergoing remediation. Given theramifications of LDRs, the commenter'argued, it may be more reasonable to'create a presumption of treating dieentire site as one "unit" even ifremediation Includes a series of -operable units.

Some comments were received onEPA's statements on consolidatingwaste. One stated that consolidation ofsmall amounts of waste across unitsshould not be considered placementbecause that will lead to less

environmentally sound and lass cost-effective solutions, particularly if LDRsare triggered. Another recommendedthat EPA should allow consolidation ofsmall volumes of waste anywhere on-site, for purposes of storage or 'treatment without triggering otherwiseapplicable RCRA standards. Another.commenter requested clarification thatconsolidation within a unit includednormal earthmoving and grading

-operations.1. Actions constituting land disposal

. EPA disagrees with commenters whoconsidered EPA's Interpretation of thedefinition of "land disposal" underRCRA section 3004(k) to be too narrow.These commenters argued that anymovement of was.te should beconsidered "placement" of waste, andthus "land disposal" under RCRAsection 3Q04(k).• The definition of "land disposal" is

central to determining whether theRCRA LDRs are applicable to ahazardous waste which is beingmanaged as part of a CERCLA responseaction, or RCRA closure or correctiveaction. The term "land disposal" isdefined under RCRA section 3004(k) asincluding, but not limited to. "anyplacement of such hazardous waste in ajun^fil], surface impoundment, wastepile, injection well, land treatmentfacility, salt dome formation, salt bedformation, or underground mine orcave." The terms "landfill", "surfaceimpoundment" and the others, refer tospecific types of units defined underRCRA regulations. Thus. Congressgenerally defined the scope of the LDRprogram as the placement of hazardouswaste In a land disposal unit as thoseunits an defined under RCRAregulations.

EPA has consistently interpreted thephrase "placement * * * in" one ofthese-land disposal units to mean theplacement of hazardous wastes into oneof these units, not the movement ofwaste within a unit See e^ SI FR 40577(Nov. 7.1986) and 54 FR 41566-67(October 10.1989) (supplementalproposal of possible alternativeinterpretations of "land disposal"). EPAbelieves that its interpretation mat the"placement * * * in" language refers toa transfer of waste into a unit (rather •than simply any movement of waste) isnot only consistent with astraightforward reading of section3004(k), but also with the Congressionalpurpose behind the LDRs. The centralconcern of Congress in establishing theLDR program was to reduce or eliminatethe practice of disposing of untreatedhazardous wast* at RCRA hazardouswaste facilities, rhe primary aim ofCongress was prospective rather than

directed at already-disposed wastewithin a land disposal unit. See 61 FR40577 (Nov. 7,1986). Moreover,interpreting section 3004(k] to requireapplication of the LDRs to anymovement of waste could be.difficult toimplement and could interfere withnecessary operations at an operatingRCRA facility. For instance, whenhazardous waste hi disposed of in a landdisposal unit at an operating RCRAfacility, there may well be some"movement" of the waste already in theunit Under the commenters' approach,such movement without pretreatment ofthe moved waste could be in violation ofthe LDRs. Thus, under the commenters'

• Interpretation, virtually no operationalactivities could occur at any RCRA landdisposal unit containing hazardouswaste without pretreatment of anywaste disturbed by the operation;clearly an infeasfble approach.

EPA also believes that thisinterpretation of section 3004(k) issupported by the legislative history forthis1 provision (see 129 Cong. Rec. HS139(Oct. B. 1983)(statement of Rep. Breaux)).and by the Congressional choice todefine "land disposal" more narrowlyfor purposes of application of the LDRsthan the already-existing term"disposal", which has a much broader

• meaning under RCRA. Under RCRAsection 1004(3), the term "disposal" isvery broadly defined and includes any"discharge, deposit, injection, dumping,spilling, leaking, or placing" of wasteinto or on any land or water. Thus.'"disposar [in a statutory, rather thantha regulatory subtitle C meaning of theterm) would include virtually anymovement of waste, whether within aunit or across a unit boundary. In factthe RCRA definition of "disposal" hasbeen interpreted by numerous courts toinclude passive leaking, where no activemanagement is involved (see, e.g« U£.v. Waste Industrie, Zne, 734 F.2d 158(4th Or. 1964)). However, Congress dirinot use the term "disposal" as its triggerfor the RCRA land disposal restrictions,but instead specifically defined the new.and more narrow; term "land disposal"hi section S004[k). The broader ,"disposal" language continues to beapplicable to RCRA provisions otherthan those In subtitle C, such as lection7003. Thus, for the reasons outlinedabove, EPA believes that the existinginterpretation, that movement of wastewithin > unit does not constitute "landdisposal" for purposes of application oftha RCRA LDRs. is reasonable.

With respect to the commenter whoasked whether normal earthmoving andgrading operations within a landdisposal unit constitute "placement into

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II-If

the unit", under EPA's interpretation ofRCRA section 3004(k), such activitywould not be "placement into me unit"and thus the RCRA LDRs aad othersubtitle C disposal requirements wouldnot be applicable (nor would therequirement to obtain a permit underRCRA or minimum technologyrequirements in RCRA section 3004(o)

Given this interpretation of section300400, EPA does not believe mat it isnecessary to Invoke ARAR waivers ofLDRs for any movement of waste withina unit which was the alternativesuggested by me commenters. Nor doesEPA believe that the widespread use ofsuch waivers would be practical ordesirable. 54 FR 41668-69 (October 10.1989).

EPA also does not fully agree with thecommenters who argued that the RCRAconcept of "unit" does not apply toCERCLA sites. The commenten whocriticized the application of the RCRA"unit" to the CERCLA area of.

.contamination for purposes of section300403 believed It to be either toobroad, allowing large areas to escapethe LDRs. or too narrow, not allowingentire CERCLA sites to be considered asingle "unit". In contrast to hazardouswaste-management inits at a RCRAfacility. CERCLA sites often do notinvolve discrete waste managementunits, but rather Involve land areas' onor in which then can be widespreadareas of generally dispersedcontamination. Thus, determining theboundaries of the RCRA land disposal"writ" for which section 3004(k) wouldrequire application of the LDRs at thesesites, is not always self-evident

EPA generally equates the CCRCLAarea of contamination -with a ilagle.RCRA land-based unit tonally slandfill 54 FR 41444 (December a.1988L The season for this Js that me

' RCRA regulatory definition of "landfill"is generally defined tomea»a landdisposal unit which does not meet thedefinition of any other land disposal '

' unit and thus is r genera) "cstchalTregulatory definition for land disposal •units. As a result a RCRA "landnTT

' could Include a non-discrete land areaon or in which there is generallydispersed contamination. Thus, EPAbelieves that it is appropriate generallyto consider CERCLA areas of .contamination as •-single RCRA land-based unit or "landfill". However, since(he definition of landfill" would aotinclude discrete, widely separated areasof •contamination, the RCRA "unit"would not airways encompass an entireCERCLA site.

units or AOCe at a CERCLA site are

subject to any applicable RCRArequirements regardless of the volume ofthe waste or the purpose of theconsolidation. Thus; EPA disagrees withthose commenters that asserted thatsmall volumes of hazardous waste at aCERCLA site can be consolidatedanywhere on-dte for storage ortreatment purposes withoutconsideration of any applicable RCRArequirements i Such requirements may,.however, be subject to ARAR waivers inappropriate circumstances.

The KTuHrrfnj comments receivedwith respect to EPA's interpretation ofsection 300104 discussed theachlevabflity of LDR cleanup levels,questioned the appropriateness ofapplying the LDRs to remedial actions.and requested more flexibility regarding.the LDRs. These comments were thebasis for EPA's supplemental notice andproposed remterpretation of section3004fk), which is discussed below.

In light of the numerous commentsreceived on the interpretation of "landdisposal" to RCRA section 30M(k). as itrelates to removal treatment andredeposition of hazardous wastesgenerated by CERCLA and RCRAremedial and other activities, and inview of the important policy decisionsthat RCRA LDRs pose for the CERCLAand RCRA programs, EPA decided toseparately and more fufiy discuss theissue, the interpretation outlined in theproposed NCP, and possible alternativeinterpretations of "land disposar. a asupplemental notice to the proposedNCP (54 FR 41668 (Oct. 10. 1939)), EPAoutlined aeveral technical, policy, andlegal Issues concerning LDRapplicability to removal, treatment, andredeposition of hazardous wastes, andrequested comment on two alternativeinterpretations-of "land disposal". Thefirst alternative would allow theexcavation and replacement ofpreviously disposed hazardous wastesin the same anh or area of•contammation; since the same wasteswould f^^ifr1 in the senift unit ^Mfactivity would not constitute "landdisposaT. Under the second alternative.hazardous wastes could be- excavatedand redeposited either within theoriginal noli or area of contamination, orelsewhere at the site in a new orexisting unit These interpretationswould aQow greater flexibility inremedial decision-making, in the contextof both CERCLA actions and RCRAcorrective actions end closures.

On November 6 and 7. IMP, EPA bald

Forum") toprov^aa opportunity torinterested group* to farther, address *-;

• these ffvr**t Tt»'f

Forum was attended by representativesfrom EPA. slates, environmental groups. "Congress, and the regulated community.A summary of the concerns raised and -suggested solutions appears in thepublic docket for this rulemaldng.

2. Selection of LDR treatmentttandards. Upon farther examination, .EPA believes that many of the problemsdiscussed in the supplemental notice,and raised by commenten, result fromtreatment standards developed pursuantto the RCRA LDR program that aregenerally Inappropriate or Snfeasiblewhen applied to contaminated soil anddebris. As discussed in the October 1989 •'notice, EPA's experience under CERCLAhas been that treatment of Lugequantities of soil and debris containingrelatively low levels of contaminationusing LDR "best demonstrated availabletechnology" (BOAT) is ofteninappropriate, 54 FR 41567. 41568(October 10. 1969). EPA noted that:

Experience with the CBtCLA program has•shown that laanj sites will have laije-quantities— in some cases, many thousandsof cubic meters— «f toils that areconUmuMttd with relatively lowconoeatntons of baxardoos wastes. Thesesoils often should be treated, but treatmentwith the types of technologies that wouldmeet the standard of BOAT nay yield Hide ifany environmental benefit over othertreatment based remedial options.

54 FR 41568 (October 10, 1989).Examples of these »™*i other situationsreflecting EPA's experience concerningthe inappropiiataneu of incineratingcontaminated soil and debris areincluded in the record for this rule. Inaddition, as discussed below, EPA hasexperienced problems in achieving thecurrent noncombustion LDRs forcontaminated soil and debris. Based onEPA's experience to date and thevirtually unanimous commentssupporting ihi* conclusion. PA ha<»determined that until specific standards •for soils and debris are developed.

• current BOAT standards are generallyinappropriate or unachievable for soiland debris from CERCLA responseactions and RCRA corrective actionsand closures. Instead, EPA presumes /that because contaminated soil' aad 'debris is significantly different from thewastes evaluated in establishing the •BOAT standards, it cannot be treated inaccordance with those standards andthus quaHBes for a tnatabtirty variance•bom those standards under 40 CFR288.44.

. Accordingly, persons seeking artraatabfliry variance from LDR

to

• _ . - • • ' • •••":- s".."'•/'••'.V^j*"; .\t- •'• -.l-nj-V'iiSirfJsJsvKiriy***'--

fit":

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Federal Register / Vol. 55, No. 46 / Thursday, March 8, 1990 / Rules and Regulations 876:

that BOAT standards for prohibitedhazardous wastes are inappropriate ornot achievable. As an alternative,persons seeking a treatability variancefor soil and debris may meet theappropriate levels or percentagereductions in the currently availableguidance (Superfund LDR Guidance*6A, "Obtaining a Soil and DebrisTreatability Variance for RemedialActions", EPA OSWER Directive 9347.3-06FS. July 1989). In the context ofSuperfund Records of Decision (ROD),this means that EPA will generallyinclude such a variance in the proposedplan and ROD when .treatment ofcontaminated soil and debris is anelement of the remedial action. Further.EPA intends to issue guidancesupplementing the Superfund Guidance#8A to expedite the processing of suchtreatability variances in conjunctionwith established remedy selectionprocedures.

Treatment standards for prohibitedhazardous wastes are based onperformance achievable by applicationof BOAT. 51 FR at 40578 (Nov. 7,1966).BDAT. however, is not a technology-forcing program, nor does it alwaysrequire the lowest possible levels ofwaste treatment achievable with anytechnology. See 130 Cong. Rec. S9176(July 25,1984) (Statement of Sen.Chaffee Introducing the amendment thatbecame RCRA section 3004(m)). Rather,what Congress contemplated is ascheme whereby hazardous wastes areto be treated using the technology (ortechnologies) generally considered to besuitable for the waste and thatsubstantially diminish the toxidty of thewaste or substantially reduce thelikelihood of migration. Id,- see also H.Rep. No. 196.98th Cong. 1st Sess. 33; S.Rep. No. 264.98th Cong. 1st Sess. 16-17.

EPA's rules developing treatmentstandards likewise recognize that thetreatment standards be based onappropriate technologies even If morestringent treatment methods aretechnically feasible. 51 FR at 40588-392(Nov. 7,1986]. For example. EPA hasgenerally based treatment standards fororganic contaminants in wastewaters(normally defined as aqueous materialscontaining less than 1% total organiccompound (TOC) and total suspendedsolids (TSS)) on technologies other thanincineration (or other combustion), eventhough such organlcs could be treated tolower levels if the wastewaters wereincinerated. This Is because incineration(or other combustion) is not normally anappropriate technology for wastewaters,notwithstanding its capability ofperforming to lower levels thanconventional wastewater treatment.

More generally, EPA's rules ontreatability variances recognize thatprohibited wastes be treated byappropriate technologies. The rules thusstate that a petitioner may request atreatability variance "where thetreatment technology is not appropriateto the waste". 40 CFR 268.44(a).

Similarly, treatability variances arewarranted where the applicablenumerical treatment standard for thewaste cannot be achieved. 40 CFR26&44(a). For this reason, EPA has foundthat current BDAT standards based onnoncombustion technology also warrant •a treatability variance for soil anddebris. The complex matrices oftenpresent in soil and debris may reducethe effectiveness of stabilization andother noncombustion technologies intreating these wastes.JPor example, thepresence of oil and grease or sulfites inthe mixture may substantially interferewith the stabilization process. Moregenerally, stabilization is a complextreatment process and its application tounique sol! and debris mixtures is notyet well understood. EPA's developmentof alternative treatment levels in theSuperfund Guidance #6A noted abovewas based on available data for soil anddebris mixtures and thus is moretailored with respect to* achievabilitythan the existing BDAT standards forthese waste mixtures. The differencebetween these levels and the existingBDAT standards for these wastesdemonstrates the feasibility of achievingthe current BDAT standards for soil anddebris. These alternative numbers thussupport EPA's presumption that theBDAT standards are generallyinappropriate or not achievable for soiland debris.

This presumption is supported by thecommenters on the December, 1988 andOctober. 1969 proposals. EPA receivednumerous comments from a wide rangeof commenten discussing theinappropriateness or infeasibility ofapplying BDAT standards tocontaminated soil and debris. Theprincipal reason given for theinappropriateness of the current BDATstandards was the complexity of soiland debris mixtures and the interferencewith treatability caused by uniquematrices of contaminants in the soil anddebris. Moreover, commenters notedthat wastestream-derived BDATs havenot been fully demonstrated for manycontaminated soils and debris and thatthe presence of trace quantities of onewaste in soil and debris mayinappropriately require use of atreatment method that would nototherwise be applicable to the otherwastes present. These comments were

further supported by commenU made atthe Contaminated Media Forum.

The Agency's experience alsosupports this conclusion of general"inappropriateness or Infeasibility ofcurrent BDAT standards for soil anddebris. For example, as indicated aboveEPA has developed alternativetreatment levels for soil and debris inthe Superfund *6A guidance which arebased on the application of the specifictreatment technologies to soil anddebris, rather than industrial processwastes. Thus, these alternative levels,which are better tailored to thetreatability of the complex soil anddebris mixtures found at Superfundsites, reflect Agency experienceconcerning the inappropriateness orinfeasibility of current BDAT for soiland debris.

EPA has long indicated its intention Udevelop separate treatment standardsfor contaminated soil and debris(without regard, incidentally, to theorigin of such waste, so that thetreatment standards would applywhether the soil and debris is generatedfrom a CERCLA action or some otheractivity). 51 FR 40577 (Nov. 7.1986).Although the Agency has alreadyexpended considerable effort on suchstandards, it has not been able topropose or promulgate regulationsbecause of the more pressing need toimplement the rest of the land disposalprohibition statutory provisions beforethe various statutory deadlines. SeeRCRA sections 3004 (d). (e). and (g). EPAdoes not expect that the same level oftreatment performance will be requiredfor soil and debris as for industrialprocess wastes.

In the interim period until EPApromulgates these treatment standards,contaminated soil and debris are subjectto the same treatment standards as theprohibited hazardous wastes that theycontain, unless a variance is appropriateand is approved according to 40 CFR268.44.53 FR at 31146-149 (Aug. 17.1988)and Chemical Waste Management v.EPA. 889 F.2d 1528,1535-48.1538-40(D.C. Cir. 1989). Where standards for theunderlying waste are based on theperformance of incineration. EPA hasgranted national capacity variances forthe contaminated soils and debrisbecause there is Insufficient nationalcapacity to treat these wastes. 40 CFR268.30(0), 268.31(a)(l), 288.32(d)(l],268.33(b), and 266.34(d). Where BDATtreatment standards are in effect ft ispossible to petition for a treatabilityvariance based on the inapproprialenessof the BDAT standards to treat thecontaminated soil and debris. 40 CFR288.44(a). As discussed earlier. EPA

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believes that H is unnecessary forpetitioners (or the lead Agency inCERCLA response actions) to moke site-speoific danuMMtratkms that BDATstandards are inappropriate forcontaminated soil and debris. Thenumerous comments and Agencyexperience supporting a presumptionthat the BDAT standards areinappropriate or not achievable isclearly warranted at this time becausethe criteria to 40 CFR 26844 fortreatability variance* are generally metfor soil ana debris. As a result, underEPA's established treatability varianceprocedures (40 CFR 20&44), varianceapplications for contaminated soil anddebris do not need to demonstrate thatthe physical and chemical propertiesdiffer significantly from wastes-analyzed In developing the treatmentstandard and that therefore, the wastecannot be treated to specified levels orby specified methods. Petitions needonly focus on justifying the proposedalternative levels of performance, usingexisting interim guidance containingsuggested treatment levels for soil anddebris (Superfund LDR Guidance #6A,"Obtaining a Soil and DebrisTreatability Variance Tor RemedialActions". EPA OSWER Directive 9347.3-06FS. July 1989) as a benchmark.

Although the presumption is thatBDAT standards are not appropriate forsoil and debris, there may be specialcircumstances where EPA determinesthat the existing BDAT standards areappropriate for contaminated soils anddebris at a particular site, such as wherehigh levels of combustible organic* insoil are present. In these circumstances,the Agency would make a determinationthat treatment to the BDAT standardswas appropriate and would require suchtreatment.

EPA regulations provide thattreatebility variances may be issued ona rite-specific basis. 40 CFR 288.44(h)."

** In tlshl of today*! determination, theapplication of iMc rule nqirira* clarification ki twompeets. FtnL tUhonaft EPA le ledsy ectebifaainsageneral pnwMtXtoB that BDAT tta*daid* ateInappropriate or not achievable Cor Mating toil amidebrit. th» Agency doei not betlne that IhUprenimpriMi ulajeM A* rabmaMna; varianceproeadura* IB 40 CFR IBt+Ka). Even with tbrpretampttoa, Beejlmam levela will be determined ona caea-by-caae basic, and eommaateia may tubmitInformation conrendtat that tke pretomptlon fa oatapplicable- to • paatfeviw caa*. That.!»le BWeview thai the eHe epeeifie. non-nlenMkingprocedure* In 49 CFR m*4p>) are eBUrelyappropriate. See S3 FR 31199-31200 (August 17.WM).

Second. EPA doe* not Mtrfnl IK afto ipwificvariant* procedure* a» invariabty re^nkfattpplicanlc to deiMaatr*la that they unnot meetapplicable treatment levela or methoda. The, flrataentenc* of WCPR 2e&4t(h) makef It dear tbataaapplicant may swke one el rrwdemonatraUoM toqualify for a variance-. Wmaytfcow efther that be

Thus, they may be approvedsimultaneously with the issuance of »RCRA permit, the approval of a RCRAclosure plan, or the selection of aremedy in a CERCLA response action in(he ROD. In the case of an eo-siteCERCLA response action, theprocedural requirements of the varianceprocess do not apply. See CERCLAsections 121(e](l) and 121(d)(2).Thevariance decision will be made as partof EPA's remedy selection process*during which data Justifying alternativetreatment levels wtil be included in theadministrative record files, and publicparticipation opportunities- and Agencyresponse to comment will be afforded asappropriate under this rule.

In EPA's view, the Agency'sdetermination that the BDAT standardsare generally inappropriate forcontaminated soil and debris addressesmany of the practical concerns raised bycommenters in the supplemental noticeon the Agency's Interpretation of theterm "land disposal". For this reason,and because EPA has had insufficienttime, to review and evaluate the manylengthy and complex issues raised bycommenters on the supplemental notice.EPA Is deferring any final decision tomodify that interpretation, (EPA willrespond to comments on the alternativesin the supplemental notice when theAgency makes a final decision on theproposed reinterpretatioo of landdisposal.) Until a final decision is made,the Interpretation announced in thepreamble to the proposed NCP anddiscussed in section 1 above will remainin effect

Final rule: There Is no rule languageon this issue.

Name: Determination of whether awaste is a hazardous waste.

Proposed rule? The preamble (o theproposed rule discussed how todetermine whether hazardous wasteregulated under RCRA Subtitle C waspresent at a site (53 FR 51444).

Response to comments: Somecommenters raised questions aboutEPA's discussion about determiningwhether a waste exhibits a hazardouscharacteristic. One argued that EPAcannot assume K waste is not acharacteristic waste in the absence oftesting and should therefore adopt aliberal and incfasrve approach to

cannot meet e treatment tlanderd «rtbat •treatment method (or the method wderiylng ft»itawUrd la bMpproprMe far We wa**e.Th« (but•enlarge of Izei^hliaWirviif Ik* *)towli« anapplicant amat Indud* In hie variance application.OB ila lerma apf liee only to appUcattoru mbmtttedtutder the Bret criterion. EP/Vf preenpUon.however. appBaa (D aofl aad debcfe rcgardta** ofwhkb of the «we> tree* of variance* apply.

determining whether RCRA applies toavoid expensive and tima-eoBstuningtesting. Another commenter asked forclarification on who was responsible forapplying, "process knowledge** todetermine whether a waste was. ahazardous waste in the absence oftesting. The commenter asserted thai,under RCRA, EPA exercisesprosecutorial discretion if a generator,acting in good faith, derides incorrectlythat his waste is not hazardous. EPAnotes that when it determines that thereis a violation there will normally besome kind of enforcement action taken;the level and type of prosecutorialresponse will depend on at number offactors, for example, the aize of thecompany, the significance of theviolation, the intent, etc.

Under RCRA rules, a generator is notrequired to teat, but may use knowledgeof the waste and iU constituents tojudge whether the waste exhibits acharacteristic. (See40 CFR262Al[c}.)EPA believes this should also apply ifthe lead agency or PRP al a CERCLAsite is the "generator." EPA wants tomake clear, however, lhat a decisionthat a waste b not characteristic in theabsence of testing may not be arbitrary,but must be based on site-specificinformation and data collected on theconstituents and their concentrationsduring investigations of the site. Basedon site data, it will be very dear in sotnecases that a waste cannot becharacteristic; for example, if a wastedoes not contain a constituent regulatedas EP toxic, a decision that the wastedoes not exhibit this characteristic canreliably be made without (eating for EPtoxicity. EPA does not expect toundertake testing when it can otherwisebe determined with reasonable certaintywhether or not the waste will exhibit acharacteristic.

In response to the second concern, thedetermination whether a waste ia ahazardous waste may be made by EPA,the state, or a PRP. depending on thenature of the action. EPA will take anynecessary or appropriate action ifdecisions about the hazardous nature ofthe waste are in error or are madewithout proper basis.

Several commenten discussed thequestion of whether RCRA requirementscan be applicable to RCRA hazardouswaste disposed of before the RCRArequirement went into effect in I960.One commenter argued thai they couldnot be. unless the waste exhibited acharacteristic at the time of the CERCLAaction. However, as one commenternoted, EPA has consistently maintainedin enforcement action* that RCRArequirements apply to any waste

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materials disposed of prior to 1980 whenthose materials are managed ordisposed of today. EPA agrees with thislatter comment and believes that thispolicy applies to CERCLA actions aswell This was also upheld hi a recentDC Court of Appeals decision. ChemicalWatte Management v. EPA, 869 F.2d1528 (DC Cir. 1989). RCRA requirementscan apply when the CERCLA actionconstitutes treatment, storage ordisposal of RCRA hazardous waste.Note that RCRA requirements may alsobe relevant and appropriate to pre-1980waste.

One commenter suggested that EPAallow consolidation, for purposes ofstorage or treatment, of small volumesof wastes without triggering RCRA •standards. In response, white EPAappreciates the concerns with meetingsubstantive storage and treatmentrequirements for small amounts ofwaste, EPA believes that waste shouldbe managed according to standardswhen those standards ere ARARsunless a waiver (such as for interimmeasures) can be Justified. It should benoted that RCRA may not be applicablefor small quantity generators, as definedunder RCRA: however, a determinationwould still have to be made aboutwhether any RCRA requirements wouldbe relevant and appropriate to smallquantities.

Final rule: There is no rule languageon this issue.

Name: When RCRA requirements arerelevant and appropriate to CERCLAactions.

Proposed rule: The preamble toproposed f 300.400(g)(2)(i). identificationof applicable or relevant andappropriate requirements, criteria forrelevant and appropriate, stated thatRCRA requirements may be relevantand appropriate when a waste la similarin composition to a RCRA listed waste(S3 FR 51448).

. Response to comments: 1. RCRA'' requirements as relevant and\. appropriate for wastes similar to RCRA\ hazardous waste. Several commenters;'• expressed concern that RCRA;;• requirements may be potentially''' relevant and appropriate for waste that; is not a RCRA hazardous waste, but Is•f similar to a RCRA hazardous waste.

Commenters argued that virtually any. waste or CERCLA substance is similar

-: to a RCRA hazardous waste in someway, either in chemical composition, in

'• toxidty, In mobility, or in persistence,and were concerned that this policy

' represented an enormous expansion of; the RCRA program.! EPA believes that RCRA requirements' can potentially be relevant and

appropriate to wastes other than thosethat are known to be hazardous waste.For example, some Information orrecords most be available that Identifythe source of the waste in order todetermine that the waste is a listedhazardous waste. As a result, twoseparate wastes could be Identical incomposition, but only one identified as aRCRA hazardous waste becausemanifests are available that identify itas a listed waste. RCRA requirementswould be applicable for the manifestedwaste, but not for the other, even thoughthe two wastes are physically the same.EPA believes that RCRA requirementscan be potentially relevant andappropriate when the waste cannot bedefinitively identified as a listedhazardous waste.

EPA wants to emphasize, however,that a number of the factors identified in§ 300.400(gKZ} should be considered indetermining whether a RCRArequirement is relevant and appropriate.The similarity of the waste to RCRAhazardous waste or the presence of aRCRA constituent alone does not createa presumption that a RCRA requirementwill be relevant and appropriate. Nor isit always necessary or useful to conductan In-depth, constituent-by-constituentcomparison of a CERCLA waste withRCRA hazardous wastes, because mostRCRA requirements are the sameregardless of the specific composition ofthe hazardous waste. Indeed, the statuterequires attainment of thoserequirements that are relevant andappropriate under the circumstances ofthe release. Thus, the decision aboutwhether a RCRA requirement is relevantand appropriate is based onconsideration of a variety of factors,including the nature of the waste and itshazardous properties, other sitecharacteristics, and the nature of therequirement itself.

EPA anticipates that it will often findsome RCRA requirements to be relevantand appropriate at a site and others not,even for the same waste. This isbecause certain waste characteristicsshared with RCRA hazardous wastesmay be more important than otherswhen evaluating whether a givenrequirement Is relevant and appropriate.For example, the mobility of the waste,among other factors, may be a keyconcern in evaluating whether theRCRA requirement that the cap used inclosing a landfill be less permeable thanthe bottom liner (40 CFR 264.310(a)(5)) Isrelevant and appropriate. Otherproperties of the waste might be moreimportant in evaluating the relevanceand appropriateness of other RCRArequirements.

2. RCRA requirements as relevant andappropriate for mining wastes. Severalcommenters asked EPA to state In theNCP or its preamble that RCRA subtitleC requirements will not be relevant andappropriate to mining wastes. Theynoted that recognizing the uniquecharacteristics of mining wastes.Congress exempted certain miningwastes from regulation as hazardouswastes under RCRA until EPAcompleted studies on these wastes todetermine specifically whether suchregulation was appropriate. On July 3,1986, EPA published its determinationfor beneflciation and extraction wasteswhich found that regulation undersubtitle C was not warranted for thesewastes, because EPA believes suchrequirements." * * * If universallyapplied, would be either unnecessary toprotect human health and theenvironment, technically infeasible, oreconomically Impracticable toimplement." (SI FR 24496.] Thecommenters argue, therefore, thatsubtitle C requirements, which are notlegally applicable to these miningwastes, also cannot be relevant andappropriate, since EPA has formallymade the determination that theserequirements are not appropriate forsuch wastes.

The commenters emphasized thatmining waste sites differ in a number ofways from industrial wastes sites. Theyargue that mining wastes are ofenormous volume and generally of lowertoxidty. that the sites typically coverextremely large areas and may presentless hazard because they tend to be indrier climates, reducing leachingpotential or contain constituents thaiare less mobile. For these reasons,which formed the basis of EPA'sdecision under RCRA, RCRArequirements would not be relevant andappropriate for mining sites remediatedunder CERCLA. Commenters requestedthat EPA give guidance specifically inthe NCP to ensure consistent decisionson ARARs at mining sites.

EPA agrees that RCRA requirementsfor hazardous waste will not beapplicable to those mining wastesexcluded from regulation by the statute.(Note, however, that EPA has recentlyremoved certain mineral processingwastes from the mining waste exclusion,making them subject to subtitle C, 54 FR36592. September 1,1989; 55 FR 2322,January 23,1990. EPA has alsopromulgated regulations listing certainwastes from mineral processingoperations as hazardous. S3 FR 35412.September 13,1988.) In addition. EPAagrees that RCRA subtitle Crequirements will generally not be

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8764 Federal Register / Vol. 55. No. 46 / Thursday. March 8, 1990 / Rules and Regulations

relevant and appropriate for thosemining wastes for which EPA hasspecifically determined that suchregulation la not warranted. The reasonIs that the factors that caused EPA notto regulate these wastes as hazardousinclude many 6f the same factors thatEPA considers in judging whether arequirement is relevant and appropriateat a particular site.

However, EPA does not agree thatRCRA requirements for hazardouswaste can never be relevant andappropriate for CERCLA remediation ofmining sites. In its determination forbenefidation and extraction wastes,EPA found that, "if universally applied,"subtitle C requirements would not beappropriate for mining wastes. (51 FR24500.) However, a decision aboutwhether a requirement is relevant andappropriate is made on a case-by-casebasis, based on the specificcharacteristics of the site and therelease. There may be some sites wherethe site circumstances differsignificantly from those which causedEPA to decide that subtitle C regulationis not warranted and where certainrequirements are appropriate and well-suited to the site or portions of the site.In such a situation, some RCRArequirements may be relevant andappropriate.

EPA is developing regulations undersubtitle D of RCRA designed specificallyfor mining wastes that will not beregulated as hazardous waste. Whenpromulgated, these regulations are likelyto be either applicable or relevant andappropriate for remediation of miningsites.

Another commenter stated that EPAneeds to develop a long-term initiativeto simplify the use of RCRA ARARs.EPA recognizes that the interactionbetween the two laws can be verycomplicated and continues to work toresolve and give guidance on issuesinvolving CERCLA compliance withRCRA laws.

Final rule: There is no rule languageon this Issue.

Name: Examples of potential federaland state ARARs and TBCs.

Potential ARARs and TBCs include,but are not limited to, the following:

1. Federal requirements which may bepotential applicable or relevant andappropriate requirements, i. EPA'sOffice of Solid Waste administers, interalia, the Resource Conservation andRecovery Act of 1976. as amended, (42U.S.C. 6901). Potentially applicable orrelevant arid appropriate requirementspursuant to that Act are:

a. Open Dump Criteria—Pursuant toRCRA subtitle D criteria for

classification of solid waste disposalfacilities (40 CFR part 257).

Note; Only relevant to nonhazardouswastes.

b. RCRA subtitle C requirementsgoverning standards for owners andoperators of hazardous waste treatment,storage, and disposal facilities: (40 CFRpart 284, for permitted facilities, and 40CFR part 265, for interim statusfacilities):

(1) Ground-Water Protection andMonitoring (40 CFR 284.90-284.109).

(2) Closure and Post Closure (40 CFR264.110-264.120).

(3) Containers (40 CFR 264.170-264.178).

(4) Tanks (40 CFR 264.190-264.199).(5) Surface Impoundments (40 CFR

264.220-264.249).(6) Waste Piles (40 CFR 284.250-

264.269).(7) Land Treatment (40 CFR 284.270-

264.299).(8) Landfills (40 CFR 264.300-284439).(9) Incinerators (40 CFR 284.340-

264.999).(10) Land Disposal Restrictions (40

CFR 288,1-288.50).(11) Dioxin-containing wastes (50 FR

1978).(12) Standards of performance for

storage vessels for petroleum liquids (40CFR port 60. subparts K and K(a)).

(13) Codification rule for 1984 RCRAamendments (50 FR 28702, July 15,1985:52. FR 45788. December 1.1987).

ii. EPA's Office of Water administersseveral potentially applicable orrelevant and appropriate statutes andregulations issued thereunder

a. Section 14.2 of the Public HealthService Act as amended by the SafeDrinking Water Act, as amended, (42U .C. 300(f)).

(1) Maximum Contaminant Levels (forall sources of drinking water exposure).(40 CFR 141.11-141.16).

(2) Maximum Contaminant LevelGoals (40 CFR 141.50-141.5Z 50 FR46936).

(3) Underground Injection ControlRegulations (40 CFR parts 144,145,146.147).

b. Clean Water Act as amended. (33U.S.C. 1251).

(1) Requirements established pursuantto sections 301. 302, 303 (including statewater quality standards), 304.306, 307.(including federal pretreatmentrequirements for discharge into apublicly owned treatment works), 308,402,403 and 404 of the Clean Water Act(33 CFR parts 320-330, 40 CFR parts 122.123,125.131. 230, 231. 233. 400-469].

(2) Available federal water qualitycriteria documents are listed at 45 FR79318, November 28,1980; 49 FR 5831,

February 15.1984; 50 FR 30784. July 29.1985; 51 FR 8012. March 7.1988; 51 FR22978. June 28,1988:51 FR 43865.December 3,1986; 52 FR 8213. March 2,1987; 53 FR 177. January 5,1988; 53 FR19028. May 26,1988; 53 FR 33177. August30,1988; 54 FR 19227, May 4,1983.

(3) dean Water Act section 404(b)(l)Guidelines for Specification of DisposalSites for Dredged or Fill Material (40CFR part 230).

(4) Procedures for Denial orRestriction of Disposal Sites for DredgedMaterial (Clean Water Act section404(c) Procedures, 33 CFR parts 320-330,40 CFR part 231).

c. Marine Protection. Research, andSanctuaries Act (33 U.S.C-1401). (1)Incineration at sea requirements (40CFR parts 220-225,227-229. See also 40CFR 125.120-125.124}.

iii. EPA's Office of Pesticides andToxic Substances administers the ToxicSubstances Control Act (15 U.S.C. 2601).Potentially applicable or relevant andappropriate requirements pursuant tothat Act are:

PCB requirements generally: 40 CFR part701: Manufacturing. Processing. DistributionIn Commerce, and Use- of PCBs and PCBItemi (40 CFR 781.20-761.30); Markings ofPCBs and PCB Item* (40 CFR 701.40-761.45):Storage and Diapotal (40 CFR 761.80-761.79)-,Records and Report* (40 CFR 781.180-7ftl.l85.761.187 and 761.193). See also 40 CFR 1Z9.10S.750.

iv. EPA's Office of External Affairsadministers potentially applicable orrelevant and appropriate requirementsregarding requirements for floodplainsand wetlands (40 CFR part 6, AppendixA).

v. EPA's Office of Air and Radiationadministers several potentiallyapplicable or relevant and appropriatestatutes and regulations issuedthereunder

a. The Uranium Mill TailingsRadiation Control Act of 1978 (42 U.S.C.2022] and Health and EnvironmentalProtection Standards for Uranium andThorium Mill Tailings (40 CFR part 192).

b. dean Air Act (42 U.S.C 7401). (1)National Primary and SecondaryAmbient Air Quality Standards (40 CFRpart 50).

(2) Standards for Protection AgainstRadiation (10 CFR part 20). See also 10CFR parts 10, 40,60, 61.72, 960, 961.

(3) National Emission Standards forHazardous Air Pollutants (40 CFR part81). See also 40 CFR 427.110-427.116,763.

(4) New source performancestandards (40 CFR part 60).

vi. Other Federal Requirements:a. National Historic Preservation Act

(16 U.S.C. 470). Compliance with NHPA

A R 3 i

AEPA Superfund LDR Guide #5

Determining When LandDisposal Restrictions (LDRs)Are Applicable to CERCLAResponse Actions ,

CERCLA Sectioa 121(<f)(2) specifies that flfcfjts Saperlaad reaedUI actions shall attsia 'other Federal standards,requirements, criteria, Bmifirioin, or own stringent State raqmremeata that an detemiaed to be legally applicableor relevant aad appropriate (ARAR) to the speeded drcamstaaces at the site.* la addition, the Nadoaal CoadegeecyPlan (NCP) requires that ojujtfi retaoval actions attain ARARa to the extent practicable. Off-rita removal aadremedial actiou most comply with legally applicable rtquinaeaia. TUa gaUe oatUaee the process used to determinewhether the Researce Ceaaemtfoa and Recovery Act (RCRA) lead disposal nstrktioas (LDRs) established underthe HaardoaaaadSolklWa»ta*.BHniaiBts (HSWA) an "anpttcahta* to a Ch^UXA wea«j.m actJatj. Mondetaikdguidance oa Strperfnad compUaaee with the LORa is being prepared by the Offlce of Solid Waste aad EmernacrReapoaae (OSWER).

For the LDRs to be applicable to a CERCLAfetpooae, the action araat cuBidtm pJsxBjnejt of a

minaaan (OSCa, RPMs) most answer three separatequeaooBf to determine if the LDRs are applicable:

(1) Does the response .actionplacemeat?

(2) b tha CERCLA robataaon beiafalso a RCRA hazardona waste? and tf so

(3) Is the RCRALDRal

. « . «resmcoM

Sftff managers also

distinct category of RCRA hithe LDRa (sea Superfund LDR O«fc>

(1) DOES THE RESPONSE CONS1T11TIE

The LDRs place ipeclfV lostrkdoniifa.frof waste to concentration levels) oa RCRA!wastat prior to their placaaaeat a> jaad djaposai

actijon wffl constitute placasaaat of waataa halo •unit. At dafiaed by RCRA. laad disposal

iirrhHrt laadfiLVit snrtaea

, uatleijfooad saiaes or ccwa, aidbuajkan or nnka. If a CERCLAdisposal of wastes in aay of tfaaaa types of

ft •

disposal uaka, fbcemsnt wffl occnr.aneoatroOed hazardoaa waste skaswidespread aad dbpanad rrmrnrrinaiina,

havethe

concept of a RCRA oast less useful for actionsiavomaf c&sjtl disposal of wastes. Therefore, tocute IB defiaavt whan •placeatear does and does notoccur far CERCLA actions hwoMnf on-site disposalof wastes, EPA aaaa the concept of •areas ofcoataauaatioif (AOCs), which may be viewed aseotovafaat to RCRA aafes, for the purposes of LDRappocabiBcy datermlaatkaa.

An AOC m drrhested by the anal enent (orbooadsry) of coaosjoooji ******""***^*<<*f Such***••"*£•*<- aoat be Tnmlaeiiaa, bat may contaiavaryuej types aad coacaaMooaa of hazardoos

Dapeadbf oa ska characteristics, one orA0amayb«dein**t*4. Htfhllajat I provide*

aHaMakl b EXAMFUS OF AREAS OFCONXAMKAIION (AOCs) .

me (avg, waste ok, UndfiD,•waaj4 CwaA SMevaWvMvlafHfAaV

la soorcean£XaK\ana/

"sofl.

A waste soume, aad the seomBeats • astreasa coataariiaiad by the soqrce, where

where the dQuaanlaepoaa ihara t

aad the

.Hii AOC «aesast axaso* say

§•

For on-iite disposal, placement ocean wan waataaare moved from one AOC (or odt) into another AOC(or unit). Placement does not occur when wastes anleft in place, or owed withm a lingte AOC OgfaJfajhtI provides sceoarios of when placement does aad doesnot occur, ai defined in the proposed NCP. TheAgency is current reevatuatiag the definition ofplacement prior to the promulgation of the fiaal NCP,tod therefore, these scenarios are subject to change.

Highlight 2: PLACEMENT

Placement dcjfj occur when wastes

• Consetioatad from different -AOCs iato a single AOQ

Moved outside of aa AOC (fortreatment or storage, for7 '<-..-:example) and returned to the A-

i or a different AOC; or

• excavated from aa AOC, placedm a separate unit, such aa aaindnerator or tank that is wfthfethe AOC, and redeposited toothe same AOC • «

Placement dcjajat occur whoa WMM

• Treated hi ate;<« HUutajp••• |r^^*^*s

• ComoMataH wham the AOQ or .. . . . . • . . - tv V

• -

not m a separatae»e»,*mnp\ (am le*ma iaM>i B*ltans>/ to improvestability (04, forsupport haaty

dtt AOC (batasm, each aaaa *.

-or to-

" ' • - . ? .'« ' .<•• y T£« '~>~.

la susHtary, tfnot eeear, the

(1) IS THE CERCLA SUBSTANCE- A .*HAZARDOUS WASTE?

a CERCLAplaceaMat of a rertrkted _the LDRs to be applicable, ate

the coeuaminants at thaRCRA hazardoua waataa. Highlight 9 briefly

tha two of ROU hazardous waatta -Ustcd

fUghUght 3t RCRA HAZARDOUS WASTES

A RCRA aelU waati* b hazardous if k isor *•*««*»>«*; § hirif^oii cha

TTfffa1 RCRA HiantlMl

Any waste Bated k Sabpan D of 40CFR 26L iachMBaa; . .

• ' • F waste codes (Part 26131)

K waste codes (Part 26L32) _ ..

P waste codes (Part 2613X4)

U waste codes (Pan 26L33(0)

KA Hi

Any waste exhibiting oat of the followingcharacters aa defined hi <0 CFR 261:

" Ska^auaaajsn « abf tae trad toBP»rdoni sabataaca h a Fthank

Ska• to i

:k a, RCRA natad ordata -roflrtlfffTi efforts dariag CERCLA removal and

- • • -that ardoos

to toppo«W^^^M ^M^SflOvflH BM)

remedial site investigation* should be sufficient for thiapurpose.) For luisd hazardous wastes, if manifests orlabels are not available, tan evaluation likely wQlrequire fairly specific information about the waste («-rsourca, prior use, process type) that at "reasonablyascertainabia' withm the scope of a SuperJuadiavastigatioa. Such information may be obtaiaed fromfmaltff h««i««€ fBMrda ar tram anprocesses used at the faculty. fochjjwtaiftic.wastaa,site managers may rah; on the remits oftbe testsdescribed in 40 CFR 26U1 - 26LZ4 for eachcharacteristic or oa knowledge of the properties of thasubstance. Site managers should work with RegionalRCRA staff, Regional Counsel, State RCRA sta& andSuperfond enforcement personnel, aa apptopiiate, himating these ctaenainanana.- . . . . - • • • : - . . • ,

In addition to understanding the twoRCRA hazardous wastes, site aitaagsrs wffl ito understand the denved*from rule, the niiituie rule,aad the contalaed-ia interpretation to identify oanacnywhether a CERCLA mhtfiiur. is a RCRA hazardoua

.Tneae three" prmoplct, asto tha RCRA deastmf

described below.

Dsrfnd-frem Rub (40 CFR MU(eJO)) : .-...„-..•

The derived-from ruin states that any Tf1"-«fderived from the treatment, storage, or disposal of afeted RCRA hazsrdoua waste is toetf \ Beted

hazardous constituents). Forscrubber water from the araaantna of a 1an hazardous wastes on the bests of the unUiniMkoaaraJe. Sold wastas derived from ahazardoui waste an hazardousexhibit a characteristic ,

Mhton Rala (40 CFR

Under the miatan nan,a fittai hazardous waste an maad, this a listed hazardoas waste. Forgenerator ""ft a dram of Bated Pun

an solid wastes - sea RIghalsjht 3), theoftheP006andwsstawatarisafiited

if a

Mlxturca of aoHd wanes aadwastes are hazardous only ifcharacteristic

t hazardousmixture exhibits a

CoatalaefHa Intanntatiea (OSWMcaMnadnni daladNovember U, UK)

l-in iaterpretatioa states that anyM wMfa aad a RCRA Hsted

hazardous waste must be managed as a hazardouswaste as long aa the material contains (Le, is abovehealth-based levels) the Bated hazardoas waste. Forexample, if soB or ground water (Le, both non-solidwastes) contain aa PD01 spent solvent, that soil orground water mast be managed sa a RCRA hazardouswaste, as long as it •coatama* the TOOl spent solvent.

Daasltag (40 CFR MOJO end .22)

To be eaamptad from the RCRA hazardous waste•system,* athtn hazardous waste, a mixture of a listedaad sofid waste, or a dail>ed4kom waste must bedebtedgnordrng to 40 CPU 26O20 aad .22).Characteristic hazardous wastes ne**sr aeed to bedaUstad, but can be treated to ao longer ***tjV> thecharacteristic A roBtiinatMn waste also does aot haveto be debated; it only has to "ao longer contain" the

If eke mitiagfwi determme thataabstawefs) at tha ska is a RCR

the hazardous(a),

they she*jU ahw determme whetaar that RCRA wasteia a Cafifania Bst waste, Calibnia aat wastaa an adistinct category of RCRA waataa raetrictad under theLDRa (see Suparmad LDR Ooklt s»2).- '

O> B THE RCRA WASTEUNDER THE LDRi? .

JTaatoiniiaaaiihUiiitaaKsa a RCRA hsrariloni waata, thk wasnttddfti for tha LDRa » ba

A RCRA hazardous watte becomes aen to HSWA g|Qgpjxjk|d&Bl or

tha daamnmv Birsnii me LPRa an oamg phaaad fa-

may ami to liilarsihia whet rn»c/nttrictioa it m

A R 3 I 5 3 9 7

4s LDR STATUTORY DEADLDOBI

[ Wsj

Cattbnda IM Wa

sad Otan» AIMS

tfal

Ust SoU aae) OeMs

ITMrtWi

TkWTkW

effect at the time placement Is to. if the RCRA hazardous waataa atunder a national capacity aataaaioa

befon tha r*tfirriin ilipkii .Ifdisposed of m I'lrfsn toto tha expiration of thewould have tobut tha waataa would aot harm to ha tnatnd ai

LDRa«a**»

If the tata auaaaar ontaiBttaH thnt tka LDRj an -sppBrshla to maCERCLA raspoaaa baeaa on- nutpreviooa three queatioaa, tha ska auaagar masc (1)

comply with the LDR restriction m effect, (2) complywith tha LDRj by choosmg one of the LDRSS?*?**.! (' Treattbility Variance, NoMigration Petkioo), or (3) hnoke aa ARAR wahw(mOabla only far oo-tite actions). If the LDRs andetermined apl to be appBcabk, than, for oo-sitaactions only, the she maaaaar should determme if theLDRs an relevant aad appropriate. The process fordfirei mining whether the LDRs an appucabla lo aCERCLA action is summarizad m

OghOght S - DETERMINING WREN LDRSARE APPLICABLE REOJJIREMENT3

WednesdayDecember 21, 1988

Part V

EnvironmentalProtection Agency40 CFR Part 300National 0(1 and Hazardous SubstancesPollution Contingency Plan; ProposedRide

A R 3 i 5 3 9 9

51444 Federal Register / VoL 83. No. 245 / Wednesday, December 21. 1988 / Proposed Rules

would need to comply with theapplicable closure requirements forthose units in completing the remedialaction. Second, if the laad agencydetermines that RCRA listed orcharacteristic hazardous waste ispresent at the site (even if the wastewas disposed before the effective dateof the requirement) and the proposedCERCLA action involves treatment,storage, or disposal as denned underRCRA. then RCRA requirements related

Vy to those actions would be applicable.These two scenarios are contingent

upon determinations that RCRA SubtitleC hazardous waste is present and on theidentification of the period of wastemanagement To determine whether awaste to a listed waste under RCRA, it Uoften necessary to know the source.However, at many CERCLA sites noinformation exists on the source of thewastes nor are references availableciting the date of disposal, the leadagency should use available siteinformation, manifests, storage records,and vouchers la an effort to ascertainthe source of these contaminants. Whenthis documentation is not available, thelead agency may assume that the wastesare not Hated RCRA hazardous wastes,unless further analysis or informationbecomes available which allows thelead agency to determine that thewastes are listed RCRA hazardouswastes. If the lead agency assumes thewastes are not listed RCRA hazardouswastes and it is determined that thewastes are not characteristic wastesunder RCRA (eee discussion below,17i) RCRA requirements would not beapplicable to CERCLA actions, but maybe relevant and appropriate if theCERCLA action Involves treatmentstorage or disposal and/or if the wastesare similar or identical to RCRAhazardous waste.

Under certain circumstances, althoughno historical Information exists aboutthe waste and when it was treated,stored, or disposed, it may be possibleto identify the wastes as RCRAcharacteristic wastes. With respect tohazardoua characteristics, (ignitabtiity,corroaivity, reactivity, or EP toxidty), itis the responsibility of the generator (inthis case, the lead agency or PRPconducting the action) to determine ifthe wastes exhibit any of thesecharacteristics (defined in 40 CFR 281.21through 24). The lead agency must usebeat professional judgment to determine,on a site-specific basis, If testing forhazardoua characteristics is necessary.Testing i« required unless it can bedetermined, by "applying knowledge ofthe hazard characteristic in light of thematerials or process used," that the

/ waste does not have hazardouscharacteristics (40 CFR 282.11(c)).

In determining whether to test for thetoxidty characteristic using theExtraction Procedure (EP) Toxidty Test,it may be possible to assume thatcertain low concentrations of waste arenot toxic. For example, If the total wasteconcentration is 20 times or less the EPToxidty concentration, the wastecannot be characteristic hazardouswaste. In such a case RCRArequirements would not be applicableand would not likely be relevant orappropriate unless the waste alsocontained other RCRA hazardouawastes and the CERCLA action involvedtreatment storage, or disposal.

If the wastes exhibit hazardouscharacteristics, RCRA requirements arepotentially applicable if the wastes alsowere either treated, stored, or disposedafter the effective date of the applicableRCRA requirement or if the CERCLAactions will involve treatment storage,or disposal

ii. Actions constituting treatment,storage, or disposal. Many CERCLAactions occur in areas of contaminationthat contain waste treated, disposed of,or stored prior to November 10,1980. Ifleft untouched, wastes in such areas arenot currently regulated under Subtitle Cof RCRA. (Solid waste managementunits at RCRA facilities are regulated bythe 30M(u) corrective actionrequirements.) However, certainphysical movement, alteration, ordisturbance of RCRA hazardous wasteassociated with a remedial action maymeet the RCRA definition of treatment,storage, or disposal. For instance,treatment has occurred when theCERCLA remedial action uses "anymethod, technique, or process, includingneutralization, designed to change thephysical chemical or biologicalcharacter or composition of anyhazardous waste so as to neutralizesuch waste, or so as to recover energy ormaterial resources from the waste, or soas to render such waste non-hazardous,or less hazardous; safer to transportstore, dispose of; or amenable forrecovery, amenable for storage, orreduced in volume." 40 CFR 280.10.

Similarly, storage occurs when aCERCLA remedial action Involves the"holding of hazardous waste for atemporary period, at the end of whichthe hazardous waste is treated, disposedof, or stored elsewhere." 40 CFR 280.10.

Land disposal occurs when RCRAhazardous waste is placed into a landdisposal unit including a "landfill,surface impoundment, waste pile.Injection well, land treatment facility,salt dome formation, salt bed formation.

or underground mine or cave." RCRAsection 3004{k).

Movement of hazardous wasteentirely within a unit does not constitute"land disposer' under Subtitle C ofRCRA. However, movement ofhazardous waste into a unit (i.e., acrossthe boundary of a unit) does constitute"land disposal"

In many cases CERCLA sites containareas of contamination (w)th differinglevels of concentration, Including hotspots, of hazardous substances,pollutants, or contaminants) that may becharacterized as a unit usually alandfill under RCRA. In such caseswhere RCRA hazardous waste is movedInto the area of contamination. RCRAdisposal requirements are applicable tothe disturbed waste and certain landdisposal requirements (such as forclosure) may be applicable to the areawhere the waste U received.

Therefore, the following activitiesconstitute land disposal under RCRASubtitle C where the waste involved isRCRA hazardous waste:

a. Wastes from different units areconsolidated into one unit:

b. Waste Is removed and treatedoutside a unit and redeposited into thesame or another unit or

c. Waste is picked up from the unitand treated within the area ofcontamination in an incinerator, surfaceimpoundment or tank and thenredeposited into the unit (does notinclude in-situ treatment].

In contrast an example of an activitythat does not constitute "land disposal"is the mere consolidation of RCRAhazardous wastes within a unitSimilarly, the covering and sealing off ofhazardous waste, called "capping withwaste in place," is also not considered"land disposal" and RCRA Subtitle Crequirements would not be applicable. Ifsome of the waste at a site is moved intoanother unit but other waste is leftbehind in the original unit (the unit Inwhich such waste was found), "landdisposal" applies only with regard to thewaste that is moved Into another unit.Under these examples, however, certainRCRA land disposal requirements mightnevertheless be relevant andappropriate to such waste. (See ARARspreamble sections below, IG.iii. and 17.)

ill Hypothetical examples ofcompliance with RCRA; land disposalrestrictions. Land disposal restrictionsunder RCRA sections 3004 (d) through(k) are triggered whenever there isplacemen! of RCRA hazardous wastessubject to land disposal restrictions("banned waste") into a land-based unit.Such land disposal does not occur when

A R 3 i 5 l * 0 0

Federal Register / Vol. 61. No. 83 / Monday. April 29. 1996 I Proposed Rules 18805

/wastes disposed prior to the effectiveI date of the applicable prohibition only

?come subject to the LDRs if they areamoved from the land and placed into

a land disposal unit after the effectivedate of the applicable prohibition. (See53 FR 3113A. 31148, (August 17,1988)and Chemical Waste Management v. USEPA, 86 9 F.2d 1526,1536 (D.C. Cir.1989)). "treatment or disposal of[hazardous waste] will be subject to the[LDR] regulation only if that treatmentor disposal occurs after thepromulgation of applicable treatmentstandards.") Similarly, environmentalmedia contaminated by hazardouswastes placed before the effective datesof the applicable land disposalrestrictions does not become subject tothe LDRs unless they are removed fromthe land and placed into a land disposalunit after the effective dates of theapplicable restrictions.

The land disposal restrictions do notattach to environmental mediacontaminated by hazardous wasteswhen the wastes were placed before theeffective dates of the applicable landdisposal prohibitions. If these media are

. determined not to contain hazardous> wastes before they are removed from the| land, then they can be managed as non-

hazardous contaminated media andley're not subject to land disposal

restrictions. For example, soil. contaminated by acetone land disposedj ("placed1! In 1986 (prior to the effective; date of the land disposal prohibition for• acetone) and. while still in the land,• determined not to contain hazardousi waste, is not subject to the land disposalI restrictions.17 This Is consistent with theI Agency's approach in the HWIR-wastej rule, where it indicates that LDRs do not

attach to wastes that are not hazardousat the time they are first generated (60FR 66344, December 21,1995).

Since application of the land disposal1 restrictions is limited, In order to| determine If a given environmentalj medium must comply with LDRs onet must know the origin of the material

contaminating the medium (I.e..hazardous waste or not hazardouswaste), the date(s) the material wasplaced (i.e., before or after the effectivedate of the applicable land disposalprohibition), and whether or not themedium still contains hazardous waste(i.e.. contained-in decision or not).

" Similarly, soil contaminated by acetoiM placedIn a solid waste management unit In 1986. but

ked Into the toll it some point after 1986, la notubject to (he land disposal restrictions providedoat, while dw Mil U still In (he land, the Director

determines U does not contain hazardous wastes,j LDRs would not attach because, In thU case. It UI the Initial placement of hazardous waste matj determines whether there Is a duly to comply with\LDRs.

»>Facility owner/operators should make]

a good faith effort to determine whether Imedia were contaminated by hazardous 'jwastes and ascertain the dates of iplacement. The Agency believes that byusing available site- and waste-specificinformation such as manifests,vouchers, bills of lading, sales andinventory records, storage records,sampling and analysis reports, accidentreports, site Investigation reports, spillreports, inspection reports and logs, andenforcement orders and permits, facilityowner/operators would typically be able!to make these determinations. However,as discussed earlier in the preamble oftoday's proposal, if information Is notavailable or inconclusive, facilityowner/operators may generally assumethat the material contaminating themedia were not hazardous wastes.Similarly, if environmental media weredetermined to be contaminated byhazardous waste, but if Information onthe dates of placement is unavailable orInconclusive, facility owner/operatorsmay, in most cases assume the wasteswere placed before the effective date.

The Agency believes that, in general,it is reasonable to assume thatenvironmental media do not containhazardous wastes placed after theeffective dates of the applicable landdisposal prohibitions when Informationon the dates of placement is unavailableor inconclusive, in part, because currentregulations, in effect since the early1980's. require generators of hazardouswaste to keep detailed records of theamounts of hazardous waste theygenerate. These records documentwhether the waste meets land disposaltreatment standards and list the datesand locations of the waste's ultimatedisposition. With these records, theAgency should be able to determine Ifenvironmental media werecontaminated by hazardous wastes andIf they would be subject to the landdisposal restrictions.

In addition, EPA believes that themajority of environmental mediacontaminated by hazardous wastes werecontaminated prior to the effective datesof the applicable land disposalrestrictions. Generally, thecontamination of environmental mediaby hazardous waste after the effectivedate of the applicable land disposalrestriction would involve a violation ofthe LDRs, subject to substantial finesand penalties, including criminalsanctions. The common exceptionwould be one-time spills of hazardouswaste or hazardous materials. In thesecases, the Agency believes that,typically, independent reporting andrecord keeping requirements (e.g.,CERCLA sections 102 and 103 reporting

requirements or state spill reportingrequirements) coupled with ordinary"good housekeeping" procedures, resultin records that will allow the Agency todetermine the nature of the spilledmaterial, and the date (or a closeapproximation of the date) of the spill.The Agency requests comments on thisapproach and on any other assumptions,records, or standards of evaluation thatwould ensure that facility owner/operators would identify anycontaminated media subject to landdisposal restrictions properly andcompletely.

Information on contained-in decisionsshould be immediately available since,generally, these determinations aremade by a regulatory agency on a site-specific basis and careful records arekept.

2. Treatment Requirements—§269.30a. Approach to treatment

requirements and recommendations ofthe FACA Committee. RCRA section3004 (m) requires that treatmentstandards for wastes restricted fromland disposal, "• * * specify thoselevels or methods of treatment, if any,which substantially diminish thetoxicity of the waste or substantiallyreduce the likelihood of migration ofhazardous constituents from the wasteso that short-term and long-term threatsto human health and the environmentare minimized." A recurring debatethrough EPA's development of the landdisposal restriction program has beenwhether treatment standards should betechnology-based (i.e., based onperformance of a treatment technology)or risk-based (i.e., based on assessmentof risks to human health and theenvironment that are posed by thewastes). The Agency believes that bothapproaches are allowed. It has long beenrecognized that Congress did notdirectly address the questions of how toset treatment standards in the languageof section 3004(m).18 In addition,Congress did not specifically addresswhether the LDR treatment standardsfor newly generated wastes andremediation wastes must be identical:the structure of RCRA's LDR provisionssuggests that Congress believed thatremediation waste may merit specialconsideration. (See, RCRA sections3004(d)(3) and 3004(e)(3), which

"See. e.g.. SI FR 40572, 40578 (November 7,1986): Hazardous Waste Trettmtnl Council v. USEPA, 886 F.Zd 355,381-3 D.C. CU. 1989); 55 FR6640. $641 (February 26. 1990). The legislativehistory of section 3004(m) Is llkrwlse Inconclusive.See discussion of the t*(lsiattve history at 55 FR6640, 6641-6642 (February 26, I890)"la|t aminimum, the (legislative history shows] thatCongress did not provide dear guidance on themeaning of 'minimize threats'."