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UNDERSTANDING THE RCRA CORRECTIVE ACTION PROGRAM TERMS " SWMU' & "AOC" by David M. Buxbaum, Counsel Southern Regional Environmental Office June 29, 2005

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Background 1980 - RCRA ordered; direction of the administration of perilous squanders. 1984 - Hazardous and Solid Waste Amendments (HSWA) to RCRA; incorporates Section 3004 (u) & (v) restorative activity for discharges from strong waste administration units (SWMUs). 1985 - First HSWA Codification Rule; cleanup of discharges from SWMUs [50 Fed. Reg. 28702, July 15, 1985]. 1987 - Second HSWA Codification Rule; allow prerequisites for restorative activity [52 Fed. Reg. 45788, Dec. 1, 1987]. 1990 - Proposed Subpart S Rule "Restorative Action for Solid Waste Management Units" [55 Fed. Reg. 3080, July 27, 1990].

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Background (cont) 1993 - CAMU and Temporary Unit Final Rule - controls under 40 CFR 264 Subpart S [58 Fed. Reg. 8658, Feb. 16, 1993]. 1996 - ANPR Corrective Action for Releases from SWMUs; remarks asked for on technique "Subpart S Initiative" [61 Fed. Reg. 19432, May 1, 1996]. 1998 - Staging Pile Rule (Part of HWIR - Media Final Rule); directions under 40 CFR 264 Subpart S [63 Fed. Reg. 65874, Nov. 30, 1998]. 1999 - Partial Withdrawal of 1990 Subpart S Proposal; extra directions not expected [64 Fed. Reg. 54604, Oct. 7, 1999].

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Statutory Authority RCRA §3004(u) - Continuing Releases at Permitted Facilities Provides EPA power to require restorative activity for all arrivals of risky waste or constituents from any SWMU at a RCRA treatment, stockpiling or transfer (TSD) office, paying little heed to the time at which waste was put in such unit. Commands that any allow issued after HSWA (Nov. 8, 1984) by EPA (or a State) incorporate remedial activity arrangements and contain calendars of consistence (where such restorative activity can't be finished preceding issuance of the allow). RCRA §3004(v) - Corrective Action Beyond Facility Boundary Provides EPA power to require restorative move be made for discharges past the office limit where important to ensure human wellbeing and nature.

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Statutory Authority (cont) RCRA §3005(c)(3) - "Omnibus Provision" Allows EPA (or approved state) to incorporate allow terms or conditions as important to secure human wellbeing and nature. Gives premise to requiring restorative activity for an "area(s) of concern" (AOC) at a RCRA office. RCRA §3008(h) - Interim Status Corrective Action Provides EPA power to issue orders requiring restorative activity (e.g., for discharges from SWMUs) to offices without or looking for a RCRA TSD allow. RCRA §7003(a) - Imminent Hazard Provides EPA the power to take authorization activities to urge remedial activity where strong or dangerous waste may introduce an inevitable and generous risk to human wellbeing or the earth.

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Relevant RCRA Regulations 40 CFR 264.101 - Corrective Action for Solid Waste Management Units Essentially arranges the RCRA §3004 (u) & (v) orders and extensively applies to all SWMUs, not simply "controlled units" under Subpart F. 1 40 CFR 270.14(d) - Information Requirements for SWMUs Requires permittees to give graphic data on the SWMUs themselves and all accessible information relating to any discharge from the units in Part B allow applications. 40 CFR 270.32(b)(2) - Establishing Permit Conditions Codifies the "Omnibus Provision" under RCRA §3005(c)(3) that gives EPA/State expansive power to incorporate terms and conditions important to ensure human wellbeing and the earth. 1 Under 40 CFR 264.90, a "directed unit" incorporates surface impoundments, squander heap, arrive treatment unit, or a landfill that got unsafe waste after July 26, 1982 and they should consent to 40 CFR 264.91 - 264.100 in lieu of 40 CFR 264.101.

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SWMU Definitions The expression "SWMU" was initially characterized in the First HSWA Codification Rule, which depended on the authoritative history of RCRA §3004(u). 2 "Any unit at the office from which risky constituents may relocate, regardless of whether the units were planned for the administration of strong and additionally dangerous squanders." The SWMU definition was reexamined as a component of the Subpart S Proposal to be incorporated into 40 CFR 265.501. 3 "Any discernable unit at which strong squanders have been put whenever, independent of whether the unit was proposed for the administration of strong or unsafe waste. Such units incorporate any zone at an office at which strong squanders have been routinely and efficiently discharged." 2 50 Fed. Reg. 28712 (July 15, 1985). The term 'perilous constituent' means those recorded in App. VIII to 40 CFR 261. 3 55 Fed. Reg. 3080 (July 27, 1990).

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SWMU Definitions (cont) EPA has chosen not to conclude a large portion of the 1990 proposed Subpart S rules, including SWMU definition. 4 without a declared administrative definition, EPA can characterize the expression "SWMU" on a case-by-case premise. Latest EPA display HSWA allow definition is ordinarily utilized by EPA and approved States. The meaning of a SWMU is regularly a state of difference when restorative activity allows or Orders are issued. There are various EPA Administrative Board choices tending to whether a specific unit/region would constitute a SWMU. 4 See 64 Fed. Reg. 54604 (October 7, 1999).

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Examples of SWMU Definition Solid Waste Management Unit 5 For motivations behind this allow incorporates any discernable units that have ever aggregated, treated, put away, or discarded strong squanders (regardless of whether the units were proposed for waste administration). Such units may incorporate yet are not constrained to, any landfill, surface impoundment, squander heap, arrive treatment unit, incinerator, infusion well, tank (counting stockpiling, treatment and aggregation tanks), compartment stockpiling unit, reusing unit and wastewater treatment unit. These are to incorporate those that are liable to 40 CFR Part 264, and those which are not subject to such control anyplace on the Department of Energy(DOE) Oak Ridge Reservation (ORR). The definition likewise incorporates zones sullied by normal, ponder, or orderly releases from process segments. 5 The RCRA HSWA Permit for the DOE Oak Ridge Reservation [#TN 001] Condition I.G.2. (successful 10/26/86).

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Examples of SWMU Definition (cont) Solid Waste Management Unit 6 A SWMU incorporates any unit which has been utilized for treatment, stockpiling, or discarded strong waste whenever, independent of whether the unit is or ever was expected for the administration of strong waste. Allowed or break status risky waste administration units are additionally strong waste administration units. SWMUs incorporate territories that have been defiled by normal and deliberate arrivals of unsafe waste or dangerous constituents, barring one-time inadvertent spills that are quickly remediated and can't be connected to strong waste administration exercises (e.g., item or process spills). 6 The HSWA part of the RCRA Permit for the Memphis Defense Depot [#TN4 210 020 570] Condition I.C.17. (ended Jan. 19, 2005).

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Scope of the Term "SWMU" Includes: Discernable Units and "Standard and Systematic Release Areas" Discernable Units RCRA allowed or between time status unsafe waste administration units, (i.e., treatment, stockpiling, or transfer units (TSDs), including "controlled units") and in a few States 90-day gathering regions. 7 "Latent or verifiable" SWMUs which are not allowed or subject to RCRA controls, but rather have sooner or later oversaw strong squanders (independent of whether the units were planned for waste administration). 8 But for their dates of operation and RCRA statutory due dates, these would likely be liable to RCRA controls, other than restorative activity. 7 50 Fed. Reg. 28712 (July 15, 1985); see additionally 55 Fed. Reg. 30808 (July 27, 1990). 8 50 Fed. Reg. 28711 (July 15, 1985).

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Scope of the Term "SWMU" (cont) " Routine and Systematic Release Areas " - Those regions of an office, ordinarily connected with creation forms, which have been defiled as an aftereffect of normal and precise arrivals of strong or unsafe squanders or risky constituents. 9 The ranges more likely than not get to be tainted as a consequence of a ponder discharge, instead of a one-time incidental spill which can't be connected to a SWMU. Does exclude zones polluted by inactive spillage from item stockpiling. Discharges and coming about pollution from creation procedures will for the most part not be viewed as SWMUs, unless EPA finds that the discharges have been normal and efficient in nature. 9 55 Fed. Reg. 30808 (July 27, 1990).

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Department of Energy Facilities

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Troublesome Categories at Facilities PCB squander capacity zones managed under TSCA – Not considered a "unit" and PCBs not named unsafe waste under RCRA. "Squander" v. "utilized" oil stockpiling units directed under RCRA (40 CFR Part 279) – Used oil considered "item" for re-utilize (e.g. warming). USTs controlled under RCRA Subtitle I (40 CFR Part 280) – Petroleum item stockpiling does not constitute squander administration. Debased territories made by "normal and methodical discharges" or a one-time spill occasion – Difficult to decide the reason for tainting unless nitty gritty records accessible.

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The Rationale for "AOCs" The EPA perceived that its elucidations of the SWMU definition had the impact of blocking §3004(u) from tending to some ecological issues at RCRA offices. "The EPA plans to practice its power as essential, under the RCRA 'omnibus arrangement' or different powers gave in RCRA (e.g., §3008(h), §7003(a), or CERCLA (e.g., §104 or §106) to