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In the United States, hazardous wastes are subject to regulations mandated by the Resource Conservation and Recovery Act (RCRA). Every month, we provide clear, in-depth guidance on a different aspect of the RCRA regulations. The information presented here is an excerpt from McCoy’s RCRA Unraveled, 2024 Edition.

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The Area of Contamination Policy

This policy is best introduced by EPA guidance:

“In what is typically referred to as the area of contamination (AOC) policy, EPA interprets RCRA to allow certain discrete areas of generally dispersed contamination to be considered RCRA units (usually landfills). Because an AOC is equated to a RCRA land-based unit, consolidation and in situ treatment of hazardous waste within the AOC do not create a new point of hazardous waste generation for purposes of RCRA. This interpretation allows wastes to be consolidated or treated in situ within an AOC without triggering land disposal restrictions or minimum technology requirements. The AOC interpretation may be applied to any hazardous remediation waste (including nonmedia wastes) that is in or on the land. Note that the AOC policy only covers consolidation and other in situ waste management techniques carried out within an AOC.” [RO 14291]

Under the AOC policy, the site owner/operator may consolidate contaminated soil within the AOC. Normally, excavation of contaminated soil is considered the point of generation, but under the AOC policy, consolidation is not considered to be removal from the land (i.e., generation). Thus, contaminated soil can be consolidated within the AOC and a hazardous waste determination can be made after such consolidation. [RO 14283, 14338] “In an area of generally dispersed soil contamination, soil may be consolidated or managed within the area of contamination to facilitate sampling, for example, to ensure that soil samples are representative or to separate soil from nonsoil materials.” [May 26, 1998; 63 FR 28619]

Hazardous remediation waste is generated when it is removed from the AOC. Thus, in cases where a site owner/operator wants to consolidate remediation waste from separate, noncontiguous contaminated areas, the AOC concept cannot be used, but a staging pile can.

The AOC policy was developed in the context of the CERCLA program. [December 21, 1988; 53 FR 51444, March 8, 1990; 55 FR 8758] However, it also applies to RCRA corrective action sites, cleanups under state law, and voluntary cleanups. At the federal level, advance approval is not required for people to take advantage of the AOC policy. [RO 11954] Some states have more-stringent standards that require consultation or prior approval before use of an AOC. EPA encourages people to consult with the appropriate agency to ensure that the policy is implemented correctly. A 42-page packet of EPA guidance on the AOC policy is available at https://www.epa.gov/sites/default/files/2016-04/documents/02_01aoc.pdf.

How the AOC policy may be used to facilitate cleanup is illustrated in the following examples.

During a site investigation, a soil boring sample is obtained. Excess soil not needed for the sample contains hazardous waste (e.g., it’s contaminated with F001) and is left on the ground near the borehole in the AOC. Is this allowable?

Based on Management of Investigation-Derived Wastes During Site Inspections (OERR Directive 9345.3-02, May 1991, available as report number 540G91009 from https://nepis.epa.gov/EPA/html/Pubs/pubtitleOSWER.html), this would be allowable and, in fact, is recommended by EPA. However, this is CERCLA guidance and should be used with caution when managing hazardous soil at sites not subject to CERCLA. During site investigations conducted under RCRA corrective action, we recommend facility owners/operators develop an investigation-derived waste management plan and seek approval of the plan from the agency overseeing the site investigation.

EPA’s example allows final disposal of hazardous remediation waste in an AOC. Other agency guidance concurs, noting that allowable hazardous remediation waste management activities in an AOC include storage, in situ treatment, and disposal. [EPA/530/K-02/017I, OSWER Directive 9347.3-05FS]

Remedial Action Plans

On November 30, 1998, EPA published a final rule referred to as the “hazardous waste identification rule for contaminated media,” often called the HWIR-media rule. [63 FR 65874] The goal of this rule was to make it easier to clean up sites contaminated with hazardous waste. One of the difficulties facilities encounter in cleaning up these sites is the RCRA permit program. If cleanup of a site will require onsite treatment, storage, or disposal of hazardous waste, a RCRA permit may be required. In general, these permits are difficult and time-consuming to obtain. Furthermore, as discussed above, a facility seeking a RCRA permit is subject to facility-wide corrective action. EPA realized that some people who may have been inclined to voluntarily clean up a contaminated area decided not to initiate the cleanup because it would require a RCRA permit and associated corrective action.

To solve this problem, EPA established requirements in the HWIR-media rule for a new type of RCRA permit that is supposed to be easier to get and does not trigger facility-wide corrective action. The new permit is called a “remedial action plan” (RAP). A RAP is a permit (an enforceable document) that EPA or a state can issue to authorize treatment, storage, or disposal of “remediation waste” at a “remediation waste management site.” [§270.80(a)] These terms are defined below.

“Remediation waste” means “all solid and hazardous wastes, and all media (including ground water, surface water, soils, and sediments) and debris, that are managed for implementing cleanup.” [§260.10] Remediation waste can be generated from all types of cleanups—not just from RCRA corrective actions—and may include waste generated outside of a facility’s boundaries. Thus, material removed to offsite locations may continue to meet the definition of remediation waste. Remediation waste does not include hazardous process waste generated from ongoing manufacturing operations. However, it does include wastes generated from treating remediation wastes (e.g., carbon canisters and sludges produced from treating extracted ground water or soil vapors). [63 FR 65881]

“Remediation waste management site” means “a facility where an owner or operator is or will be treating, storing, or disposing of hazardous remediation wastes. A remediation waste management site is not a facility that is subject to corrective action under 40 CFR 264.101, but is subject to corrective action requirements if the site is located in such a facility.” [§260.10] The requirements in Part 264, Subparts B, C, and D do not apply to remediation waste management sites, unless the site is located at a facility subject to traditional RCRA permitting for management of nonremediation wastes. [§264.1(j)]

The regulations in Subpart H of Part 270 describe what a RAP must include and how such a plan can be obtained. Although the agency has streamlined the information submittal and approval process for obtaining a RAP, public involvement is still required. Facilities operating under interim status may use a RAP without losing that status.

The substantive, unit-specific requirements for hazardous waste management units in Part 264 must be referenced in a RAP and complied with. For example, hazardous remediation waste storage tanks must have secondary containment. However, combustion units cannot be included in such plans. Site-specific requirements for CAMUs, temporary units, and staging piles may be specified in a RAP.

No RAP is needed where a RCRA permit would not otherwise be required. For example, a RAP is not required for the treatment or accumulation of remediation waste in a 90-day tank or container, a wastewater treatment unit, or at a CERCLA cleanup.

After receipt of the RAP application, EPA or the authorized state will review the application, solicit public comment, and then either approve or deny the RAP. According to EPA, “The most critical part of the [agency’s] determination is whether or not operation according to the RAP will ensure compliance with applicable Part 264, 266, and 268 requirements.” [63 FR 65894] Like RCRA Part B permits, RAPs have a maximum 10-year life, and those that specify land disposal must be reviewed every five years.

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Topic: Are Demolition Wastes Hazardous?

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Disclaimer

Considerable care has been exercised in preparing this document; however, McCoy and Associates, Inc. makes no representation, warranty, or guarantee in connection with the publication of this information. McCoy and Associates, Inc. expressly disclaims any liability or responsibility for loss or damage resulting from its use or for the violation of any federal, state, or municipal law or regulation with which this information may conflict. McCoy and Associates, Inc. does not undertake any duty to ensure the continued accuracy of this information.

This document addresses issues of a general nature related to the federal RCRA regulations. Persons evaluating specific circumstances dealing with the RCRA regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.