Compliance Corner.

Corrective Action Applicability

The corrective action requirements apply to hazardous waste TSDFs. These include permitted facilities and facilities that previously had, currently have, or should have had interim status. In general, corrective action requirements do not apply to generators who aren’t subject to RCRA permitting requirements.

Two types of permits will make a facility subject to corrective action: 1) operating permits (sometimes referred to as “Part B” permits) for treatment, storage, or disposal of hazardous waste; and 2) post-closure permits. Post-closure permits are required for any surface impoundment, waste pile, land treatment unit, or landfill that received hazardous waste after July 26, 1982, or which ceased the receipt of hazardous waste prior to July 26, 1982 but did not certify closure until after January 26, 1983. However, a post-closure permit is not required if the unit is “clean closed.” EPA’s position is that clean closure levels should be equivalent to corrective action cleanup levels, and they should be risk-based. [RO 11959]

The following types of RCRA permits do not usually trigger corrective action [61 FR 19441]:

• Permits for land treatment demonstrations;
• Emergency permits;
• Ocean disposal permits; and
• Research, development, and demonstration permits.

The aforementioned permits are relatively rare. EPA’s rationale for not requiring corrective action at facilities that receive these types of permits is discussed in the July 27, 1990 Subpart S proposal. [55 FR 30806]

Another type of permit that does not trigger facility-wide corrective action is 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. The regulations in Subpart H of Part 270 describe what a RAP must include and how such a plan can be obtained.

Facilities that obtain a traditional RCRA Part B permit solely for the management of remediation waste are not subject to corrective action. See §264.101(d) and 63 FR 65883.

Corrective action at interim status facilities

Interim status TSDFs are facilities that:

1. Were “in existence” on the effective date of statutory or regulatory requirements that rendered the facility subject to RCRA permitting,
2. Notified EPA or the state of their hazardous waste management activities and obtained an EPA ID number, and
3. Submitted a Part A permit application.

“In existence” as used above means the facility was actually treating, storing, or disposing of hazardous waste or was under construction for such purposes. Refer to the definition of “existing hazardous waste management facility” in §260.10 for details on the meaning of “under construction.”

In general, facilities that have qualified for interim status under Part 270, Subpart G are seeking a RCRA permit and, therefore, are subject to corrective action. Certainly, this is the case for operating facilities, but what about facilities that qualified for interim status in the past but have subsequently decided they would prefer not to have a RCRA permit? This makes no difference to EPA—the agency’s position is that once a facility has interim status, that facility is subject to corrective action. If a facility will not cooperate, and EPA believes there has been a release of hazardous waste or constituents, the agency can order the facility to undertake corrective action. [RO 12516] This authority is found in RCRA Section 3008(h), which is entitled “Interim status corrective action orders.” This section allows agency action outside of the permitting process.