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1 INTERIM FINAL POLICY AND GUIDANCE ON MANAGEMENT OF INVESTIGATION DERIVED WASTES (IDW) AT RCRA FACILITIES (This document has been reformatted to improve accessibility in Portable Document Format (PDF). No other changes were made unless specifically noted.) TABLE OF CONTENTS TABLE OF CONTENTS... 1 GLOSSARY STATEMENT OF POLICY AND PURPOSE SCOPE MAKING A HAZARDOUS WASTE DETERMINATION FOR IDW General Issues Types of Investigation Derived Waste Hazardous Waste Determination for IDW Hazardous Waste Determination for IDW INVESTIGATION DERIVED WASTE MANAGEMENT METHODS General Issues Drill Cuttings/Soil/Sediment Test Pit Spoils Purge and Development Water Decontamination Water Miscellaneous FIGURE 1 - Hazardous Waste Determination Flowchart for IDW ATTACHMENT 1 - EPA s Contained-In Policy... 14

2 HMWMD Page 2 of 13 GLOSSARY CHWA - Colorado Hazardous Waste Act, CRS to 316. CHWR - Colorado Hazardous Waste Regulations; implementing regulations of the CHWA, 6 CCR Environmental Media - Naturally occurring material indigenous to the environment including ground water, surface water, surface and subsurface soils, rocks, bedrock, and gravel. Investigation Derived Waste (IDW) - Any material and/or waste that is generated during an environmental investigation of a facility. IDW1 - Environmental media generated during an environmental investigation at a facility. IDW2 - Solid waste generated during an environmental investigation at a facility. HIDW - Hazardous investigation derived waste determined to be so after a hazardous waste determination has been completed. Personal Protection Equipment (PPE) - Equipment and clothing used for safety and health-related concerns on or within the site under investigation which may have become contaminated during use and which will not be decontaminated and/or re-used. Disposable Sampling Equipment (DE) - Equipment used during sampling or associated with sampling that may have become contaminated during use and which will not be decontaminated and/or re-used. RCRA - Resource Conservation and Recovery Act. RCRA Facility Investigation (RFI) - An environmental investigation that establishes the nature, extent, direction, rate of movement, and concentrations of contaminants due to releases from SWMUs or other sources. The scope of the investigation will depend on the existing knowledge of the type and extent of contamination, whether releases have migrated beyond the facility boundary, the amount of existing information on the site, the likely risk at the site, etc., and will be determined by the Division. SWMU - Any discernible unit at which solid wastes have been placed at any time, irrespective of whether the unit was intended for the management of solid or hazardous waste. TSD Treatment, Storage and/or Disposal Facility.

3 HMWMD Page 3 of 13 MANAGEMENT OF INVESTIGATION DERIVED WASTE (IDW) 1.0 STATEMENT OF POLICY AND PURPOSE This document presents the policy of the Colorado Department of Health, Hazardous Materials and Waste Management Division (the Division), regarding management of materials, wastes, and/or media generated during site investigations. The policy is as follows: To ensure compliance with all applicable environmental laws and regulations and protect human health and the environment, all investigation derived material and waste (IDW) shall be managed in a conservative manner which includes: 1) a properly conducted hazardous waste determination of the affected material and 2) appropriate management of the material before and after the hazardous waste determination is made. In addition to presenting the above policy, the Division intends for this document to provide guidance on the implementation of the policy. The policy and guidance are intended for use by Division staff and the staff of facilities undergoing any type of environmental investigation SCOPE A facility may be required to undertake an environmental investigation for many reasons. To give several examples, a facility may need an investigation if: the facility is trying to close a unit used for treatment, storage, or disposal of hazardous waste and needs to establish whether or not any contamination was ever released from the unit, or a RCRA Facility Investigation (RFI) has been required for the facility, or RCRA Corrective Action is necessary at the facility or some portion thereof, whether required by the facility's hazardous waste permit, by a corrective action order, or done on a voluntary basis. During the investigation, a variety of IDW can be generated. Section 3.0 of this document describes how a facility can determine whether or not their IDW should be 1) managed as a hazardous waste, 2) managed as a solid waste, 3) managed to prevent environmental degradation or 4) is not contaminated or not considered to be contaminated. Section 4.0 describes the management requirements for different types of IDW. 3.0 MAKING A HAZARDOUS WASTE DETERMINATION FOR IDW 3.1 General Issues The purpose of this section is to present Division requirements for making a hazardous waste determination on IDW. Determining if IDW is hazardous investigation derived waste (HIDW) is critical to proper management.

4 HMWMD Page 4 of 13 Consistent with the policy statement in Section 1.0, the Division intends for IDW to be managed in a conservative manner that ensures 1) compliance with all applicable environmental laws and regulations and 2) protection of human health and the environment. Therefore, all IDW is required to be managed as hazardous IDW until the hazardous waste determination is completed. At that time, further decisions can be made as to the continuing management needs of the IDW. All of the following regulatory references are to the implementing regulations (CHWR) of the Colorado Hazardous Waste Act (CHWA). 3.2 Types of Investigation Derived Waste IDW can be grouped into two categories: 1) IDW1 - Investigation derived environmental media, and 2) IDW2 - Investigation derived solid waste. IDW1: IDW1 includes potentially contaminated environmental media such as soil, sediment, and surface or ground water that are generated during a site investigation. Examples of commonly occurring IDW1 include excess sampling material, drill cuttings, test-pit spoils, and ground water monitoring well purge water. Environmental media is not a solid waste. Therefore, it cannot be a hazardous waste. It can, however, contain: listed hazardous wastes, enough hazardous constituents that it exhibits a characteristic of a hazardous waste, and/or solid wastes. When a media has been determined to contain listed hazardous waste, or when a media contains enough hazardous constituents to exhibit a hazardous waste characteristic, it must be managed as a hazardous waste. When a media has been determined to contain only solid waste, it must be managed as a solid waste. The process to determine which, if any, management requirements apply to particular IDW1 is further defined in Section 3.3. IDW2: IDW2 consists of solid wastes such as disposable personal protective equipment (PPE), disposable sampling equipment (DE), and decontamination water generated during a site investigation. Commonly occurring examples of IDW2 are latex gloves, suits or coveralls, sample bottles and other sampling equipment. It could also include such materials as concrete fragments, building materials, and other solid wastes generated during investigation activities. IDW2 is solid waste and can, therefore, be a hazardous waste. IDW2 becomes a hazardous waste when it is contaminated with any listed hazardous waste because, according to the "Mixture Rule," any mixture of solid waste and hazardous waste becomes a hazardous waste. IDW2 is also a hazardous waste in the unlikely case that it is contaminated with enough hazardous constituents that it exhibits a characteristic of a hazardous waste. It should be noted, however, that because IDW2 is a solid waste, it must be managed

5 HMWMD Page 5 of 13 appropriately even when it is not a hazardous waste. The process to determine which management requirements apply to particular IDW2 is further defined in Section Hazardous Waste Determination for IDW1 Please see the flow-chart on Figure 1 for a visual presentation of the following concepts. By definition, IDW1 is generated at a facility investigating the nature and extent of any contamination released in the environment. Usually, the investigation is guided by Division-approved workplans or field sampling plans and obtains field samples of potentially contaminated media. These samples are then analyzed for a specific list of potential contaminants. 1 2 Since the field samples are normally the only portion of the removed or disturbed media that are analyzed, it is necessary to extrapolate these analytical results to the appropriate IDW1. There are many extrapolation methods available. For example, if a particular container of IDW contains the drill cuttings from an interval of one borehole in which three core samples were taken for analysis, the average concentration of the three samples could be used as the average concentration in that container. So long as accuracy can be assured, any appropriate method can be used. If samples with no detections are averaged together with samples that have detectable amounts of contaminants, the non-detections should be averaged in as one-half of the detection limit. If, for any reason, the IDW1 is directly sampled and analyzed, extrapolation is unnecessary. IDW1 will only need a hazardous waste determination if it contains solid waste. IDW1 is considered to contain solid waste if the analytical results for any constituent (adjusted as above to represent each IDW container) exceed: a) appropriate detection limits for organic compounds except for those that are naturally occurring and/or 1 If the sampling is not guided by a sampling plan approved by the Division, proper sampling and analytical techniques must be employed that ensure adequate results. These techniques are outside the scope of this policy, but are available from the Division. In addition, proper analytical data interpretation methods must be employed in order to make correct decisions. Please consult the Division for these methods. 2 The list of analytes specified in work plans, and their appropriate detection limits, should be based on site-specific knowledge or previously collected data. If no previously approved workplan or previously collected date exist, the Division recommends that an appropriate analytical suite be developed based on current and historical knowledge of the site. This list should then be given to the division for review and approval. If no site information can be located, a complete Appendix VIII (CHWR, Part 261) analytical suite is required.

6 HMWMD Page 6 of 13 b) background levels for inorganic and naturally occurring organic compounds. 3 (Block 1, Figure 1) If it can be determined at this point that the analytically determined contaminant levels in the IDW1 in a container are below appropriate method detection limits (found in SW 846, 2nd edition) and/or background levels, then the IDW1 does not contain hazardous waste, solid waste, or hazardous constituents. This IDW1 may be disposed of or managed in the manner of choice (Block 2, Figure 1). Any IDW1 that exceeds levels of contaminants described in criteria a) and b) above, and therefore contains solid waste, must complete a hazardous waste determination as required by CHWR Section This determination must evaluate whether the IDW1 contains: listed hazardous wastes, and/or enough hazardous constituents that it exhibits a characteristic of a hazardous waste. This determination must be made for each container (or pile, etc.) of IDW. The procedure for determining if IDW1 contains listed hazardous wastes is presented in Section 3.3.1; the procedure to determine if the IDW1 exhibits any hazardous waste characteristics can be found in Section : RCRA/CHWA Listed Waste Determination for IDW1 Determining if the IDW1 contains listed hazardous waste(s) involves applying the EPA contained-in policy (see Attachment 1). Briefly, the contained-in policy states that environmental media containing a RCRA/CHWA listed hazardous waste must be managed as a hazardous waste. The two key steps in this determination are 1) defining if listed hazardous wastes are present in the media, and 2) determining if the media contains enough listed hazardous waste to be of concern. Step 1: (Block 3, Figure 1): To define whether listed hazardous wastes are present in the IDW1, as required by CHWR Section (b), a comparison of the list of analytically determined constituents found within the IDW1 that exceed criteria a) and b) to the listings of hazardous waste in CHWR Section 261, Subpart D, is necessary. If the contaminants in the IDW1 meet any of the criteria for any of the waste listings found in CHWR Section 261, Subpart D, then the IDW1 contains listed hazardous waste. Historical and process knowledge of how the hazardous waste constituents were originally produced must be applied. 3 Demonstration that contaminant levels are lower than levels prescribed in criteria a) and b) is outside the scope of this policy. Briefly, however, some judgement is necessary for this demonstration. In addition to the appropriate detection limits mentioned for criteria a), appropriate statistical methods are required for criteria b). Background levels in criteria b) are defined as the arithmetic mean plus two standard deviations for the data set consisting of samples from unaffected or upgradient areas of the facility.

7 HMWMD Page 7 of 13 Please note that, as explained by EPA in the August 18, 1992, Federal Register, page 37298, hazardous waste listings apply retroactively to wastes disposed in units that ceased operations prior to the effective date of the listings whenever those wastes become actively managed. Active management includes generation as IDW. Please also note that, when the presence of listed hazardous wastes cannot be established, the contained-in policy does not apply, and the waste can only be hazardous if it exhibits a characteristic of a hazardous waste, as described in following Section Step 2: (Block 4, Figure 1): If the presence of listed hazardous waste is confirmed in the IDW1, it must now be determined if the IDW1 contains enough listed hazardous waste to be of concern. Within the flexibility of EPA's contained-in policy, the Division only considers the IDW1 to contain listed hazardous waste when the IDW1 contains enough listed waste to present a threat to human health and the environment. This determination is made by evaluating 1) the risk to human health and 2) the risk of environmental degradation. Human Health Evaluation: To evaluate the human health risk, any IDW1 that meets or exceeds the following criteria c) and d), must be managed as a hazardous waste: c) present risk to human health greater than to 1X10-6, using a risk analysis procedure approved by the Division for carcinogenic compounds and/or d) present a Hazard Index greater than 1. 0, using a risk analysis procedure approved by the Division for non-carcinogenic compounds. 4 If the contaminant levels in the IDW1 exceed either or both of criteria c) and d), then the media "contains" hazardous waste and must be managed as a hazardous waste (Block 5, Figure 1). If the contaminant levels in the IDW1 do not exceed the risk levels presented in criteria c) and d), even though contaminant levels exceeded criteria a) and b), the media does not contain listed hazardous waste. However, in these cases, the IDW1 may exhibit a characteristic of a hazardous waste or present an environmental threat. Therefore, continue to Section of this document (Block 6, Figure 1) Characteristic Waste Determination for IDW1 (Block 6 Figure 1) As required by CHWR Section (c), if hazardous constituents are present at levels which may cause the IDW1 to exhibit a characteristic of a hazardous waste (reactivity, corrosivity, ignitability, and toxicity; CHWR Section 261, Subpart D), the IDW1 must be managed as a hazardous waste. As the regulatory requirements of CHWR Section 261, Subpart D, are self explanatory, no further explanation on the characteristics of hazardous 4 An approved risk assessment methodology is available form the Division entitled Interim Final Policy and Guidance on Risk Assessments for Corrective Action at RCRA Facilities, and was issued by the Division on November 16, 1993.

8 HMWMD Page 8 of 13 waste will be provided in this document. If the IDW1 exhibits any of the characteristics of a hazardous waste, as defined in CHWR Part 261, Subpart D, the IDW1 contains a characteristic hazardous waste and must be managed as a hazardous waste. (Block 7, Figure 1) When the contaminant levels in the IDW1 are not sufficient to exhibit a hazardous waste characteristic, even though contaminant levels exceeded criteria a) and b), the media does not contain characteristic hazardous waste. It should already have been determined that the IDW1 does not contain listed hazardous waste per Section of this guidance. Nevertheless, the IDW1 must still be managed in a manner that meets the requirements of the following Environmental Degradation Evaluation (Block 8, Figure 1). It may also require management in a manner compliant with Colorado's Solid Waste Regulations. 5 Environmental Degradation Evaluation: IDW1 that contains hazardous constituents at levels that do not exceed criteria c) and d), do not exhibit a characteristic of a hazardous waste, but do exceed criteria a) and b), may need continuing management as a non-hazardous waste material if uncontrolled release of the IDW would exacerbate future site remediation, or potentially damage environmental receptors (ground water, surface water, ecological receptors, etc.). Therefore, for IDW1 that consists of ground water and surface water, comparisons of the contaminant levels with available water quality standards can be accomplished to determine if additional management of the IDW1 is necessary. For this comparison, CDH applies, for each chemical, the most stringent of the following: a) protective Colorado water quality standards as set by the Colorado Water Quality Control Commission including, but not limited to: domestic use water supply standards agricultural water supply standards b) Safe Drinking Water Act standards c) Clean Water Act standards If this approach is used, any surface or ground water whose contaminant levels exceeded the most stringent of the above standards must continue to be managed, treated, or disposed appropriately (Block 9, Figure 1). This could include off-site management as a solid waste, or on-site management as a non-hazardous, but contaminated, material pending any cleanup or remedial action. Any surface or ground water that met the appropriate standards would not present any environmental threat, and continuing management would not be necessary. 5 IDW1 that fails criteria a) and b), but meets criteria c) and/or d), may trigger certain solid waste regulatory requirements because of the low levels of contamination in the IDW1. These requirements could include limitations on potential Subtitle D disposal facilities available for disposal of the IDW based on the levels of contaminants, etc.

9 HMWMD Page 9 of 13 Cases where no water quality standards exist for certain chemicals will be handled on a case-by-case and site-specific basis by the Division. Disposal to a POTW, or other appropriate facility may be warranted. Additionally, for IDW1 that consists of soils and sediments, the Division has determined that, if the contaminant levels in the soil meet the most stringent of the above water quality standards using an appropriate comparison (ug/l to ppb; mg/l to ppm), the soil will not leach unacceptable amounts of waste or constituents into ground water or adversely affect any other environmental receptor, but may trigger certain solid waste management requirements (Block 10, Figure 1) 5. Any soil or sediments whose contaminant levels exceeded the most stringent of the above standards must continue to be managed or treated appropriately (Block 9, Figure 1). This could include offsite management as a solid waste, or on-site management as a nonhazardous, but contaminated, material pending any cleanup or remedial action. At the discretion of the Division Project Manager, this material could be replaced at the point of origin. If this comparison to promulgated standards approach is used, the approved sampling plan should clearly state proposed detection limits that are capable of detecting contaminant levels at or below the standards. 3.4 Hazardous Waste Determination for IDW2 IDW2 must also undergo a hazardous waste determination (CHWR, Section ) which has two steps: Step One involves determining if the IDW2 is a characteristic waste. This determination is found in CHWR, Sections , , , and and is self-explanatory. Step Two determines if the IDW2 is contaminated by, and therefore mixed with, any listed hazardous waste. (Any mixture of solid waste and hazardous waste becomes a hazardous waste - CHWR Section 261.3(a)(2)(iii-iv).) To demonstrate compliance with these steps of the hazardous waste determination for IDW2, the generator of IDW2 must use process knowledge or analytical testing. If the IDW2 is contaminated by any listed hazardous wastes or fails any of the characteristic criteria of hazardous wastes, it is a hazardous waste and must be managed appropriately. Even uncontaminated or non-hazardous IDW2 must be managed in a manner compliant with Colorado Solid Waste Regulations. 4.0 INVESTIGATION DERIVED WASTE MANAGEMENT METHODS 4.1 General Issues One of the most important aspects of IDW is that, many times, it is generated and needs appropriate management before the hazardous waste determination has been concluded (usually due to the laboratory turnaround time for analysis of field samples). For this

10 HMWMD Page 10 of 13 reason, the Division requires that, unless the area where the IDW is being generated was pre-characterized via adequate process or historical knowledge as not containing listed hazardous or characteristic wastes, the management protocols presented in the following sections be applied to various types of IDW upon generation. This would include sites where pre-characterization was not completed or where pre-characterization cannot conclusively define expected contamination conditions. Exceptions to these protocols would need specific Division approval. When a site can be adequately pre-characterized as being not contaminated with listed hazardous or characteristic wastes, IDW from this site does not require management. Examples of this type of IDW include: cuttings and purge water from wells or piezometers located a significant distance from known contamination that are being drilled to fully determine hydrologic conditions or gradients; cuttings from an uncontaminated and unsaturated zone above suspected ground water contamination, etc. However, if the precharacterization is proven to be wrong by subsequent investigation, IDW from the site may have been managed incorrectly. This may expand the scope of cleanup or remediation at the site since contamination may have been spread and could result in an enforcement action. Therefore, to avoid this eventuality, the Division recommends that any IDW be containerized and managed per this policy guidance pending the completed hazardous waste determination for any portion of a site with limited or poor historical knowledge. Nevertheless, the Division strongly encourages pre-characterization of a site where IDW will be generated, when possible. Adequate pre-characterization can expedite the hazardous waste characterization and/or avoid unnecessary management of material which is a costly activity that may divert funds from remediation. 4.2 Drill Cuttings/Soil/Sediment The Division believes that the best management option for drill cuttings and soil generated during a facility investigation is containerization at the moment of generation. Subsequent analytical characterization and the hazardous waste determination presented for IDW1 in Section 3.0 will drive the appropriate handling and ultimate disposition of the containers. 6 Both during the characterization turn-around and after the drill cuttings and/or soil have been determined to require hazardous waste management, storage of the waste containers must meet the requirements of CHWR Sections and 264/265 or, if applicable, a RCRA storage permit. In some cases, samples of the surface soils and/or sediments may be collected. Usually this is done by collecting composite or grab samples which generate more sampled material than is necessary for analysis. Like drill cuttings, this extra sampled material must also be containerized pending characterization. 4.3 Test Pit Spoils While the Division recognizes that, in certain situations, test pits may be the best sampling 6 Container type must be compatible with suspected contamination type. For instance, if volatile organic compounds are potentially present, then the container must prevent evaporation/volatilization, which is an improper form of treatment.

11 HMWMD Page 11 of 13 methodology, it is the Division's position that test pits should be utilized only as a last resort and only after the depth to ground water has been established. Test pit spoils generated from pits installed for sampling purposes need to be containerized or placed on a plastic sheeting at least 15 mils thick and subsequently covered with additional plastic sheeting to achieve run-on and run-off control. Installation and sampling of a test pit should take place on the same day. Sample results should be expedited and appropriate safety measures need to be implemented around the open pit. The pit must be covered as long as it remains open to prevent ponding of precipitation. If the test pit spoils are determined to be contaminated, the pit should be backfilled with clean fill as soon as possible. Contaminated spoils should be removed from plastic sheeting and containerized. Storage of the containers must meet the requirements of CHWR, Section or, if applicable, a RCRA permit. The Division requires that a geologic evaluation of the pit material be conducted to determine if the pit has penetrated an impermeable layer and would allow potentially contaminated surface or shallow groundwater to crossflow into deeper water bearing strata. If this has occurred, the test pit must be back-filled with clean impermeable material immediately. 4.4 Purge and Development Water Purge and development water must be containerized at the moment of generation. Subsequent analytical characterization and the hazardous waste determination presented for IDW1 in Section 3.0 of this policy will drive the handling and ultimate disposition of the containerized water. Both during the characterization turn-around and after the purge and/or development water have been determined to require hazardous waste management, storage of the waste containers 7 must meet the requirements of CHWR, Section or, if applicable, a RCRA permit. If analysis of the purge and/or development water determines that the water is below appropriate ground water quality standards, the water may be poured on the ground at or near the point of generation. Discharges to surface water or drainages must be avoided because of more stringent aquatic life water quality standards. In addition, surface water discharge could require a permit from the Water Quality Control Division. 4.5 Decontamination Water Decontamination water must be containerized at the moment of generation. Subsequent analytical characterization and the hazardous waste determination presented for IDW2 in Section 3.0 will drive the handling and ultimate disposition of the containerized fluid. Both during the time needed to characterize the decontamination water and after any determination that the decontamination water is a hazardous waste, storage of the waste containers 7 must meet the requirements of CHWR, Section or, if applicable, a RCRA permit.

12 HMWMD Page 12 of Miscellaneous It is important to note that hazardous IDW (HIDW) remains a part of the SWMU investigation in which it was generated. It is being stored and managed as a hazardous waste because returning it to the unit could, or would, exacerbate the cleanup. The result is that HIDW can be stored until a cleanup remedy has been chosen and implemented for the SWMU in which the HIDW was generated. At that time, providing that the remedy is consistent with remediation of the HIDW, the HIDW can be removed from storage and remedied along with any material in the unit that exceeds the clean-up criteria. However, for permitted facilities, storing HIDW material for longer than 90 days after generation will necessitate a permit modification. Non-permitted facilities will need either a hazardous waste storage permit or specific written approval from the Division. If a remedy is chosen that will not effectively remediate the HIDW, the HIDW must be properly disposed of within 90 days of generation or as delineated in a permit, permit modification, or other specific written Division correspondence. Alternately, the HIDW can be handled like any hazardous waste - disposal in or by a permitted TSD (treatment, storage, and disposal) facility.

13 FIGURE 1 - Hazardous Waste Determination Flowchart for IDW1 Hazardous Waste Determination and Management Requirements for IDW1 IDW1 containerized in field 1. Are contaminant levels in IDW1 above appropriate method detection limits or no background levels? 2. IDW1 not considered contaminated. May dispose in manner of choice. yes 3. no Are listed hazardous wastes present in IDW1? yes Are human health risk levels exceeded? no Does IDW1 exhibit a hazardous waste characteristic? no yes no Does IDW1 exceed environmental protection criteria? 7. yes Manage as a hazardous waste.** yes Manage as a hazardous waste.** Consult solid waste regs. for possible management or disposal limitations. Manage as a solid waste or as a non- RCRA contaminated media.**** ** On-site: Manage as a hazardous waste per requirements of CHWR Section pending remedy, or manage as a hazardous waste per requirements of a hazardous waste permit, if applicable, pending remedy. Off-site: Dispose in a permitted hazardous waste disposal facility. **** On-site: Manage as a contaminated media, but as a non-hazardous waste, maintaining containerization pending remedy. Off-site: Dispose in an appropriate solid waste landfill.

14 ATTACHMENT 1 - EPA s Contained-In Policy UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C MAR OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE John E. Ely Enforcement Director Virginia Department of Waste Management 101 North 14th Street Richmond, Virginia Dear Mr. Ely: At the request of Carlyle C. Ring, Vice President and General Counsel of Atlantic Research Corporation, I am sending this letter to summarize the Agency s current position on the contained-in interpretative policy. It is my understanding, based upon Mr. Ring s letter, that there was some question as to whether the contained-in interpretative policy applies to all environmental media or only to ground water. Mr. Ring s letter also suggested that a letter from my Office would help resolve this matter. I hope this letter will answer this question and further clarify the policy. I have also enclosed, for your information, a memorandum from Jonathan Cannon to Thomas Jorling dated June 19, I hope that you will find these helpful. The "contained-in" interpretation addresses environmental media (i.e., ground water, soil, and sediment) contaminated with RCRA listed hazardous waste. Our federal regulations at 40 CFR Part identify hazardous wastes. Among other things, these regulations state that a solid waste mixed with a hazardous waste is a hazardous waste. However, these regulations generally do not specifically address environmental media, which are not solid wastes, mixed with listed hazardous waste. The Agency's position continues to be that mixtures of environmental media and listed hazardous waste (i.e., contaminated ground water, contaminated soil, and contaminated sediments) must be managed as if they were hazardous waste. This position is known as the contained-in" policy. EPA s application of the "contained-in" policy to contaminated media was upheld by the D.C. Circuit Court of Appeals in Chemical Waste Management, Inc. v. U.S. EPA, 869 F. 2d 1526 (D.C. Cir. 1989). Consistent with this approach, the Agency further interprets the regulations to mean that environmental media contaminated with listed hazardous waste must be managed as if they were hazardous waste until the media no longer contain the listed hazardous waste (i.e., until decontaminated), or are delisted. To date, the Agency has not issued any definitive guidance as to

15 when, or at what levels, environmental media contaminated with listed hazardous waste no longer contain that hazardous waste. Until such guidance is issued, the Regions or authorized States may determine these levels on a case-specific basis. However, as you know, States that are authorized to implement the RCRA hazardous waste program, as Virginia is, are not bound by EPA s interpretation of the Federal regulations. Although they usually follow Federal interpretations, authorized States may interpret their own regulations more strictly than EPA interprets the Federal regulations. Related to making a determination as to when contaminated media no longer contains listed hazardous waste, we suggest that a risk assessment approach be used that addresses the public health and environmental impacts of hazardous constituents remaining in the treated soils. And as stated above, the authorized State could apply more stringent standards or criteria for contaminated environmental media than those recommended by the Federal EPA if the authorized state determined it to be appropriate. [Note: However, this approach does not apply to residuals from the treatment of listed hazardous waste or mixtures of solid waste with listed hazardous waste under our current regulations, which must be delisted.] I hope that this letter will be helpful to you in establishing and implementing Virginia s hazardous waste policies on related issues. Should you have any questions concerning EPA s contained-in interpretative policy, please contact Steve Cochran, Acting Chief of the Waste Identification Branch, at (202) Sincerely yours, (original signed by) Sylvia K. Lowrance Director Office of Solid Waste cc: C. Ring D. Freedman