20766       Federal Register / VoL 57, No. 95  /  Friday, May 15,  1992 / Rules and Regulations
                                                                                 ENVIRONMENTAL PROTECTION

                                                                                 40 CFR Part 268


                                                                                 Hazardous Waste Management
                                                                                 System: Land Disposal Restrictions

                                                                                 AGENCY: Environmental Protection
                                                                                 Agency (EPA).
                                                                                 ACTION: Notice to Approve Hazardous
                                                                                 Debris Case-By-Case Capacity
                                                                                 Variance.        —

                                                                                 SUMMARY: In response to the January 9,
                                                                                 1992, Proposed Rule on Land Disposal
                                                                                 Restrictions (LDR) for Newly Listed
                                                                                 Wastes and Hazardous Debris (see, 57
                                                                                 FR 958). EPA received numerous
                                                                                 comments regarding the availability of
                                                                                 treatment capacity for hazardous debris,
                                                                                 including comments from owners and
                                                                                 operators of treatment, storage, and
                                                                                 disposal facilities {TSDs), state
                                                                                 regulatory agencies, Federal agencies,
                                                                                 and industry trade associations. Most of
                                                                                 the commenters indicated that owners
                                                                                 and operators of TSDs will have an
                                                                                 extremely difficult if not impossible,
                                                                                 task in obtaining treatment capacity that
                                                                                 meets the proposed standards for
                                                                                 hazardous debris, or that could meet the
                                                                                 existing treatment standards, by May 8,
                                                                                 1992, when the national capacity
                                                                                 variance for most debris expires. EPA
                                                                                 agrees with' these comments, which
                                                                                 confirm its own independent study.
                                                                                   Under 40 CFR 268.5, EPA is therefore
                                                                                 taking regulatory  action to approve
                                                                                 today a generic, one-year extension of
                                                                                 the LDR effective date applicable to all
                                                                                 persons managing hazardous debris.
                                                                                 (This document explains more fully
                                                                                 which hazardous  debris is covered by
                                                                                 the extension.) No further applications
                                                                                 will be required from persons granted
                                                                                 the extension by this action. However.
                                                                                 EPA is requiring such persons to do
                                                                                 certain recordkeeping, and to meet
                                                                                 certain other requirements to qualify for
                                                                                 the extension.
                                                                                 EFFECTIVE DATE: This document
                                                                                 becomes effective on May 8,1992.
                                                                                 ADDRESSES: The official record for this
                                                                                 notice is identified as Docket Number F-
                                                                                 92-CD2P-FFFFF, and is located in the
                                                                                 EPA RCRA Docket, room 2427, U.S.
                                                                                 Environmental Protection Agency, 401M
                                                                                 Street SW., Washington, DC 20460. The
                                                                                 docket is open from 9 a.m. to 4 p.m.,
                                                                                 Monday through Friday, except on
                                                                                 Federal holidays. The public must make
                                                                                 an appointment to review docket
                                                                                 materials by calling (202) 260-9327. The
                                                                                 public may copy a maximum of 100
                                                                                 pages from any regulatory document at


              Federal Register / Vol. 57, No. 95 / Friday,  May 15. 1992 /  Rules and Regulations
 no cost. Additional copies cost $0.20 per
 For general information contact the
 RCRA Hotline at (800) 424-9346 toll-free
 or (703) 920-9810 locally. For
 information on specific aspects of this
 notice, contact William Kline, Office of
 Solid Waste, Capacity Programs Branch
 (OS-321W), U.S. Environmental
 Protection Agency, 401 M Street SW.,
 Washington, DC 20460, (703) 308-8440.
 I. Background
  A. History
  B. Revised Treatment Standards for
    Hazardous Debris
 II. Justification for this Extension
  A. Demonstration under 40 CFR 268.5
  B. Consultation With the States
 "C. Conclusion
 III. Requirements for this Extension

 I. Background
 A. History
  Congress enacted the Hazardous and
 Solid Waste Amendments (HSWA) of
 1984, which amended the Resource
 Conservation and Recovery Act
 (RCRA). Among other things, HSWA
 required EPA to develop regulations that
 would impose, on a phased schedule,
 restrictions on the land disposal of
 hazardous wastes. In particular,
 sections 3004 (d), (e), and (g) prohibit the
 land disposal of all wastes identified or
 listed as hazardous as of November 1984
 unless the wastes are treated (or meet
 treatment standards) before disposal in
 a manner that "substantially
 diminish(es) the toxicity of the waste or
 substantially reduce(s) the likelihood of
 migration of hazardous constituents
 from the waste so that short-term and
 long-term threats to human health and
 the environment are minimized." The
 alternative to satisfying these treatment
 standards is disposal in a unit from
 which there will be no migration of
 hazardous constituents for as long as
 the waste remains hazardous.
  In developing such a broad program.
 Congress recognized that adequate
 alternative treatment recovery, or
 protective disposal capacity (i.e., no-
 migration disposal units) may not be
 available by the applicable effective
 dates. Therefore, section 3004(h)(2)
 authorizes EPA to grant a national
 capacity variance (based on the earliest
date that such capacity will be available
but not to exceed two years) from the
effective date which would otherwise
apply to specific hazardous wastes. In
addition, under section 3004(h)(3), EPA
can grant an additional capacity
extension of the deadline on a case-by-
 case basis for up to one year beyond the
 applicable deadline.
   On June 1,1990, EPA published a final
 rule (55 FR 22520} establishing
 prohibitions and treatment standards for
 wastes in the final third of scheduled
 prohibitions. Among other things, the
 rule established prohibitions and
 treatment standards for debris
 contaminated with all hazardous wastes
 (except for the solvents  and  dioxins
 prohibited under section 3004(e)J.
 Because of a lack of treatment capacity,
 however, EPA granted a two-year
 national capacity variance for most
 hazardous debris (40 CFR 268.35(e)). As .
 such, these wastes are prohibited from
 land disposal on May 8,1992, unless the
 treatment standards are met. The
 existing treatment standards for debris
 are the same as for the waste with
 which the debris is contaminated.
 B. Revised Treatment Standards for
 Hazardous Debris  ~~
   On January 9,1992, EPA published
 proposed treatment standards for
 hazardous debris. These standards
 would replace the existing standards
 published in the June 1,1990 final rule
 (see 55 FR 22520, June 1,1990). The final
 rule has been delayed,- due in part to a
 delay in publishing the proposed rule
 necessitated by the review process, but
 is expected to be issued shortly, by June
 30,1992. The Agency intends that the
 final treatment standards to  be
 promulgated will be similar to those
 proposed; thus, any differences will
 likely be irrelevant to this extension.
  The Agency received over 130
 comments on the January 9,1992
 proposed rule, many expressing that
 there would be inadequate capacity for
 hazardous debris as of May 8,1992. The
 complexity of the proposed rule, the
 large volumes of hazardous debris that
 require treatment and numerous
 technical uncertainties with the
 proposed treatment standards were
 among the reasons provided  by
 commenters that obtaining immediate
 capacity is beyond their control and
 capabilities. Additionally,  commenters
 felt that several years may be required
 to obtain necessary capacity due to the
 time needed for design and construction
 of treatment units and delay  necessary
 to modify or to obtain permits.
  EPA has been and continues to be
 cognizant of the existing capacity
 shortfall for hazardous debris and
 agrees that adequate treatment capacity
 for hazardous debris cannot be provided
 by the prohibition effective date. As
 such, it appears that the  affected
hazardous debris generators  need an
 extension of that date.
   Although one commenter specifically
 suggested that a 90-day case-by-case
 extension is appropriate, based on all
 the comments received, and considering
 the large volumes of hazardous debris
 that will require treatment, and the
 logistic delays necessary to comply with
 the new standards, EPA believes that 90
 days will be insufficient for all owners
 and operators to obtain or utilize
 treatment capacity.
   For the purpose of this extension, the
 terms debris and hazardous debris are
 defined as follows:
   For this notice, EPA is continuing to
 use the current definition of debris set
 out in the preamble to the June 1,1990
 final rule. See 55 FR 22850. This
 definition includes both organic debris
 and inorganic solid debris. Id. and
 § 268.2(g). EPA wishes to clarify.
 however, that the extension adopted
 today includes more types of debris than
 granted a national capacity extension in
 the June 1 rule. In that rule, only
 inorganic solid debris and other debris
 contaminated with a waste whose
 treatment standard was based on
 incineration, mercury retorting, or
 vitrification received a variance. In this
 action, all debris (defined as explained
 above) which is hazardous, with several
 exceptions, is receiving an extension.
 These exceptions include debris
 contaminated with listed solvent or
 dioxin waste covered by the section
 3004(e) prohibition and debris
 contaminated with non-liquid
 "California List Wastes" pursuant to
 section 3004(d). The time for granting
 national and case-by-case capacity
 extensions for these wastes has expired;
 so that further extension is not possible.
 55 FR 22650/2. For all other types of
 debris which are hazardous, as
 explained below, the logistic difficulties
 in obtaining treatment appear to be the
 same, so EPA is granting the extension
 for all such debris.
  Finally, EPA notes that the final rule
 to be issued on June, 30,1992 is likely to
 amend the definition of debris in
 response to comment on the January,
1992 proposal. EPA will explain in that
rule how any such change affects the
 case-by-case extension promulgated
  Hazardous Debris means debris that
 contains a hazardous waste listed in
 subpart D of part 261 that is subject to
 the land disposal restrictions of this
part, or that exhibits a characteristic of
hazardous waste identified in Subpart C
 of Part 261 that is subject to the land
disposal restrictions of this part.

             Federal Register / Vol. 57. No. 95 / Friday. May 15.  1992 / Rules and  Regulations
II. Justification for this Extension
A. Demonstration Under 40 CFR 268.5
  In this notice. EPA is taking Final
regulatory action to grant a national
case-by-case extension of the effective
date for treatment standards for
hazardous debris.
  40 CFR 268.5 specifies seven
demonstrations that must be made for a
case-by-case extension of the
prohibition effective date to be
approved. From the comments and
Information submitted, EPA has made
an evaluation of these seven required
demonstrations as follows:
Demonstration 40 CFR 268.5(a)(l) •
   The applicant must demonstrate that
 he has made a good-faith effort to locate
 and contract with treatment, recovery,
 or disposal facilities nationwide to
 manage his waste in accordance with
 the effective date of the applicable
 restriction established under subpart C
 of this part.
   A large number of commenters
 indicated that they are unable at this
 time to locate and contract with
 treatment, recovery, or disposal
 facilities. One commenter, the principal
 association of hazardous waste
 treatment and management firms,
 believes that although EPA's proposed.
 treatment standards appeared to be
 environmentally protective, it would be
  impossible to implement as of the rule s
  effective date. This commenter stated
  that most of the treatment technologies
  that have been proposed as BDAT are
  not widely available currently. After  -
  reviewing EPA's data on generation and
  treatment capacity, and making its own
  assessment of capacity from member
  firms, this commenter found a
  substantial shortfall in the availability
  of technologies and pointed out that
  substantial capital investments would
  be required to bring the BDAT
  technologies on line.
     EPA believes these comments
   accurately portray the existing
   availability of capacity for treatment of
   hazardous debris. Nor is there sufficient
   capacity to meet existing standards.
   While there may be isolated capacity to
   treat limited volumes of such waste in
   some locations, EPA agrees that there is.
   in general, very little treatment capacity
   available, so that generators are unable
   at this time to locate and contract with
   treatment, recovery, or disposal
   Demonstration 40 CFR 268.5(a)(2)
     The applicant has entered into a
    binding contractual commitment to  .
    construct or otherwise provide
    alternative treatment, recovery (e.g..
recycling), or disposal capacity that
meets the treatment standards specified
in subpart D or, where treatment
standards specified in subpart D or,
where treatment standards have not
been specified, such capacity is
protective of human health and the
  As pointed out by the commenters, the
availability of treatment technologies to
meet the proposed treatment standards
is very limited and will require
substantial capital investment to bring
such technology on-line.Jn fact. until the
Agency promulgates thermal treatment
standards for hazardous-debris, it will
be difficult for most regulated entities to
 construct or enter into such contractual
 commitments. Thus the ability to utilize
 the technology and ultimately enter a
 binding contractual commitment to
 construct or otherwise provide the
 necessary treatment capacity will be
 difficult by the LDR effective date. One
 difficulty in meeting this criterion is
 largely caused by the revision of the
 treatment standards so close to  the
 effective date.
    EPA believes, however, that there is
 no ultimate difficulty in constructing or
 otherwise developing the needed
 treatment technology because the types
 of treatment technologies involved all
 exist and are commonly available given
 time. Here, where there is little  question
  that the needed treatment can ultimately
  be provided, the Agency believes that
  granting the extension is in keeping with
  the statutory mandate.
    EPA is requiring that any generator ot
  hazardous debris who is participating in
  this extension must make a good faith
  effort to enter into such a contract at the
  earliest date practicable to provide the
  treatment capacity for his hazardous
  debris. See discussion below.
  Demonstration 40 CFR 268.5(a}(3)
     Due to circumstances beyond the
  applicant's control, such alternative
  capacity cannot reasonably be made
  available by the applicable effective
  date. This demonstration may  include a
  showing that the technical and practical
   difficulties associated with providing the
   alternative capacity will result in the
   capacity not being available by the
   applicable effective date.
     The commenters provided numerous
    examples regarding technical  and
    practical difficulties associated with
    providing the alternative capacity. EPA
    believes many of these to be valid
    concerns and agrees that additional time
    is needed to resolve these concerns.
    Further, EPA recognized in both the
    Advance Notice of Proposed
    Rulemaking (ANPRM) (see 57 FR 24444.
    May 30,1991) and the proposed rule (57
FR 982} that many significant technical
issues remained unresolved. EPA
believes that these circumstances are
beyond the control of the generators
who need to treat or dispose of their
hazardous debris. In addition, the
precise details of the final treatment
standards are not available until EPA
promulgates a final rule, a circumstance
also out of the applicants' control.
 Demonstration 40 CFR 268.5(a)(4)

   The capacity being constructed or
 otherwise provided by the applicant will
 be sufficient to manage the entire
 quantity of waste that is the subject of
 the application.
   The commenters have indicated that
 they have difficulties in determining at
 this time the capacity needed for
 hazardous debris. One commenter
 stated that the volume of debris
 generated has been seriously
 underestimated and that the proposed
 rule will result in large volumes being
 regulated under RCRA subtitle C for the
 first time.
    EPA believes that the commenters
 have shown that these uncertainties
 make it difficult for many owners and
 operators from determining their
 capacity requirements at this time. More
 important, the key timing concern
  relates to immediate logistical problems
  documented hi the comments relating to
  time needed for permit modifications.
  plus (in some cases) time needed to
  construct specialized debris treatment
  units like containment buildings. As
  noted previously in the discussion of
  needed contractual commitments, EPA
  believes that adequate treatment
   capacity can be provided once these
   logistical obstacles are overcome.

   Demonstration 40 CFR 268.5(a)(5)

     He provides a detail schedule for
   obtaining required operating and
  -construction permits or an outline of
   how and when alternative capacity will
   be available.
     It will be difficult for owners and
   operators to provide a detailed schedule
   for  obtaining operating and construction
   permits if they are unable to determine
   their capacity needs, the appropriate
   technology to treat their hazardous
   debris and the means by which they will
   obtain access to such technology. In
   keeping with the 40 CFR 268.5[a)(5)
    demonstration, EPA is requiring that this
    demonstration be made by placing this
    schedule into their facility operating
    record as required by the conditions of
    this variance.

              Federal Register / Vol. 57, No.  95 / Friday, May 15. 1992 / Rules  and Regulations       20769
 Demonstration 40 CFR 268.5(a)(6)

   The applicant must demonstrate that
 he has arranged for adequate capacity
 to manage his waste during an
 extension and has documented in the
 application the location of all sites at
 which the waste will be managed.
   Due to the generic nature of this
 extension, EPA has little facility-specific
 information that demonstrates that
 generators or owners and operators
 have arranged for adequate capacity to
 manage their hazardous debris during
 this one-year extension or the locations
 at which these wastes will be managed.
 However, on a nationwide basis, EPA
 believes that treatment capacity will be
 available, given time. As discussed
 below, consistent with 40 CFR
 263.5(a){5), EPA is requiring owners and
 operators to include documentation in
 the facility record describing the means
 by which their hazardous debris will be
 managed between May 8,1992 and May

 Demonstration 40 CFR 268^(a)(7)
   Any Waste managed in a surface
 impoundment or landfill during the
 extension period will meet the
 requirements of paragraph (h)(2) of 40
 CFR 268.5,
   It is a requirement of this extension
 (and an absolute legal requirement) that
 any generator or owner or operator who
 intends to manage his hazardous debris
 in a surface impoundment (which is
 highly unlikely) or landfill during the
 one-year extension must ensure that  the
 unit meets the requirements of 40 CFR
 268.5(h)(2) (see RCRA section
 3004(h){4)). As discussed below, any
 owner or operator who participates in
 this one-year extension and intends to
 use this type of unit(s) must so indicate
 in the facility record and include
 certification that such unit(s) meets the
 requirements of 40 CFR 268.5(h)(2), Le.,
 meeting the minimum technology
 requirements set out in that regulation.
 B. Consultation With the States
  In addition to the above seven
 demonstrations, EPA is required under
 40 CFR 268.5(e) to consult with
 appropriate State agencies in all
 affected States. In this case, because of
 the extremely limited time available,
 EPA has  considered comments already
 received from two State agencies; these
 support the need for an extension of the
LDR effective date for hazardous debris.
 C. Conclusion
  Based on its evaluation of the
demonstrations required under 40 CFR
268.5, and for the reasons stated above,
EPA is approving, a one year extension
 to the Land Disposal Restrictions for
 hazardous debris, which are subject to
 the national capacity Variance for
 debris. This extension.is effective from
 May 8,19921(| May 8,1993. Any such
 waste disposed after JJJay 8,1993 will be
 subject to theiDRs unless the generator
 obtains a site-specific extension beyond
 that date. EPA is taking this exceptional
 regulatory action because of the unique
 circumstances which have resulted in
 the lack of treatment, recovery, and
 disposal capacity for hazardous debris,
 including the promulgation of revised
 standards, and EPA's conclusion that
 treatment capacity meeting those
 standards is presently extremely
 limited, or is limited due to logistic
 problems such as obtaining permit
 modifications, but can be provided by
 the end of the extension period.

 III. Requirements for this Extension
   To receive the benefit of this
 extension, a generator, or facility owner
 or operator must include the following
 information in the facility's operating
 record by July 8,1992, or at the time the
 hazardous debris is generated or
 treated, whichever is later:
   (1) The name, mailing address,
 location, and EPA identification number
 (if assigned) of facility. The term.
 "facility" includes any site, whether
 permanent (such as a manufacturing
 plant), or temporary (such as a
 demolition project) where hazardous
 debris will be generated as of May 8,
   (2) A description of the hazardous
 debris waste stream, including the
 RCRA waste code(s); and
   (3) Waste generation rates (cnjn./yr.),
 and estimated inventories  (cujn.) on
 May 8,1992, and as of May 8,1993,
   In addition, by July 8,1992, or at the
 time the hazardous debris is generated
 or treated, whichever is later, each
 owner and operator must maintain in
 the facility record (or, for generators, in
 the files maintained pursuant to
 § 268.7(a)(5)) a written plan that
 describes how the facility will obtain
 adequate treatment capacity. At a
 minimum, this plan must include a
 schedule of how the owner or operator
 plans to design, construct, and obtain
 the necessary permits to provide on-site
 treatment, recovery, or disposal
 capacity or a description of the binding
 contractual commitment for off-site
 capacity. Also required in the plan is: (1)
The method  of storage for hazardous
 debris, storage capacity, and RCRA
permit status (i.e., interim status,
permitted, or 90-day generator) of the
 storage unit  during the extension period,
 (2) If management of hazardous debris
during the extension includes the use of
 a surface impoundment or landfill, the
 owner or operator must certify that such
 unit meets the requirements of 40 CFR
 268.5(h)(2). and (3) Certification as
 required under 40 CFR 268.5(b).
   This plan must be furnished upon
 request, and made available at all
 reasonable times for inspection by any
 officer, employee, or representative of
 EPA, or the appropriate State agency
 who is duly designated by EPA or the
 State agency.
   Under 40 CFR 26&5(e), the
 Administrator may renew this extension
 for up to one year beyond the effective
.date. Any owner or operator who
 believes that he may need a renewal of
 this one year extension must submit an
 application not later than November 8,
 1992. The application must address the
 seven demonstrations in accordance
 with 40 CFR 268.5, and must justify the
 requested renewal period. In reviewing
 an application for renewal of the
 extension, EPA will closely evaluate the
 degree to which the applicant has
 progressed in providing the necessary
 treatment, recovery, or disposal
 capacity.  For example, an applicant
 must show that he has made a good-
 faith effort to obtain treatment capacity
 and has entered into a binding
 contractual commitment as required by
 40 CFR 268.5(a)(2). As a further measure
 of progress, EPA also expects  that, by
 that time, an applicant will be able to
 provide a detailed and final engineering.
 construction, and permitting schedule in
 accordance with 40 CFR 268J3(aJ(5). If a
 renewal of today's one-year extension is
 approved by EPA. an owner or operator
 could be allowed until May 1994 to
 construct or otherwise provide the
necessary treatment, recovery, or
disposal capacity for his hazardous.

List of Subjects in 40 CFR Part 268

   Administrative practice and
procedure. Designated facility.
Environmental protection. Hazardous
materials, Hazardous materials
transportation. Hazardous waste.
Intergovernmental relations. Labeling,
Packaging and containers. Penalties.
Recycling, Reporting and recordkeeping
requirements. Waste treatment and
  Dated: May 8,1992.
Don R. Clay.
Assistant Administrator, Office of Solid '
Waste and Emergency Response.

  For the reasons set out in the
preamble, title 40, chapter I, of the Code
of Federal Regulations is amended  as

20770       Federal Register / Vol.

  1. The authority "citation for part 268
continues to read as follows:
  Authority: 42 U.S.C. 6905.6912[a), 6921, and
  2. In § 268.35 paragraph (e) is revised
to read as follows:
§26845  Waste specific prohibitions—
Third Third wastes.
  (e) Effective May 8,1993. debris that is
contaminated with wastes listed in 40
CFR 268.10. 268.11, and 268.12, and
debris that is contaminated with any
characteristic waste for which treatment
standards are established in subpart D
of this part are prohibited from land
[PR Doc. 92-11384 Filed 5-14-92:8:45 am]
BILLING CODE 6580-6041