Tuesday
August 11, 1992
Part JII
Environmental
Protection Agency
40 CFR Parts 268 and 271
Land Disposal Restrictions "Wo
Migration" Variances; Proposed Rule
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35940
Federal Register / Vol. 57, No. 155 / Tuesday, August 11, 1992 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 268 and 271
IFRL-3763-4]
BIN 2050-AC44
Land Disposal Restrictions "No
Migration" Variances
AGENCY: Environmental Protection
Agency.
ACTION: Proposed rule and notice of
availability.
SUMMARY: The Environmental Protection
Agency (EPA or the Agency) is
proposing its interpretation of the "no
migration" variance to the
Congressionally mandated restrictions
on land disposal of hazardous waste,
and also is proposing a minor
modification to the Land Disposal
Restrictions regulations to reflect this
interpretation. The Environmental
Protection Agency also is proposing new
procedural and substantive
requirements for petitioning the Agency
and demonstrating that there will be "no
migration" from a land disposal unit, as
well as the Agency's criteria for
evaluating such "no migration"
petitions. Additionally, the Agency is
proposing under the authority of RCRA
Section 3004{n), standards that would
limit organic air emissions from land
treatment, landfill, and waste pile units
that, having successfully demonstrated
"no migration" and received the
variance, are allowed to dispose
hazardous wastes that do not meet the
Best Demonstrated Available
Technology (BOAT) treatment
standards, which are normally required
prior to land disposal. In this action the
Agency also is announcing the
availability of a draft guidance manual
for petitioners making the no migration
demonstration entitled No Migration
Variances to the Hazardous Waste Land
Disposal Prohibitions: A Guidance
Manual for Petitioners (U.S. EPA. Draft,
July, 1992). These actions are in
response to amendments to the
Resource Conservation and Recovery .
Act (RCRA), enacted through the
Hazardous and Solid Waste , .
Amendments of 1984 (HSWA).
DATES: Comments on the proposed rule
must be received on or before
September 25,1992.
ADDRESSES: Comments should be
addressed to the docket clerk at the •
following address: U.S. Environmental
Jrotection Agency, RCRA Docket (Room
2427) (OS-305). 401 M Street, SW..
Washington, DC 20460. One original and
two copies should be sent and identified
at the top by regulatory docket reference
number F-92-NMVP-JFFFFF. The Docket
is open from 9 a.m. to 4 pjn., Monday
through Friday, excluding Federal
holidays. The public must make an
appointment to review docket materials,
and should call the docket clerk at (202)
260-9327 for appointments. The public
may copy, at no cost, a maximum of one
hundred pages of material from any one
regulatory docket. Additional copies are
$0.15 per page.
Copies of the guidance manual for no
migration petitioners |can be obtained
from the National Technical Information
Service (NTIS), U.S. Department of
Commerce, Springfield, Virginia 22161,
at (703) 487-4600: No Migration
Guidance (NTIS #PB|92-207 695).
FOR FURTHER INFORMATION CONTACT:
For general information about this
proposed rulemaking, contact the RCRA
Hotline, Office of Solid Waste (OS-305),
U.S. Environmental Protection Agency,
401M Street SW., Washington, DC
20460, (800) 424-9346j(tollfree) or (703)
920-9810 in the Washington, DC,
metropolitan area.
For information on aspects of this
proposed rule pertaining to No
Migration, contact Dave Reeves, Office
of Solid Waste (OS-343), U.S.
Environmental Protection Agency, 401M
Street SW., Washington, DC 20460, (202)
260-4892. '
For information on aspects of this
proposed rule pertaining to control of
organic air emissions from no migration -
units under RCRA Section 3004(n),
contact Kent C. Hustyedt. Office of Air
' Quality Planning and Standards (MD- -
13), U.S. Environmental Protection
Agency, Research Triangle Park, North
Carolina, 27711. (919) 541-5395. :
SUPPLEMENTARY INFORMATION:
l
Preamble Outline j
I. Authority [
II. Background ! . •
III. Summary of Proposed Rule
A. Interpretation of the|Statutoiy Language
B. Hazardous Levels \
1. Consideration of Ambient ••. .
Concentrations • .'
C. Point of Complianceior No-Migratjon,.. •
D. Petitions to Demonstrate No Migration ..'
E. Conditional Requirements of a No
Migration Variance
1. Land Treatment Units '
2. Temporary Storage Units ' ;• . ••••
3. Other Demonstrations
4. Monitoring for New Units
F. Additional Demonstrations for the Air ...
Medium > .
1. OSHA Standards . • '
2. NESHAP for Benzene " .
3.3004{n) Standards! ' "'.;
a. Introduction ' ' ..-,- ' •
b. Background ] "•'• :' •
c. Regulatory Approach -.'...-
d. Proposed Requirements .
IV. State Authorizations
V. Regulatory Requirements
VI. References
I. Authority
These regulations are issued under the
authority of sections 1006,2002(a), 3001,
3004, 3005, and 3015 of the Solid Waste
Disposal Act, as amended by the
Resource Conservation and Recovery
Act of 1976, as amended by the
Hazardous and Solid Waste
Amendments of 1984, (42 U.S.C. 6905,
6912(a), 6921, 6924, 6925, and 6935).
II. Background
Sections 3004 (d), (e), and (g) of RCRA
provide that land disposal of hazardous
waste that does not meet Best
Demonstrated Available Technology
(BOAT) treatment standards is
prohibited, unless the Administrator
determines that prohibition of one or
more disposal methods is not required to
protect human health and the
environment for as long as the wastes
remain hazardous. This determination
must take into account such factors as
long-term uncertainties of land disposal,
the goal of proper management of
hazardous wastes, and the persistence,
toxicity, mobility, and bioaccumulative
potential of the wastes and their
constituents. These provisions indicate
that in order to satisfy this standard, a
hazardous waste management facility
owner or operator must demonstrate in
a petition to the Agency to a reasonable
degree of certainty, that there will be no
migration of hazardous constituents
from the disposal unit (or injection zone)
for as long as the wastes remain
hazardous. This is known as the "no
migration" variance. Throughout this
preamble, when the term "no migration"
is used, it is intended to mean "no
migration of hazardous constituents
from the disposal unit or injection zone
for as long as the wastes remain
hazardous," as written in the statute and
as interpreted in the regulatory language
proposed at 40 CFR part 268 in today's
notice.
. The Agency codified this language in
existing regulations under 40 CFR 268.6
on November 7,1986 (51FR 40572).
These regulations were corrected on
June 4,1987 (52 FR 21010). Paragraph (k)
of 268.6 was added on August 8,1987 (52
FR 25160) requiring that liquid
, hazardous wastes containing PCB's in
' concentrations above 500 ppm cannot be
the subject of a no migration variance.
40 CFR 268.6 was further amended on
August 17,1988 (53 FR 31138) to add
additional procedural requirements for
• no migration petitions and for
compliance with the terms of a variance,
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Federal Register / Vol. 57. No. 155 / Tuesday. August 11. 1992 / Proposed Rules
35941
once granted. These additional
requirements are as follows: (1)
Demonstrating compliance with other
applicable Federal State, and local
laws; (2) submittal of monitoring plans
for land disposal units; (3) reporting
changes in operating conditions from the
ones described in the variance
application, and, (4) reporting detection
of migration of hazardous constituents,
and suspending receipt of prohibited
hazardous wastes. Final regulations for
underground injection of hazardous
waste published in the Federal Register
on July 26,1988 (53 FR 28118) further
clarified EPA's interpretation of "no
migration" as it applies to underground
injection of hazardous waste. It should
be noted that today's proposed
rulemaking is not intended to supersede
these standards already promulgated for
underground injection wells.
III. Summary of Proposed Rule
A. Interpretation of the Statutory
Language •
Today's notice explains the Agency's
interpretation of the "no migration"
statutory standard expressed in sections
3004 (d), (e), and (g) of RCRA and
proposes minor amendments to section
288.6(a) to reflect this interpretation.
Sections 3004 (d), (e), and (g) of RCRA
provide that land disposal of hazardous
waste that does not meet BOAT
treatment standards is prohibited.
unless the Administrator determines
that the prohibition of one or more
disposal methods is not required to
protect human health and the
environment for as long as the wastes
remain hazardous, taking into account
such factors as long-term uncertainties
of land disposal, the goal of proper
management of hazardous wastes, and
the persistence, toxicity, mobility, and
bioaccumulative potential of the wastes
and their constituents. These provisions
indicate that in order to satisfy this
standard, an interested person must
demonstrate to the Agency "to a
reasonable degree of certainty, that
there will be no migration of hazardous
constituents from, the disposal unit or
- injection zone for as long as the wastes
remain hazardous." EPA interprets this
statutory language to require that
petitioners demonstrate that hazardous
waste constituents will not migrate from
the land disposal unit (i.e. landfill, -
surface impoundment, waste pile,
injection zone, land treatment unit, salt
dome formation, salt bed formation,
underground mine, cave, vault, or
bunker) in hazardous concentrations for
as long as the wastes remain hazardous.
These concentrations must be met at the
unit boundary for all environmental
media: Ground water, surface water,
soil, and air. The statute explicitly
provides that the standard applies to
migration from a unit or injection zone:
"* * * there will be no migration of
hazardous constituents from the
disposal unit or injection zone * * *"
(RCRA Sections 3004 (d), (e), and (g))
Therefore, the Agency proposes that
consideration of attenuation of
hazardous waste constituents beyond
the boundary of the disposal unit or
injection zone would not be acceptable
as a basis for successfully making a
petition demonstration.
The Agency thus would grant
petitions where owners or operators
demonstrate (to a reasonable degree of
certainty) that hazardous waste
constituents will not migrate at
hazardous levels, or, put another way,
where only non-hazardous levels of
waste constituents migrate. This
interpretation of the statute was
recently upheld in NRDC \. EPA, 907
F.2d 1146 (D.C, Cir. 1990). In the NRDC
case, the court noted that under EPA's
interpretation, "hazardous constituents
may migrate so long as the wastes
immediately surrounding them at the
border are no longer hazardous, or
putting it slightly differently, so long as
they do not migrate in high enough
concentrations to be hazardous waste."
Id at 1159-1160. The court examined
EPA's interpretation and affirmed EPA's
decision finding that Congress had made
no clear determination in section 3004
that hazardous constituents must not
migrate regardless of the hazard and
that EPA's policy choice was
reasonable. 907 F.2d at 1162.
Based on this interpretation of the
statutory language provided above, the
Agency proposes to clarify and amend
§ 268.6(a) to define the term "no
migration of hazardous constituents
from the disposal unit or injection zone"
(or simply, "no migration") to mean that
concentrations of hazardous
constituents do not and shall not exceed
Agency-approved health-based or
environmental-based levels, in any
environmental medium, at the boundary
of the unit or injection zone. Under this
approach, possible migration pathways
for each medium are as follows:
Concentrations of hazardous
constituents in ground water in the
vicinity of the unit could not exceed the
appropriate ingestion health-based
levels for drinking water. Surface water
concentrations, both in surface water
bodies 'in the vicinity of the unit and in
storm runoff from the unit, likewise
could not exceed appropriate health-
based levels for drinking water or
ambient water quality criteria.1
Similarly, concentrations in soil
(including, but not limited to silt, loam.
sand, gravel, and in some cases, rock)
outside the unit could not exceed health-
based levels for ingestion. Finally, air
emissions of hazardous constituents
from the unit, either in the form of
particulates or volatilized organics,
could not exceed the appropriate health-
based levels for inhalation exposure.
(Health-based levels for each medium
are discussed in more detail in Section B
of this preamble.)
In addition, the Agency proposes to
modify § 268.6(a)(4) to require
monitoring of all environmental media,
i.e., ground water, surface water, soil,
and air. Where petitioners can
conclusively demonstrate that
monitoring of any medium is
unnecessary or technically infeasible or
impractical, the Agency may determine
on a site-specific basis to waive the
monitoring requirement for one or more
media. The point of compliance for both
modeling and monitoring measurements
will be at (or as near as possible to) the
unit boundary (without compromising
the integrity of the unit). For the air
medium, compliance will be measured
at the downwind edge of the unit
boundary at a height of 1.5 meters. (The
point of compliance for demonstrating
"no migration" is discussed in more
detail in Section C of this preamble.)
B, Hazardous Levels
The Agency will be using EPA-
approved health-based levels for ground
water, surface water, soil, and air to
designate "hazardous levels of
hazardous constituents." The Agency
currently is using peer-reviewed health
and environmental effects data hi
several areas including clean closure,
delisting, and proposed trigger levels for
corrective action. Such data for each
medium of concern are based, for the
most part, on the drinking water
Maximum Contaminant Levels (MCLs),
surface water quality criteria (Ambient
Water Quality Criteria 45 FR 79318,
November 18,1980; 49 FR 5831, February
15,1984; 50 FR 30784. July 29,1985),
verified Reference Doses (RfDs) for
systemic toxicants developed by the
Agency's Risk Assessment Forum, and
* Note, however, that where the petitioning unit
has complied with permit design requirements to
prevent run-on or run-off from a 24-hour, 25-year
storm, and a storm of even greater magnitude
results in run-on or run-off from the unit the Agency
would consider this an exceptional or unpredictable
event EPA therefore would consider allowing
continued operation of the unit under the no
migration variance once any damage that affects the
unit's operation has been corrected.
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Federal Register / Vol. 57, No. 155 / Tuesday, August 11, 1992 / Proposed Rules
Risk-Specific Doses (RSDs) for
carcinogens developed by the Agency's
Carcinogen Assessment Group. These
dose levels are used with standard
exposure assumptions for each medium
(ground water, surface water, soil, and
air) to obtain allowable health and
environmental levels. The maximum
residual risk level would be the same for
Class A and B carcinogenic constituents,
1X10"'. For Class C carcinogens the
maximum residual risk level would be
1X10"*. Detailed information on the
exposure assumptions and lists of the
applicable concentration levels for
ground water, surface water, soil, and
air for some hazardous constituents are
contained in the RCRA Facility
Investigation (RFI) Guidance (U.S. EPA,
Interim Final, May, 1989), and in the
proposed Subpart S Corrective Action
Rule (55 FR 30798; July 27,1990).
Additional Information on health-based
levels is available on EPA's Integrated
Risk Information System (IRIS, On-line
database, U.S. EPA, 1991), EPA's
"Carcinogenic Risk Assessment
Verification Endeavor (CRAVE) Risk
Estimate for Carcinogenicity" (U.S. EPA,
1990), and in the Superfund Public
Health Evaluation Manual (U.S. EPA,
1986).
EPA proposes to use appropriate
levels such as those described in the
above references for approving or
disapproving a no migration petition.
Maximum Contaminant Levels (MCLs)
for drinking water and Ambient Water
Quality Criteria (AWQC) would receive
first priority for use as appropriate
levels, where they exist Reference
Doses and Risk-Specific Doses would be
used secondarily in the absence of
MCLs and AWQCs.
The Agency realizes, however, that
Agency-approved levels do not exist for
every hazardous constituent in
Appendix VHL In addition, the Agency
acknowledges that existing health and
environmental effects data available for
some hazardous constituents have not
been formally promulgated by EPA. In
most cases, EPA believes it will be
possible to develop reasonable
estimates, based on beat professional
judgement, or to eliminate minor
constituents from consideration because
only trace levels exist in the waste.
Where health-based levels are not
available or cannot be estimated, and
where more than very minor trace levels
of a hazardous constituent are present
in the waste, EPA believes background
or analytical detection limits should be
used. (EPA notes that it has adopted the
above approach to setting health-based
levels in the RCRA delisting program
and the proposed Subpart"S corrective '
action rule.) No migration petitioners
also may wish to propose their own
levels for constituents of concern, using
reasonable worst-case assumptions.
Petitioners should submit to the Agency
data of sufficient Quantity and quality
for the Agency to determine the
environmental and health effects of the
constituent. Thus, |there will be
opportunity for notice and comment on
each such level within the context of
each petition. Data submitted for the
purposes of determining an appropriate
level should follov> established EPA
protocols to ensurp the acceptability of
the test data. (For jexample, following
the toxicity testing guidelines of 40 CFR
Parts 797 and 798 (50 FR 39252,
September 27,1985), would be
considered prima facia evidence of the
acceptability of th|e data.) Petitioners
who choose to propose their own levels
for constituents should consider that
Agency review of such information may
require additional time and could delay
a determination on their no migration
petitions.
The Agency believes that human
health-based levels will be protective of
both human health and the environment.
Nevertheless, the Agency may
determine that a unit boundary level for
a constituent should be lowered from
the human health-based standard in
order to protect against detrimental
environmental effects around the unit
(e.g., those that may pose a threat to
endangered species, or sensitive
ecosystems).
The Agency realizes that many of the
peer-reviewed human health-based
levels are below an analytical detection
limit. In these cases, where modeling is
possible, the petitioner must
demonstrate that no migration will occur
above the human health-based levels
using modeling arid analysis. As stated
in 40 CFR 268.6, any models must be
verified and calibrated to the site. In
demonstrating compliance with the
•terms of the petition during the life of
the unit the petitioner will, of necessity,
use analytical detection limits as the
basis for compliance. Use of analytical
detection limits should be based upon
methodology prescribed in Test
Methods for Evaluating Solid Wastes,
Physical/Chemical Methods, (EPA
Publication No. SW-846,1986, third
edition), with the lowest possible
detection level indicated therein for
each hazardous constituent
Finally, the Agency considered, but is
not proposing as a general rule to take
into account the effects of additivity of
hazardous constituents within a single
environmental medium in setting the
levels that the petitioner must meet to
demonstrate no migration. Similarly, the
Agency also considered but rejected an
approach that would assess additivity
across two or more media (e.g., ground
water and air). Guidelines for using
additivity in assessing the risks posed
by multiple contaminants are contained
in "Guidelines for the Health Risk
Assessment of Chemical Mixtures" (51
FR 34014. September 24,1988). The
Agency does not currently intend to use
this approach, because it believes that a
determination of additive effects of two
or more chemicals or across two or more
media would be exceedingly difficult,
would involve too many uncertainties,
and would 'be unnecessarily
conservative. For example, a constituent
ingested via the ground water exposure
route may have a different mechanism
of action and different target organ(s)
from those of the same constituent when
inhaled; similarly, two different
chemicals ingested by the same route
might have different target organs.
Furthermore, the exposure routes
considered under this rule are projected
and hypothetical, rather than actual,
exposures. Therefore, EPA. believes that
consideration of additivity for two or
more hypothetical exposure routes is
generally unnecessary, especially given
the conservatism of its exposure
assumptions in the current approach. (In
some cases, however—e.g^ where actual
rather than hypothetical long-term
exposure is involved—EPA may take a
more conservative approach, and
consider additivity, where technically •
feasible.) The Agency believes that
assessing effects of different
constituents individually within one
hypothetical exposure medium is both
consistent with the statutory no
migration standard and fully protective
of human health and the environment.
1. Consideration of Ambient
Concentrations
As discussed above, the Agency
believes the statutory concern is over
the hazardousness of contaminants that
may cross the unit boundary. EPA has
previously interpreted the unit boundary
as the point of compliance for no
migration petitions and specifically
rejected an approach that would have
• considered attenuation factors for
movement of contaminated groundwater
outside the unit boundary. [51 FR 40838,
November 7,1986.] Similarly, EPA does
not believe ambient or background
concentrations of constituents outside
the unit boundary should be considered
in evaluating migration out of the unit
With these factors in mind, the Agency
is considering three options for
addressing no migration in situations
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35943
where ambient contaminant
concentrations exist.
In the first option, existing
concentrations in ground water would
only affect no migration variances to the
extent they indicate that a unit may
already be contributing to those levels
through contamination. EPA would not
accept possible dilution of releases-
when they flow into the aquifer as the
basis for a less stringent standard on the
level of concentration allowed to leave
the unit. Nor would it make the standard
more stringent because the receiving
ground water is already above ambient
levels. Rather, the no migration
determination would continue to be
based upon whether the concentrations
of the constituents migrating from the
unit itself exceed hazardous (i.e.. health-
based) levels.
For example, assume ground water
upgradient from the petitioning unit has
a concentration of 10 mg/1 of hazardous
constituent A and the health-based level
for constituent A is 5 mg/1 for drinking
water. The ho migration standard EPA
proposes to apply in this case would
nonetheless require that any release
from the unit not contain concentrations
of constituent A above 5 rng/L
Depending on the leachate
concentration, the volume of leachate
that reaches the ground water, and the
degree of mixing that occurs between
the leachate and the underlying ground
water, a monitoring well located
downgradient from the petitioning unit
could contain varying concentrations of
hazardous constituent A. The Agency
recognizes that the aforementioned
variables raise some uncertainty in
estimating leachate concentrations •
released from the unit on the basis of
upgradient and downgradient ground
water measurements.
There are also instances, however,
where migration of any level of
constituent A from a unit might add the
same amount, to the ambient background
concentration of a given environmental
medium. An example 4s volatilization of
hazardous constituents from liquid or
solid material in the unit to ambient air
outside the unit In this situation, unlike
that of fluids, every molecule added
from the unit to the air-will
incrementally increase the
concentration in the air at the unit
boundary above pre-existing
background levels. Again, EPA's
proposed approach is not to consider the
pre-existing background levels hi the air
but, instead, to focus on the incremental
increases at the point of compliance that
are attributable to migration from the
unit The Agency recognizes that this
approach allows total concentrations at
the unit boundary above the pre-existing
background such that the sum may, in
fact, be above health-based levels.
Inherent In any determination of
background levels is a consideration of
statistical variability. This variability
results from the sampling distribution of
the measurements, as well as the
sampling and analysis variability, and
variability due to spatial and temporal
factors. General RCRA ground water
monitoring guidance recommends the
use of confidence intervals for
comparison to a fixed compliance
standard. For all options presented hi
this section, the Agency is proposing a
similar approach where a 95%
confidence interval is constructed
around the mean background
concentration. (For normal distributions,
this confidence interval calculation is as
follows:
X±t (o.«.n-,> s/Vn
Where x is the mean, t is
obtained from the Student's t-
Distribution, S is the standard deviation
of sample values, and n is the sample
size.) For more information on statistical
variability and construction of
confidence intervals, see the "Guidance
Document on the Statistical Analysis of
Ground-Water Monitoring Data at
RCRA Facilities," (EPA/530-SW-89-
0026: April 1989; NTIS: PB89-151-O47).
For the first option, discussed above,
EPA proposes that the upper limit of this
confidence level be med to define
background (i.e., ambient levels), and
that Agency-approved health-based
levels would be added to the upper
confidence limit in determining no
migration limits at downgradient points
of measurement. Any downgradient
measurement that exceeds this sum
would be considered migration.
A second option in situations of
existing ambient concentrations is not to
allow the contribution at the unit
boundary from background levels and
the contribution from the unit, together,
to exceed the health-based standard
This second option would be more
stringent than the first option; in effect, .
it also would be a type of locational
requirement For example, in relatively
pristine areas a unit could meet the no
migration demonstration as long as the
resulting level at the unit boundary is
below the applicable health-based
standards. In areas where pre-existing
background concentrations are elevated,-
the unit would be less likely to meet the
no migration standard. If background
concentrations are already above the
health-based levels, a unit could not
meet the no migration demonstration.
The ultimate determination of
compliance would be the downgradient
measurement which, very simply, could
not exceed the health-based level used
as the no migration standard.
A third option in situations where
background levels of a hazardous ,
constituent exist would be to set some
de minimis level of allowable
constituent addition from the unit. For
example, where the ambient air is
already above the health-based level,
the unit could release an additional level
of constituents measured at the unit
boundary, but the contribution from the
unit must not increase the overall risk
level beyond a small (statistically
insignificant) increment. In contrast to
Option 1, the amount of allowable
increase would not be set by reference
to existing health-based levels, but by
establishing a level for this purpose
only. The Agency proposes for this third
option that the de minimis level be
determined based on the statistical
variability associated with the
background concentrations. For
example, the background concentration
would be determined as discussed
previously, by constructing a 95%
confidence interval around the mean
concentration of the background sample
. measurements.
In this third option, the upper limit of
the confidence interval constructed from
background sample measurements
would be used for no migration
purposes. Measured values
downgradient would be compared to
this upper limit to evaluate whether a
statistically significant increase above
background concentrations had
occurred. Where any downgradient
sample measurement was found to fall
above the upper 95% confidence limit, it
would be statistically significant and
migration would be considered to have
occurred.
EPA solicits comments on these three
or any other approaches. In particular,
we are seeking input from commenters
as to the relative burden that may be
imposed, either on petitioners or the
reviewing Agency, in implementing any
one of the three options. Also, are there-
exceptional technical difficulties
associated with implementing a specific
option? The Agency requests comments
from the public on whether the de
minimis approach (Option 3) is more
difficult to implement than the other
options, for instance, due to the lack of
standard monitoring protocols for air.
C. Point of Compliance for No Migration
The statutory standard requires that
there will be no migration of hazardous
constituents from the unit or injection i
zone.- As discussed above, the Agency j
interprets this to mean that hazardous j
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Federal Register / Vol. 57, No. 155 / Tuesday, August 11. 1992 / Proposed Rules
constituents will not migrate at
hazardous levels from the unit (or
injection zone). Thus, the point of
compliance for making this
demonstration is the unit boundary (or
the boundary of the injection zone; see
53 FR 28118, July 28,1988 for a
discussion of "injection zone"). For land
disposal units, a "hazardous waste
management unit" as defined in 40 CFR
200.10, is a "contiguous area of land on
or in which hazardous waste is placed,
or the largest area in which there is a
significant likelihood of mixing
hazardous waste constituents in the
same area."
For the purposes of demonstrating no
migration from the unit, the Agency
believes that, where an engineered
barrier (e.g., a liner) exists for surface
impoundments, landfills, waste piles, or
land treatment units, the unit boundary
consists of the outermost extent of the
engineered barrier of the unit The
outermost extent of the engineered
barrier also constitutes the point of
compliance for each medium. For
example, in demonstrating no migration
from the unit via ground water or
subsurface soil, the unit boundary would
consist of the outer liner present in a
surface impoundment, landfill, land
treatment unit, or waste pile. In
demonstrating no migration from such a
unit via surface water runoff or surface
soil, the outer limits of any dikes,
ditches, or berms present at the edge of
the "hazardous waste management unit"
constitute the point of compliance. In
demonstrating no migration from the
unit via the air pathway, the outer
extent of any engineered barrier over
the unit (roof, dome, etc.) would
constitute the point of compliance.
While engineered barriers form a
useful way to delineate the boundary of
a hazardous waste management unit,
the Agency recognizes that these
engineered components do not always
exist. For example, most units are not
enclosed to protect from migration via'
air. In this case, the Agency proposes
that the downwind edge of the unit at a
height of 1£ meters conntitutes the point
of compliance for demonstrating no
migration via air. (A height of 1.5 m
corresponds with a typical inhalation
height This height also 5s proposed
because it would facilitate monitoring of
partkulate emissions, which cannot be
accurately monitored close to the soil
surface without effectively vacuuming
large and small particles into the
apparatus.) For air demonstration
purposes, any berms, dikes, or ditches
that surround the area of waste
placement define the "edge" of the unit
(However, for determining the point of
compliance for the air medium or other
media, the Agency does not intend to
allow the inclusion of unreasonable
buffer zones betweejn the area of waste
placement and a perimeter dike, benn,
or ditch.)
In cases where units are unlined (e.g.,
a unit obtaining an exemption from liner
requirements under § 264.221 (b) or (d)),
the petitioner and the petition reviewer
must use best professional judgement to
set the unit boundary. Unlined land
treatment units have a subsurface point
of compliance at the base of the
maximum treatment zone (not exceeding
a depth of 5 feet from the initial soil
surface), or immediately outside of any
liner that may exist'Finally, for some
miscellaneous units such as those
regulated under subpart X (e.g., geologic
repositories), the unit boundary should
be decided on a sitej-specific basis. In all
cases where a no migration petition is
filed, however, the Agency will
demarcate the unit boundary and point
of compliance for demonstrating and
evaluating no migration via all media in
a suitably stringent manner.
Although engineered barriers are used
to define the unit boundary, EPA
believes (and Congress in the legislative
history indicated) tijat engineered
barriers such as liners cannot be
assumed to be adequate to prevent
migration of hazardous wastes from a
land disposal unit or injection zone. S.
Rep. No. 284,89th Cong. 2d. Sess. at 15.
Consequently, EPA proposes that,
except for temporary storage units, the
no migration demonstration must rely
upon other assurances to demonstrate
no migration of waste from the unit. (For
temporary storage units, the no
migration demonstration may be based
upon removal of the waste prior to
failure of the engineered barrier.) This
approach, of course, does not exempt an
owner or operator ivho has a no
migration variance from parts 264 and
265 design requirements for liners and
other engineered barriers.
D. Petitions to Demonstrate No
Migration j
The Agency intends to limit the
approval of petitions for a no migration
demonstration to those that can
demonstrate compliance with the
conditions outlined in today's
interpretation to a reasonable degree of
certainty. The Agency also recognizes
that site-specific factors can be relevant
to consideration of a petition and to a no
migration determination. Owners and
operators who believe they have land
disposal units that will qualify for
approval, should submit petitions to the
Administrator. At the date of issuance
of this notice, EPA has already received
a number of petitions and is reviewing
them under existing regulations and
guidance.
For underground injection wells,
separate requirements exist for the
development and review of no migration
petitions as outlined in the rule
promulgated July 26,1988 (53 FR 28118).
Specific existing requirements for the
development and processing of no
migration petitions for land disposal
units are Outlined in 40 CFR 268.6, The
Agency believes that a petition to
demonstrate no migration should
include (but is not limited to) two
essential components in its approach: (1)
Sufficient site-specific, theoretical, long-
term projections about the unit, waste,
and environmental conditions to insure
that migration at hazardous levels will
not occur from the unit to any medium
(or, for temporary units, as long as the
waste remains in the unit); and (2)
current data derived from monitoring,
sampling, and analysis of the unit,
waste, and environmental conditions
that both confirm the models and
describe current conditions.
The assumptions and input data used
in site-specific modeling projections
should be based on site conditions.
Models, input data, and relevant
documentation should be available to
EPA upon request and without
restriction. EPA is discouraging the use
of proprietary models, as the models
selected will have to be closely
scrutinized to determine their
reasonableness and accuracy, and will
be subject to public comment
Furthermore, in today's proposed
amendment to 40 CFR 268.6{a)(4), no
migration variances will require, as a
condition of their approval, monitoring
of all environmental media (ground
water,-surface water, soil, and air) to
detect migration of hazardous
constituents from the unit at the earliest
practicable time. In certain cases the
Administrator may determine, based
.upon waste- and site-specific
characteristics, that monitoring of one or
more media is unnecessary at an
individual site, because migration to
that medium (those media) clearly is not
a realistic concern (e.g., ambient
air monitoring at some types of
underground geologic repositories).
Similarly, the Administrator may
determine that conventional monitoring
of one or more media immediately at the
unit boundary is technically infeasible
or impractical However, in most cases
of technical ^feasibility or
impracticality. the Agency still will
require some type of monitoring or
modified monitoring as near as possible
to the unit boundary without
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Federal Register / Vol. 57. No. 1S5 / Tuesday. August 11, W92 / Proposed Rules 35945
compromising the integrity of the unit.
(For more information on no migration
monitoring in situations of technical
infeasibility or impracticality, see the
"Land Disposal Restrictions for First
Third Scheduled Wastes; Final Rule" (53
FR 31189. August 17,1988). The Agency
also may determine in certain situations
that modeling of a particular medium
likewise is unnecessary or infeasible
[e.g.. air modeling for a covered waste
pile). 'However, where an engineered
control such as a cover exists for which
modeling is infeasible, the Agency may
require the petitioner to assess the
performance of the engineered system in
lieu of modeling. Petitioners who believe
that one of these situations applies to
their unit should include in the petition
information that clearly demonstrates
why modeling or monitoring of any
medium is unnecessary or technically
infeasible. [For more discussion of
monitoring requirements and monitoring
plans that should be included in a no
migration petition, see the Land
Disposal Restrictions for First Third
Scheduled Wastes, Final Rule, August
17.1988, 53 FR 31139).
The Agency proposes to add new
petition provisions at 40 CFR
§ 268.6{c)(3) to require that, for existing
units that are receiving hazardous waste
prior to submittal of the no migration
petition, monitoring data for ground
water, surface water, soil, and air be
included as part of the petition. The
Agency recognizes, however, that
monitoring data may be difficult to
collect, or may be nonexistent, for new
units. Therefore, the Agency also is
proposing additional petition
requirements at 40 CFR § B8.6(cK3) such
that for both existing and new units,
variance approval is conditioned-upon
Agency review and approval of
monitoring data, gathered subsequent to
unit operation, which confirms no
migration. IWhere subsequent
monitoring data reveals migration, the
Agency would revoke the variance.)
However, at its discretion, EPA
additionally may require that monitoring
data for one or more media be submitted
for a new tmit prior to granting of the
variance, as part c-Tthe petition, -where
sach data are reasonably available (for
example, monitoring data already
generated as a result of the field test
plot forthe land treatment
demonstration required -under 40 CFR
264272).
The Agency proposes mat in most
cases, in addition to initial monitoring to
demonstrate no migration, detection
monitoring to -confirm no migration for •
ground water, surface water, and soil be
conducted at regular intervals (for
example, semiannually for ground-water
monitoring to coincide with part 264
subpartP monitoring). However, for the
air medium EPA is proposing a slightly
different monitoring approach. Except
for those units where the Agency has
determined that air modeling or
monitoring is unnecessary or technically
infeasible, petitioners would be required
to conduct a one-time, reasonable
worst-case ambient monitoring program
to confirm modeling estimates and to
provide a correction factor for the
modeling where necessary. (Air
monitoring under reasonable worst-case
conditions is proposed, because it would
facilitate detection of hazardous
constituents, which may be at low
concentrations near detection limits.)
Subsequent to granting of the variance,
however, rather than performing regular
ambient air monitoring during the
operation of the tmit, the Agency
proposes that the owner-or operator
regularly sample the waste stream
entering the unit to confirm that the
modeled annual quantity of a hazardous
constituent is not exceeded. The Agency
proposes this approach because it
believes that ambient air monitoring
performed at the unit boundary may
involve too many uncertainties and too
much variability to be reliable in
detecting migration. EPA requests
comments on the proposed approach for
air monitoring. Additional guidance for
making the no migration demonstration
for all environmental media is provided
in the guidance manual made available
in today's notice entitled No-Migration
Variances to fee Hazardous Waste Land
Disposal Prohibitions:, A Guidance
Manual for Petitioners. (U.S. EPA, Draft.
July, 1992).
No migration variances may be issued
for existing facilities having interim
status or part B permits under SCRA. or
for new facilities seeking a permit.
Because much of the information that
must be included in a RCRA partB
application must also accompany the
petition for a ""no migration" variance,
facility owners and operators are
encouraged to submit petitions with the
relevant part B data summarized and •
referenced, with copies of critical partB
materials attached as needed. Petitions
should be-submitted to EPA
Headquarters. Petitions will be
reviewed'by EPA Headquarters with
assistance 'from Regional and State
personnel.
Variances will be effective only after
issuance; submittal of a petition will not
exempt a 'facility from complying with
applicable land disposal prohibitions.
Variances wfll be valid for up to 10
years, but not longer than me term of the
facility's RCRA permit, and they will
automatically expire upon expiration.
termination, or denial of a RCRA permit,
or when the volume of waste for which
the variance was issued is reached.
Owners and operators desiring to renew
expired variances must repetition the
Agency. Petitions to renew must
undergo the same notice and comment
procedure as did the original petition.
EPA also is proposing today to amend
§ 268.6(f)(3) such that, subsequent to
notification from the owner or operator.
if the Administrator determines that
migration is occurring or has occurred
from the unit, the Administrator will
revoke the variance. This approach is
based upon the belief that, with the
exception of the air medium, once a
single verified migration event has been
detected, the no migration
demonstration has failed. (Note also the
exception in the case of run-on or runoff
resulting from an unpredictable future
event, as identified previously in this
preamble at footnote 1.) Variance
holders have 10 days in which to re-
sample to verify detection of migration
from their unit Verified migration
events require suspension of receipt of
waste at the unit and notification of
EPA. For more information on detection
of hazardous constituent migration and
verification, see the "Land Disposal
Restrictions for First Third Scheduled
Waste; Final Rule" (S3 FR 31189-31190;
August 17.1988).
For the air medium the Agency
proposes to base the no migration
standard upon an annual average air
concentration. EPA proposes to interpret
migration to the air medium as
exceeding the health-based level for a
hazardous constituent on an annual
average basis, not on a single verified
event.The Agency believes this
approach is protective, since air health-
based levels are based upon long-term
exposure assumptions, and are not
appropriate for use in an acute air
exposure scenario. Furthermore, air
concentrations are highly dependent
upon dispersive and temporal factors,
and therefore differ from the ground
water, surface water, and soil media,
where these factors are less significant. •
Acute air exposure scenarios would be
addressed under § •288.6(a){5), which
requires compliance with other Federal,
State, and local laws, and which would
require compliance wife OSHA short-
term air exposure standards at 29 CFR
part 1910 as a condition of the variance,
EPA requests comments on this
approach.
Thfe Agency also today is proposing
additional provisions at § 268.8(r)
providing that the Agency -will revoke -a
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35946 ' Federal Register / Vol. 57. No. 155 / {Tuesday. August 11, 1992 / Proposed Rules
unit's no migration variance if, on the
basis of any information, the Agency at
any time determines that migration from
the unit has occurred, or that such a
variance is no longer protective of
human health and the environment.
The Agency should caution potential
petitioners that the burden of proof in
demonstrating no migration will be
substantially greater for facilities with a
history of continuing mismanagement of
hazardous waste and serious
compliance problems, as evidenced by
State or EPA monitoring and inspection
reports. (Minor infractions in
compliance should not affect EPA's
review of a petition.] This does not
mean such facilities will be required to
meet a more stringent standard, but that
more information and analysis may be
necessary, both in the petition and
during operation under the variance, to
confirm to the Agency's satisfaction that
migration is not occurring and will not
occur in the future. For example, more
frequent waste stream analysis, or even
sampling by an independent party could
be required under the terms of the
variance. Given that EPA must find "to a
reasonable degree of certainty" that the
test is satisfied, it obviously is
reasonable for EPA to regard such .
facilities with special scrutiny.
Similarly, for a unit that has
experienced releases [migration) in the
past, the owner or operator petitioning
for a variance will be under a greater
burden of proof to demonstrate both: (1)
That the same type of release will not
occur in the future, and (2) that past and
future releases can be separated for
modeling and monitoring purposes. The
second item could be particularly
relevant for the ground water medium,
for example, where contamination
already detected in ground water could
continue to appear in monitoring wells
after a variance has been granted. It
would be difficult to prove whether the
contamination was from a past or
present release. Likewise, for a unit
located in a waste management area
where releases have occurred from
other units, it also could be difficult to
differentiate between releases,
particularly if the other units contained
the same hazardous constituents as the
unit for which a variance is sought
In either case, the owner or operator
is discouraged from submitting a no
migration petition unless he or she can
conclusively demonstrate not only that
future migration will not occur, but also
that past releases detected through
monitoring either are not from the unit
for which a variance is sought, or that
they will not obscure or interfere with
the ability of monitoring devices to
detect future releases. If there is
uncertainty, the assumption will be that
the release is from the unit for which a
variance is sought, and the variance
likely will be denied or, if already
granted, revoked.;
E. Conditional Requirements of a No
Migration Variance
EPA proposes that for certain land
disposal units, no migration variances
may be granted based upon conditional
requirements. These conditions will be
specified in the variance, and are as
follows: '
I
1. Land Treatment Units.
Land treatment units, under 40 CFR
264.272, are required to complete, and
receive Agency approval of, a Land
Treatment Demonstration. This Land
Treatment Demonstration focuses on
waste application rates and degradation
rates, and it requires the owner or
operator to demonstrate that hazardous
constituents in the waste may be
applied and completely degraded,
transformed, or immobilized, without
overloading the soil degradational
capacity or causing migration of
hazardous constituents outside of the
treatment zone. Because the no
migration variance will be granted
based upon certain basic monitoring and
modeling data, the Land Treatment
Demonstration need not be complete in
order to receive a no migration variance.
Therefore, EPA today is proposing new
requirements at § 26&6Q) providing that,
for land treatment units, the variance
will be conditioned upon completion of
the Land Treatment Demonstration .
within two years after the date of
granting of the no migration variance, or
the variance will be revoked. This
provision is intended to ensure
completion of the Land Treatment
Demonstration in a timely fashion, while
nevertheless recognizing that the land
treatment unit must operate in order to
generate the relevant information and
data. However, it should be clarified
that this provison is not intended to
provide any time extension of the
requirement to have an approved no
migration variance prior to land disposal
of prohibited hazardous waste. Land
treatment units would all be required to
have an approved no migration variance
prior to receipt of prohibited waste,
regardless of whether the Land
Treatment Demonstration is complete or
not Furthermore, petitioners with
incomplete Land Treatment
Demonstrations would also have to
meet all of the same information
requirements to fulfill no migration
petition criteria.
The Agency also proposes to add new
requirements for land treatment units at
§ 268.6(k) in order to assure that the no
migration standard will continue to be
met after the conclusion of the post-
closure care period. The first situation of
concern would occur if accumulations
within the unit of nondegradable
hazardous constituents exceed health-
based levels for ingestion at closure and
during the post-closure care period. If
this occurs, the no migration standard
could be exceeded via an ingestion, air
dispersion, or surface runoff pathway.
To ensure that migration would not
occur, the Agency is proposing to
require either that the unit be capped
with clean soil at the end of the post-
closure care period, or that hazardous
constituents be removed at closure to
concentrations below health-based
levels. (If the petitioner were to choose
the clean soil cap option, then a
vegetative cover would have to be
established on the unit, as required by
§ 264.280(c)(2). In addition, the petitioner
would not be relieved of the existing
requirement to provide a vegetative
cover during the closure and post-
closure care period.) The Agency
proposes that the clean soil cap be
installed at the end of the post-closure
care period, rather than at closure, in
order to allow the biodegradation
process to continue without being
smothered and inactivated by anaerobic
conditions resulting from the soil cover.
The second situation of concern
would occur if, at closure and at the end
of the post-closure care period, non-
degradable hazardous constituents
present in the unit are capable of
leaching at levels exceeding health-
based levels. To ensure no migration,
EPA is proposing that where the unit
contains nondegradable hazardous
constituents above health-based levels
at closure, the facility owner must
perform a leaching test or modeling
procedure that the Agency determines is
valid for the particular types of
constituents present to determine their
teachability. If modeling or test results
show a potential for migration from the
unit above the health-based levels, then
at closure the petitioner must remove
hazardous constituents to below health-
based levels.
All existing closure and post-closure
requirements under parts 264 and 265
are still applicable, and would in no
way be superseded by today's proposed
requirements at § 268.6(k). Rather,
today's proposed variance conditions
would add to existing parts 264 and 265
requirements. In particular, it should be
noted that land treatment units (and
other land disposal units) that will close
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Federal Register / Vol. 57. No. 155 / Tuesday, August 11. 1992 ) Proposed Rules
35947
with hazardous constituents in place at
concentrations above health-based
levels must comply with 40 CFR
264.119(b) requirements for a deed
notice that the site has been used for
hazardous waste management, and
consequently that future use is
restricted EPA expects that this
provision will prevent future human
intrusion into the site after the post-
closure care period has ended.
2. Temporary Storage Units
Under Section 3004(k) of RCRA, land
disposal is defined as placement
(including temporary storage) of
prohibited wastes in any land-based
unit. Placement of prohibited wastes in
a Iand4>ased unit can occur only after
the unit owner or operator has been
granted a no migration variance. Land-
based units include: Landfills, surface
impoundments, -waste piles, injection
wells, land treatment units, salt dome
formations, salt bed formations.
underground mines, caves, vaults, and
bunkers. Use of a non-land-based unit to
manage prohibited waste does not
require a no migration variance. Non-
land-based tinits include: Incinerators,
tanks, and container storage areas.
However, undergo CFR 268.50, certain
restrictions are placed on the use of
tanks and containers for storage of
prohibited wastes: These units can be
used to store such wastes only for the
purpose of accumulating waste to
facilitate its proper recovery, treatment.
or disposal. Readers are advised to
review the requirements of 40 CFR
268.50.
There rosy be circumstances under
which owners or operators wish to store
prohibited wastes in land-based units.
As stated, doing so will require & no
migration variance. The Agency
indicated in Ike preamble to regulations
promulgated an November 7,1S86 (51 £»
40572) its ielief that an indoor waste
pile with a concrete liner, used for
temporary storage, might be a good
candidate for a tto migration variance.
EPA wishes to caution potential
petitioners that it does not consider ail
types of land-based units, nor all waste
types, to be^good candidates for a no
migration variance for temporary land-
based storage. Tie petition for such a
unit would nave to demonstrate teat
there would be no migration for as long
as the -wastes remain in the unit
(assuming they remain hazardous for
that time). A number of factors.
including {but not limited to] the
characteristics of thetmit-and the waste,
the duration of storage, -and locational
factors, will be considered by the
Agency in making a decision on a no
migration petition for temporary land-
based storage. As mentioned previously
in this preamble the Agency proposes
that, for land-based storage purposes,
the containment of -hazardous waste
•within engineered barriers (meeting
minimum technology requirements) will
be considered in making the no
migration demonstration, provided that
wastes are to be removed after a
reasonably short storage period that
may be conservatively projected to be
well before the failure of the engineered
barrier system.'
The Agency today proposes to add
provisions § 268.6 (1)(1) and (1)(2) to
require the following as conditions of a
no migration variance for temporary
land-based storage units:
a. Clean closure. As part of the
variance, the unit's closure plan must
provide for clean closure, both
technically and with adequate financial
assurance, within a specified time
period. The Agency proposes this
approach to assure that no hazardous
waste or hazardous constituent
concentrations above health-based
levels remain after closure that could
migrate from the unit in the future.
b. Management of wastes at closure.
The variance also must require that, at
closure, the waste removed from the
unit be managed in accordance with fee
prohibitions on land disposal, including
meeting the treatment standards where
appropriate. This provision is proposed
to ensure that hazardous waste from a
temporary land-based no migration
storage unit is not merely transferred to
another land-based storage or disposal
unit in an effort to circumvent the
treatment requirements.
3. Other Demonstrations
In certain cases, conditional variances
may also be appropriate for
performance assessments in units other.
than land -treatment and temporary
storage. For example, B petitioner
seeking a variance for a subpart Xnnit
such as A geologic repository may need
to test waste in-situ to determine that
migration will not occur over the long
term. In this .case, the petition would
have to show that waste would not
migrate during ihe period of the
demonstration. No migration variances
for such test demonstrations would be
issued unless the Agency believes that a
subpart X-unit has a reasonable chance
of successfully demonstrating no
migration over the long term.
Furthermore, the petition also must
assure that all waste would he removed
if the test demonstration failed..
4. Monitoring for'New Units
As discussed earlier in this preamble.
the Agency is proposing at $ 28&8{c)(3)
that approval of a no -migration variance
for a new unit shall be conditioned upon
Agency review and approval of
monitoring data, gathered subsequent to
unit operation; these data must show
that no migration of hazardous
constituents is occurring. The Agency is
proposing this approach because it
recognizes that monitoring data on
potential releases usually will not be
available for new units. (However,
where any monitoring data are available
for a new unit, as a result of field test
plots, etc., such data may be required as
part of a no migration petition.)
Similarly, an existing unit must also
continue to demonstrate no migration
through monitoring data collected during
its operation. Approval of the no
migration variance for an existing unit
likewise is conditioned upon such
operational monitoring data confirming
no migration. The Agency requests
comments on this approach.
F. Additional Demonstrations for the Air
Medium
In addition to demonstrating no
migration of hazardous constituents
from the unit petitions also are required,
undercurrent regulations at 40 CFR
26a£. to demonstrate compliance with
other laws. For the air medium, this
requirement necessitates that petitioners
provide a certification of compliance
with OSHA workplace air standards
and the benzene NESHAP. and, once
promulgated, provide data
demonstrating compliance with die
RCRA Section 3004{n) standards for
controlling air emissions from hazardous
waste treatment storage, and disposal
facilities.
1. OSHA Standards
OSHA workplace air standards may
be found at 29 CFR part 1910. These '
standards include short-term (1-hour
and an 6-hour average) air
concentrations which must not be
exceeded, or .protective breathing
apparatus must be worn by workers.
2. NESHAP for Benzene
Similarly, successful petitions also
must include a certification of
compliance with the National Emission
Standards for Hazardous Air Pollutants
(NESHAP) for benzene at 40 CFR part
61, published March 7,1990.55 FR 8292.
Tiiis regulation .requires certain facilities
that manage greater than 10 Mg/yr of
benzene in their waste to control certain
waste streams, normally those with
greater than 20 ppmw benzene in the
waste. Facilities subject to the benzene
NESHAP control requirements would be
required to treat the waste to lower
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35348 'Federal Register / Vol. 57. No. 155 / Tuesday. August 11. 1992 / Proposed Rules
benzene concentrations to a maximum
of 10 ppmw prior to land disposing in an
open (uncovered) unit.
3.3004(n) Standards
a. Introduction. The EPA is proposing
today to amend 40 CFR 268.6 to include
an additional condition that the
applicant for a no migration variance
must satisfy. This condition would
require that the applicant demonstrate
in the no migration petition that the
particular land treatment unit, landfill,
or waste pile meets certain organic air
emission standards proposed by EPA
under 40 CFR part 264 subpart CC in a
separate rulemaking, and would be
imposed pursuant to RCRA section
3004(n) as well as sections 3004(d), (e),
and (g). Specifically, as a condition for a
no migration variance to dispose a
waste having a volatile organic
concentration equal to or greater than a
certain action level, proposed as 500
ppmw,2 in a land treatment unit, landfill,
or waste pile, an owner or operator
would need to install and operate on the
land disposal unit a cover or enclosure
connected through a closed vent system
to a control device. As an alternative to
using the control equipment, the owner
or operator could elect to treat the waste
(by a meano other than by waste
dilution) to reduce the volatile organic
concentration to a level less than the
proposed 500 ppmw action level before
land disposal occurs.
b. Background. Section 3004(n) of
RCRA directs EPA to "* * * promulgate
regulations for the monitoring and
control of air emissions from hazardous
waste treatment, storage, and disposal
facilities (TSDF), including but not
limited to open tanks, surface
impoundments, and landfills, as
necessary to protect human health and
the environment." To implement the
Congressional directive of RCRA section
3004(n), EPA decided to use a phased
approach so that standards could be
implemented for certain TSDF emission
sources as quickly as possible. In .
rulemakings separate from today's
proposal, EPA first promulgated air
emission standards for certain
hazardous waste treatment processes
(i.e., distillation, fractionation, thin-film
evaporation, solvent extraction, steam
« This level Is not -el finalized.On July 22.1991
(58 FR 33490). EPA proposed a level of 500 parts per
million by weight (ppmw) as the action level for
organic air emissions from TSDFs. This proposed
level It subject to change as a mult of public
comment* on the proposed rule. However, for the
remainder of this discussion, the action level shall
be referred to is the proposed SCO ppmw level. See
elsewhere in this preamble for more discussion of
EPA considerations In proposing this 500 ppmw
action level.
stripping, and air stripping) to coincide
with the development of regulations
under RCRA section 3004(m) restricting
the land disposal of untreated
hazardous wastes (55 FR 25454; June 21,
1990). These final air emission standards
apply to certain TS)[)F treatment unit
process vents (Subpart AA in 40 CFR
parts 264 and 265) and TSDF equipment
leaks (Subpart BB in 40 CFR parts 264
and 265). For the second phase EPA has
proposed standards, to be added to 40
CFR parts 264 and J265 as Subpart CC,
that would require lowners and
operators of TSDF subject to the RCRA
Subtitle C permitting requirements to
install and operatej organic emission
controls on certain! tanks, surface
impoundments, containers, and
miscellaneous units (56 FR 33490; July
22,1991). These proposed standards are
referred to in the remainder of this
section as the "Subpart CC rulemaking."
The TSDF air emission standards
established by the [first and second
phase rulemakingS; under RCRA section
3004(n) will control emissions of not
only air toxics but jalso organic
compounds that react photochemically
with other chemical compounds in the
atmosphere to form ambient ozone.
Elevated ambient ozone concentrations
are a major air pollution problem in
most large cities in the United States.
The EPA estimates that more than 100
million people live in areas in which
ambient ozone concentrations exceed
acceptable health-based levels defined
by the national ambient air quality
standards. Ozone is a pulmonary irritant
that can impair normal human
respiratory functions and can aggravate
pre-existing respiratory diseases.
Exposure to ozone also increases the •
susceptibility to bacterial infections. In
addition, ozone can reduce the yields of
citrus, cotton, potatoes, soybeans, '
wheat, spinach, and other crops as well
as damage conifer forests, and cause a
reduction in the fruit and seed diets of
wildlife. Thus, EPA believes that organic
emissions from land disposal units and
other TSDF sources must be limited to
levels that not only will adequately
protect the public from the risk resulting
from exposure to air toxics (by
demonstration of no migration of
hazardous constituents from the •
disposal unit), but also will adequately
protect human health and the
environment from exposure to elevated-
levels of ambient ozone.
The EPA considered and decided not
to include land treatment units, landfills,
and waste piles in the Subpart CC
rulemaking. Estimates of existing
nationwide organic emissions from land
treatment units, landfills, and waste
piles (based on data for the year 1985)
are approximately 113,000 megagrams
per year (Mg/yr). To characterize
organic air emissions from TSDF
sources to determine the applicability of
the Subpart CC rulemaking, it first was
necessary for EPA to make certain
assumptions about how the hazardous
waste management industry would
respond to the land disposal restrictions.
The EPA assumed that all hazardous
waste would be treated to meet the
BOAT treatment standards prior to
placement of the waste in a land
disposal unit. Furthermore. EPA
assumed that compliance with the
•BOAT treatment standards would
remove or destroy organics in the waste
and, consequently, reduce the organic
content of the wastes placed in land
disposal units. Based on these
assumptions, EPA estimated that
nationwide organic emissions from land
treatment units, landfills, and waste
piles would be reduced to
approximately 2,000 Mg/yr. Because the
estimate results indicated that a large
reduction in organic emissions would be
achieved by treating wastes to BOAT
levels prior to land disposal, EPA
decided to defer developing standards
for land treatment units, landfills, and
waste piles to a time when the
protectiveness of the land disposal
restrictions with respect to TSDF air
.emissions could be better assessed.
Since this decision was made, EPA
has developed and clarified in this
notice procedural and substantive
requirements in 40 CFR part 268 for
petitioning EPA and demonstrating that
there will be no migration of hazardous
constituents from a land disposal unit.
In accordance with the no migration
petition requirements specified under 40
CFR 268.6, an owner or operator of a
particular TSDF would be allowed upon
approval from EPA to dispose in a land
treatment unit landfill, or waste pile
specific hazardous wastes that are
untreated or otherwise do not meet the
BOAT treatment standards. Because the
possibility now exists that some
hazardous wastes may not be treated to
meet BOAT treatment standards prior to
disposal in land treatment units,
landfills, and waste piles, EPA
reassessed the need to apply air
emission controls to these units for the
purpose of limiting emissions of those
organic compounds which react
photochemically in the atmosphere to
, form ambient ozone (referred to here as
"ozone precursors").
As previously discussed in this
preamble, a condition for approval of a
no migration variance is a
demonstration by the applicant that no
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Federal Register / Vol. 57. Nc.155 / Tuesday,. August 11. 1992 / Proposed Rules
35949
migration of hazardous constituents will
occur from the disposal unit into the air
for as long as the waste remains
hazardous. However, air emissions from
land treatment units, landfills, and
waste piles contain individual organic
compounds which have been identified
as ozone precursors but have not been
listed as hazardous constituents. For a
land treatment unit, landfill, or waste
pile operated under a no migration
varance in accordance with
requirements established under
authority of RCRA sections 3004 (d), (e),
and (g), the owner or operator would
demonstrate no migration of only those
ozone precursors which are also listed
as hazardous constituents but not all
ozone precursors. Consequently,
significant quantities of ozone
precursors could be emitted from a land
disposal unit granted a no migration
variance. Therefore, EPA concluded that
organic emission standards are needed
for land treatment units, landfills, and
waste piles operated under a no
migration variance to provide ambient
ozone protection.
c. Regulatory approach. Section
3004(n) of RCRA provides EPA with
broad authority to control air emissions
from TSDF sources as necessary to
protectpublic health and the
environment. This authority allows
control of all types of ozone precursors
to provide ambient ozone protection,
and, thus, is the authority EPA is using
to propose the organic emission
standards for TSDF land treatment
units, landfills, and waste piles operated
under a no migration variance. Because
these standards will be narrowly
applied to these units, the standards are
being proposed as part of the no
migration variance rules in 40 CFR 268.6
even though they are under the authority
of RCRA section 3004{n). In addition, as
noted in a recent opinion, EPA retains
residual authority to control non-
hazardous constituents under the
section 3004 (d). (e). and (g) variance
process by virtue of the general
protectiveness finding contained in the
opening clause of those provisions.
NRDC v. EPA No. 88-1657 (D.C. Cir.
June 29,1990). -
The need to apply air emission
controls to a particular TSDF waste
management unit can be determined by
the emission potential of the particular
hazardous waste that is placed in the
unit For the subpart CC proposal, EPA
evaluated possible formats and decided
that the concentration of volatile
organics in the waste is an appropriate
indicator of the emission potential for a
TSDF waste management unit The
volatile organics concentration
{expressed in parts per million by
weight {ppmw) as measured by the
proposed EPA reference method 25D) is
the total quantity of organics in a liquid
or solid state that is likely to volatilize
and, consequently, could be emitted to
the atmosphere if not controlled.
Therefore, the concentration of volatile
organics in the waste is an appropriate
indicator of the emission potential for a
TSDF land treatment unit, landfill, or
waste pile.
The EPA evaluated different volatile
organic concentration action levels for
the subpart CC proposal (i.e., 0 ppmw,
500 ppmw, 1.500 ppmw, and 3,000
ppmw) above which waste would need
to be managed In units equipped with a
cover vented to a control device or, for
some quiescent sources, only a cover.
Based on an evaluation of the options, a
volatile organic concentration action
level of 500 ppmw was proposed for the
subpart CC organic emission standards
for TSDF tanks, surface impoundments,
and containers. For standards such as
these that apply to interrelated sources
to be effective, they must have uniform
coverage of applicability from the point
of waste generation through the point
where the organics in the waste are
either recycled, removed, or destroyed.
When only a cover is applied to a tank,
surface impoundment, or container, the
volatilization of the organics in the
waste is inhibited, but the organics are
neither removed or destroyed. When a
cover vented to a control device is
applied to a tank, surface impoundment.
or container, only that portion of the
organics in the waste which are actually
emitted from the waste management
unit and vented to the control device are
removed or destroyed. Organics still
remain in the waste and can potentially
be emitted from subsequent waste
management units located downstream
of the controlled waste management
unit Until organics in the waste are
removed, recycled, or destroyed, they
will still be emitted to the atmosphere
from uncontrolled downstream waste
management units. Selecting a higher or
lower action level for land disposal
units than was selected for the storage
and treatment-units that would be
regulated by the subpart CC rulemaking
would alter the effectiveness of the
proposed standards. A higher action
level would allow a portion of the
organics retained in the waste by the
use of suppression controls (l.e., covers)
on the upstream waste management
units to be emitted from the
uncontrolled land disposal unit A lower
action level would require that controls
be used on land disposal units receiving
wastes from upstream waste.
management units using no controls.
Therefore, to maintain the effectiveness
of the proposed subpart CC standards
and avoid improper application of
controls, it is necessary to apply the
same action level through disposal of
the waste. Thus, EPA also is proposing
in today's rule a volatile organic
concentration action level of 500 ppmw
for land treatment units, landfills, and
waste piles, to be consistent with the
proposed approach for subpart CC. In
the final rule, this value may change to
maintain consistency with the final
subpart CC rule.
To establish the specific control
requirements for a land treatment unit.
landfill, or waste pile, EPA first
reviewed the different emission control
methods that can be used to reduce
organic emissions from these land
disposal units. These methods include
using: (1) A cover to suppress the
release of organics from the waste; (2) a
closed vent system and control device in
combination with the cover to capture
and control the organic emissions
released from the waste; or (3) treatment
of the waste to remove or destroy the
organics in the waste prior to placement
of the waste in a land disposal unit.
Organic emissions can be suppressed
by applying a cover that directly
contacts or encloses the waste medium
thereby creating a physical barrier over
the waste surface which inhibits the
volatilization of organics. The EPA has
already proposed standards under the
Subpart CC rulemaking that would
require the application of covers to
surface impoundments. Since surface
impoundments can be many acres in
size, and even larger than land
treatment units, landfills, and waste
piles, the certain covers suitable for
surface impoundments could be
installed on these land disposal units.as
well. The covers can be fabricated from
either rigid material panels that are
essentially impervious to organic
permeation or from flexible, synthetic
membrane sheets that have a high
resistance to permeation of many types
of organic compounds frequently
contained in wastes managed at TSDF.
Also, with proper installation and
maintenance, leakage from cover seams
and fittings can be limited to very low
levels. Thus, covers are appropriate for
controlling organic emissions from
certain types of waste management
units holding the waste for relatively
short periods of time such as for
temporary storage of the waste.
However, waste that is placed in a land
disposal unit remains in the unit for
many years. Consequently, if the
organics are not removed or destroyed
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35950
' Federal Register / Vol. 57, No. 155 / Tuesday. August 11. 1992 / Proposed Rules
prior to placement in the land disposal
unit, the potential still remains that the
organics in the waste will be released to
the atmosphere over the long term as the
organics in the waste slowly escape by
permeation of the cover material or
through small leaks in cover seams and
fittings. Therefore, using only a cover
would not effectively control organic
emissions from a land disposal unit.
To effectively reduce organic
emissions from a covered land disposal
unit, the cover needs to be vented to a
control device. Using this control
combination, the organic vapors
released from the waste are captured in
the enclosed space beneath the cover
and then the captured gas stream is
vented to a control device where the
organics are removed or destroyed. A
variety of control devices are available
that are capable of achieving high
organic emission control efficiencies.
Organic removal control devices such as
carbon adsorbers and condensers
extract the organics from the gas stream
and recover the organics for potential
recycling or reuse. Organic destruction
control devices such as vapor
incinerators destroy the organics in the
gas stream by oxidation of the organic
compounds, primarily to carbon dioxide -
and water. The type of control device
best suited for reducing emissions from
a particular covered land treatment unit,
landfill, or waste pile depends on the
size of the unit and the characteristics of
the organic vapor stream vented from
the unit. To achieve the maximum
potential control device organic
emission reduction efficiency, the vent
system used to convey the organic ,
vapors from the covered unit to a
control device must be closed so that no
organic vapors can escape directly to
the atmosphere prior to the gas stream
entering the control device. A closed
vent system consists of piping,
connections, and, in some cases, a flow
inducing device (e.g.. a fan or blower) to
transport the gas stream to the control
device.
An alternative to using a cover vented
to a control device would be to treat the
waste by a means other than by waste
dilution that reduces the volatile organic
concentration to a level less than the
proposed 500 ppmw. In this case, the
owner or operator could select from a
number of treatment processes that are
effective in reducing the organic content
of the waste below the proposed 500
ppmw action level but would not
necessarily meet the specific BDAT
treatment standards applicable to the
waste. Treating the waste in this manner
may offer significant cost savings to a
TSDF owner or operator compared to -
the cost of installing and operating a
cover vented to a Control device on the
affected land disposal unit, and thus
may be the preferred way to comply
with standards, j
Given the need to limit organic
emissions from TSDF land disposal
units, and the suitability of applying the
air emission controls selected for
surface impoundments to other types of
land disposal units, EPA is proposing
today to include an additional condition
for obtaining a noimigration variance.
This condition would require that each
land treatment unit, landfill, or waste
pile receiving the Waste be managed in
compliance with the air emission
standards for certain surface
impoundments as [specified in the 40
CFR 264 subpart CC proposal. To
comply-with these standards, the owner
or operator would either install and
operate the specified air emission
control equipment, or elect to treat the
waste before land disposal by a means
other than by waste dilution to reduce
the volatile organic concentration to a
level less than die proposed 500 ppmw.
The remainder of [this section
summarizes'the specific proposed
requirements of 40 CFR part 264 subpart
CC that EPA proposes to include in 40
CFR 268.6 as a condition for obtaining a
no migration variance.
d. Proposed requirements. The
proposed control equipment
requirements are to install, operate, and
maintain either a cover or enclosure,
connected through a "closed vent system
to a control device. These requirements
would apply to any land treatment unit,
landfill, or waste pile granted a no
migration variance, including units for
which a variance'had already been
granted. The cover (i.e. flexible
membrane cover, air-supported
structure, or any other type selected by
the owner or operator) and all openings
on the cover are to be designed and
operated with no detectable emissions
' as determined by Reference Method 21
specified in 40 CFR part 60 appendix A.
All openings in the cover such as
hatches and access doors would need to
be sealed (e.g., gasketed, latched] and
kept closed at all times except when
necessary to use [the opening for waste
loading, inspection, or sampling or for
equipment inspection, maintenance, or
repair. The closed vent system would be
required to be designed, installed
operated, and maintained so that there
are no detectable emission as
determined by monitoring the system
using Reference, Method 21. Each control
device would be [required to reduce the
organics in the gas stream vented to it
by at least 95 percent or, if an enclosed
combustion device is used, to a total
organic concentration of 20 ppm by
volume as compounds determined by
Reference Method 18 specified in 40
CFR part 60 appendix A. To document
that a control device achieves this
performance level, the owner or
operator would be required to use either
detailed design specifications for the
control device or results of control
device performance testing.
Determination that a waste contains
less than the proposed 500 ppmw would
be made by either direct measurement
or knowledge of the waste at the point
of waste generation. Direct
measurement of the waste volatile
organic concentration would be
performed using the proposed EPA
Reference Method 25D ( 56 FR 33490;
July 22,19S1). Knowledge of the waste
would constitute documentation that
conclusively shows that the waste
volatile organic concentration is below
the specified limit under all conditions.
For example, a company that generates
a hazardous waste as a result of
manufacturing a product could provide
EPA with evidence that no organic
chemicals are used in the manufacturing
process. The waste determinations
would need to be performed initially
and repeated at least annually and,
additionally, whenever the process or
operation generating the waste has
changed in such a manner that the
volatile organic concentration may be
increased.
The proposed standards would
require the owner or operator to include
certain emission control equipment
items as part of the weekly inspections
the owner or operator is already
conducting to comply with existing
RCRA standards (e& 40 CFR 264.273 for
land treatment units, 40 CFR 264.303 for
landfills. 40 CFR 264.254 for waste piles).
For example, covers would need to be
checked once per week by the facility
workers to ensure that equipment is
being used properly (e.g. covers are
closed and latched except when
workers require access to the unit) and
the equipment is being maintained in
good condition (e.g. no holeo or gaps
have developed in covers).
Continuous monitoring of control
device operation would be required.
This would involve the use of
instrumentation to measure and record
operating parameters that indicate
whether the control device is operating
correctly or is malfunctioning.
Semiannual leak detection monitoring
using Reference Method 21 would also
be required for, certain cover
components to ensure gaskets and seals
are in good condition, and for closed
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Federal Register / Vol. 57, No. 155 / Tuesday, August 11, 1992 / Proposed Rules
35951
vent systems to ensure all fittings
remain leak-tight.
The proposed recordkeeping
requirements would require the owner
or operator to record certain information
documenting emission control
equipment performance and
maintenance in the on-site facility
operating logs or files. This information
would be available for review by EPA
enforcement personnel during an on-site
compliance inspection. The information
to be collected and recorded would
include: the results of all waste
determinations for volatile organic
concentration and organic vapor
pressure; design specifications for
closed vent systems and control devices;
and emission control equipment
inspection and monitoring records.
The proposed reporting requirements
would require the owner or operator to
submit a report to EPA only when: (1) A
control device malfunction is not
corrected within 24 hours of detection;
or (2) a waste placed in an open land
disposal unit exceeds the proposed 500
ppmw volatile organic concentration. If
either of these events (referred to here
as "exceedances") occur, the owner or
operator would be required to maintain
a record of the exceedance. For waste
exceedances, the owner or operator
would be required to submit a report to
EPA within 30 days after the waste
determination explaining why the waste
was not managed in accordance with
the requirements of the standards. For
control device exceedances, the owner
or operator would be required to submit
a report to EPA on a semiannual basis
describing any exceedances that
occurred during the past 6-month period
and explaining why each exceedance
occurred.
IV. State Authorization
A. Applicability of Rules in Authorized
States
Under section 3008 of RCRA, EPA
may authorize qualified States to
administer and enforce the RCRA -
program within the State. (See 40 CFR
part 271 for the standards and ' .
requirements for authorization.) . . ,
Following authorization, EPA retains
enforcement authority under sections
3008,7003, and 3013 of RCRA, although
authorized States have independent
enforcement authority.
Prior to the Hazardous and Solid
Waste Amendments of 1984 (HSWA). a
State with final authorization
administered its hazardous waste
program entirely in lieu of EPA
administering the Federal program in -
that State. The Federal requirements no
longer applied in the authorized State.
and EPA could not issue permits for any
facilities in the State which the State
was authorised to permit. When new,
more stringent Federal requirements
were promulgated or enacted, the State
was obliged to enact equivalent
authority within specified time frames.
New Federal requirements did not take
effect in an authorized State until the
State adopted the requirements as State
law.
In contrast, under section 3006{g) of
RCRA, 42 U.S.C. 6928{g). new
requirements and prohibitions imposed
by HSWA take effect in authorized
States at the same time that they take
effect in nonauthorized States. EPA is
directed to carry out those requirements
and prohibitions in authorized States,
including the issuance of permits, until
the State is granted authorization to do
so. While States must still adopt
HSWA-related provisions as State law
to retain final authorization, the HSWA
requirements apply in authorized States
in the interim.
B. Effect on State Authorizations
Today's propoed no migration rule,
which also limits organic emissions from
land treatment landfill, and waste pile
units operating under a no migration
variance, is proposed pursuant to
sections 3004 (d), (e), fe), and (n) of
RCRA (42 U.S.C. 6924 (d), (e). (g). and
(n)), provisions added by HSWA
Therefore, the Agency is proposing to
add the requirements to Table 1 in 40
CFR 271.10). which identifies the
Federal program requirements that are
promulgated pursuant to HSWA and
take effect in all States, regardless of
authorization status. States may apply
for either interim or final authorization
for the HSWA provisions identified in
Table 1, as discussed in this section of
the preamble.
As noted above, EPA will implement
today's rule in the authorized States
until they modify their programs to
adopt these rules and the modification is
approved by EPA Because this rule is
proposed pursuant to HSWA, a State
submitting a program modification may
apply to .receive either interim or final
authorization under section 3006(g)(2) or
section 3006(b), respectively, on the
basis of requirements that are
substantially equivalent or equivalent to
EPA's. The procedures and schedule for
State program modifications for either
interim or final authorization are
described hi 40 CFR 271.21. It should be
noted that all HSWA interim
authorizations will expire January 1,
1993 (see 40 CFR 271.24(c)).
40 CFR 271.2l(e)(2) requires that
States that have final authorization must
modify their programs to reflect Federal
program changes, and must
subsequently submit the modifications
to EPA for approval. The deadlines by
which a State-must modify its program
to adopt this proposed regulation will be
determined by the date of promulgation
of the final rule, in accordance with 40
CFR 271.21(e). These deadlines can be
extended in certain cases (40 CFR
2ri.21(e)(3}). Once EPA approves the
modification, the State requirements
become Subtitle C RCRA requirements.
A State that submits its official
application for final authorization less
than 12 months after the effective date
of these standards is not required to
include standards equivalent to these
standards in its application. However,
the State must modify its program by the
deadlines set forth in 40 CFR 271.21(e).
States that submit official applications
for final authorization 12 months after
the effective date of these standards
must include standards equivalent to
these standards in their applications. 40
CFR 271.3 sets forth the requirements a
State must meet when submitting its
final authorization application.
In addition to meeting the
requirements in 40 CFR part 271, a State
seeking authorization for today's rules
must demonstrate the ability to capably
implement the base RCRA program, as
well as the additional HSWA elements.
EPA's assessment of a State's capability
will reflect an evaluation of the State's
entire authorized program. The
assessment will examine not only
whether a State-is effectively
implementing the base program, but also
how that State may implement
additional program areas.
States with authorized RCRA
programs (but which are not yet
authorized for the requirements in
today's rule) may already have
requirements under State law similar to
those in today's rule. These State
regulations have not been assessed
against the Federal regulations being
proposed today to determine whether
they meet the tests for authorization,.
Thus, a State is not authorized to
implement these requirements in lieu of
EPA until the State program
modification is approved..Of course.
States with existing standards may
continue to administer and enforce their
standards as a matter of State law. In
implementing the Federal program, EPA
will work with States under cooperative
agreements to minimize duplication of
efforts. In many cases, EPA will be able
to defer to the States in their efforts to
implement their programs, rather than
take .separate, actions under Federal
authority.
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Federal Register / Vol. 57, No. 155 / Tuesday, August 11, 1992 / Proposed Rules
As of the date of this proposal, no
Slates have received authorization to
act on HSWA no migration petitions
pursuant to the initial codification of
sections 3004(d). (e), and (g) at 40 CFR
268.8 (51FR 40572, November 7,1988).
The November 7,1986 Codification Rule
explains that a State's authorization
status may change in response to further
implementation of HSWA, i.e., when
EPA publishes regulations which further
define initially codified rules. Had any
States been authorized for no migration
under the November 7,1986 Codification
Rule, they would no longer be
authorized under RCRA to implement
these no migration rules when finally
promulgated. (No migration regulated as
a matter of State law is, of course, not
affected.) This is because today's rules
are more stringent than the initial
codification of no migration
requirements and, as explained above,
the authorized State's regulations have
not been assessed against the new
standards. A State previously
authorized for no migration may, of
course, apply for and receive
authorization for today's requirements.
States are not required to adopt the
existing no migration regulation
(§ 268.6), since it is a variance provision,
and not adopting results in a more
stringent State program. However, any
State that has adopted the no migration
regulation (§ 268.6) and is seeking
authorization under part 271, must adopt
the revisions to § 268.6 proposed in
today's rule, since these revisions result
in § 268.6 being more stringent.
Similarly, as of the date of this
proposal, no States have received
authorization to act on HSWA section
3004(n) air emission standards for
hazardous waste landfill, waste pile, or
land treatment units, proposed today at
§ 268.6(b)(6). States may also apply for
and receive authorization for today's
proposed 3004(n) requirements.
V. Regulatory Requirements
A. Regulatory Impact Analysis
Executive Order 12291 requires EPA
to determine whether a new regulation
will be "major" and, if so, that a
Regulatory Impact Analysis be
conducted. A major rule* is defined as a
regulation that is likely to result in:
1. An annual effect on the economy of
SI00 million or more;
2. A major increase in costs or prices
for consumers, individual industries,-
Federal, State, or local government
agencies or geographic regions; or
3. Significant adverse effects on
competition, employment, investment,
productivity, innovation, or the ability of
United States-based enterprises to
compete with foreign-based enterprises
in domestic or export markets.
The Agency has determined that
today's proposed rjule is not a major
rule, because it does not meet the above
criteria. Today's action is an
interpretation of existing statutory and
regulatory languagje and will not impose
further resource burdens on the
regulated community, other than the
voluntary and already existing costs of
compiling the no migration petitions
themselves. In fact, no migration
variances granted by the Agency
provide relief from the costs of meeting
BDAT treatment standards prior to land
disposal, as required under the land
disposal restrictions. Therefore, since
this proposed rule is part of the overall
program for no migration variances for
land disposal of prohibited hazardous
waste, reduced costs to the regulated
community result. The national cost
savings for units receiving a no
migration variance, which allows land
disposal of prohibited hazardous waste,
are estimated to be substantial when
compared with the costs to owners and
operators of meeting the BDAT
treatment standards for the same
wastes. The Agency requests comments
today on the estimated costs to the
regulated community of preparing no
migration petitions consistent with the
existing procedural requirements as
proposed to be amended, and also
comments on the estimated cost savings
to be realized from receipt of a variance.
The Office of Management and Budget
(OMB) has reviewed today's proposed
rule as required by Executive Order
12291. |
B. Regulatory Flexibility Act
I certify that within the scope of the
Regulatory Flexibility Act, these
regulations will not have a significant
economic impact on a substantial
number of small entities. The regulations
pertain to an optional variance, and
impose no new regulatory or economic
requirements on small businesses.
C. Paperwork Redaction Act
The information collection
requirements in this proposed rule have
been approved by the Office of
Management and Budget (OMB) under
the Paperwork Reduction Act 44 U.S.C.
3501 et. seq. and have been assigned
OMB control number 2050-0062.
VI. References ; ,
(1) VS. EPA. 19914 Integrated Risk
Information System (IRIS). On-line. Office of
Health and Environmental Assessment,
Environmental Criteria and Assessment
Office, Cincinnati, OH.
(2) U.S. EPA, 1990. Carcinogenic Risk
Assessment Verification Endeavor (CRAVE)
Risk Estimate for Carcinogenicity. Office of
Health and Environmental Assessment,
Environmental Criteria and Assessment
Office, Cincinnati, OH.
(3) U.S. EPA, 198ft Superfund Public Health
Evaluation Manual.
(4) U.S. EPA, Draft, July, 1992. No-Migration
Variances to the Hazardous Waste Land
Disposal Prohibitions: A Guidance Manual
for Petitioners.
(5) U.S. EPA, 198ft Test Methods for
Evaluating Solid Wastes, Physical/Chemical
Methods, EPA SW-846, Third Edition.
(6) US. .EPA, May, 1989. No Migration Cost
Analysis.
List of Subjects
40 CFR Part 268
Hazardous waste, Reporting and
recordkeeping requirements.
40 CFR Part 271
Administrative practice and
procedure. Confidential business
information. Hazardous materials
transportation, Hazardous waste,
Indians—lands, Intergovernmental
relations, Penalties, Reporting and
recordkeeping requirements, Water
pollution control, Water supply.
Dated: July 12,1992.
William K. Reilly,
Administrator.
For the reasons set out in the
preamble, 40 CFR part 268 is proposed
to be amended as follows:
PART 268—LAND DISPOSAL,
RESTRICTIONS
The authority citation for part 268
continues to read as follows:
Authority: 42 U.S.C. 6905,6912(a). and 6924.
Subpart A—General
2. In 40 CFR part 238, subpart A, it is
proposed to amend § 268.6 by revising
paragraph (a) introductory text; by
adding a semicolon at the end of
paragraph (a)(3) in place of the period,
by removing "and," at the end of
paragraph (b)(4) and by adding a
semicolon at the end of paragraph (b)(5)
in place of the period; by revising
paragraphs (a)(4) and (f)(3); by
redesignating paragraphs (c)(3) through
(c)(5) as paragraphs (c)(4) through (c)(6),
and paragraphs (j) through (n) as
paragraphs (m) tiirough (q), respectively;
by removing the words ", and" at the
.end of newly designated paragraph
(c)(4) and adding in their place a period;
and by adding new paragraphs (b)(6), '
(c)(3). (j), (k). (1), and (r) to read as
follows:
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Federal Register / Vol. 57. No. ISS / Tuesday. August 11. 1992 / Proposed Rules
35953
§268.6 Petitions to allow land disposal of
a waste prohibited under subpart C of part
268.
(a) Any person seeking an exemption
from a prohibition under subpart C of
this part for the disposal of a restricted
hazardous waste in a particular unit or
units must submit a petition to the
Administrator demonstrating, to a
reasonable degree of certainty, that
there will be no migration of hazardous
constituents from the land disposal unit
or injection zone for as long as the
wastes remain hazardous. For the
purposes of this demonstration, "no
migration'of hazardous constituents
from the land disposal unit or injection
zone" (or simply, "no migration") shall
be interpreted to mean that
concentrations of hazardous
constituents released from the unit do
not and shall not exceed Agency-
approved health-based (or
. environmental-based, where the Agency
determines to be appropriate) levels at
the unit boundary and beyond. A
petition must demonstrate that no
migration is occurring or shall occur to
the ground water, surface water, soil, or
air media. The demonstration must
include the following components:
**'**»
(4) A monitoring plan that detects any
migration of hazardous constituents
from the unit to the ground water,
surface water, soil, or air at the earliest
practicable time, unless the
Administrator determines that
monitoring of one or more media is
unnecessary or technically infeasible or
impractical;
*****
. (b) * * *
(6) Each land treatment unit, landfill,
or waste pile receiving the hazardous
waste(s) in accordance with a variance
granted under this section must be '
managed in compliance with the air
emission standards for Surface
impoundments in §§ 264.1081,264.1082,
264.1084{b)(l), 284.1086. 264.1087,
264.1088, and 264.1089 of this chapter.1
(c) * * *
(3) For an existing unit at the time a
no migration petition is submitted for
that unit, the monitoring data collected
according to the monitoring plan
specified under paragraph (c)(l) of this
1 Theie sections were proposed at 56 FR 33490,
July 22.1901. EPA will finalize these sections before
the No Migration final rule is published.
section must be submitted to the
Administrator prior to granting of the
variance, as part of the petition, for his
review arid consideration. For new and
existing units, granting of a variance
under this section shall be conditioned
upon Agency review and approval of
monitoring data, gathered subsequent to
unit operation, that confirm no migration
of hazardous constituents from the unit.
For a new unit, the Agency may require
that monitoring data for one or more
media, where reasonably available, be
submitted to the Administrator prior to
granting of the variance, as part of the
petition, for his review and
consideration.
* « * * *
ffl * * * .
(3) Following receipt of the
notification the Administrator will
determine, within 60 days of receiving
notification, whether the owner or
operator can continue to receive
prohibited waste in the unit and
whether the variance is to be revoked.
Should the Administrator determine that
migration of hazardous constituents
from the unit is occurring or has
occurred (i.e.. that a release from the
unit exceeds Agency-approved health-
based or environmental-based levels),
the Administrator shall revoke the
variance. The Administrator shall also
determine whether further examination
of any migration is warranted under
applicable provisions of part 284 or part
265 of this chapter.
*****
0) For land treatment units that have
not completed the land treatment
demonstration required under 40 CFR
264.272, granting of a variance under this
section shall be conditioned upon
completion of the land treatment
demonstration .on or before the date two
years after the date of granting of this
variance, or the Administrator shall
revoke the variance.
(k) For land treatment units where
concentrations of hazardous
constituents in the treatment zone
exceed Agency-approved health-based
levels for soil ingestion at closure, the
facility owner or operator must perform
a modeling procedure or a test
procedure, which the Agency
determines is valid for each type of
hazardous constituent present, to
demonstrate leachability Dependent on
the results of these analyses, the unit's
closure and post-closure plans must
require either
(1) Capping with clean soil at the end
of the post-closure care period, if the
procedures show no reasonable
potential for migration of hazardous
constituents from the unit at
concentrations exceeding Agency-
approved health-based levels; or
(2) Removal of hazardous constituents
at closure, to concentrations at or below
Agency-approved health-based levels
for soil ingestion, if hazardous
constituents may potentially be released
from the unit at concentrations
exceeding Agency-approved health-
based levels.
(1) For land disposal units that are
used to temporarily store prohibited
waste, a variance granted under this
section shall be conditioned upon the
following requirements:
(1) The unit's closure plan must
provide for clean closure, both
technically and with adequate financial
assurance, within a specified time
period; and
(2) At closure, the waste must be
managed in accordance with the
requirements of this part.
*****
(r) On the basis of any information,
should the Administrator at any time
determine that migration of hazardous
constituents from the unit is occurring or
has occurred (i.e., that a release from the
unit exceeds Agency-approved health-
based or environmental-based levels),
or that a variance previously granted
under this section is for any other
reason no longer protective of human
health and the environment, the
Administrator shall revoke the variance.
*****
PART 271—REQUIREMENTS FOR
AUTHORIZATION OF STATE
HAZARDOUS WASTE PROGRAMS
1. The authority citation for part 271
continues to read as follows:
Authority: 42 U.S.C. 6905,6912(a), and 6928.
2. Section 271.1(j) is proposed to be
amended by adding the following entry
to Table 1 in chronological order by date
of publication in the Federal Register to
read as follows:
271.1 Purpose and scope.
* * * * *
(0 * * *
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35954
Federal Register / Vol. 57, No. 155 / Tuesday, August 11, 1992 / Proposed Rules
TABLE 1.—REGULATIONS IMPLEMENTING THE HAZARDOUS AND SOUD WASTE AMENDMENTS OF 1984
Promulgation date
Title of regulation
Federal Register reference
Effective date
tlnsort date of final pubficabon],.
Land Disposal Restrictions "No Migra-1 tlnsert page citation of final rule.].
ton" Variances.
[Insert effective date of final rule.]
|FR Doc. 02-18561 Filed 6-10-92; 8:45 am]
BILUNO CODE AM040-M
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