55114
                                                                         £30-2-^-0

Federal  Register / Vol. 57. No. 227  / Tuesday. November 24, 1992  /  Rules and Regulations
 includes a revision of Air Quality
 Control Regulations 750 (NSPS) and 751
 (NESHAP} as adopted by the New
 Mexico Environment Improvement
 Board. AQCRs 750 and 751 incorporate
 the Federal NSPS and NESHAP by
 reference through November 15. 1991.
   The EPA reviewed the NMED request,
 Air Quality Control Regulations 750 and
 751 and all other information submitted
 by the NMED, including its quest for
 implementation of the delegation of
 these programs. The EPA has
 determined that the State has adequate
 authority and effective procedures for
 implementing and enforcing the NSPS
 and NESHAP programs. Therefore,  EPA
 is delegating full authority to the State
 through November 15, 1991, for NSPS
 and for NESHAP, and authority for the
 technical and administrative review of
 new or amended NSPS and NESHAP
 promulgated by the EPA after November
 15, 1991, subject to conditions and
 limitations of the original delegation
 agreement dated March 15, 1985. It is
 important to  note that no delegation
 authority is granted to the State for both
 Bernalillo County and Indian lands.
 Also, no authority is delegated  to the
•State for 40 CFR part 60. subparl AAA.
 Standards of Performance for New
 Residential Wood Heaters, and for 40
 CFR part 61 for the radionuclide
 NESHAPs. Specifically the subpar.ts for
 which delegation.is excluded are
 Subparts B (National Emission  Standard
 for Radon — 222 Emissions from
 Underground Uranium Mines),  H
 (National Emission Standard for
 Radionuclide Emissions from
 Department of Energy Facilities), I
 (National Emission Standard for
 Radionuclide Emissions from Facilities
 Licensed  by the NRC and Federal  .-
 Facilities not covered by Subpart
 Phosphorus Plants). R (National
 Emission Standards for Radon
 Emissions from Phosphogypsum Stacks),
 T (National Emission Standards for
 Radon Emissions from the Disposal of
 Uranium Mill Tailings), and W  (National
 Emission Standard for Radon — 222
 Emissions from Licensed Uranium Mill
 Tailings).
   Today's notice informs the public that
 the EPA has delegated full authority to
 the State  for implementation and
 enforcement  of the NSPS and NESHAP
 promulgated by the EPA through
 November 15, 1991, and authority for
 technical and administrative review is
 delegated for the new and amended
 standards after that date. All of the
 required information, pursuant  to the
 Federal NSPS and NESHAP (40 CFR
 part 60 and 40 CFR part 61) by sources
 located outside the boundaries of
Bernalilio County and in areas outside
of Indian lands, should be submitted
directly to the New Mexico Environment
Department, Harold Runnels Building.
Room So. 2100, St. Francis Drive, Santa
Fe, New Mexico 87503. Albuquerque/
Bernalillo County is exempt due to this
area being granted delegation-authority
under AQCRs 30 NSPS and 31 NESHAP
to the City of Albuquerque's
Environmental Health Department.
Sources located on Indian lands in the
State of New Mexico should submit
required information to the EPA Region
6 office at the address given in this
notice. All of the inquiries and requests
concerning implementation and
enforcement of the excluded standards
under 40 CFR part 60, Subpart AAA and
40 CFR part 61, subparts  B. H. I, R, T and
W, in the State of New Mexico should
be directed to the EPA Region 6 Office.
  The Office of Management and Budget
has exempted this information notice
from the requirements of Section 3 of
Executive Order 12291.
  This delegation is issued under the
authority of section lll(c} and 112{1)(1)
of the Clean Air Act. as amended (42
U.S.C. 7411(C) and 7412(D)).

List of Subjects

40 CFR Part 60
  Air pollution control. Aluminum.
sulfate plants. Cement industry. Coal, ,
Copper, Electric power plants. Fossil- •
Fuel steam generators. Glass and glass
products. Grain, Iron. Lead. Metals,
Motor vehicles. Nitric acid plants, Paper
and paper industry, Petroleum
phosphate. Fertilizer, Sewage disposal.
Steel. Sulfuric acid plants. Waste
treatment and disposal zinc.

40 CFR Part 61
  Air pollution control. Asbestos.
Benzene, Beryllium, Hazardous
materials. Mercury, Vinyl chloride-.
  Dated: November 3.1992.
Joe D. Winkle,
Acting Regional Administrator.
|FR Doc. 92-28514 Filed 11-23-92; 8:45  am|
BILLING CODE 6SSO-50-M
                             40 CFR Parts 261 and 271

                             IFRL-4536-5]

                             RIN 2050-AC32

                             Hazardous Waste Management
                             System; Identification and Listing of
                             Hazardous Waste; Toxicity
                             Characteristic Revision

                             AGENCY: Environmental Protection
                             Agency.
                                                                    ACTION: Final rule.
 SUMMARY: The Environmental Protection
 Agency (EPA or Agency) is amending its
 hazardous waste regulations under
 Subtitle C of the Resource Conservation
 a.nd Recovery Act (RCRA) for testing
 conducted to evaluate a solid waste for
 the Toxicity Characteristic. Specifically,
 this rule removes the quality assurance
 (QA) requirement found in Method 1311.
 Toxicity Characteristic Leaching
 Procedure (TCLP), for correcting
 measured values for analytical bias
 (also referred to within this rule as spike
 recovery correction). However, this rule
 retains appropriate QA provisions.
 including that matrix spike recoveries be
 calculated and that the method of
 standard additions be employed as the
 quantitation method for metallic
 contaminants when appropriate as
 specified in the method.
 EFFECTIVE DATE: November 24,1992.
 ADDRESSES: The official record for this
 rulemaking (Docket No. F-92-TCLC-
 FFFFF) is located at the U.S.
• Environmental Protection Agency, £01 M
 Street. SW, Washington, DC 20460
 (room M-2427), and is available for
 viewing from 9 a:m. to 4 p.m., Monday
 through Friday, excluding Federal
 holidays. The public must make an
 appointment to review docket materials
 by calling (202) 260-9327. The public ,
 may copy a maximum of 100 pages of
 material from any one regulatory docket
 at no cost; additional copies cost $0.15
 per page.
 FOR FURTHER INFORMATION CONTACT:
 For general information, contact the
 RCRA Hotline at (800) 424-9346 (toll
 free) or call (703) 920-9810; or. for
 hearing impaired, call TDD (800) 553-
 7672 or (703) 486-3323. For information
 concerning the TCLP, contact Kim
 Kirkland, Office of Solid Waste  (OS-
 331). U.S. Environmental Protection
 Agency, 401 M Street, SW., Washington
 DC 20460, (202) 260-4761.
 SUPPLEMENTARY INFORMATION:

 I. Authority
  This amendment to the hazardous
 waste regulations in 40 CFR parts 261
 and 271 is being promulgated under the
 authority of sections 1006. 2002,  3001.
 3002. and 3006 pf the Solid Waste
 Disposal Act of 1976. as amended by the
 Resource Conservation and Recovery
 Act of 1976, as amended [42 U.S.C. 6905.
 6912(a). 6921. 6922, and 6926).

 II. Background
  On February 8,1990 (55 FR 4440). the
 Agencypublished a notice of data
 availability that reopened the comment
                                                                               Printed on Recycled Paper

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          Federal Register / Vol.  57. No. 227 /Tuesday.  November 24.  1992 ^Rul^jmdjtegula^s	55115
 period for a January 23,1989 notice (54
 FR 3212). which proposed to update
 SW-846 and to designate specific
 quality control procedures as mandatory
 For all testing conducted pursuant to
 subtitle C of RCRA. including the TCLP.
 The February, 1990 notice issued for
 comment a revised Chapter One of SW-
 846 entitled "Report on Minimum
 Criteria to Assure Data Quality" which
 included spike recovery correction as
 one of the QA requirements for RCRA
 subtitle C analyses. In that notice, the
 Agency stated that it believed that it
 was appropriate to correct a measured
 concentration for recovery and set out
 its intent to require that reported values
 be corrected for spike recovery. The
 purpose of this requirement was to
 provide more accurate data in those
 situations where there was a significant
 analytical bias in  the data  due to low
 recoveries of the analytes of interest.
   On March 29.1990. (55 FR 11796), EPA.
 promulgated a rule to revise the then
 existing Toxicity Characteristic, which
 Tte used to identify those wastes that are
 hazardous and thus subject to regulation
, under subtitle C of RCRA. The rule
 broadened and refined the scope of the
 hazardous waste regulatory program
 and fulfilled specific statutory mandates
 under the Hazardous and Solid Waste
 Amendments (HSWA) of 1984. The
 regulatory language of the March 29,
 1990 rule replaced the Extraction
 Procedure (EP) toxicity test with the
 Toxicity Characteristic Leaching
 Procedure (TCLP). The TCLP was
  promulgated in appendix II to 40 CFR
  part 261 and was designated as EPA
  Method 1311.  to be incorporated in "Test
  Methods of Evaluating Solid Waste
  (Chemical/Physical Methods)". SW-846.
  The March 29.1990. rule required that
  matrix spike recoveries be calculated
  and that the method of standard
  additions be employed as the
  quantitation method for metallic
  contaminants when appropriate as
  specified in the method.
    On June 29.1990 (55 FR 26986), the
  Agency promulgated a final rule which
  made technical corrections to the March
  29,1990 final rule, including the
  regulatory language in 40 CFR part 261,
  appendix II (Method 1311. the TCLP).
  These corrections reorganized the TCLP
  in 40 CFR part 261. appendix II, to
  correspond to the current version of
  SW-846. In addition, the quality
  assurance section of the TCLP was
  clarified by adding a requirement for the
  spike recovery correction. The spike
  recovery correction requirement was
  added to assure consistency with SW-
  840 Chapter One requirements which
   were proposed in the February 8.1990
notice. Since the objectives to be
achieved through the method of
standard additions were being  .
addressed through spike recovery
correction, that method no longer was
referenced separately in the QA
provisions of the TCLP.
  At the time that the TCLP was
promulgated in its current form on June
29,1990. the Agency expected to
promulgate Chapter One of SW-846. as
proposed on February 8,1990, with the
spike recovery correction requirement
The Agency expected that the
promulgation of Chapter One would
occur prior to the effective date of the
TC final rule. However, the Agency has
not yet promulgated a rule finalizing
Chapter One, as proposed on February
8,1990,  but based upon comments
received on that chapter, the Agency
has reassessed its position respecting
the matrix spike correction requirement.

III. Response to Comments Regarding
Spike Recovery Correction and Basis for
Amendment to 40 CFR Part 261.
Appendix II
  Many of the commenters  to the
February 8.1990 notice indicated that
the requirement for spike recovery
correction should not be mandatory.' In
particular, a number of commenters
raised questions relative to the practical
aspects of implementation of the
requirement (e.g.. how  to add the spike.
how many compounds must be spiked,
how many samples must be spiked) as
well as the burdensome nature of
implementation for wastes  with matrix
 interference problems. Wastes with
 matrix  interferences often require
 dilution in an  attempt to reduce or
 eliminate the interferences. As a result.
 detection limits could be elevated and
 one might not be able to determine if a
 compound of interest is present below
 the  regulatory threshold. In addition.
 interferences  may not  equally affect the
 sample and the spike.  Commertters also
 expressed concern about .bias correction
 when applied to  a constituent that is
 poorly recovered from a sample matrix.
 In the case of zero percent recovery, one
 may not be sure  that the laboratory
 could have detected the  presence of the
 analyte if it were present.
   The  Agency recognizes that spike
 recovery correction is a complex issue
 and now believes that there is a need for
  further evaluation and more detailed
  guidance on the  specific implementation
  procedures. Therefore, in response to
  public comment received oh the
  February 8,1990, Federal Register
    1 Other comments, together with the Agency's
  response thereto, have been placed in the official
  record for this rulemaking.       .   '
notice, the Agency has decided not to
proceed with the proposed spike
recovery correction requirements in its
subtitle C analytical procedures, and is
withdrawing the requirement for bias
correction of analytical spiked samples
from the TCLP.
  As a result, it is also necessary to
amend Appendix II of 40 CFR part 261
and remove all text in the existing TCLP
which imposes a requirement for
correcting measured values for
analytical bias. Specifically, in today's
finaf rule, § 8.2 is revised whereby the
following sentence is deleted: "The bias
determined from the matrix spike
determination shall be used to correct
the measured values. (See §§ 8.2.4 and
8.2.5.)" In addition, § 8.2.5 is deleted,
which provided a formula for spike
recovery correction.
  Today's rule withdraws the spike
recovery correction requirement from
 the TCLP and, except for technical and
format changes made in the June 29,
1990, rule revising the TCLP (55 FR
 26986). returns the QA provisions of the
TCLP to those promulgated on March 29,
 1990 (55 FR 11796). As a result, matrix
 spike recoveries must be calculated (as
 set forth in revised § 8.2 of the TCLP)
 and the method of standard additions
 must be employed as the quantitation
 method for metallic contaminants when
 appropriate as specified in the method
 (as set forth in revised § 8.4 of the
 TCLP). In addition, the Agency has
 made a technical correction to the
 regulatory language in § 8.4 to specify
 the use of initial calibration quantitation
 methods for metallic contaminants. The
 Agency feels this technical correction is
 appropriate because, at present the
 method of standard additions is
 inapplicable to organic contaminants.
 Wastes identified as hazardous through
 TCLP testing utilizing matrix spike
 recovery correction must be managed as
 hazardous wastes, unless and until such
 wastes are reevaluated using
 recalculations of existing data or the
 TCLP test procedure as described in
 today's rule or otherwise reevaluated
 and found to be non-hazardous.

. IV. State Authority

 A. Applicability of Rule in Authorized
  States
    Under section 3006 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 RGRA. although

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55116   Federal Register / Vol.  57. No. 227  / Tuesday. November 24. 1992 / Rules  and  Regulations
authorized States have primary
enforcement responsibility. •
  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 that the State was
authorized 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. 6926(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, HSWA
requirements are implemented by EPA
in authorized States in the interim.
  Today's rule is being promulgated
pursuant to RCRA section 3001(g), a
provision added by HSWA, and amends
the Toxicity Characteristic Leaching
Procedure (TCLP) in appendix II of 40
CFR part 261. Therefore, the Agency is
adding today's rule to Table 1 in 40 CFR
271.1(j), which identifies the Federal
program requirements that are
promulgated pursuant  to HSWA and
that take effect in all States, regardless
of their authorization status. States may
apply for either interim or final
authorization for the HSWA provisions
identified in Table 1, as discussed in the
following section of this preamble.
B. Effect on State Authorizations
  Pursuant to sections 3001(g) of RCRA,
a provision added by HSWA, EPA is
revising the TCLP (40 CFR part 261,
appendix II). Thus, the revisions to the
TCLP will take effect in unauthorized
states (i.e., states not authorized to
implement any portion of the RCRA
program) and all States which have not
been authorized for the Toxicity
Characteristic (TC) on the effective date.
Today's rule deletes the requirements
imposed in the revised final TCLP
method (see 55 FR 26986, June 29,1990)
for spike recovery correction of
analytical data. The Toxicity
Characteristic was promulgated
 pursuant to a HSWA provision and must
 be adopted by States that intend to
 retain final authorization. However,
 today's rule provides for a standard that
 is less restrictive than was imposed in
 the final TC as promulgated on June 29,
 1990, for hazardous waste
 determinations based on spike recovery
 adjusted data. Although States must
 modify their programs to incorporate the
 Toxicity Characteristic, they no longer
 are required to include spike recovery
 correction in those modifications.
 Section 3009 of RCRA provides that
 States may impose requirements that
 are broader in scope or more stringent
 than those imposed under Federal
 regulation. For states that have received
 final authorization for programs
 requiring spike recovery correction as
 part of the TCLP, those states have the
 option of modifying their programs to
 delete this requirement.

 V. Effective Date
  HSWA amended section 3010 of
 RCRA to allow rules to become effective
 in less than six months when the
 regulated community does not need the
 six-month period to come into
 compliance. Section 553(d) of the
 Administrative Procedures Act requires
 publication of a substantive  rule not less
 than 30 days before its effective date
 unless the rule relieves a restriction or
. for other good cause. This rule is
 effective November 24,1992  because the
 regulated community does not need six
 months to come into compliance
 therewith, and it relieves a regulatory
 restriction. Those reasons also
 constitute good cause for not delaying
 the effective date of today's  rule. This
 amendment removes the spike recovery
 correction requirement from the TCLP
 and thus provides greater flexibility to ,
 the regulated community in testing solid
 waste for the Toxicity Characteristic.
 VI. Regulatory Analyses
 A. Regulatory Impact Analysis
  Under Executive Order 12291, EPA
 must determine whether a regulation is
 "major" and, therefore, subject to the
 requirement of a Regulatory  Impact
 Analysis. This rule removes  the spike
 recovery correction requirement found
 in the TCLP and thus, reduces  the
 overall costs and economic impact of
 EPA's hazardous waste regulations-and
 provides greater flexibility to the
 regulated community in testing and
 monitoring solid waste. There  is no
 additional economic impact, therefore,
 due to today's rule. This rule is not a "
 major regulation; thus, no Regulatory
 Impact Analysis is required.:
 B. Regulatory Flexibility Act

   Pursuant to the Regulatory Flexibility
 Act (5 U.S.C. section 601-612, Public
 Law 96-354,.September 19,1980),
 whenever an agency publishes a
 General Notice of Rulemaking for any
 proposed or final rule, it must prepare
 and make available for public comment
 a regulatory flexibility analysis (RFA)
 that describes the impact of the rule on
 small entities (i.e., small businesses,
 small organizations, and small
 governmental jurisdictions). No
 regulatory flexibility analysis is
 required, however, if the head of the
 Agency certifies that the rule will not
 have a significant impact on a
 substantial number of small entities
   This rule will not have an adverse
 economic impact on small entities since
 its effect will be to reduce the overall
 costs of EPA's hazardous waste
 regulations and provide greater-
 flexibility to the regulated community,
 including small  entities. Therefore, in
 accordance with 5 U.S.C. section 605(b),
 I hereby certify  that this rule will not.
 have a significant economic impact on a
 substantial number of small entities (as
 defined by the Regulatory Flexibility
 Act). Thus, the regulation does not
 require an RFA.

 c. Paperwork Reduction Act

   There are no additional reporting,
 notification, or recordkeeping provisions
 in this rule. Such provisions, were they
 included, would be submitted for
 approval to the  Office of Management
 and Budget (OMB) under the Paperwork
 Reduction Act, 44 U.S.C. 3501 et seq.

 List of Subjects

 40 CFR Part 261

   Hazardous waste, Recycling,
 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: November 13,1992.
 William K. Reilly,
, Administrator.
   For the reasons set out in the
 preamble, title 40 of the Code of Federal
 Regulations is amended as set forth
 below.

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          Federal Register /.Vol.  57. No.  227 /  Tuesday.  November 24. 1992 /Rules  and Regulations    55117
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE

  1. The authority citation for part 261
continues to read as Follows:
  Authority. 42 U.S.C. 6905.6912(a). 6921.
0922, and 6938.
  2. Part 261. appendix II is amended by
revising the test of § 8.0 preceding
table I to read as follows:

Appendix II—Method 1311 Toxicity
Characteristic Leaching Procedure
(TCLP)
•     •     •    •    »

0.0 Quality Assurance
  8,1  A minimum of one blank (using the
same extraction fluid as used for the
samples) must be analyzed for every 20
extractions that have been conducted in an
extraction vessel.
  8.2 A matrix apike shall be performed for
each waste type (e.g,, wastewater treatment
sludge, contaminated soil, etc.) unless the
result exceeds the regulatory level and the
data are being used solely to demonstrate
that the waste property exceeds the
regulatory level A minimum of one matrix
spike must be analyzed for each analytical
batch. As a minimum, follow the matrix spike
addition guidance provided in each analytical
method.
  £2,1  Matrix spikes are to be added after
filtration of the TCLP extract and before
preservation. Matrix spikes should not be
added prior to TCLP extraction of the sample.
  £2.2  In most cases, matrix spikes should
be added at a concentration equivalent to the
corresponding regulatory level. If the analyte
concentration is less than one half the
regulatory level the spike concentration may
be as low as one half of the analyte
concentration, but may not be less than Rye
times the method detection limit In order to
avoid differences in matrix effects, the matrix
spikes must be added to the same nominal
volume of TCLP extract as that which was
analyzed for the unspiked sample.
   8,2.3  The purpose of the matrix spike is to
monitor the performance of the analytical
methods used, and to determine whether
matrix Interferences exist. Use of other
internal calibration methods, modification of
 the analytical methods, or use of alternate
 analytical methods may be needed to
 accurately measure the analyte concentration
 of the TCLP extract when the recovery of the
 matrix spike is below the expected analytical
 method performance.
   8.2.4  Matrix spike recoveries are
 calculated by,the following formula:
 %R (% Recovery) = 100 (X. - X»)/K
 where:,                       .
 X, = measured value for the spiked sample,
 Xu = measured value for the unspiked
     sample, and
 K = known value of the spike in the sample.
   8.3  All quality control measures described
 in the appropriate analytical methods shall
 be followed.
   8.4  The use of internal calibration
 quantitation methods shall be employed'for a
 metallic contaminant if: (1) Recovery of the
 contaminant from the TCLP extract is not at
 least 50% and the concentration does not
 exceed the regulatory level, and [2) The
 concentration of the contaminant measured
 in the extract is within 20% of the appropriate
 regulatory level.
   8.4.1  The method of standard additions
 shall be employed as the internal calibration
 quantitation method for each metallic
 contaminant
   8.4.2  The method of standard additions
 requires preparing calibration standards in
 the sample matrix rather than reagent water
 or blank solution. It requires taking four
 identical aliquots of the solution and adding
 known amounts of standard to three of these
 aliquots. The fourth aliquot is the unknown.
 Preferably, the first addition should be
 prepared so that the resulting concentration
 is approximately 50% of the expected
 concentration of the sample. The second and
 third additions should be prepared so that the
 concentrations are approximately 100% and
 150% of the expected concentration of the
 sample. All four aliquots are maintained at
 the same final volume by adding reagent
 water or a blank solution, and may need
 dilution adjustment to maintain the signals in
 the linear range of the instrumental
 technique. All four aliquots are analyzed.
   a4.3  Prepare a plot, or subject data to
 linear regression, of instrumental signals or
 external-calibration-derived concentrations
 as the dependent variable (y-axis) versus
 concentrations of the additions of standard
 as the independent variable (x-axis). Solve
 for the intercept of the abscissa (the
 independent variable, x-axis) which is the
 concentration in the unknown.
   84.4.4  Alternately, subtract the
 instrumental signal or external-calibration-
 derived concentration of the unknown
 (unspiked) sample from the instrumental
 signals or external-calibration-derived
 concentrations of the standard additions. Plot
' or subject data to linear regression of the
 corrected instrumental signals or external-
calibration-derived concentrations as the
dependent variable versus the independent
variable. Derive concentrations for unknowns
using the internal calibration curve as if it
were an external^calibration curve.
.  8,5 Samples must undergo TCLP
extraction within the following time periods:
 SAMPLE MAXIMUM HOLDING TIMES (DAYS)


Volatiles 	
Semi-
volatiles...
Mercury 	
Metals,
except
mercury...
From:
field
collec-
tion to:
TCtP
extrac-

14

14
28


180
From:
TCLPex-
traction
to:
prepara-
tive
extrac-
tion
NA

7
NA


NA
From:
pre-
parafave
extrac-
tion to:
determi-
native
analysis
14

40
28


180
Total
elapsed
time

28

61
56


360
  NA=Notapp8cab*9.


   If sample holding times are exceeded,
 the values obtained will be considered
 minimal concentrations. Exceeding the
 holding time is not acceptable in
 establishing that a waste does not
 exceed the regulatory level. Exceeding
 the holding time will not invalidate
 characterization if the waste exceeds
 the regulatory level.
 PART 271—REQUIREMENTS FOR
 AUTHORIZATION OF STATE
 HAZARDOUS WASTE PROGRAMS

   3. The authority citation for part 271
 continues to read as follows:

   Authority: 42 U.S.C. 6905,6912(a), and 6926.
   4. In § 271.1, paragraph fj), Table 1 is
 amended by adding the following entry
 in chronological order by promulgation
 date:

 §271.1  Purpose and scope.
 *****

   (j)  *  * *
                TABLE 1.—REGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984
         Promulgation date
                                         Titte of regulation
                                                                    Federal Register reference
                                                                                                         Effective date
 November 24,1992.
                               . Toxicity Characteristic Revision ,
                                                                57 FR 55117 publication citation......	 November 24.1992.
 [FR Doc. 92-28320 Filed 11-23-92:8:45 am]
 BHJ.IHO CODE eseo-so-M

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 Thursday
 December 24, 1992
Part VII
Environmental

Protection Agency

40 CFR Part 261
Suspension of Toxicity Characteristics
Rule for Non-UST Petroleum Product-
Contaminated Media and Debris;
Proposed Rule

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           Federal Register,/. Vot. 57, No. 248 / Thursday, December 24, 1992  /  Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Part 261

IFRL-4548-6]

Suspension of the Toxlclry
Characteristics Rule for Non-UST
Petroleum Product-Contaminated
Media and Debris

AGENCY: Environmental Protection
Agency.
ACTION; Proposed rule.	
 SUMMARY: The Environmental Protection
 Agoncy Is proposing to suspend the
 Toxicity Characteristics (TC) rule
 (Hazardous Waste Codes D018 through
 D043 only) for three years for
 environmental media and debris ,
 contaminated by petroleum products
 released from sources other than RCRA
 subtitle I-regulated underground storage
 tanks (hereafter, these releases and
 sources of release will be referred to as
 "non-UST"). During the three year
 suspension, the Agency would collect
 additional  data, perform additional
 analyses, and explore other
 administrative and legal mechanisms to
 hotter tailor RCRA regulatory
 requirements to the unique issues
 associated with remediation of
 petroleum releases. The suspension
 would be applicable only in states that
 certify that they have in place effective
 authorities and programs to compel
 cleanup of non-UST petroleum product
 spills and  control the disposition of
 wastes generated from such cleanup
 actions. The suspension would apply
 only to wastes generated from state
 supervised or approved cleanup sites,
 and sites being remediated under    .
 Federal authorities.
 DATES: Written comments on this
 proposed rule should be submitted on
 or before February 8,1993.
 ADDRESSES: Written comments on
 today's proposal should be addressed to
 the docket clerk at the following
 address: U.S. Environmental Protection
 Agonny, RCRA Docket (OS-305), 401 M
 Street. SW., Washington, DC 20460. One
 original and two copies should be sent
 ana identified by regulatory docket
 reference  number F-92-STPP-FFFFF.
 The docket is open from 9 a.m. to 4
  p.m., Monday through Friday, excluding
 Federal holidays. Docket materials may
 be reviewed by appointment by calling
  (202) 260-9327. Copies of docket
  materials may be made at no cost, with
  a maximum of 100 pages of material
  from any  one regulatory docket.
  Additional copies are $0.15 per page.
FOR FURTHER INFORMATION CONTACT:
General questions about the regulatory
requirements under RCRA should be
directed to the RCRA/Superfund
Hotline, Office of Solid Waste, U.S.
Environmental Protection Agency,
Washington, DC 20460, (80O) 424-9346
(toll-free) or (202) 260-3000 (local). For
the hearing impaired, the number is .
(800) 553-7672 (toll-free), or (202) 260-
9652 (local).
  Specific questions about the issues
discussed in this proposed rule'should
be directed to David M. Pagan/Office of
Solid Waste (OS-341), U.S.
Environmental Protection Agency, 401
M Street SW., Washington, DC 20460,
(202)260-4740.
 SUPPLEMENTARY INFORMATION:

 I. Authority
 ' These regulations are issued under
 the authority of sections 2002 and 3001
 et seq. of the Solid Waste Disposal Act,
 as amended by the Resource
 Conservation and Recovery Act, as
 amended by the Hazardous and Solid   •
 Waste Amendments of 1984. 42 U.S.C.
 6912 and 6921 et seq.

 I!. Background           ,
 A. Toxicity Characteristics JRu/e

 1. General
   Under current regulations, EPA uses
 two procedures to define wastes as
 hazardous: Usting and hazardous
 characteristics; The listing procedure
 involves identifying industries or
 processes that produce wastes that pose
 hazards to human health and the
 environment. The second procedure
 involves identifying properties or
 "characteristics" that, if exhibited by
 any waste, indicate a potential hazard if
 the waste is not properly managed.
 Toxicity is one of four characteristics
 that must be considered when
 identifying a waste as hazardous.-The
 others are ignitability, reactivity, and
 corrosivity.
   The Toxicity Characteristics (TC) Rule
 was promulgated on March 29,1990, 55
 FR 11798  (March 29,1990), was
 amended on June 29,1990, and became
 effective on September 25,1990. The TC
 rule has three main features. First, it
 replaced the Extraction Procedure (EP)
 leach test with the Toxicity  .:•'.
 Characteristic Leaching Procedure
  (TCLP). Second, it added 25 organic
  chemicals to the list of toxic. .'..    "
  constituents of concern and-established
  regulatory levels for these organic
  chemicals. These levels were based on
  heahh-based concentration thresholds
  and a dilution/attenuation factor (DAF)
  that was developed using a subsurface
 fate and.transport model. (A
 concentration threshold indicates how
 much of a chemical adversely affects
 human health, while the dilution/
 attenuation factor indicates the extent to
 which the concentration of a chemical
 is expected to be reduced during
 transport to and through ground water.
 The levels set in the TC rule were
 determined by multiplying the health-
 based number by a dilution/attenuation
 factor of 100.
   The overall effect of the TC rule was
 to subject additional wastes to
• regulatory control under subtitle C of
 RCRA. A waste  may be a "TC waste" if
 any of the chemicals listed in the rule,
 such as benzene, are present in waste
 sample extract (i.e. leachate) resulting
 from application of the TCLP to that
 waste. If chemicals are present at or
 above the specified regulatory levels,
 the waste is a "TC waste," and is subject
 to all RCRA hazardous waste
 requirements. Among these wastes are
 petroleum contaminated media and
 debris that fail the TC.
 2. Deferral of the Application of the TC
 Rule to Petroleum Contaminated Media
 and Debris From Subtitle I—Regulated
 Underground Storage Tanks
    Also on March  29,1990, the Agency
  made a decision to defer a final
  determination regarding the application
  of the TC to media and debris
  contaminated with petroleum from
  underground storage tanks (USTs) •
  subject to the part 280 (i.e. RCRA
  Subtitle I corrective action)
  requirements. 55 FR 11836. The UST
  regulations governing cleanups at these
  sites were deemed adequate to protect
  human health and the environment in
  the interim.
     At that time  the Agency had
  insufficient information concerning the
  full impact of the TC rule on UST
  cleanups, particularly regarding the
  amount of contaminated media that
  would become hazardous waste and the
  type of management feasible and
  appropriate for such waste (e.g. on-site
  treatment, off-site disposal). However,
  available information suggested that the
  impact might be  very severe in terms of
  the administrative feasibility for both
  the subtitle C and subtitle I programs. In
  addition,  a preliminary assessment
  indicated that the number of UST
  cleanup sites and the amount of media .
  and debris at each site that would
  exhibit the toxicity characteristic could
  be extremely high, with EPA expecting
  hundreds of thousands of UST releases
  to be uncovered in the next few years.
  EPA believed  that subjecting each of
  these sites to subtitle C requirements
   could overwhelm the hazardous waste

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              Federal Register / Vol. 57. No.  248 / Thursday; December 24, 1992  / Proposed Rules     61543
   permitting program and the capacity of
   existing hazardous waste treatment,
   storage, and disposal facilities.
   Moreover, EPA believed that the
   imposition of these requirements could
   delay cleanups significantly, require an
   enormous commitment of federal
   resources, and undermine the State and
   local focus of the UST program.
    The application of the TC rule to UST
   cleanups was deferred to allow cleanups
   under the UST program to proceed
   while the Agency evaluated the extent
   and nature of the impacts of Subtitle C
   on the UST program. Specifically, the
   Agency is currently Studying the
   characteristics of UST sites (i.e. number
   of UST sites by media type, volumes of
   media and debris typically removed,
   fraction of these media and debris that
   exhibit the TC, if any, etc.), current
   practices and requirements for
  management of these media and debris,
   and how contaminated media and
  debris from these sites are managed
  under the Subtitle I state programs. The
  Agency is also evaluating the impact
  that Subtitle C management of
  petroleum-contaminated media and
  debris from USTs would have on the
  Agency's and States'hazardous waste
  management programs. In addition, the
  inclusion of these media and debris in
  the Subtitle C management system is
  being evaluated in comparison to the
  available capacity for commercial
  hazardous waste treatment, storage, and
  disposal. EPA is also studying whether
  the Agency can make regulatory changes
  to the subtitle C program which will
  better tailor the current hazardous waste
  rules to these particular current
  hazardous waste rules to these
  particular types of wastes and the
  context in which they are managed. (See
  57 FR 21450, May 20,1992.) The
  Agency plans to complete these studies
  later in 1992 and make its final
  determination early in 1993.

  B. State Petitions for Ituiemaking
   Since the Agency announced its
  decision to defer the TC for UST
  petroleum contaminated media and
  debris, a number of States and other
  affected parties have requested that EPA
.  consider expanding the deferral to.
  include other petroleum contaminated
  media and debris. In particular.
  rulemaking petitions were received from
  the States of New York, Nevada, South
  Dakota, North Dakota, Maryland, and
 Maine, requesting that the current UST
 deferral be expanded to media
 contaminated from surface and
 subsurface discharges of petroleum ,
 products (from non-rUST sources) that
 are currently being adequately
 addressed fay existing State programs. In
  addition, the Agency has received
  letters from several other States which
  support th^requests, concerns^ and
  ideas expressed in the abibve-mentioned
  petitions.
    The States believe that the numbers
  and volumes of petroleum releases from
  non-UST sources almost certainly
  exceed those from USTS. They argue
  that there is no technical basis for
  distinguishing between contaminated
  media and debris generated from UST
  cleanups (which is not subject to RCRA
  subtitle C), and that generated from
  other cleanups (which potentially is
  subject). In addition, this distinction
  presents substantial difficulties for the
  regulated community, which must
  determine whether a specific spill
  derives from an UST or from other ,
  sources, and it severely complicates
  enforcement.      .
   these States further state that they
  have active and effective response
 programs for cleanup of spills and other
 releases of petroleum into the
 environment. For example, New.York
 has an extensive petroleum cleanup
 program that,  in its judgment, places a
 stringent set of requirements on
 petroleum-contaminated media. In New
 York, any soil left on site must be
 treated to the point where the extract
 from a TCLP test meets the New York  "
 State groundwater standard for benzene
 of 5ppb.,
   According to the petitioning States,
 the toxicity characteristics rule has
 seriously impacted the operations and
 effectiveness of their programs. For
 example, in North Dakota the adyent of
 the TC rule placed several existing
 environmental control rules and
 programs in conflict with each other.
 Reclassifying certain petroleum releases
 as hazardous waste that were previously
 handled outside of the hazardous waste
 program by the state above-ground
 storage tanks program, potentially
 places an extreme burden on that State's
 Hazardous Waste Program. In general,  :
 States argue that application of the
 toxicity characteristic tp petroleum
 contaminated media and debris will
 place extraordinary demands on the
 RCRA permit program, which in turn
 could severely affect States' efforts to
 permit other RCRA facilities that are of
 higher environmental priority.
  Finally, some states have pointed out
 that the toxicity characteristic has
 created a disincentive for private party
 cleanup initiatives by imposing RCRA
 permit requirements on many of those
actions. In addition, some have
suggested that the TC rule has created
an incentive to simply dilute.
contaminated media (or delay testing in
order to allow certain TC constituents to
  volatilize) so that the contaminated
  media no longer exhibit the.toxicity
  characteristic.

  C. Public Meetings

    In September and December, 1991,
  EPA met with various affected parties
  (including representatives from the
  States, Congressional staff/
  environmental groups, and the waste-
  treatment and generating industries) to
  discuss issues related to the cleanup of
  petroleum contamination and the
  potential, impacts of the TC rule on this
  cleanup. During these meetings, the
  Agency listened to various opinions and
  views concerning the impact of the TC
  rule and the potential impacts of a
  possible Agency decision to expand the
  UST deferral to all petroleum
  contaminated media and debris,
   EPA was struck by the unanimity of
  opinion among the thirteen states
  present concerning the detrimental
  impacts of the TC rule on their ability
  to achieve timely and effective cleanup
  of spilled petroleum product. EPA was
  also struck by the concern being
  expressed by State environmental
  regulators about the  adverse
  environmental impacts resulting from
 the application of the TC rule to
 petroleum releases from above-ground
 sources. The State representatives
 indicated that subtitle G regulation  of
 petroleum contaminated media and
 debris would significantly increase the
 cost of cleanup of these releases,
 substantially delay cleanup, and in
 some cases (by delaying cleanup)
 negatively impact human health and the
 environment.
   A number of States have funds that
 provide for some reimbursement of
 cleanup costs for above ground (as well.
 as underground) petroleum spills. Many
 cleanup contractors provide cleanup
 services to responsible parties (RPs) "on
 credit," knowing that they will be paid
 by the RPs shortly after the work is
 completed. According to these States, if
 petroleum cleanup wastes are regulated
 under RCRA subtitle  C, the resulting
 dramatic increase in costs of waste
 management would significantly impair
 the ability of the State to reimburse
 future cleanups; If there is no guarantee
 that payment will be  forthcoming,
 several States believe that remediation
 contractors will be much less willing to
 respond promptly to spills. Further, it is
 unlikely that States will substantially
 increase these funds for the foreseeable
 future. The net result, according to these
 States, will be that fewer sites will be
 remediated. With fewer sites being
addressed, spilled material will migrate
 further and potentially expose more

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61544     Federal Register /  Vol.  57. No. 248  /  Thursday, December 24, 1992 / Proposed Rules
pooplo, fish, and wildlife to
contamination.
  Unremediated spills of petroleum  .
product onto soil can result in
petroleum product reaching
groundwater through infiltration, and,
surface water through run-off. Benzene,
a common constituent of many typ_es of
petroleum products, is carcinogenic and
moderately toxic to aquatic organisms.
  In the view of many States, the delays
ossodaled with RCRA subtitle C .
management would allow for the
volatilization and migration of certain
TC constituents such as benzene to the'
extent that the media may no longer fail
the TC. These States point to RCRA
testing and permitting as significant
sources of delay. In addition, States
cautioned EPA to recognize that,
because of the high costs associated
with subtitle C management and the
high volatility of certain TC constituents
 of petroleum, there is a significant
 disincentive to promptly report and ,
 remediate petroleum spills.
   Groups representing the generating
 industries (e.g., petroleum and
 petrochemical industries) at the
 meetings generally agreed with the
 views being expressed by the States,
. although several stated that the problem
 was not unique to petroleum-
 contaminated media, but rather should
 be extended to other types of TC
 hazardous contaminated media.
   Environmental interest group
 representatives were sensitive to the
 importance of the issues being raised "by
  the States, but saw the States' position
  as similar to other claims that
 regulations deter effective actions. The
  environmental representatives agreed on
  the merits of streamlining the
  administrative procedures and
  processes (e.g., RCRA subtitle C
  permitting) for petroleum spill response
  actions, but felt that regulatory control
  was necessary to ensure environmental
  safety. They were also concerned about
  the extent to which State regulatory
  programs for non-UST spill cleanups are
  in fact adequately protective of human .
  health and the environment, and the
  extent to which States place sufficient
  emphasis on spill prevention. The
  environmental group representatives
  also argued that certain features of a
  RCRA permit which they believe are
  important—particularly, public
  involvement and facility-wide
  corrective action—would be lost if EPA
  adopted the approach suggested in the
  States' petitions.
    Certain representatives of the
  hazardous waste treatment industry
  expressed strong concerns with the
  Agency pursuing a suspension of the TC
  rule as the mechanism for solving the
implementation problems posed by
Subtitle C regulation of petroleum
Contaminated media and debris.
According to these representatives, EPA
should consider streamlining the RCRA
permitting process for the cleanup and
disposal of petroleum contaminated
media and debris. They specifically
suggested that EPA consider issuing
permits-by-rule for petroleum
contaminated media and debris, as well
as for other cleanup wastes. They also
expressed concern that the States*
approach would effectively exempt
petroleum-contaminated media from
RCRA technical standards, in particular
the land disposal restrictions. Other
representatives of the treatment
industry, however, supported the States'
approach and favored expanding it to
other cleanup wastes.          --
m. Basis for the Proposed Suspension

A. Purpose of the Suspension
   The purpose of today's notice is to
propose a suspension of the 1990
Toxicitv Characteristics (TC) rule as it
applies'to non-UST petroleum product-
contaminated media and debris for a^
. period of three years.1 As discussed in
more detail below, the Agency  believes
that the States have raised sufficient
 concerns about the environmental
 impacts of applying the TC rule to
 petroleum contaminated media and
 debris to warrant study of this issue in
 the same manner in which the  Agency
 is currently conducting analysis for
 petroleum contaminated media and
 debris from USTs. EPA believes, in
 addition, that the TC should be
 suspended in the interim while the
 Agency fully studies this issue and
 prepares any regulatory adjustments
 necessary and appropriate for the
 regulation of this material under the
 RCRA subtitle C program. Thus, the
 purpose of this suspension is to give the
 Agency three years in which to collect
 additional information on the nature,
 .scope, and environmental impacts of
 regulating non-UST petroleum product-
 contaminated media and debris under
 RCRA Subtitle C and determine whether
 and how such regulation should be
 established.
   This suspension does not constitute a
 final decision by the Agency on how to
 integrate the TC with existing State
 petroleum cleanup programs.  Rather,
 EPA bases the suspension on the
 significant issues raised by the States
    'Since the scope of today's proposal includes
  groundwater contaminated with petroleum product,
  this proposal, if finalized, would supersede (he-
  exclusion for injected groundwater from
  hydrocarbon recovery operations, which was due to
  expire on"January 25,1993. See 40 CFR
  261.4(bXll).an<£ 56 Fad. Rag. 13406 (April 2,1991).
and a racognition that iccreased human
and environmental exposures to
petroleum product would likely occur
without a period for EPA to undertake
additional data gathering and analyses.
EPA will make a final decision and
implement any regulatory adjustments
at the end of the three year suspension.
  During the three year suspension,
EPA believes that existing State laws
and programs will adequately protect
human health and the environment. To
ensure such protection, EPA is
proposing that the suspension would
apply only where media or debris is
cleaned up under State oversight
through enforcement orders or other
explicit written State approval. States
would have to certify to the EPA
Regional Administrator that they have
legal authorities and programs in place
to administer and enforce those
authorities, that can compel cleanup of
non-UST petroleum product-
contaminated media and debris, and
control the treatment, storage and
disposal of such waste  when cleaned
up.
 B. Available Information on Scope of
 the Problem and Impacts of Subtitle C

 1. Nature and Frequency of Petroleum
 Product Contamination
   Petroleum product releases occur
 daily throughout the United States in
 the course of the transport and storage
 of the billions of gallons of petroleum
 product used in this country each year.
 The majority of spills are under 1,000
 gallons and occur from transmission
 pipelines, gathering lines, pump
 stations, storage tanks, and transport
 vehicles. According to a recent
 American Petroleum Institute survey of
 42 States, over 36,000  above ground
 petroleum product spills occurred in the
 United States in 1990 alone. The API
 survey also indicated that over
 23,000,000 gallons of product were
 released in 24 States in 1990.
 Information from the States of New York
 and Texas indicate that the majority of
 petroleum product spills  occur to land.
 Based on these data and data submitted
 by the State of New York, EPA estimates
  that over 3.5 million tons of petroleum
 'contaminated environmental media
  (mostly soil) and debris were created in
  1990 alone as a result of these spills.
    Regulating the disposal of these
  contaminated media and debris under
  Subtitle C of RCRA potentially means:
  (1) Characterization forTC (which may
  often involve testing)  at as many as
  36,000 locations per year, (2)
  manifesting from many thousands of
  points of generation (when
  contaminated media and debris are

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            Federal Register /Vol. 57, No.  248 / Thursday, December 24, 1992 / Proposed Rules     61545
disposed of off-site) per year, and {3)
treating, storing, and/or disposing of a
substantial portion of the 3.5 million
tons per year of petroleum contaminated
soil in RCRA permitted hazardous waste
facilities. If on-site RCRA treatment,
storage, or disposal were to be the
chosen alternative at even one-half of
these 36,000 sites each year, the number
of new RCRA hazardous waste permits
needed to address petroleum product
cleanup would vastly surpass the 4,500
facilities which make up the current
RCRA TSDF universe.
  In addition to spills which occur as a
result of the day-to-day use of petroleum
product, EPA expects that there will be
many potentially large, complex
petroleum product contaminated sites
which require remediation as well. One
example is the Oil City site in Syracuse,
New. York, where there has been a great
deal of interest on the part of the local
government and private parties in
converting this 800 acre former
petroleum tank terminal property to
residential and commercial use. The
regulation of petroleum product
contamination under RCRA subtitle Cat
this and other similar sites creates a
significant disincentive to private
parties to conduct any cleanup
activities. Such cleanups can generate
hundreds of thousands of cubic yards of
contaminated media and cost tens to
hundreds of millions of dollars to
cleanup. Since few private uses of this
land would create economic benefits of
this magnitude, the Oil City site and
similar sites may not be cleaned up for
the foreseeable future.
  The nature of petroleum as an
environmental contaminant was another
factor in the Agency's decision to
propose the TC Suspension for
petroleum contaminated media. EPA
believes that there are significant
differences between the investigation
and remediation requirements for media
known to be contaminated with
petroleum (from UST or non-UST
sources) and other types of
contamination often found at RCRA
facilities and other contaminated sites.
For sites contaminated with petroleum .
products, the source(s) of the
contamination (e.g., transportation
spills, pipeline leaks, aboveground tank
spills) can often easily be identified, the
substance (petroleum) is known> and
therefore the properties and exposure
pathways of the contamination, and
potential remedial approaches, can also  .
be identified without extensive
investigations. In contrast, at other
contaminated sites, identifying the
sources of contamination, their
properties and potential risks, and
remedial options will often require
extensive and protracted investigations
andanalysiss--——'^^^'-~;±=i^ v-i-
  Thus, the Agency believes that for
many, sites contaminated with  :r\ ~.T
petroleum, investigation and r ;.~ ;'~~1~
remediation can be relatively*'   : ,^~,
straightforward. As sueh,;EPA believes
                                 '
permitting approach, or som^Qthef type
of simplified administrative.rriecnanisrn,
could be appropriate for dealing with
petroleum contaminated sites [see
discussion of alternative approaches in
Section in. D. of this preamble).

2. Impacts of Subtitle C Regulation on
Pace of Cleanup          •
  Information providedby the States
suggests that subtitle C regulation of
petroleum -contaminated media; and
debris may have profound impacts on
the ability of States with existing spill
response programs to promptly initiate
cleanup. Information from State case
studies suggests that at many sites, the
initiation of cleanup could be delayed
between three and,-18 months. The
sources of the delay include: sampling
and testing requirements associated
with the TCLP, the need to register as
a hazardous waste generator and obtain
a generator identification number, and
the increased complexity of evaluating
and implementing remedial measures
that comply with subtitle C.: One
example of the increased complexity of
implementing remedial-measures is the
need to specifically evaluate on-site
versus of&site options-for the-
management of hazardous waste.,This
would include identifying RCRA
permitted TSDFs that would accent the
waste and balancing transportation and
off-site disposal costs, risks,; and
benefits with the costs, risks and
benefits of on-site management.
  On-site treatment  will .frequently be
the preferred option for sites, involving
large amounts of-contamination. In
cases where, such treatment would
require^ RGRA permitting, the permitting
process would require an additional one
to three years. These delays would
likely allow volatilization of certain TC
constituents such as benzene, and result
in further vertical migration,of
contaminants into the soil and
groundwater. This^would increase the
volume of contaminated soil and the
probability that ground water would be
impacted by a spill.      .-•''-
  It is difficult to quantify at this time
the precise, differences nationally in the
pace of petroleum cleanups with, and
without-subtitle, C regulation. The pace
of cleanup itta State is highlyp "-.   '
dependent on the specific provisions of
the State program, the available State
resources for responding to. spills, and
                                       inereasg the time required to
                                       and controls on the disposal of cleanup
                                       wastes, EPA believes this delay would
                                       result in increased risk to human health
                                       and the environment. •& •••• «-.«ber IJiw
                                         It is clear that Subtitle C regulation of
                                       petroleum contaminated soil and debris
                                       can substantially increase the cost of
                                       remediation .A primary source of the
                                       increase is the relative expense of a -
                                       Subtitle € soil treatment technologies
                                       States with spill response programs.
                                       Depending upon the treatment  ,--., .....
                                       technology selected, per site cleanup ,
                                       costs for soil treatment would likely
                                       increase by as much as 300 tcH9.00 - . ; >
                                       percent overjexistingjEosts.2   .;-.
                                        For example, unit costs for thermal
                                       treatmentthatisbeingused in one state
                                       UST program averages :$55.0Q, ;per.fcubic
                                       yard of petroleum contaminated soil,
                                       compared to treatment costs of $1,060
                                       per cubic- yard of soil for subtitle G . , ;
                                       incineration, and disposal costs of
                                       $510.00 for subtitle G; landfills..3 Thus,
                                       for every 100 cubic jmrdsi o£TGr  I
                                       hazardous soil, the increase in treatment
                                       costs would:be/between;$A5;5QOiand
                                       $100^00: per site.    ,           «
                                        ft is unclear whether the increased:
                                       costs of subtitle C treatment!p£
                                       petroleum product-contaminated soil
                                       can be justified on the basis of a
                                       study on the impacts of removing sthe;
                                       TCLP deferral for petroleum- :,,-•'.
                                       contaminated media at UST sites, it was
                                       concludedthat one component :of risk,
                                       residual risk, will likely not! decrease L
                                       with subtitle C management, .since
                                       Subtitle I cleanup standards are
                                       generallymore stringent than those  ;
                                       implied rby;the:TGJJ^ regulatory: •-•-
                                       standard for benzene.* Also-, ambiguous
                                       is the effect of subtitle C management on
                                      .
                                      Report: The Impacts:oCRemovii?g theTClP Deferral
                                      for Petroleum-Contaminated Mediaai Underground
                                      StorageTtoifc Sitiss;"it
                                      Minnesota Case Study, p. 27.
                                      Report: The Impacts of Removing the TCLP'Deferral
                                      for Petroleum-Contaminated Media at Underground
                                      Storage Tank Sites," (April i992);-pr3^2: — --

-------
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Federal Register / Vol. 57, No. 248 / Thursday, December 24, 1992 / Proposed Rules     61547

                                                                C permit requirements to address the
                                                                problems posed by .thousands of
                                                                petroleum product contaminated sites.
                                                                However, other modifications to RCRA
                                                                requirements may be much less
                                                                problematic. The Agency will continue
                                                                to examine these types of options, and
                                                                others, as alternatives to or as additions
                                                                to today's proposed TC suspension. The
                                                                Agency invites comment as to how such
                                                                options may fulfill the general objective
                                                                of removing unnecessary procedural
                                                                and substantive subtitle C requirements '
                                                                for petroleum release response, white
                                                                ensuring that petroleum contaminated
                                                                media ere managed in a manner
                                                                protective of human health and the
                                                                environment Specifically, comment is
                                                                solicited on the following options:
                                                                  * Expanding the permit exemption in
                                                                §270.1(c)(2)(i) for tess than 90-day
                                                                treatment and storage of on-site
                                                                generated hazardous wastes. This
                                                                exemption could be extended for some..
                                                                longer time period specifically for on-
                                                                site petroleum response .actions {e,g.,
                                                                ISOdays).
                                                                  • Providing permits by rule or class
                                                                permits specifically for remediation of
                                                                petroleum contaminated media (see   • .
                                                                preceding discussion).
                                                                  • Changing the existing emergency
                                                                permit requirements (§270.61) to
                                                                provide for such permits for short term
                                                                cleanup actions for petroleum releases
                                                                that may not actually pose "imminent
                                                                and substantial threats" to human
                                                                health and the environment.
                                                                  * Creating a new type of unit subject
                                                                to the less than 90-day storage and
                                                                treatment permit exemptions, thai
                                                                would otherwise be regulated as waste
                                                                piles, and thus not eligible for this
                                                                 exemption (such units, employing
                                                                 flexible membrane liners and vapor
                                                                 recovery are currently in use, and can
                                                                 remediate relatively large volumes of
                                                                 contaminated soils).
                                                                   • Developing differential regulatory
                                                                 controls based on the size-of the
                                                                 petroleum release (e.g., 10,000 gallons of
                                                                 released product). Under this system,
                                                                 larger spills requiring large scale, long
                                                                 term remediation might be subject to
                                                                 full Subtitle C controls, while smaller
                                                                 releases could be eligible for more
                                                                 streamlined procedural requirements
                                                                 and/or less stringent substantive
                                                                 standards.                     •
                                                                   In regard to these alternatives,
                                                                 comment is requested particularly in
                                                                 regard to their legal feasibility in light
                                                                 of existing RCRA statutory
                                                                 requirements.
characteristics codifies the statutory
definition of hazardous, waste and thus
provides EPA with the same flexibility
accorded by the statute to consider
actual management practices in
determining whether a waste is
hazardous. Where mismanagement of
the waste is likely to be implausible or
has been adequately addressed by other
programs, EPA need not identify the
waste as hazardous under the regulatory
criteria.    •'.•--..
  As a result, EPA believes that the
Agency should tailor its hazardous
waste identification program, (see 57 FR
21450. May 20,1992). to ensure that the
stringent Subtitle C program for
hazardous waste regulation applies only
to waste which is truly hazardous in the
'context of the way in which the waste
is actually, or reasonably likely to be,
managed. EPA believes, based on a
decade of experience with hazardous
waste management, that  waste
containing hazardous constituents at
levels below concern from a human •
health and environment  perspective  .
should not be subject to full Subtitle  C
management EPA has proposed
concentration-based levels for comment
in 57 FR 2i45Q (May 20,1992).
  EPA has already promulgated several
modifications of the 1990 toxicity
characteristics rule in several respects
based, at least in part, on the manner in
which the particular waste is actually
managed. 56 FR 13406 (April 2,1991);
55 FR 11836 (March 29,1990). Today's
proposal is consistent with, and
furthers, this approach to identifying
hazardous waste characteristics.
Because EPA believes that it can be
confident that remedial waste managed
'subject to State oversight and .the
conditions set forth in this proposal
would not be "mismanaged," -the waste
may not be "hazardous" under RCRA
section 1004(5) and "should" hot be
regulated as hazardous under RCRA
 section 3O01(u).

 D. Alternative Approaches
  EPA recognizes that not all groups
 consider the approach it is taking in
 today's proposal is the most ~- .
 appropriate. The Hazardous Waste
Treatment Council, for example,
 suggests that EPA address the TC issues
 that have been raised by the States
 though some means of simplifying the
 permitting of petroleum cleanups, rather
 than by suspending the  applicability of
 the TC. The Treatment Council
 specifically suggested the use of permits
 by. rule as a mechanism  which could
 alleviate the administrative impacts  of
 addressing petroleum contaminated
 media under RCRA subtitle C, while
 maintaining the controls and standards
(including the land disposal
restrictions) provided under subtitle C.
  In the context of other previous
rulemakings, the Agency has explored
the concept of alternative, and more
streamlined, types of RCRA permits that
could be used to expedite cleanup-type
situations. One example is the proposed
rulemaking for mobile treatment units
(see 52 FR 20914, June 3.1987). The
primary legal impediments to this type
of permit are the need to provide for site
specific public participation (as
required under RCRA section 7004). and
the requirement to address facility-wide
corrective action (under section
3004(u)). Given that these permits
would have to address these statutory
requirements, and that doing so would
require a considerable time and resource
commitment on the part of the issuing
government agency(s), as well as. the
permittee, it may be that creating some
such type of permit for petroleum
cleanup situations would actually have
little "streamlining" effect.-
  Some have also suggested the use of
emergency permits as another
alternative to RCRA subtitle C
permitting. Emergency permits could be
used in some situations involving
petroleum releases, albeit not 'to
extended cleanup operations, nor
currently to sites where cleanup is not
being conducted in response to an
actual "emergency" situation. However,
one option, upon which we are seeking
comment, concerns modifying the
emergency permit provisions to
accommodate petroleum spill
remediation..                        •
  Even if the administrative problems
associated with issuing permits for  .
petroleum release cleanup activities
could be resolved, we recognize that
several of the problems cited by the
States in this regard may remain. For
example, several States point to the  .
need for persons conducting cleanups to
register as a hazardous  waste generator
and obtain a generator identification
number as a source of delay in being
able to legally allow transport of
contaminated media and debris from the
spill site to subtitle C disposal. The
volumes of such materials requiring
RCRA Subtitle C management could
also potentially create serious capacity
problems for the hazardous waste
treatment, storage and disposal system.
EPA is specifically soliciting comment
 and data on the volume of contaminated
 media and debris associated with
 petroleum product spill cleanup and the
 impact of this on the capacity of the
 existing hazardous waste system.
   As discussed above, EPA believes  that
 the existing legal framework in RCRA
 creates impediments to adapting subtitle
                                                                 E. Relationship of This Proposal to
                                                                 Contaminated Media Cluster
                                                                   It should be noted that the Agency ha*
                                                                 underway a broader consideration of

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  61548     Federal Register /  Vol. .57. No. 248 7 Thursday, December 24,  1992  / Proposed Rules
  contaminated media issues related to
•  the issues addressed in this proposal. To
  improve the overall quality of its
  regulatory dodsionmaking and to
  develop more integrated approaches to
  environmental problems, the Agency
  has begun to look at groups or clusters
  of regulations. One of these regulatory
  clusters, the "contaminated media
  cluster," is charged with developing a
  more integrated approach among
  Agency policies and regulations dealing
  •with waste remediation.
    The contaminated media cluster
  project is gathering information to
  develop a comprehensive view of the
  quantities and types of waste needing
  remediation, the types-of risks they
  represent, the current regulatory and
  statutory framework, elements of an
  effective cleanup process, and die costs
  and benefits of cleanups. The
  culmination of that work will be a
  regulatory strategy that will include a
  set of objectives and operating
  principles for the Agency's remediation
  programs. Although the cluster effort is
  not yet complete, this proposed TC
  suspension rule for petroleum
  contaminated media and debris has
  been closely coordinated with the
  regulatory cluster on contaminated
  media.
  F. Relationship of This Proposal to the'
  Ground Water Protection Principles
   This proposed rule is consistent with
  the Ground Water Protection Principles.
  One of the Principles states that "With
  respect to Federal, State, and local
  responsibilities, the primary
  responsibility for developing and
  implementing comprehensive ground-
  water protection programs continues to
  and should be vested with the States."
  Thus, today's proposed TC Suspension
  and the Ground Water Protection
  Strategy both reflect the general
  objective of giving States the lead role
  in implementing these types of
  environmental programs.
  IV. Explanation of Today's Proposal
  A. Scope
  1. Wastes Subject to the Proposed
  Suspension
   The proposed suspension of the TC   .
  rule (for D018-D043) will be limited to
  environmental media (groundwater,
  surface water, soils, and sediments) and
  debris (see definition in 57 FR1015,
  January 9,1992) that are contaminated
  by releases of petroleum product from
  sources other than Subtitle I regulated
  underground storage tanks (e.g.
  aboveground storage tanks, pipelines,
  transportation vehicles). Note that the
 proposal would suspend the TC rule for
  the 25 organic constituents only :
  (hazardous waste codes D018-D043),
  and not for the original EP toxic
  constituents (metals', insecticides, and
  herbicides; hazardous waste codes
  D001-DQ17). EPA believes that
  suspending the TC rule for the 25  •
  organic constituents will have the effect
  of suspending RCRA Subtitle C
  regulation of the treatment, storage, and
•  disposal of petroleum product
  contaminated media and debris. This is
  EPA's clear intent. If EPA finds through
  comments on this proposal pr new data
  that additional EP toxic constituents
  occur in media resulting from petroleum
  product contamination, EPA intends to
  expand the list of constituents subject to
  the petroleum product'suspension in
  the final rule to include such additional
  EP constituents. EPA solicits comments
  on its intention to expand the list of
  constituents if comments or new data
  show that this js needed in order to   '
  fully suspend the TC regulation for this
  material.
   For die purpose, of today's proposal,
  petroleum product is defined as: (1)
  Crude petroleum oil or any fraction
  thereof that is liquid at standard
  conditions of temperature and pressure
  (60 degrees Fahrenheit and 14.7 pounds
  per square inch absolute); and (2)
  petroleum-based substances composed
  of a complex blend of hydrocarbons
  derived from crude oil through  ' .' -
  processes'of separation, conversion,
  upgrading, and finishing, such as motor
  fuels, jet fuels, distillate fuel oils,
  residual fuel oils, and lubricants. This
  definition is a modified version of that
  in the Subtitle I regulations, as it does
 not include petroleum solvents and
 used oils.
   Today's proposed exclusion would
 not affect the regulatory status of media
 or debris contaminated with petroleum- •
 derived listed hazardous wastes (e.g., •
 F037, F038), Although some have
 suggested that EPA extend the proposed
 suspension to media and debris
 contaminated with petroleunvderived
 wastes (e.g., sludges, landfill leachates,
 and tank .bottoms), in addition to
 petroleum products* EPA is not at this
 time proposing to suspend the TC rule .
 for these wastes. These wastes generally
 contain contaminants of concern at
 higher concentrations than do
 petroleum products, can contain
 hazardous constituents other than those
 found in petroleum products, and are
 generally not covered by existing stated
 petroleum product spill response
 programs.
   EPA is also not extending the
 application of the TC suspension to
 used oil, or used-oil processing
 residuals:7 Used oil can be
 contaminated with hazardous
 constituents other than those found in '••
 petroleum product, and these'' /
 constituents may be present in , )
 significant concentrations. Further, state
 rulemaking petitions submitted to EPA
 do riot specifically request a suspension
 of the TC rule for media and debris
 contaminated by used oil. Therefore,
 this proposed rule does not affect the
 UST deferral for petroleum
 contaminated media..
   The Agency is soliciting comment on
 an alternative approach in which the TC
 suspension  for environmental media
 and debris contaminated by petroleum
 product would be  limited to a subset of
 the 25 organic constituents. The
 alternative approach would provide a
 TC suspension only for those
 contaminants identified in 40 CFR
 261.24 (hazardous waste codes D018-
 D043) which are known to be
 indigenous to petroleum product. The
 Agency is considering the following
 three contaminants in this regard—
 benzene, cresols, and methyl ethyl
 ketone. These contaminants have been
 identified as indigenous to petroleum   .
 product, based on  data derived from the
 delisting program. (See 40 CFR 260.22.)
 The Agency requests comment on this
 particular list, as well as ort other TC
 contaminants identified by hazardous
 waste codes D018-D043 which may also
 be indigenous to petroleum product.
 The Agency is considering this
 approach because it is concerned about.
 the improper application of this
 suspension to media and  debris
 contaminated by other D018-D043
 constituents. In this scenario, the actual
 source of contamination could be non-
 petroleum product constituents, or a
 mixture of such constituents with those
 common to petroleum product, but the
 responsible party may argue that the
 source was petroleum product. On the
 other hand, petroleum products are ,
 complex mixes of chemicals, and
 adequately characterizing them by a
 limited subset of codes D018-D043
 constituents could prove difficult, as
 well as require expensive testing, with
 no commensurate benefit. The Agency
 requests comment on this alternative
 approach.
  The Agency also considered an
 alternative that would broaden the
 scope of die  suspension beyond
  7 As defined in 40 CFR 266.40(b). used oil is any
oil refined from crude oil, used, and as a result of
such use, is contaminated by physical or chemical
impurities. A new definition in 40 CFR 279.1, when
it becomes effective, is as follows: "Used oil means
any oil defined from crude oil, or any synthetic oil,
that has been used and as a result of such use is
contaminated by physical or chemical impurities."

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             Federal Register / Vol. 57, No. 248 /  Thursday, December 24, 1992 / Proposed Rules     61549
  petroleum product, to include media
  and debris contaminated by any TC
  constituent. At this time, the Agency is
  not proposing to expand the suspension
  beyond petroleum contaminated media
  and debris. The Agency believes Jhat
  there are compelling human health and
  environmental reasons for proposing the
  suspension of the TC rule for petroleum
  contaminated media and debris, and
  that it should act as quickly as possible
  to remedy the current situation.
  Including other TC contaminated media
  and debris in this proposal would
  require substantial further analysis,
  which could delay EPA in addressing
  the petroleum issue. Moreover, while
  many States may have adequate
  petroleum spill response programs,
  these states may not have programs to
  adequately manage other TC
  contaminated media and debris, which
  could result in these materials being
  unregulated.   '
   Nevertheless, the Agency notes that
  similar concerns have been raised by
  many in the regulated community and
  States about the disincentives to
  cleanup associated with RCRA subtitle
  C regulation of media and debris
  contaminated by any TC constituent,
  and that EPA is concerned about these
  impacts. The Agency requests comment
 •on expanding the scope of the
  suspension beyond petroleum product
  to include media and debris
  contaminated by other TC constituents,
   The Agency also considered the •
 particular issue raised by coal tar
 contaminated media and debris  ,
 generated from the remediation of
 historic manufactured gas plant (MGP)
 sites. For many decades, manufactured
 coal gas was the primary source of gas
 for many American cities. There are in
 excess of 1500 old MGP sites in the
 United States, all thought to be similar
 in the nature and extent of coal tar-
 related contamination. According to
 electric utility industry sources, a
 substantial number of these sites will
 undergo assessment and possibly
 cleanup in the near future, and many
 companies planning such remediation
 activities were hoping to use their own
 high efficiency utility boilers to burn
 coal tar remediation-related wastes. The
 utility industry has expressed to the
 Agency its concern that the advent of
 the TC rule has created a disincentive to
.conduct these cleanups because these
 wastes may no longer be able to be
 burned as fuel in their boilers.
  EPA is currently exploring various
• options to encourage responsible parties
 to undertake the assessment and any
.necessary remediation of historic MGP
 sites within the framework of the
 existing RCRA program. One option
 under consideration is to include coal
 tar wastes within the scope of this
 proposal to suspend the TC rule for
 petroleum product. However, EPA is not
 including coal tar wastes in this
 proposed suspension at this time. First,
 the primary intent of this suspension is
 to respond to the requests made by
 States in their rulemaking petitions to
 EPA; that is, to suspend the TC rule for
 media and debris contaminated by
 petroleum products. Second,  although
 EPA believes that there may be
 important environmental reasons for
 including coal tar wastes within the
 scope of this suspension, EPA lacks
 information on whether coal tar
 remediation and waste disposal in
 utility boilers is effectively regulated
 outside the RCRA Program by state and .
 local governments.                .
   Should information submitted in
 response to this proposed rule support
 a determination that the cleanup and
 burning of coal tar contaminated media
 and wastes in high efficiency  boilers is
 effectively regulated by States, EPA may
 extend the suspension in the final rule
 to include coal tar contaminated media.
 The suspension would, however, only
 apply in States that certify that they
 have in place adequate authorities and
 programs to compel MGP site cleanup  .
 and controlthe burning of wastes
 generated from such cleanup actions.
   The Agency requests comment on an
 option that would include coal tar
 wastes within the scope of this
 suspension. The Agency also requests
 comment on the following: The  extent
 to which coal tar cleanup operations are
 currently being adequately regulated by
 state  and/or local authorities; the cost of
 remediation of coal tar contaminated
 media under Subtitle C and under
 alternative approaches; the'risk posed to
 human health and the environment by
 not regulating coal tar wastes under
 Subtitle C but under alternative
 approaches; and, the most effective
 approaches to remediating old coal
 gasification sites.
 2. Size of Release
   EPA is proposing that the suspension
 of the TC rule apply to any non-UST
 petroleum product release, regardless of
 the volume of spilled material or
 amount of contaminated media or
 debris. Some have suggested, however,
 that the Agency narrow the suspension
 to contaminated media and debris
 resulting from spills of less than 10,000
 gallons (this volume is the National
 Contingency Plan definition of a major
 discharge of oil to inland waters  and an
 established point of reference for
 defining a large spill). These parties
have suggested this harrowing  because
 there may be unique issues posed by,
 larger releases, and in some States,
 petroleum spill response programs may
 not be well suited to address these  ;
 unique issues. EPA requests comment
 on the extent to which State spill
 response programs address the unique
 issues posed by larger releases.
  • Recent experiences hi EPA's Regional.
 Vin office with large petroleum spills :
 (i.e., spills-greater than 10,000 gallons)
 indicate that larger spills tend to have
 multi-media environmental impacts and
 require long term oversight. It is not
 unusual for a particularly large spill to
 contaminate surface water, sediment,
 air, soil, and ground water and require
 years to remediate. It has been suggested
 that States may not always  have the
 necessary expertise or resources to.
 oversee remediation of these types of
 spills.
   On the other hand, the State that first
 approached the Agency on  the issue of  :
 a TC deferral—New York—did so
 because of the difficulties that the TC
 was presenting at,a large cleanup site,
 involving many thousands cubic yards
 of contaminated soil. In this case, the
 State hoped to conduct on-site treatment
 under its State  cleanup program;
 securing a Federal permit (the State is
 not yet authorized for the TC) would
 significantly delay the project. In fact,
 the problem presented by Subtitle^
 regulation may be greater at these large
 sites, because smaller sites often can be
 handled expeditiously within the
 existing permitting, system as emergency
 responses, wastewater treatment units,
 or 90-day treatment units, oy will not
 involve 6n-site treatment. Furthermore,
 it may be difficult to  determine in all
 cases the volume of material released
 after, the fact, particularly where the
 release is not a surface spill but rather
 has occurred as leakage over an  :
 extended period of time.       ,
  EPA is soliciting comment on whether
 a limit should be placed on  the volume
 of spills covered under the deferral. In
 particular, comments should address
 the extent to which States with     ,
 petroleum response programs do or do
 not have the regulatory authority,
 technical expertise, and/or capability to
 properly oversee the long term cleanup
 of large, multi-media/spills or other
 releases of petroleum product. However,
 as discussed in Section C below, the ,
 Agency is not proposing an extensive.;
 review of State programs. Any revieW of
 this type would be overly prescriptive
 and deny States the flexibility to tailor
 response programs to specific spills or
 site conditions. To the extent that
comments and data submitted jh
response to this proposal support a  ••'...
determination that State petroleum spill

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61550     Federal Register /  Vol.  57, No. 248 / Thursday,  December 24, 1992 / Proposed Rules
response programs are generally not
adequate to respond to large petroleum
spills, EPA could limit the suspension
in the final rule to contaminated media
and debris generated as a result of spills
of less than 10,000 gallons of petroleum
product, Alternatively, if data suggest
that certain States have the ability to
adequately respond to larger spills, EPA
could, in the final rule), suspend the TC
rule for all volumes of spills in states
with this capability and limit the
suspension to smaller volumes in States
that lack the capability.   ,
B. Timing
  EPA is proposing that this suspension -
of applicability of the TC to nonrUST
petroleum contaminated media and
debris he no longer than threa years
from the effective date of the final rule.
Although EPA believes that available
data on the negative impacts of Subtitle „
C regulation of petroleum contaminated
media are sufficient to support a 3 year
suspension, EPA recognizes that  ,
additional data and analyses may
suggest the need for a refinement of the
basic approach taken in this proposal to
better ensure that human health and the
environment are being adequately  •
protected. During the three-year period,
EPA will conduct studies similar to
those now underway pursuant to the
UST deferral, including:
  • A comprehensive study of the
characteristics of sites and wastes
affected by application of the TC to
contaminated media and debris
resulting from noiAJST spills of
petroleum product, including an
analysis of potential cross-media
impacts.
  • A national survey of state
petroleum spill response programs.
  • A comprehensive evaluation of the
potential economic and environmental
impacts of subtitle C regulation of these
materials on the Agency's and States'
hazardous waste management programs,
and an evaluation of the available
capacity of commercial hazardous waste
treatment, storage and disposal
facilities.
  * A comprehensive evaluation of
whether some alternative regulatory
structure would be more appropriate
(such as streamlining or otherwise
revising subtitle C requirements for
these wastes) then the currently
available, alternatives of a complete
suspension of the TC rule or full subtitle
C regulations.
  EPA considered proposing to suspend
the TC rule fora shorter time frame,
such as two years or one year. However,
given the scope and complexity of the
issues involved and the studies to be
performed during the suspension, EPA
believes that it may need a full three
years in order to fully address the issues
and develop a generally acceptable
permanent solution. EPA is, however,
soliciting comment on whether the three
year time frame is reasonable and
necessary. Comment is solicited
regarding alternative time frames for the
proposed suspension.
C. Limiting Suspension to States With
Effective Programs        •
  EPA is proposing that this suspension
be limited to states that certify to the
EPA Regional Administrator that they
have effective programs in place to
response to and remedial non-UST ,
petroleum releases and control.  .
remediation-related contaminated
media and debris.8 This is similar to the
standard for delegation to State
petroleum cleanup programs under '
section 9003(h)(7) of RCRA (LJCJ.S.T.
Trust Fund and cleanup authorities).
EPA believes that limiting the
suspension in this manner will, provide
adequate protection of human health
and the environment from the potential,
impacts associated with the remediation
of petroleum product, while at the same
time allowing remediations to proceed  •
expeditiously.              <.
  EPA considered not limiting the
suspension to states with effective
petroleum response programs in place.
In other words, the TC could be
suspended completely as it would apply
to petroleum product contaminated
media and debris, on a national basis.
Such a suspension would be based on
the assumption that such contaminated
materials inherently do not merit
Subtitle C regulation, and that specific
state controls are not needed to ensure
protection of human health and the
environment..EPA decided not to
propose this option, since the Agency
believes that petroleum product
contaminated media and debris can
pose potential threats if mismanaged. A
"blanket" suspension of the TC in this
context would likely leave non-UST
petroleum spills largely unregulated in
some States, with the resulting potential
for mismanagement of what may be
large volumes of contaminated media
and debris. Further, limiting the
suspension to states with effective
petroleum spill response programs may
provide an incentive for states without
such programs to establish them.
  EPA-also considered an alternative for
this proposed rule that would have
granted the suspension only to states
  "The proposed suspension would also apply to
petroleum product contaminated media and debris'
that are generated and managed pursuant to Federal
remedial authorities, as explained in 'the following
section (E) of this preamble.
 that could demonstrate that their .
 petroleum response programs complied
 with a comprehensive, Federally
 defined set of criteria; Under this
 approach, EPA could develop a very
 detailed set of requirements explicitly
 defining the types of legal authorities
 that states must have, requirements for'
 how releases must be investigated,
 standards for management of cleanup
 wastes, cleanup levels to be achieved,
 and program administration           •.
 requirements (e.g., staffing levels,
 qualifications of personnel, etc.). EPA
 believes that this type of approach
 would be overly prescriptive, and
 would not allow states flexibility to
 tailor response programs to specific
 responses, or to reflect different
 conditions across states. For example,
 cleanup of petroleum releases in a State
 like Alaska, where much of the State
 can be reached only by air, might of
 necessity be approached differently than
 in a more populated state. Furthermore,
 this approach would take undue time to
 put into effect. Not only would cleanups
 be significantly delayed, but EPA's
 experience with State authorization
 under Subtitle C suggests that few if any
 States would be able to complete the
 authorization process before the
 termination of the three-year
 suspension.
  /Today's proposal, in specifying
 requirements for adequate state
 programs for purposes of obtaining the
, TC suspension, outlines a set of criteria
 that the Agency believes.will allow  •
 flexibility for States, while ensuring
 effective and protective responses to
 petroleum product releases in States in
 which the.suspension would apply.
   As proposed today, the primary
 standard for determining adequacy of
 State programs would be whether a
 State has both legal authorities
 (including enforcement authorities), and
 an administrative program structure
 sufficient to require cleanup of non-UST
 petroleum product releases, and to
 control the management of petroleum
 contaminated media and debris that 'are
 generated from cleanup activities.
 Specific remedial requirements that may
 be applied to a particular release
 situation will continue to be determined
 by the State, according to applicable
 State regulations, and guidelines.
 Although States will have to be able to
 impose appropriate controls on
 management and disposal of petroleum
 contaminated media and debris, such
. controls would be determined by the •
 State.         	
   Similarly, although today's proposal
 requires that States must, to obtain the
 TC suspension, have programs in place
 to effectively administer and enforce the

-------
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                                                    ,IoV
                                                                                               Israfeal
                                                                                     mi J803 laitasJadua e
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debris i&':thatJStataJ\or.oifry.lthafcwhiHli
                                                                                would also be resource-intensive for


                                                                              3fTSi»f8%!
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                                                                                   ironmentany protective responses; to
                                                                                petroleum spills in .their states. Gixen


                                                                                   ^  f-.-- ^.-^     -. —,    "gggy
              certification
          to  co
              in
              the suspension into effect i{^
                Underthis proposed appro
             e "
of subtitle. C   resoonse
                        ^ Statelcsjich
                                has
would apply to those. cleanup w

                                        cerbbcgbpgg
                                                                                of sections 3004(u), 3004(v>fi36flBB(h)ad
                                                                                and 7003, and the Oil Pollution Act
                                                                                degree of control over rejagdj^A £00t
                                                                                -_....^__^.t.      ..,.,    ,
                                          In  eveopng t
soliciting comment.'however, on
whether the final rule should include
               	rfaua to noc>Btioq?.fi8TJ 10
               9 This procedure applies to States that are not              ,    .      .
              authorized for the TC. See discussion in Section VI   granting the proposed Suspension for
              of this preamble.                      •      State cleanups apply equally to Federal-

-------
 61552     Federal Register / Vol. 57, No. 248  t  Thursday, December 24, 1992  / Proposed Rules
 lead remedial!on—potential impacts on
-subtitle C treatment and disposal
 capacity, the substantial cost impacts of
 subtills C management of those
 materials with little associated benefits,
 and the need to obtain RCRA permits for
 potentially large numbers of units in
 which petroleum contaminated media
 and debris will be managed.
  EPA solicits comment on extending
 today's proposed TC suspension to
 Federally supervised, cleanup actions.
 particularly in regard to whether
 cleanups'supervised by Federal agencies
 under authorities other than RCRA and
 OPA should also be eligible for this
 suspension.
 V. Relationship to (Khar Programs
 A. Deferral of the Application of the TC
 Bute to Petroleum Contaminated Media
 and Debris From Subtitle I—Regulated
 USTs
  This action would not affect the UST
 deferral from the TC rule, since it
 applies only to non-UST petroleum
 product contaminated media and debris.
 As explained previously, the Agency is
 currently evaluating the extent and
 nature of the potential impact of the TC
 rule on UST cleanups, as well as the
 impact that Subtitle C management of
 petroleum contaminated media and
 debris from USTs would have on the
 Agency's and States' hazardous waste
 management programs. The Agency
 plans to make its final  determination on
 the UST deferral in early 1993.
  The Agency believes it is appropriate
 to examine the application of the TC
 rule to petroleum contaminated media
 and debris from USTs and non-UST
 sources separately. Programs that
 regulate USTs and non-UST sources or
 petroleum contaminated media and
 debris cab bo distinct, with their own
 regulatory and administrative
 structuresr. Hence, the impacts of the TC
 rule on UST and non-UST'cleanups can
 differ. For this reason,  the ultimate
 determinations as to how to regulate
 UST and non-UST petroleum
 contaminated media and debris could
 bo different.
 JB. Enforcement
 Effect of Today'aProposal on Section
 7003 Authority   ••
  'The proposed suspension does not
 affect the Agency's ability to use RCRA
 section 7003 to compel clean-up of a
 petroleum release in cases when the
 Agency has determined that an
 imminent and substantial endangerment
 may be present. Product which has been
 spilled or otherwise placed into or on,
 any land or water ana not promptly
 recovered fs a waste material (see 4O
GER 260.10 and40 CFR 261;2(b)(I}).
This include* epilled petroleum
product. (Set Zandsv^ Nelsonr 779 F.
Supp, 1254 ($D.Cal.l991)). RCRA
Section 7003 applies to solid waste or .
hazardous waste. Therefore, spilled
petroleum is potentially subject to this
statutory authority, regardless of
whether or net it may meet the
definition of« characteristic hazardous
waste, e.g., TO for benzene.
  If the proposed suspension goes into
effect, materials other than petroleum
that.are listed in subpart D of 40 CFR
part 261 or that exhibit a characteristic
of hazardous waste as defined in
subpart C of 40 CFR part 261, will
continue to be considered hazardous
wastes when iipilled or dumped.
Handlers misrepresenting such material
as non-hazardous waste are in violation
of RCRA subtitle C and subject to
enforcement

Effect of Today's Proposal on RCRA
Sections 3004(u) and 3008(h)
Authorities
  Today's proposal has no effect on the
scope of 3004l!w) and 30O8(h)
authorities, iiace those authorities are
•not limited toitazardous waste, but
apply also to hazardous constituents. .
Since petroleum product contains
hazardous constituents, sections 30O4(u)
and 3008{h)«iithorifies can still be used
by the Agency to compel cleanup of
petroleum relUEses at facilities regulated
under RCRA flubtitleC.

C. Corrective Action

Effect of Today's Proposal on Corrective
Actions Underway
  As explained in the previous section
of this preamble, the proposed
suspension of the TC is not expected to
have significant impacts on the
Agency's ability to require cleanup of
facilities under the corrective action
authorities of JRCRA. Section 7003,
3004(u} or 3008(h). Such authorities are
not limited to cleanup of hazardous
wastes. This is the case of facilities and
sites that are potentially subject to
corrective action under these
authorities, as well as facilities where
the corrective action process is already
underway. Id addition, the suspension
would not ba expected to affect States'
abilities to require cleanup under State
response authorities.
  In the casa of cleanup operations '•
already underway that involve
management cf TC hazardous
contaminated media, today's proposed
suspension ootald have an  effect on the
specific requimnents that  would be
applicable t» like treatment, storage.
disposal or transportation  of such
 hazardous media. For example, a
 remedial action may be underway
 which involves excavation: of petroleum
 contaminated soils, and; storage of those
 hazardous soils in a pile at the facility.
 "The pile would be subject to the
 applicable RCRA. subpart L standards
 for piles, including requirements for
 liners, ground water monitoring,
 closure, and other standards. If the
 proposed TC suspension were to
 become effective during this cleanup
 action, the: subpart L pile standards
 would no longer apply, since the
 contaminated soils would no longer be
 hazardous. However, the waste
 management requirements specified in
 existing orders or permits would remain
 in effect, despite the suspension, unless
 the requirements were modified by the
 regulatory authority.
 Effect of Today's Proposal on RCRA
 'Permitting Requirements
   There may be a situation in which the
 Agency has required a RCRA permit for
 the remedial action at a site solely due
 to petroleum'product contamination of
 environmental media and debris. Under
 today's proposal, the permit in this case
 would no longer be required, since the
 petroleum product contaminated media
 and debris would not be considered
 hazardous waste. The Agency is not
 aware of any such facility, therefore thp
 impact of today's proposal on
, permitting is assumed to Be minimal.
 VI. State Authorization Considerations

 A. Applicability afRules^ in Authorized
 States
   Under section 3006 of RCRA, EPA
 may authorize qualified states to
 administer and enforce the RCRA
 program within the State. Following
 authorization, .EPA retains enforcement
 authority under sections 3008,3013,
 and 7003 of RCRA, although authorized
 States have primary enforcement
 •responsibility. The standards and
 requirements for authorization are
 found in 40 CFR part 271.
   Prior to the Hazardous and Solid
 Waste Amendments of 1984 (KSWA), a
 State with final authorization
 administered its hazardous waste
 program 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 that
 the State was authorized to permit.
 When new. more stringent Federal
 requirements weire promulgated or
 enacted, the State was obliged to enact
 equivalent authority within specified
 time frames, ftteve Federal requirements
 did nor take effect in: ah authorized State

-------
            Federal Register / Vol. 57, No. 24& /Thursday, December 24, 1992 / Proposed Rules     61553
Until the State adapted the requirements
as. State law.
.  In contrast, under RCRA section'
3006(g) (42 U.S.C.6926(g}), new
requirements and prohibitions imposed
by HSWA take effect in authorized
States at the. sam» time that they take
'effect m nonaulhorized States. EPA is
directed to- carry out these requirements
and prohibitions in authorized States,
including the issuance of permits, until
the State is granted authorization to do
so. White Stales must still adopt HSWA-
related provisions as State law to retain
final authorization, HSWA applies in
the authorized State in the interim,

B. Effect of Today's Proposal an Stete
Authorization
  Today's proposal provides, for a
limited period of time, a less stringent
standard for petroleum product
contaminated media than is imposed in
the Toxicity Characteristics regulation.
In .order to prom^e environmentally
beneficial petroleum product clean-up
operations, today's proposed rule
provides that wastes generated from
such cleanup operation a would not be
hazardous wastes, under Federal
regulations until 3 years after the,
promulgation of today's rule in those
states that certify to EPA that they have
in, place effective petroleum product
spifl response programs. For states that
have adopted the TC regulation,, today's
proposal is less strfngenU therefore.
states are not required to adopt it. For
states that have not adopted the TC
regulation, EPA implements the TC
regulation and would implement this
suspension of the TC regulation:, if
finalized, for wastes from petroleum
product spills.
  However, the relationship of state
certification for the proposed
suspension to- tfte- state's authorization
status needs clarification. For states that
are-not authorized for the base RCRA
program, as weU as for those states that
are RCRA-authorized but not TC-
•authorized, state certification- raises no
special state authorization issues. These
states coaM simply certify that they
have-both legal authorities and an
administrative program structure
sufficient to require cleanup-of.non-UST
petroleum- product releases, and to
control the* management of petroleum
contaminated media and debris that are
generated from- cleanup activities; to
this manner, these states wouM qualify
for the Federal suspension of the TC
regulation, without raising amy stats'.
authorization issties.
  States that ara bath RCRA-and TC-
authorized, however, would have-to
make a decision- about whether to adopt
a similar suspension, and, if they choose
to adopt suck a procedure, they would
also have to make a decision at the state
level an the need to change! their state
regulations. Some states may choose mot
to change their regulations, but rather to
use-a state waiver authority to lift the
TC requirements- in these cleanup
situations. Use ofsaefe waiver authority
would have- to be in a manner na less
stringent than the Federal TC
suspension.                       .
  In cases wherS a state chooses to
certify and chooses to change its
regulations, the new state regulations
must be no less; stringent than the
Federal suspension. If State TC
regulations are changed in a manner
that is less stringent than this proposed
suspension {e.g., the State suspension is
longer than three years or addresses
more than just petroleum product), EPA
will not authorize the change and will
enforce the more stringent Federally-
authorized State TCrule provisions
pursuant to Section 3009 of RCRA.
 . EPA also considered an alternative
approach, feu States that ase both RCRA-
and TC-authorized. Under this
approach, EPA would require
authorization of the new State
regulations before the suspension could
become effective, in order to guarantee
that the new State regulations- would be
no less stringent than the Federal
program. The Agency rejected this
option because of the need to move
cleanups more promptly. Furthermore,
the Agency does not believe this would
be a workable approach since the three-
year suspension would Mkaly run out by
the time a State made the necessary
changes to its regulations suspending
the TC rule, and thea applied for and
received authorization for these  .
changes.
  Finally,, fee States' that have adopted  .
the-TO rule but are not yet authorized
for it,  if these States wish to pursue the
suspension:, EPA will acee.pt their
certifteatieHi for the- purposes, of th» .
Federal TC suspension. The State may
also- need to take other aeMoBSi tfegv use
of waivers] to satisfy State law
requirements.

VII. Risk Assessment/Screening.
Analysis-
  EPA performed a. screening risk
analysis, m order to investigate the
discussion set forth in the- state
petitions, which argue that tlje state  '
programs wotild be- at least as protective
as. subtitle C management of petroleum
contaminated soils. States, argue that
state program clean-tups would address
sites, more quickly than clean-ups under
the Subtitle C program, and therefore
more promptly and more effectively
• reduce risk to human health and tbe
 environment.      .--          •   -•
   Any delays under the- subtitle C
 program would increase the ineremeatal
 risk of subtitle Celean-ap veisiisTC-
 suspensioa state management practices
 if 1\ state programs control risks from
 the spill more quickly than efforts under
 the subtitle C pro-am and do not
 experience similar delays and 2) stats
 management practices are as (or almost
 as) protective as subtitle C manageraent
 practices;
   EPA conducted a screening risk
 apaijrsfe to identify; potential increased
 risks to human health due to delays in
 clean-up. The screening analysis is
 based on modeling tbe fata and
 transport of benzene from, petroleum
 from the soil surface, through the
 unsatarated zoae and into the
 groundwater. Because this analysis is a
 screening analysis, the models use
 simplified amdl conservative
 assumptions, and represent worst cas&
 scenarios.
   For this screening analysis, EPA
 modeled the fate of gasoline spilled onto
 three types of soil: GEayel, sand and
 clay. Depending on. the soil type, the
 estimated time for a leaehate exhibiting
 the TC for benzene to reach a depth of
 3 meters.ranges from 1—25 months, and
 twice that time to reach a depth, of 6
 meters. In addition, the screening
 analysis revealed that groundwater may
 be potentially contaminated above, the
 MCL standard for benzene (5 ppb) in
 eertaia locations. Field studies have,
 demonstrated that under some      '
 conditions, such as fractured
 environments, petroleum has beea
 repeated: to travel moire quickly and: to
 reach grotindwatfli In a matter of hoars.
   Another effect of the, penetration of
 petcoleum products thscaigh the soil is.
 an increase- in the- volume of
 contaminated soil over time and
 therefore, in most instances,, an increase
 in the amount of TC hazardous waste
 which would need to- be cleaned-up*
 This results in both, aa increase in clean-
 up costs and a potential increase in.
 exposure. EPA will study this effect of .
 delays in clean-ups and is requesting
 comments on the areal extent of
 contamination resulting from various
 size sjpills of various types of petroleum
 products.
   In summary „ the results of this
 screening, analysis, indicate that gasoline
 spill clean-up delays of a few months.
 could result in (1) increased areal extent
 of contamination, which increases the
 volume of soil requiring excavation OF
 retsediation and thereby increasing
 potential for exposure- and £2}     , -   .
 contamination of gsouodwat&r, thereby
 adding to- cleanup costs and potentially

-------
61554     Federal Register / Vol.  57. No. 248  /Thursday, December 24, 1992 / Proposed Rules
posing health risks if groundwator is
used for drinking water. The Agency
will continue to assess potential risks of
petroleum spills. Towards this end, the
Agency is requesting comments and
information regarding spill size,
resulting contamination over time, and
exposures over time for recent
petroleum spills which may he-useful in
preparation fof the final rule.
  In order to analyze any change in risk
between the TC Suspension and subtitle
C management, the Agency will
consider the environmental fate of the
remediated\vaste. While the Agency has
some information on the residual risks
of waste management and disposal
under subtitle C, the Agency has less
information on State management and
disposal requirements for these
petroleum wastes. The Agency has
limited data on the quantities of
material that would be managed in this
manner, and on the actual impacts on
exposure pathways, and so solicits
comment on this issue.
  The risk screening analysis used
simplified and conservative
assumptions, and the results are
therefore very preliminary. However, it
is clear that in many instances
immediate remediation of petroleum
spills will reduce risk to human health
and the environment in comparison
with lengthy delays in clean-up. More
information on thlsr analysis is included
in the Technical Background Document
for Screening Risk Analysis of the TC
Suspension for Petroleum-Contaminated
Media, RCRA docket number F-92-
STPP-FFFFF.
  In addition, because of the volatile
nature of many petroleum constituents,
such as benzene, delayed clean-ups of
petroleum contaminated soil may also
pose a potential risk to human health
through the air pathway. EPA requests
comments on the potential exposure
rates and risks from the air pathway,
both due to delayed clean-ups and due
to uncontrolled remediation activities.
EPA is particularly interested ip
laboratory studies, field observations,.
modeling results or other information
about the length of time over which, and
the rate at which, benzene.(or other
constituents) in petroleum products
volatilize after a spill or release into the
 environment, and the effects of
 competing processes such as percolation
 through the soil (speed and depth) and
biodegradation on the rate of
volatilization.
VHI. Cost Saving!} Analysis
   EPA has identified several possible
 sources of cost savings under a TC
 suspension for petroleum contaminated
 media.  Cost savings result from the •
difference between waste.management
costs under state petroleum response
programs and posts under Subtitle C
programs.
  Below is a discussion of sample cost
estimates provided by states and'other.
sources. An EPA memo, "Cost     '".
Discussion References for Management .
and Disposal of Petroleum Product   .
Contaminated Media and Debris," is
available in the docket.   .        '
  Based on limited information '
available from the states, qn-site  .
management technologies of petroleum
contaminated media could be similar
under state prbgrams and under subtitle.
C programs. Thus the cost difference
between the two pn-site remediation
regulatory scenarios—state programs
and subtitle C programs—maybe   .
primarily associated with the difference
in administrative costs. EPA solicits
comments on subtitle C administrative
costs as compared to state program
administrative costs, including
information on whether new subtitle C
permits are likely to be obtained at
petroleum spill sites. No information is
available on owner/operator
administrative costs under state
programs, but under Subtitle C .
programs total TSD permit cost
estimates provided by states (Minnesota
and Vermont) range between $21,000
and $80,000. Because of this high cost
of a subtitle C TSD permit, which would'
be required for many on-site
remediations of hazardous waste,
petroleum contaminated soil.
management and disposal is more likely
, to be conducted off-site under the
subtitle C regulatory scenario.
  •However, subtitle C off-site
remediation unit costs would still be
greater than state program remediation
unit costs, both (1) due to fees charged
by treatment, storage and disposal
facilities and (2) due to transportation'
cos.ts to the  disposal site.
   In additibnj some states have asserted
 that clean-ups under Subtitle C would
 take longer than state prbgrams,
 allowing contamination to spread and
 resulting in a much larger volume of soil
 and/or groundwater to be remediated.
   In summary, unit costs for subtitle C
 waste management of petroleum
 contaminated soil tend to be higher than
 for state program management of soil.
 The reason for this cost difference
 depends on whether the soil is managed
 on- or off-site.
Subtitle C
management
On-slte 	
Off-site
Off-site 	
State pro-
gram man-
agement
(TC suspen-
sion)
Off-site 	
On-slte 	
Off-site 	
Source of cost sav-
ings for TC suspen-
sion
Avoided Subtitle C ad-
ministrative costs.
Avoided transportation
costs; difference be-
tween Subtitle C
disposal fees and
on-slte remediation
costs.
Lower transportation
costs; lower dis-
posal fees.
Subtitle C •
management
On-site 	 :..
State pro-
gram man-
agement
(TC suspen-
sion)
On-site' 	 :.
Source of cost sav-
ings for TC suspen-
sion
Avoided Subtitle C ad-
ministrative costs.
  Estimates of actual unit cost savings
vary, depending on location (i.e.
distance from a subtitle C disposal
facility) and on remediation method
chosen. State estimates of transportation
costs to a Subtitle C facility range from
$30/ton (Texas) to $300/ton
(Minnesota).
  [Note: One cubic yard of contaminated soil
is assumed to weigh one ton.]
  Subtitle C land'fill cost estimates
provided by states range from $140/ton
(Minnesota) to $2,000/ton (New York)
and incineration costs estimates
. provided by states range from $420/ton
to $l,700/ton (Minnesota).
  Conversely, potential waste
management costs using methods that
state programs might choose under a TC
suspension are substantially lower.  '
State estimates of transportation costs to
subtitle D landfills range from $5/ton
(Texas) .to $20/ton (Vermont). Subtitle D
landfill cost estimates provided by
states range from $30 (Minnesota,
including transport) to $300/ton (New
York, not including transport).. On-site
remediation techniques, such as thermal
treatment or.bioremediatiori, are  .
generally less expensive than off-site
techniques [states provided ranges from
$30/ton (Minnesota, thermal treatment)
to $120/ton (Minnesota,
bioremediation)] but are reported to be
as high as $l,000/ton (Texas, for
bioremediation). These cost ranges are
•based on studies of five different states
(Minnesota, Florida, New York,
Vermont and Texas); other states' costs
may vary widely.
   Information on the total amount soil
or other media affected by a TC
 suspension is not readily available. The
American Petroleum Institute (API)
 estimates in January 1992 that 23.5
 million gallons of petroleum is spilled
 in 24 states annually.  Of this 23.5
 million gallons of petroleum spilled in
 24 states, only.a portion will
 contaminate soil or other media in states
. affected by the TC suspension (i.e. states
 with adequate  programs to address
 petroleum contamination).

-------
            Federal Register / Vol. 57, No. 248  /  Thursday, Deceiaber 24, 1992 / Proposed Rates     61555
.' (Note: The Texas Railroad Commission'
 estimates, that I barret of oil C4Z gallons)
 contaminates 2.1 cubic yards of soifl.

  Of the contaminated soil in affected
 states, 01% a portion will actually fail
 theTC. Although these portions axe
 unknown, the amount of TC petroleunv
 contaminated soil affected annually by
 the suspension appears to' be on the
 order of hundreds of thousands of cubic
 yards. Depending on the actual unit cost
 savings, the total national cost savings
 due to- the TC suspension- for petroleum-
 contaminated media may be m the- tens
 or hundreds of rnilKons of dollars per
 year for the duration, of the three year
 suspension.

 EX. Regulatory Requirements

 A, Regulatory Impact Analysis Pursuant
 to Executive Order No.  12291

  Executive Order No. 12291 requires
 that regulatory agencies determine
 whether a new regulation constitutes a
 major rulemaking and, if so, it requires
 that the agency conduct a Regulatory
 Impact Analysis (RIA). An RIA consists
 of the quantification of the potential
 benefits, costs, and economic impacts of
 a major rule. A major rule is defined in
 Executive Order No. 12291 as a
 regulation likely to result in:
  « An annual effect to the economy of
 $100 million or more; or
  • A major increase in costs or prices
 for consumers, individuals, industries,
 Federal, State, and local government
 agencies, or geographic regions; or
  • Significant adverse.effects on
 competition, employment, investment,
 productivity, innovation, or on the
 ability of United States based
 enterprises to compete with foreign
 based enterprises in domestic or export
 markets.
  The Agency has estimated that today's
 proposed rule will result in significant
 cost savings to the economy (see VIII.
 Cost Savings Analysis, above). Also, the
 Agency does not believe the rule will
 significantly effect consumers,
 individuals, industries, Federal, State
 and local government agencies, or
 geographic regions, or have significant
 adverse effects on competition,
 employment, investment, innovation, or
 international trade. Therefore, the
 Agency has determined that today's
 proposed rule is not a major rule.
  Because today's proposed rule is riot
 a major rule, the Agency has performed
 a Cost Savings Analysis (see section VIE
 above), rather than an RIA, focusing its
 analyses on the cost savings of the rule
 only. The Agency has not assessed the
 economic impacts and benefits
 attributable to today's proposed rule.
 B. Begulatary Flexibility Act

   Pursuant to the Regulatory Flexibility
 Act, 5 U.S.C. 601-12; whenever an
 agency, is required to publish a general
 notice of ralemaking for any; proposed -
 or final rule, it must prepare and make
 available for public comment a
 regulatory flexibility analysis which
 describes the impact of fee rule on small
 entities (i.e., small businesses, small
 organizations, and small governmental
 jurisdictions).
   This proposal will generally provide
 regydatory relief to business facing
 petroleum-related cleanups and
* businesses conducting the cleanups. For
 this reason, the Administrator has
 certified that this rule will not have a
 significant negative impact on small
 entities—in fact, it is likely to have a
 significant positive impact. Therefore, a
 regulatory flexibility analysis is not
 required.

 C. Paperwork Reduction Act       .  '

   The information collection
.requirements in today's proposed.rule
 have been submitted for approval to the
 Office of Management and Budget
 (OMB) under the Paperwork Reduction
 Act, 44 U.S.C. 3501 et seq. An
 Information Collection Request (IGR)
 document has been prepared by EPA
 (ICR No. 1623.01) and a copy may be
 obtained from Sandy Fanner,
 Information Policy Branch, EPA, 401M
 Street, SW. (PM-223Y), Washington, DC
 20460 or by calling (202) 260-2740.
   Public reporting burden for this  .
 collection of information is estimated to
 average 26 hours per response,
 including time for reviewing
 instructions, searching existing data
 sources, gathering and maintaining the
.required data, and completing and
 reviewing the collection of information.
   Send comments regarding the burden
 estimate or any other aspect of this
 collection of information, including
 suggestions for reducing this burden, to
 Chief, Information Policy Branch> PM-
 223Y, U.S. Environmental Protection
 Agency, 401 M Street, SW., Washington,
 DC 20460; and to the Office of
 Information and Regulatory Affairs,
 Office of Management and Budget,
 Washington, DC 20503, marked
 "Attention: Desk Officer for EPA:" The
 final rule will respond to any OMB or
 public comments on the information
 collection requirements contained in
 this proposal.
 List of Subjects in 40 CFR Part 261

   Harzardous waste, Recycling,
 Reporting and recordkeeping
 requirements.
  Dated4 December 15, 1892.
Administrator.
  For the reasons set oat in the
preamble, chapter I of title 40 of the
Code: of Federal Regulations is amended
as foHowst .

PART 261— IDENTIFICATION AND   -
LISTING OF HAZARDOUS WASTE

  1. The authority citation for part 261
continues to read as follows:.
  Aultorily; 42 OS£. 6095, 6912fe), 6321.
and 6822.
  2. Section 261.4 is amended by  •
revising paragraph (bHllJ to read as
follows: '

§261.4  Exclusions.
*     *     *    .*•   *  .      -
  (b)  *  -  *
  (11) Environmental media and debris
contaminated solely by releases of.
petroleum product that fail the test for
the Toxicity Characteristic (Hazardous
Waste Codes D018 through D043 only),
and that are not subject to the corrective
action regulations under part 280 of this
chapter (i.e. RCRA Subtitle I-regulated
underground storage tanks). This
exclusion is applicable only as provided
under paragraphs (b)(ll)(i) through (vii)
of this section!, as follows:
  (i) This exclusion shall 'be effective
until [three years after date of
publication of final rule in Federal
Register].
  (Ti)  For the purposes of this exclusion
only,  petroleum product is defined as:
  (A)  Crude petroleum oil or any ..
fraction thereof that is liquid at standard
conditions of temperature and pressure
(60 degrees Fahrenheit and 14.7 pounds
per square inch absolute); and
  (Bj Petroleum-based substances
composed of a complex blend of
hydrocarbons derived from crude oil
through processes of separation,
conversion, upgrading, and finishing,
such as motor fuels, jet fuels, distillate
fuel, oils, residual fuel oils, and
lubricants,     ,          •       '  .  •
  (iii) Except as provided in
§ 261.4(b)(ll)(vii), the exclusion shall
apply only to petroleum product-
contaminated media or debris that are
Being  managed pursuant to a remedial
action for which State oversight is being
provided under a site-specific-
enforcement order, or other written
approval from the State.
  fiv)  The exclusion shall apply only in
a State that certifies in writing to the
EPA Regional Administrator that the
State:
  (A)  Has response authorities to:
  (1) Require cleanup of media and
debris contaminated by petroleum-

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Federal Register / Vol. 57, No.  248 / Thursday, December 24, 1992 / Proposed Rules
        product that is released from sources
        other than those subject to 40 CFR part
        280, subpart F, to levels of protection
        defined as adequate by the State; and
          (2) Control the transportation,
        treatment, storage, and disposal of
        petroleum product-contaminated media
        and debris generated from those
        response actions; and
          (B) Has programs in place to
        effectively administer and enforce such
        authorities.
          (v) The certification submitted by the
        State must be signed by the State waste
        management program director and the
        State Attorney General, and must
        contain;
          (A) A description of the existing State
        laws and regulations which constitute
        the response authorities specified in
        paragraph (b)(ll){iv)(A) of this section;
        and
                                         (B) A description of the State
                                      programs as specified in paragraph
                                      (b)(llKiv)(B) of this section. Such
                                      description must include:
                                         (1) A description of types and
                                      numbers of releases which are
                                      responded to by the State programs and
                                      authorities and the types and numbers
                                      of response actions conducted under the
                                      State program; and
                                         (2) A description of the standards that
                                      are used by the State to establish
                                      cleanup goals for media and debris
                                      contaminated by petroleum product
                                      releases not subject to RCRA Subtitle I.
                                      If specific cleanup standards have not
                                      been adopted by the State, a description
                                      of the process used by the State to
                                      determine cleanup goals for such
                                      contaminated media and debris shall be
                                      provided.
                                         (vi) The Regional Administrator shall
                                      review the certification to determine if
                                                                 it is complete within 90 days of receipt.
                                                                 When a certification is determined to be
                                                                 complete, EPA shall publish a notice in
                                                                 the Federal Register to suspend the TC
                                                                 in that State at sites meeting the
                                                                 conditions of paragraph (b)(il)(iii) of
                                                                 this section. The suspension shall be
                                                                 effective immediately upon publication
                                                                 of the Federal Register'notice.
                                                                   (vii) The exclusion shall also apply to
                                                                 petroleum product-contaminated media
                                                                 and debris that are managed pursuant to
                                                                 remedial actions under RCRA 7003,
                                                                 3004{u), 3004(v), and 3008(h), and
                                                                 under the Oil Pollution Act.
                                                                 *****

                                                                 [FR Doc. 92-31300 Filed 12-23-92; 8:45 am!
                                                                 BILUNG CODE OSGO-30-M

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