EPA
00±
Tuesday
February 16, 1993
Part II
Environmental
Protection Agency
40 CFR Part 260, et al.
Corrective Action Management Units and
Temporary Units; Corrective Action
Provisions; Final Rule
(A. A3
X_J^y
Recycled/Recyclable
Printed w«h Soy/Canola Ink on paper that
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8658 Federal Register / Vol. 58, No. 29 / Tuesday, February 16, 1993 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 260,264,265,268,270
and 271
IFRL-4555-7]
RIN 2050-AB80
Corrective Action Management Units
and Temporary Units; Corrective
Action Provisions Under Subtitle C
AGENCY: Environmental Protection
Agency.
ACTION: Final rule.
SUMMARY: The Environmental Protection
Agency is promulgating today certain
corrective action-related regulations
under Subtitle C of the Resource
Conservation and Recovery Act (RCRA).
The specific provisions finalized in this
rulomaking address two new units that
will be used for remedial purposes
under RCRA corrective action
authorities: corrective action
management units (CAMUs), and
temporary units (TUs). These specific
provisions were proposed as part of a
more comprehensive corrective action
rulomaking on July 27,1990.
EFFECTIVE DATE: These final regulations
are effective on April 19,1993.
ADDRESSES: The official record for this
rulomaking is located in the RCRA
Docket, located in room 2427 at the U.S.
Environmental Protection Agency, 401
M Street, SW., Washington, DC 20460.
The telephone for the RCRA Docket is
(202) 260-9327. The record is available
for inspection, by appointment only,
between the hours of 9 a.m. and 4 p.m.,
Monday through Friday, excluding legal
holidays. As provided in 40 CFR part 2,
a reasonable fee may be charged for
copying services.
FOR FURTHER INFORMATION CONTACT:
Questions relating to the technical
content of this rule should be directed
to Anne Price or David Pagan,
Corrective Action Programs Branch,
Office of Solid Waste (5303W), U.S.
Environmental Protection Agency, at
(703) 308-8657 or (703) 308-8620.
Other inquiries should be directed to
the RCRA/Superfund Hotline, at (800)
424-9346 or at (202) 260-3000.
SUPPLEMENTARY INFORMATION:
Outline
I. Authority
II. Background
A. Purpose and Context of Today's Final
Rulo
B. Summary of Today's Rule
HI. Scctlon-by-Section Analysis
A. Definitions
1. Corrective Action Management Unit
(CAMU) (§ 260.10 and § 270.2)
2. Facility for the Purpose of Corrective
Action (§ 260.10)
3. Remediation Wastes (§ 260.10)
4. Conforming Changes
a. Conforming Change to § 264.101
b. Conforming Changes to § 264.3 and
§265.1
c. Conforming Changes to Definitions in
§ 260.10, § 268.2 and § 270.2
B. Corrective Action Management Units
, (CAMUs) (§ 264.552)
1. General Authority (§ 264.552(a))
2. Inclusion of Regulated Units into
CAMUs (§ 264.552(b))
3. Decision Criteria for CAMU Designation
(§ 264.552(c)J
4. Information Required to Support CAMU
Designation (§ 264.552(d))
5. CAMU Requirements to be Specified in
Permits or Orders (§ 264.552(e)}
6. Documentatipn for CAMUs (§ 264.552(f))
7. Permit and Order Modifications for
CAMUs (§ 264.552(g) and § 270.42)
8. Effect of CAMU Designations on Other
Remedy Decisions (§ 264.552(h))
C. Temporary .Units (TUs) (§264.553)
1. Scope and Applicability of Today's Rule
(§ 264.553(a))
2. Restrictions on Temporary Units
(§264.553(b))
3. Temporary Unit Decision Factors
(§ 264.553 (c))
4. Permit or Order Specifications for
Temporary Units (§ 264.553(d))
5. Time Limit Extensions for Temporary
Units (§ 264.553(e))
6. Permit and Order Modification
Procedures (§ 264.553(0)
7. Documentatipn of Temporary Unit
Designations and Time Extensions
(§264.553(g))
IV. CAMU and TU Implementation
A. Public Participation in CAMU/TU
Designations and TU Time Extensions
Under Orders
B. Continuation of Permits for Corrective
Action Purposes
C. State and Federal Implementation
1. State Authorization
2. Implementation of Rules in
Unauthorized and Authorized States
D. Effective Date
V. Relationship to Other Programs
VI. Regulatory Impact Analysis
I. Authority
These regulations are issued under
the authority of sections 1006, 2002{a),
3004(u), 3004(v), 3005(c), 3007 and
3008(h) 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.
II. Background
The RCRA Hazardous and Solid
Waste Amendments of 1984 established
a broad new mandate for EPA and the
States to implement corrective action at
hazardous waste treatment, storage, and
disposal facilities (TSDFs) regulated
under subtitle C of RCRA. Under section
3004(u), permits issued to such facilities
must address corrective action for all
releases from solid waste management
units at the facility. Under section
3008(h), EPA may issue administrative
orders to compel corrective action at
facilities authorized to operate under
section 3005(e) of this subtitle (i.e.,
interim status facilities). Section 3004(v)
established the authority to compel
remediation of releases that have
migrated beyond a facility's boundary.
On July 27,1990, EPA issued a
proposed rulemaking to establish, under
subpart S of 40 CFR part 264, a
comprehensive regulatory framework
for implementing corrective actions at
RCRA facilities under these new
statutory authorities. 55 FR 30796-884
(July 27, 1990). The proposal
established a detailed set of technical
requirements and procedures for
investigating and responding to
environmental releases at RCRA
facilities.
EPA received numerous public
comments on the Subpart S proposal,
many of which raised substantial issues
which must be resolved prior to a final
rulemaking. In addition, EPA is
currently conducting a comprehensive
new Regulatory Impact Analysis (RIA)
to more thoroughly assess the costs and
benefits of the Subpart S proposal, and
to analyze specific regulatory
alternatives for the final rule. EPA will
make the results of the RIA available for
public review and comment prior to
promulgating the remainder of the
proposed subpart S rules.
The proposed subpart S regulations
contained several key remediation waste
management provisions. These
provisions were designed to reduce or
eliminate certain waste management
requirements of the current RCRA
subtitle C regulations which, when
applied to remediation wastes, impede
the ability of the Agency to select and '
implement reliable, protective and cost-
effective remedies at RCRA facilities.
These impediments also occur at sites
being remediated under CERCLA
authorities, since RCRA requirements
are often applicable or relevant and
appropriate requirements (ARARs), as
defined in CERCLA and in the CERCLA
National Contingency Plan.
Therefore, EPA believes that pending
the promulgation of the comprehensive
subpart S rules, it is useful and
necessary to expedite the promulgation
of these key provisions of subpart S, and
thereby realize the benefits that they
will provide in an accelerated time
frame.
The Agency remains committed to
promulgating final comprehensive rules
governing RCRA corrective actions.
Today's rule is intended to advance that
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Federal Register / Vol. 58, No. 29 / Tuesday, February 16, 1993 / Rules and Regulations 8659
process by putting into place certain key
provisions that will produce immediate
benefits for these important remedial
programs. Specifically, today's rule
promulgates provisions under subpart S
for corrective action management'units
(CAMUs) and temporary units (TUs) to
be used for the purpose of facilitating
remediation waste management
activities at RCRA facilities. The
requirements for these units will also
become RCRA ARARs for hazardous
waste management activities at CERCLA
sites.
A. Purpose and Context for Today's
Final Rule
Today's rule finalizes provisions for
corrective action management units
(CAMUs) and temporary units under
subpart S of 40 CFR part 264. Both of
these units function solely to manage
wastes that are generated at a RCRA
facility for the purpose of implementing
remedial actions required at that facility
(i.e., remediation wastes, as denned in
this rule). As explained elsewhere in
this preamble, these units will not and
cannot be used to manage "as-
generated" hazardous wastes; as used in
this preamble, as-generated wastes
means those wastes generated from
ongoing production processes or other
industrial activities.
In creating the CAMU as a
remediation waste management unit,
EPA is providing remedial
decisionmakers with an added measure
of flexibility in order to expedite and
improve remedial decisions. Although
the CAMU provision doe's provide some
additional flexibility, it is important to
recognize that other existing
requirements, policies, and guidelines
for establishing site-specific cleanup
goals and for selecting remedies remain
in effect. EPA does not intend for this
rule to replace existing state and federal
requirements, guidelines, and standards
that define the necessary level of
protectiveness for remedies and the
factors to be considered in selecting site-
specific remedies.
For example, as is discussed more
fully later, existing closure regulations
and requirements for RCRA-regulated
units, which require closure to occur in
a manner that is protective of human
health and the environment, remain in
effect. Similarly, EPA guidance (most
notably, the subpart S proposal) and
state regulations and guidance
documents provide information on the
appropriate conduct of cleanup actions.
The Subpart S proposal defines the
process for establishing cleanup goals,
defines the process for and principles of
remedy selection, and, requires that
remedies meet the statutory standard of
"protective of human health and the
environment".
In addition, several years ago, EPA
developed treatability guidelines for
contaminated soil (the "Superfund 6A"
guidance) for making site-specific
decisions regarding treatability
variances from the land disposal
restriction standards. Today's CAMU
rule does not specifically address the
issue of what specific treatment
standards or technologies should be
applied in remediating RCRA facilities
using CAMUs. However, EPA's
Regulatory Impact Analysis for this final
rule strongly suggests that promulgation
of this CAMU provision, with
appropriate criteria to guide the
designation of CAMUs, will result in
more treatment, greater use of
innovative technologies and less
incineration. Further, EPA expects that
such treatment will often follow the
treatment guidelines in the Superfund
6A guidance. The Agency's experience
with this guidance has been that the
treatment levels prescribed in the
guidance are generally workable and
practicable for remediation purposes.
Thus, EPA expects that the 6A guidance
will continue to be used in a variety of
remedial situations involving
management of contaminated soils, even
when such soils are not explicitly
subject to LDR requirements.
Finally, today's rule is only one
component of what the Agency intends
as a comprehensive regulatory
framework under RCRA that will apply
to the Agency's remedial programs.
Today's rule for CAMUs and temporary
units should be viewed in the context of
the Agency's overall strategy to establish
comprehensive remediation regulations
under RCRA subtitle C, and is one of the
first steps EPA is taking in developing
a comprehensive risk-based regulatory
framework. EPA is committed to
proceed expeditiously to develop a
complete regulatory framework for
RCRA Corrective Action under subpart
S and to develop new proposed
regulations governing the status of
contaminated media as hazardous
waste. EPA is also committed to
conducting these rulemakings in a
manner which ensures ample
opportunities for public dialogue to
discuss appropriate regulatory
requirements for the cleanup of
contaminated media. EPA expects the
dialogue to include discussions of risk-
based cleanup standards for
contaminated groundwater, soils, and
other media, remedy selection decision
criteria, and other specific cleanup
requirements.
The Agency therefore wishes to
emphasize that the scope and intent of
today's final rules for CAMUs and
temporary units is limited to
establishing certain regulatory
provisions relating to the management
of remediation wastes. As is clarified in
§ 264.552(h), today's rule does not
address the many important issues
relating to "how clean is clean", or
where compliance with cleanup
standards must be achieved (i.e., points
of compliance for remediation of ground
water and other media). These are issues
that will be addressed in the final
Subpart S corrective action rule. Thus,
for example, under today's rule the RA's
designation of a CAMU at a facility,
pursuant to the enumerated criteria,
does not have any relevance to where
the point of compliance for ground
water remediation will be specified for
that facility.
CAMU decisions will generally be
made based on extensive discussions
and consultations with the owner/
operator. Once the preliminary
decisions are made, the Agency will
incorporate the CAMU designation into
the permit or order, through a
modification process that allows the
owner/operator, and the public, the
opportunity to comment on the specifics
of the CAMU designation.
It is possible that in certain cases the
owner/operator of a facility may
disagree with the Agency regarding how
the CAMU concept should be applied
for purposes of implementing the
CAMU. Such disagreements are usually
resolved by informal discussions. In the
rare event that such disagreements
persist after the permit has been
modified to incorporate the CAMU
selected by the Agency, the owner/
operator may file an administrative
appeal to contest the CAMU decision.
Under this appeal process, the
provisions being appealed are not
effective until a decision on the appeal
is rendered by the Environmental
Appeals Board. EPA believes that this
process serves to protect the due process
rights of the owner/operator.
In the proposed subpart S rule, EPA
recognized that the existing regulatory
structure of RCRA subtitle C, when
applied to management of hazardous
wastes for remedial purposes, can often
seriously hamper the ability of
decisionmakers to select and to
implement effective, protective and cost
effective remedies. CAMUs and
temporary units, as finalized today, are
expected to address these problems in
several important ways.
The basis for establishing a separate
regulatory framework for these new
remediation waste management units is
the premise that remediation of existing
contamination problems is inherently
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8660 Federal Register / Vol. 58, No. 29 / Tuesday, February 16, 1993 / Rules and Regulations
different from the management of as-
generated industrial hazardous waste,
and that applying "as-generated"
regulatory requirements to remediation
wastes does not always result in
implementation of the best remedies. In
fact, EPA's preliminary analysis
indicates that better remedies, in terms
of increased environmental benefits, are
likely under a regulatory framework
tailored to remediation wastes.
The original RCRA subtitle C
program, which was established
beginning in 1980, was designed to be
a "cradle-to-grave" system of controls
governing the generation and
subsequent transportation, storage,
treatment and disposal of hazardous
wastes from ongoing industrial
processes. Thus, RCRA was first and
foremost a "prevention" oriented
program, with the primary objective to
prevent new releases (e.g., new
Suporfund sites) resulting from
management of hazardous wastes.
Following this objective, a stringent set
of standards were developed to ensure
protection of human health and the
environment from such ongoing waste
management. For the most part, the
subtitle C regulations are specified as
uniform, notional standards that must
be complied with at all RCRA-regulated
facilities. These standards are generally
considered very stringent; in order to
ensure an adequate level of protection
nationally, the standards must be
adequate in preventing or minimizing
environmental releases over a wide
range of hazardous wastes types,
environmental conditions, operational
contingencies and other factors.
Although there are certain limited
provisions for waivers from the subtitle
C regulations based on site-specific
factors, the regulated community's
experience has been that it is difficult
and time-consuming to modify RCRA
standards through site-specific waivers.
The 1984 HSVVA amendments to
RCRA strengthened the RCRA
prevention program by adding several
important statutory provisions
governing the treatment and disposal of
hazardous wastes. In particular, the
RCRA land disposal restrictions (LDRs)
and the minimum technology
requirements (MTRs) have become
central features of the RCRA prevention
program. One of the important
objectives of Congress in mandating the
1984 amendments (including LDRs and
MTRs) was to provide increased
incentives for generators of hazardous
wastes to minimize the amounts of
wastes being generated. See RCRA
section 1003(b). EPA's experience in
implementing the IDR program has
shown that the costs associated with
meeting the stringent, technology-based
LDR standards actually have resulted in
substantial reductions in the volumes of
hazardous wastes generated from many
industrial sectors.
In addition to these prevention-
oriented provisions, the HSWA
corrective action provisions created a
very different, new mandate for the
RCRA program: Cleaning up releases
from solid waste management units
(SWMUs) at over 4,000 RCRA TSDFs.
RCRA is now both a prevention program
and a cleanup program. These two basic
elements of the RCRA program have
markedly different objectives and
incentives, and are impacted in very
different ways by regulatory controls on
waste management. As discussed below,
therein lies the basic problem that
today's final rule is intended to address.
EPA has found that subtitle C
requirements, when applied to
remediation wastes, can act as a
disincentive to more protective
remedies, and can limit the flexibility of
a regulatory decisionmaker in choosing
the most practicable remedy at a
specific site. In contrast, RCRA subtitle
C regulations, when applied to as-
generated wastes, ensure that the wastes
are handled according to stringent
national standards; due to the cost of
subtitle C management, they also create
a significant incentive for process
changes to minimize hazardous waste
generation. Yet these same
requirements, when applied to existing
contamination problems, provide a
strong incentive for leaving wastes in
place, or for selecting remedies that
minimize regulation under subtitle C.
EPA recognizes, of course, that both
Superfund and RCRA provide it the
authority to compel specific remedies,
as long as the remedies are consistent
with the goals of the statutes. Under the
current programs, the Agency can
require facility owner/operators or
responsible parties to excavate wastes
and manage them fully in compliance
with Subtitle C. Similarly, in a fund-
financed remedy under Superfund, EPA
can use CERCLA funds to effect a
similar remedy. Thus, through its
regulatory authority, EPA can, at least in
theory, override any regulatory
disincentive against a given remedy. In
its conduct of the Superfund and RCRA
programs, however, EPA has come to
recognize the fact that RCRA subtitle C
requirements may make more sense
when applied to some remedies than to
others, and can influence the remedy
selection process in undesirable ways.
For example, compliance with LDR
requirements may completely eliminate
from consideration remedies that would
otherwise meet Superfund or RCRA
remedial standards, and that might be
the most sensible remedy from a
technical point of view. In such cases,
the regulatory decisionmaker might be
faced with the dilemma of choosing
between two or more extreme options,
such as a remedy involving containment
in place versus removal of the wastes
and management according to full
RCRA subtitle C standards, without
having the opportunity to consider a
middle option that might be fully
protective, in compliance with
Superfund or RCRA cleanup goals, and
acceptable to the local community. In
such cases, practical considerations and
the need for prompt action may often
force the decisionmaker to select the
less protective of the available extremes.
More broadly, under Superfund and
RCRA corrective action, the regulatory
decisionmaker must address a situation
that is already unacceptable—that is, a
situation which needs remediation. The
decisionmaker's goal in each case is to
select a remedy that is fully protective,
yet that reflects the technical and
practical realities of the site. In
addressing this situation, the
decisionmaker needs the flexibility to
consider a full range of strategies so that
one may be selected that promptly and
effectively addresses the problem. EPA
believes that constraining this range of
strategies by requiring compliance with
subtitle C standards for wastes
"generated" during remediation can
often lead to remedies that are not cost-
effective and that in some cases may
actually be less protective solutions
than the remedies that otherwise would
be chosen.
This is reflected in the results of the
preliminary CAMU analysis
("Supplemental Information of
Corrective Action Management Units
(CAMUs)", October 16,1992) and in the
Regulatory Impact Analysis
(summarized in section VI. of today's
preamble). According to these analyses,
the "expanded" CAMU concept, which
has been adopted in today's rule, is
estimated to result in more treatment of
wastes using more effective treatment
technologies than, would occur under
the other regulatory options considered
by the Agency. In addition, today's rule
is predicted to result in more on-site
waste management (vs. off-site
management); lesser reliance on
incineration; greater reliance on
innovative technologies; and a lower
incidence of capping waste in place
without treatment.
Another reason for instituting a
regulatory approach for management of
remediation wastes that differs from the
base Subtitle C program is the type and
amount of Agency oversight that is
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Federal Register / Vol. 58, No. 29 / Tuesday, February 16, 1993 / Rules and Regulations 8661
given to cleanup activities under RCRA
and CERCLA, as opposed to ongoing
generated waste streams. Remedial
actions under these statutes are
typically conducted with substantial
Agency oversight; remedial decisions
are made by the Agency based on a
thorough study of the nature and extent
of the contamination problems at the
site. In contrast, most RCRA subtitle C
regulations for as-generated waste
streams are uniform, national standards,
and as such must require a level of
protection sufficient for a highly diverse
universe of facilities and environmental
settings, so as to be implemented with
little Agency oversight.
One final difference between as-
generated wastes and remediation
wastes is that remediation often
involves management of large volumes
of contaminated media, such as soils or
ground water. The physical
characteristics of contaminated media
can be quite different from those of as-
generated wastes. Contaminated soils,
for example, are highly variable in their
composition and handling
characteristics. Treatment of such soils
can thus be particularly difficult. This is
not to say that remediation wastes are
always different; some remediation
wastes, such as sludges, may be
essentially identical to as-generated
wastes. As a general matter, however,
remediation wastes pose unique waste
management issues.
The above considerations—the level
of Agency oversight over remedial
actions, die counterproductive
constraints and disincentives that
subtitle C requirements can impose on
the remedy selection process, and the
physical and chemical differences that
are often found between remediation
wastes and as-generated wastes—
suggest that it is sensible and necessary
to develop regulations under RCRA for
management of remediation wastes that
are better tailored to the realities of
remediation actions. As a result, under
today's rule, regulatory requirements for
remediation wastes will differ from the
standards applied to as-generated
wastes.
Today's final rule for CAMU and
temporary units is consistent with that
policy objective. As explained earlier,
these rules will create a markedly
different regulatory framework for
applying subtitle C requirements,
particularly the LDRs and MTRs, to
remediation waste management.
B. Summary of Today's Rule
Today's rule promulgates regulations
for CAMUs and temporary units. These
regulations will provide the Regional
Administrator with the authority to
designate and approve such units for the
purpose of managing remediation waste.
The final CAMU provisions are an
expansion of the proposed CAMU
concept, and are intended to provide
even greater flexibility for
decisionmakers in implementing
protective, reliable and cost-effective
remedies. CAMU is a tool that can be
used by an owner/operator when
implementing corrective action at a
facility. It is available to those owner/
operators compelled to take corrective
action under RCRA or those who initiate
corrective action and seek Agency
approval under RCRA. The temporary
unit provisions in today's rule are
changed little from the proposal, except
that the time limit for temporary units
has been increased from 180 days to one
year.
Today's regulations will apply to
corrective action implemented under
RCRA permits (as provided under RCRA
section 3004(u) and in § 264.101} and
under section 3008(h) actions. In the
subpart S proposal, EPA fully intended
that the CAMU and TU regulations
would apply to interim status facilities
under section 3008(h). See 55 PR 30,802
(July 27,1990). However, the proposed
regulatory language did not contain
explicit requirements for the use of
CAMUs and TUs under section 3008(h).
Several commenters requested
clarification as to how and to what
extent the substantive subpart S
requirements would actually be applied
under section 3008(h). Today's rule
clarifies, in § 264.552 and in other
conforming changes, that these rules for
CAMUs and TUs will be applicable to
corrective actions under section
3008(h). The Agency has also provided
the opportunity for public comment
through both the permit modification
and order processes.
Under the final CAMU provisions,
remediation waste management will be
subject to LDRs and MTRs in a much
more limited way than has been the case
under existing regulations. For example,
remediation wastes, including
hazardous remediation wastes, may be
placed into a CAMU without triggering
applicability of LDRs or any other unit-
specific requirements applying to
hazardous waste land disposal units.
Thus, remediation wastes generated at a
facility, but outside a CAMU can be
consolidated into the CAMU, and
remediation wastes may be moved
between two or more CAMUs at that
facility, without triggering LDRs.
Likewise, the "replacement" scenario,
where remediation wastes are excavated
from a CAMU, treated in a separate unit
(which could be located inside or
outside the CAMU at the facility), and
redeposited into the CAMU, is not a
new "disposal" event which triggers
LDRs or other hazardous waste land
disposal unit requirements. As
explained in the proposal, MTRs would
not apply to CAMUs, since by definition
a CAMU is not subject to MTRs under
3004(o) and 3015. These regulatory
features of CAMUs are described in
more detail later in today's preamble.
Today's final rules for CAMUs grow
out of the proposed approaches for
defining the CAMU and the comments
received by the Agency oh those
approaches. In the July, 1990 notice, the
Agency discussed in detail several
important proposed limitations on the
scope of the CAMU. 55 FR 30843-44.
First, a CAMU could only be designated
by the Agency or the authorized State,
and such designations would be subject
to the public review and comment
process as part of remedy selection.
Second, the CAMU could only contain
contaminated areas. Third, the CAMU
was a land area and non-land-based
units, such as incinerators or tanks,
could not be considered part of the
CAMU. Fourth, remediation waste from
outside the CAMU that would be placed
within the CAMU would be subject to
the land disposal restriction
requirements.
ui the preamble, EPA also discussed
several alternatives to the proposed
CAMU, including options under which
the CAMU would not have the second,
third, or fourth restrictions noted above.
55 FR 30844. The Agency cited several
problems with these options, noting that
(1) including uncontaminated areas in
the CAMU could be viewed as
contradicting its remedial purpose, (2)
including non-land-based units could be
viewed as inconsistent with the land-
based concept of the CAMU, and .(3)
including non-land-based units would
complicate the application of relevant
264 standards to the non-land-based
units.
Many of the comments on the
proposed CAMU were critical of these
proposed limitations and requested that
EPA adopt an expanded type of CAMU
as discussed in the preamble to the
proposal. In response, EPA evaluated
regulatory options for defining a CAMU
and provided supplemental information
for public comment summarizing the
relative environmental benefits of the
proposed CAMU and expanded CAMU
options. 57 FR 48195 (October 22,
1992).
In light of EPA's 1992 supplemental
information and the public comments
received on the July, 1990 proposal and
the October, 1992 supplemental
information notice, EPA has decided to
adopt a CAMU definition which is
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8662 Federal Register / Vol. 58, No. 29 / Tuesday, February 16, 1993 / Rules and Regulations
broader than the proposed CAMU, but
is consistent with the options for
expanding the CAMU discussed in the
July, 1990 preamble and in the October,
1992 supplemental notice. As explained
below, EPA believes that the CAMU
definition adopted today better achieves
the policy goal of facilitating timely,
protective, and effective cleanups at
RCRA facilities than does the proposed
CAMU. Moreover, EPA has structured
the final CAMU definition to avoid the
problems relating to expanding the
CAMU concept, as noted in the July,
1990 preamble and in comments
received by the Agency.
The principal difference between the
proposed CAMU and the CAMU
definition in today's final rule is that,
under today's rule, the CAMU has been
structured so that any waste managed
within the CAMU which was generated
as part of the corrective action at that
facility (i.e., remediation waste) would
not be subject to RCRA regulatory
disposal requirements. Thus, waste
generated from the corrective action at
the facility may be placed within the
CAMU without pre-treatment to the
technology-based levels established
under the RCRA land disposal
restrictions (LDR) program.
EPA believes that Congress left ample
authority for the Agency to modify,
where appropriate, the regulatory
requirements for as-generated hazardous
waste under RCRA when applying those
requirements to wastes generated during
cleanup activities, so long as the
requirements for these remediation
wastes remain protective of human
health and the environment. With
respect to LDRs in particular, Congress
defined the term "land disposal" to
include the placement of hazardous
waste in certain types of units
historically used by the Agency to
establish land disposal requirements for
non-remediation wastes. See section
3004(k). Congress did not address in
that provision how the LDRs would
apply to wastes managed in newly-
created types of land-based units or to
units created solely for the management
of remediation wastes, rather than as-
generated hazardous wastes. Congress
did, however, recognize the special
problems that might be created by
applying the LDRs to remediation
wastes in the same manner as to as-
generated wastes and provided some
relief for remediation wastes placed in
the units enumerated in section 3004(k).
See e.g., RCRA sections 3004(d)(3) and
3020.
For the reasons outlined above, the
application of regulatory requirements
designed for as-generated wastes to
remediation wastes has proven
problematic. In essence, standards
designed to prevent releases from
occurring and to force hazardous waste
generators to internalize the costs posed
by hazardous waste management can be
highly counterproductive when applied
to wastes generated during
remediations, where the release has
already occurred and the desired
incentive is to increase, rather than
decrease, waste production. Cf. H.Rep.
98-198, Part 1, 98th Cong., 1st Sess. at
37 (1983) (noting that one of the primary
Congressional purposes in establishing
the comprehensive LDR program was to
"compel generators to internalize the
costs of disposal and treatment of
hazardous wastes.") In addition, a
primary goal of Congress in establishing
the land disposal restrictions program
was to ensure that hazardous wastes are
managed properly in the first instance,
thereby reducing the need for costly
corrective action. See RCRA section
1003(5); H.Rep. 98-198, Part 1, 98th
Cong., 1st Sess. at 30, 32 (1983).
Remediation wastes are, however, waste
which, by definition, were not managed
properly "in the first instance," and for
which corrective action is now
necessary.
That Congress recognized, but did not
fully resolve, the dilemma of applying
preventive standards to remediation
wastes when enacting remediation-
related amendments to RCRA in 1984 is
not surprising, since EPA's principal
remedial programs, under CERCLA and
RCRA subtitle C, were at that time in
their early stages of development or
sharply limited in scope.
Since 1984, the Agency also has
struggled to determine exactly how the
regulatory units described in section
3004(k) should apply to remediation
situations, where the areas in question
do not easily fit within the unit
definitions referenced in that provision,
and where the unit concepts themselves
were designed with as-generated and
managed wastes in mind. For example,
a RCRA permitted disposal facility
managing hazardous wastes will
typically have one or more well-defined
land areas constructed and operated for
the purpose of a single type of
hazardous waste land disposal practice
(e.g., landfilling of containers, or
treatment of liquid hazardous wastes in
a surface impoundment). A typical
RCRA corrective action, in contrast,
involves scattered and diverse land and/
or water areas with both "hot spots" of
wastes and highly contaminated soils
and generally dispersed contamination.
In addition, such areas typically include
a variety of historical land disposal
practices, many of which are far
different from the management practices
authorized for ongoing hazardous waste
management in land disposal units (e.g.,
pipeline leaks, product spills,
dewatered surface impoundments).
Since 1988, the Agency has used the
definition of "landfill" to describe these
remediation land areas simply because
EPA had no unit definition that applied
to these areas, and the "landfill"
definition served as a catchall. See 55
FR 8760 (March 8,1990). With today's
rule, EPA intends to provide a more
appropriate set of standards and
definitions tailored to remediation
areas.
Today's rule addresses the ambiguity
in the application of RCRA preventive
standards to remediation wastes
generated at RCRA. facilities, especially
the LDRs. Because Congress did not
provide direction under section 3004(k)
on how the LDRs should apply to areas
that are used solely for the management
of remediation wastes, and
consequently, do not fit within the unit
definitions constructed by EPA for as-
generated wastes, EPA interprets the
definition of "land, disposal" in section
3004(k) to exclude the placement of
remediation waste in CAMUs under
today's rule. EPA believes that this
interpretation is reasonable since
remedial areas are not a listed regulatory
unit under section 3004(k), because
Congress recognized that the application
of LDRs to remediation wastes might
require a different framework than that
developed for the application to as-
generated wastes, and, as discussed
above, because the direct application of
preventive standards to remediation
wastes is often inappropriate and
counterproductive.
Today's rule is thus designed to
address RCRA's ambiguity with respect
to remediation wastes in a manner
which best meets the twin
Congressional objectives of minimizing
reliance on land disposal by
encouraging proper treatment of
hazardous remediation wastes and by
facilitating prompt and effective
corrective action at RCRA facilities. As
a result of today's rule, remediation
wastes placed in CAMUs will not be
subject to LDRs or other hazardous
waste disposal requirements.
III. Section-by-Section Analysis
A. Definitions
Today's final rule defines three key
terms related to the implementation of
CAMUs: Corrective Action Management
Unit, Facility, and Remediation Wastes.
In addition, certain conforming changes
have been made to several § 260.10 and
§ 270.2 definitions, to § 264.3, to
§ 264.101, to § 265.1, and to § 268.2.
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1. Corrective Action Management Unit
(CAMU) (§ 260.10 and § 270.2)
The proposed rule defined CAMU as
"a contiguous area within a facility as
designated by the Regional
Administrator * for the purpose of
implementing corrective action
requirements of this subpart, which is
contaminated by hazardous wastes
(including hazardous constituents), and
which may contain discrete, engineered
land-based sub-units." The definition of
CAMU in today's final rule modifies the
proposed definition in several ways:
(1) The final definition is promulgated
under § 260.10, rather than under
§ 264.501, as proposed;
(2) The definition specifies that
CAMUs may be used for corrective
actions under section 3008(h) orders, as
well as at permitted facilities under
section 3004(u);
(3) The new definition does not
specify CAMUs as being contiguous
areas of contamination; and
(4) The definition specifies that
CAMUs are to be used for the purposes
of managing remediation wastes only.
These changes to the proposed
definition are intended to clarify and
provide a more complete description of
what a CAMU is and how it may affect
management of wastes in the context of
implementing corrective actions. As
such, the definition includes certain
provisions that were not included in the
actual definition as proposed, but were
presented in the proposed regulations
for CAMUs under § 264.551(c). The
definition also reflects the substantive
changes that have been made in
"expanding" the CAMU concept under
today's final rule. Each of these
modifications from the original
proposed CAMU definition is discussed
below.
The definition of CAMU has been
finalized in § 260.10 and in § 270.2,
rather than under § 264.501. As
proposed, § 264.501 specified
definitions that would apply only to
subpart S of 40 CFR part 264. However,
EPA is promulgating in today's rule
only the CAMU and temporary unit
provisions of subpart S. Rather than
create a section under subpart S that
would only contain the definition of
CAMU, EPA believes that it will be
clearer and more straightforward to
codify this definition under the general
definitions sections of parts 260 and
270. These definitions apply to the part
264 CAMU provisions, as well as othe
tier
1 The term Regional Administrator, as used in
today's rule, refers to the EPA Regional
Administrator or the State Hazardous Waste
Program Director (or equivalent) in a State
authorized for this rule.
parts of 40 CFR. However, the new
locations of the CAMU definition will
not affect either the applicability or the
substance of the definition.
In the proposal, the regulations for
CAMUs did not explicitly state that
CAMUs could be implemented under
section 3008(h) orders, as well as at
permitted facilities under section
3004(u) authority. However, as stated in
the July 27,1990 preamble, EPA
intended that the subpart S regulations
would be implemented at interim status
facilities through section 3008(h) orders,
as well as at permitted facilities. 55 FR
30802. In addition, the general
applicability of subpart S to section
3008{h) orders was raised as a question
by several commenters to the proposal.
Thus, in order to make clear that the
final CAMU provisions will apply under
section 3008(h) and section 3004(u), the
CAMU definition contains an explicit
reference to 3008(h) orders.
As mentioned earlier, the definition
in today's final rule does not specify
that a CAMU is a "contiguous area of
contamination". This change reflects the
basic change in the nature of the CAMU
as related to the applicability of LJDRs.
Under the proposal, the CAMU was in
essence linked to where existing
contamination was located at the
facility. As provided in the final rule, a
CAMU instead is linked primarily to
where remediation wastes are to be
managed. In other words, decisions for
designation of CAMUs will now be
more related to the function and
purpose they will serve in facilitating
management of remediation wastes
during cleanup, rather than to the areal
extent and "contiguousness" of surficial
contamination at the facility prior to
cleanup. Although these changes to the
CAMU definition have provided the
discretion for the Regional
Administrator to include
uncontaminated land areas in a CAMU,
the decision factors specified in
§ 264.552(c) (see § 264.552(c)(3), in
particular) make clear that inclusion of
uncontaminated areas in a CAMU is
only allowed when necessary to achieve
the overall remedial goals for the
facility, and when such inclusion will
enhance the protectiveness of the
remedial actions.
In addition to other advantages, this
new definition will eliminate many of
the drawbacks of the proposed
definition that were identified by
numerous commenters. For example,
many commenters requested
clarification as to what was to be
considered "contaminated" or
"uncontaminated" in the context of
defining the areal extent of a CAMU.
Such issues could potentially have been
contentious and technically difficult to
resolve. Likewise, some commenters
suggested that the remedial advantages
provided by CAMUs would actually
create an incentive to contaminate
additional areas of facilities. These
issues have been effectively eliminated
by the final CAMU definition.
The proposed definition also stated
that CAMUs could contain "discrete,
engineered land-based sub-units". This
was intended to make clear that -_
contaminated areas could include solid
waste management units (e.g., pre-RCRA
impoundments or landfills); it also
provided that remediation within a
CAMU could involve construction of
land-based "sub-units", where wastes
could be managed during remediation,
or left in place with long-term
monitoring and maintenance. Although
such sub-units might still be located
within a CAMU, today's definition does
not explicitly refer to them because, as
explained above, CAMUs are now
designated with regard to where
remedial wastes will be managed, rather
than what areas of the facility are
"contaminated".
As mentioned in section II of this
preamble, EPA outlined in the subpart
S proposal an alternative regulatory
option for CAMUs that would have
broadened the concept in ways similar
to today's final CAMU provisions. In
addition, EPA received many comments
that identified the shortcomings of the
proposed CAMU, as well as the
advantages that an expanded CAMU
would provide in implementing
protective, timely and cost-effective
remedies. The results of the RIA
developed for this rulemaking, in the
Agency's estimation, corroborate many
of these comments. As a policy matter,
therefore, EPA believes that its decision
to promulgate today's CAMU definition
is amply justified. As explained in
detail in section II of this preamble, the
Agency also believes that there is ample
legal support for today's expanded
CAMU definition.
The final CAMU definition also
specifies that CAMUs must be used only
for the management of remediation
wastes. One commenter on the proposal
requested that the Agency clarify that
only wastes that are generated as part of
a facility's corrective action cleanup
would be eligible for management
within a CAMU. The commenter noted
that this restriction was explicitly
provided in the temporary unit
provisions of the proposal. The
Agency's intention, under both the
proposed CAMU provisions and under
today's final rule is that only wastes that
are generated pursuant to implementing
corrective actions for a facility can be
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8664 Federal Register I Vol. 58, No. 29 / Tuesday, February 16, 1993 / Rules and Regulations
managed within a CAMU. Today's
CAMU definition thus clarifies this
important limitation, by specifying that
a CAMU "shall only be used for the
management of remediation wastes."
(Soe the following discussion of the
definition of remediation waste).
2. Facility for the Purpose of Corrective
Action (§260.10)
As clarification, today's rule codifies,
in §260.10, the definition of facility for
the purposes of corrective action. Under
this definition, a facility is "all
contiguous property under the control
of the owner or operator seeking a
Subtitle C permit." This definition is the
same as was proposed in the July, 1990
proposal, presented in the First
Codification Rule (50 FR 28702,
Codification Rule, July 15,1985), and
upheld in a decision of the U.S. District
Court of Appeals (United Technologies
V. U.S. EPA, 821 F.2d 714 PC Cir.
1987).
As explained in the proposed rule and
in the Codification Rule, this definition
applies only in the context of
implementing HSWA-mandated
corrective actions. As such, this
definition is distinct from the other
facility definition in § 260.10 that is
narrower in scope, and applies to the
non-corrective-action-related provisions
of RCRA subtitle C. EPA believes that
codifying this definition is important to
the clear understanding of today's
CAMU and temporary unit rules. Both
types of units are restricted to managing
wastes that are generated in
implementing corrective action at a
"facility". Finalizing this facility
definition, therefore, will ensure that
this key concept is clear within the
definitions of CAMU and remediation
wastes (see following discussion).
Although the July, 1990 definition of
facility did not explicitly state that this
definition applied to facilities
undergoing corrective action pursuant
to section 3008(h) authority, as with the
definition of CAMU, this definition was
always intended to apply both to
facilities with a RCRA permit and to
those operating under interim status.
This has been clarified by adding a
phrase stating that this definition also
applies to facilities implementing
corrective action under section 3008(h).
In the July, 1990 proposal, EPA
addressed several issues associated with
this facility definition, including the
concept of "contiguous" property, and
EPA's interpretation of "owner or
operator". These subsidiary issues will
be addressed in the final subpart S
rulemaking, and/or in subsequent
guidance.
3. Remediation Wastes (§260.10)
Today's rule defines remediation
wastes as "* * * all solid and
hazardous wastes, and all media
(including grouind water, surface water,
soils and sediments) and debris that
contain listed hazardous wastes, or
which themselves exhibit a hazardous
waste characteristic, that are managed at
a facility for the purpose of
implementing corrective action
requirements under § 264.101 and
RCRA section 3008(h). For a given
facility, remediation wastes may
originate only from within the facility
boundary, but may include waste
managed in implementing RCRA section
3004(v) or section 3008(h) for releases
beyond the facility boundary."
This new definition provides
clarification as to the types of wastes
that may be managed in CAMUs or
temporary units. The proposed
temporary unit provisions specified that
such units would be used only for
treatment or storage of wastes "* * *
that originated within the boundary of
the facility." However, a similar
provision was not specified in the
proposed CAMU regulations, although
the Agency clearly intended that
CAMUs would function only for the
purpose of implementing corrective
action at facilities. 55 FR 30843. One
commenter, citing the language in the
proposed temporary unit provisions,
requested that EPA make clear that
CAMUs may be used only to manage
wastes that are part of implementing
corrective actions under section
3004(u), 3004(vj or 3008(h) authorities.
Thus, for the sake of clarity, EPA is
promulgating in § 260.10 a definition for
remediation wastes; both the CAMU and
temporary unit sections of today's rule
specify that only remediation wastes
can be managed in these units.
Today's definition of remediation
waste excludes "new" or as-generated
wastes (either hazardous or non-
hazardous) that are generated from
ongoing industrial operations at a
facility. In addition, remediation wastes
must have originated from the facility
(including waste managed as a result of
section 3004(v) or section 3008(h)
corrective action). Wastes generated as
part of the site investigations (e.g.,
drilling muds, etc.) are considered to be
remediation wastes.
In limiting remediation wastes to
those that have "originated" from the
facility, it should be clear that this term
refers to wastes that originate from
remedial activities at the facility, rather
than where such wastes might first have
been produced. For example, some
facilities, such as commercial waste
management facilities, may have
accepted wastes from off-site, but which
have subsequently contributed to
contamination problems at the facility,
and thus need remediation. Such waste
would be considered remediation
wastes for that facility when they are
managed in the course of conducting
corrective action requirements under
§ 264.101 or 3008(h).
Although the definition of
remediation wastes includes non-
hazardous solid wastes, it should be
noted that management of such wastes
would not require the designation of a
CAMU or a temporary unit, since
subtitle C requirements would not apply
to management of those wastes.
Contaminated media in the context of
this rule includes groundwater, surface
water, soils and sediments that contain
listed hazardous wastes or that
themselves exhibit a hazardous waste
characteristic. Like other remediation
wastes, these media can be managed
within the CAMU even if they were
originally located at the facility, but
outside of the CAMU, or if -they were
associated with a release that had
migrated beyond the facility boundary,
and that was being remediated under
section 3004(v) or section 3008(h)
authorities. Debris, for the purpose of
this rule, is as defined in § 268.2. (See
57 FR 37270).
The definition of remediation wastes
does not include wastes from outside
the facility undergoing remediation,
other than those associated with off-site
releases being managed under section
3004(v) or section 3008(h). If wastes are
transported to the facility from an
outside source, they would not be
considered remediation waste for that
facility, regardless of whether those
wastes were the result of some type of
remedial action conducted at another
facility. Therefore, those wastes could
not be managed in a temporary unit or
in a CAMU at that facility. Similarly,
wastes that are excavated, transported to
an off-site treatment facility, and
returned to the facility are not
remediation wastes under this rule.
EPA believes that restricting the
definition of remediation wastes in
today's rule is important to preserving
the concept of CAMUs and temporary
units as units to be used only for the
purpose of remediating the facility at
which these units are located. Wastes
which leave a facility for off-site
treatment are no longer subject to direct
oversight, and it may be difficult to
ensure that the wastes that are returned
after treatment are actually the same
wastes that left the facility originally.
Fundamentally, the Agency is
concerned that allowing wastes from
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off-site to be managed in CAMUs or
temporary units could create an
undesirable incentive for such units to
"attract" wastes that are not legitimately
linked to the objective of remediating
that facility.
4. Conforming Changes
a. Conforming change to §264.101.
The proposed subpart S regulations
were to have replaced the current
corrective action regulatory provisions
codified in § 264.101. However, since
the Agency is not finalizing all of
subpart S in today's final rule, § 264.101
is being retained and the amendment to
§ 264.101 promulgated today creates a
link between the general corrective
action requirements of § 264.101 and the
CAMU and temporary unit provisions of
subpart S. This is necessary to make
clear that these sections together now
constitute the regulatory provisions for
corrective action under sections 3004(u)
and (v), and section 3008(h).
b. Conforming changes to § 264.3 and
§265.1. As discussed earlier in this
section of today's preamble, the
definitions of CAMU and remediation
waste specify, as a clarification of the
subpart S proposal, that the final CAMU
and temporary unit provisions apply to
interim status facilities undergoing
corrective action according to section
3008(h) authority, as well as to
permitted facilities. In effect, these
corrective action provisions
promulgated under subpart S of part 264
will be the only part 264 requirements
that actually apply to interim status
facilities; heretofore, technical
requirements for interim status facilities
were specified only under part 265.
Therefore, conforming changes are
necessary for the regulatory provisions
of § 264.3, so as to address the
relationship of the part 264 standards to
interim status facilities, and to § 265.1,
so as to specify the applicability of part
265 regulations. In effect, these two
conforming changes create a bridge
between the interim status regulations
and the regulations for permitted
facilities, for the purpose of
implementing today's CAMU and
temporary unit regulations.
c. Conforming changes to Definitions
in § 260.10, § 268.2 and § 270.2. Today's
rules also make several conforming
changes to existing regulatory
definitions that are specified in various
sections of the subtitle C regulations.
The specific definitions being modified
are:
• The definition of "disposal facility"
in § 260.10 and § 270.2;
• The definition of "land disposal" in
§268.2;
« The definition of "landfill" in
§260.10; and
• The definition of "miscellaneous
units" in § 260.10.
The changes to the definitions of
"disposal facility" and "land disposal"
are for the purpose of clarifying how
LDRs apply to CAMUs. As discussed
earlier in this preamble, LDRs will not
apply to hazardous remediation wastes
that are placed into a CAMU, since such
placement is not considered "land
disposal" for the purposes of section
3004(k). These existing definitions must
therefore be modified to reflect this
important concept. The conforming
changes to the definitions of "landfill"
and "miscellaneous units" are both
intended to clarify that such units do
not include CAMUs.
B. Corrective Action Management Units
(CAMUs) (§264.552)
1. General Authority (§ 264.552(a))
The general authority for allowing the
Regional Administrator to designate a
CAMU for remedial purposes is
presented in § 264.552(a). This
provision is analogous to the CAMU
provision specified at § 264.551(c) in the
proposed subpart S regulations. This
final provision specifies, for
clarification, that CAMUs may be
designated for purposes of
implementing corrective action under
section 3008(h) authority, as well as at
permitted facilities under section
3004(u) and § 264.101. This explicit
reference to section 3008(h) order
authority conforms with similar
references in other provisions of today's
rule (see, e.g., the definitions of CAMU
and remediation waste). The provisions
of today's rule that delineate the
relationship of the subpart S regulations
to section 3008(h) orders are in response
to commenters who requested a general
clarification of the relationship of the
subpart S proposed rules to section
3008(h) orders.
In the July, 1990 proposed rule,
CAMUs were identified as areas of
contiguous contamination. Today's rule
in § 264.552(a) has eliminated the
provision that a CAMU must be a
contiguously contaminated area of a
facility. As explained earlier in today's
preamble (see discussion of the CAMU
definition in § 260.10), the expanded
CAMU concept is linked primarily to
where remediation wastes will be
managed at the facility, rather than
where there may be contiguous,
surficially contaminated land areas
prior to cleanup. Specific criteria
regarding how CAMUs must be
designated, and how the existence of
contaminated land areas may affect
CAMU decisions, are specified under
§ 264.552(c) of today's rule.
The language of § 264.552(a) specifies
that the Regional Administrator may
designate a CAMU "in accordance with
the requirements of this section" (i.e.,
264.552). This language, which did not
appear in the proposal, simply clarifies
that the requirements for CAMUs have
been consolidated into a separate
section. In the proposed rule, CAMUs
were addressed as part of a section that
dealt generally with management of
hazardous wastes.
Section 264.552(a) also specifies that
one or more CAMUs may be designated
at a facility. This statement is included
for clarification; the Agency received a
number of comments on the proposal
which queried how CAMUs might
address situations where several non-
contiguous areas of a facility were
contaminated. In addition, given the
expanded CAMU concept promulgated
in today's rule, EPA believes that this
explicit statement in the CAMU
regulations will be useful in clarifying
that two or more CAMUs may be
necessary and appropriate to
implementing remedial solutions for a
given facility.
As discussed earlier in this preamble,
the CAMU provisions in today's final
rule codify an expanded version of the
CAMU concept that was presented in
the proposed subpart S rule. In
particular, §264.552(a) (1) and (2)
specify the essential regulatory basis for
the expanded CAMU:
(1) Placement of remediation wastes
into or within a CAMU does not
constitute land disposal of hazardous
wastes; and
(2) Consolidation or placement of
remediation wastes into or within a
CAMU does not constitute creation of a
unit subject to MTRs.
These provisions are derived from
those in the proposed CAMU
regulations. The primary difference
reflected in today's rule is that
placement "into" a CAMU does not
trigger LDRs or MTRs, whereas the
proposal stated only that those
requirements would not apply when
hazardous wastes were moved or
consolidated within the CAMU. This
important distinction primarily derives
from the fact that under these final
CAMU rules, placement of hazardous
remediation wastes into a CAMU is not
"land disposal," under RCRA section
3004(k). A detailed explanation of the
Agency's rationale for adopting this
expanded CAMU concept is presented
in section II of this preamble.
The final CAMU regulations will
greatly enhance the waste management
flexibility provided by CAMUs, and
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8666 Federal Register / Vol. 58, No. 29 / Tuesday, February 16, 1993 / Rules and Regulations
thereby will enhance EPA's ability to
select and implement effective,
protective, reliable and cost-effective
remedies forRCRA facilities. These
general conclusions regarding the
positive remedial results that the CAMU
will provide are supported by the
preliminary analyses developed by the
Agency that were made available for
public review and comment as part of
this rulomaking process (57 FR 48195
(Oct. 22,1992)), and that are
summarized in section Vin of today's
preamble.
The following is a discussion of some
specific waste management scenarios
(and limitations) that will be operative
under today's CAMU provisions.
a. As with the proposed CAMU,
movement and consolidation of
remediation wastes within a designated
CAMU will not be subject to LDRs or
other hazardous wasteland disposal unit
requirements. Likewise, the CAMU
would not be subject to MTRs, since it
is not a landfill, surface impoundment
or waste pile and thus is not subject to
MTRs under sections 3004(o) and 3015.
(See e.g., § 264.301(c)).
b. Placement of remediation wastes
into a CAMU from an area or unit at the
facility, but outside the CAMU, will not
trigger LDRs or MTRs, for the reasons
cited above.
c. Movement and subsequent
placement of remediation wastes from
one CAMU at a facility into another
CAMU at the facility will also not
trigger LDRs or MTRs.
d. Excavation of remediation wastes
from a CAMU, and placement of those
wastes into a land-based unit that is not
a CAMU (either at the facility or off-site)
will bo subject to applicable LDRs and
MTRs.
e. Excavation of remediation wastes
from a CAMU, treatment on-site in
another unit (such as a tank, temporary
unit or an incinerator), and redeposition
of those wastes or residuals into the
CAMU will not trigger LDRs or MTRs.
f. Non-land-based units, such as
tanks, may be physically located within
the boundaries of a CAMU. However,
the tank will not actually be a part of the
CAMU; it would maintain its separate
regulatory identity, and all applicable
subtitle C requirements will continue to
apply to the tank.
g. Temporary units (as provided
under § 264.553 of today's rule) can also
be located either inside or outside the
physical boundaries of a CAMU.
However, such location will not affect
the requirements that apply to the
temporary unit, for the same reasons as
for non-temporary tanks or container
storage areas. (See further discussion of
the relationship between TUs and
CAMUs in section III.C.)
In addition to the waste management
activities outlined above, under today's
CAMU rule, land-based waste
management activities within a CAMU
that may otherwise be subject to unit-
specific standards under part 264 or
265, may be considered as part of the
CAMU, rather than as a distinct and
separate "unit'*. For example, wastes are
often excavated and staged in piles
before being transported to a treatment
unit. Under a CAMU, the area where the
wastes are piled would not be
considered a separate "waste pile" unit
for RCRA purposes; rather, the Regional
Administrator will specify technical
standards for that area of the CAMU
(e.g., liners, wind dispersion controls,
closure requirements) according to the
decision criteria in § 264.552(c).
Similarly, areas of a CAMU could also
be used for land-based treatment
processes, such as bioremediation
systems that involve structures or
equipment to maintain optimal
treatment conditions.
2. Inclusion of Regulated Units Into
CAMUs (§ 264,552(b))
Given the remedial flexibility afforded
by the CAMU provision in today's final
rule, EPA anticipates that there may be
situations where a CAMU would be
useful in promoting effective remedial
actions involving "regulated units", as
well as SWMUs and other contaminated
areas of a facility. Regulated units, as
defined in § 26;4.90(a)(2), are landfills,
surface impoundments, waste piles and
land treatmentunits that received
hazardous wastes after July 26,1982.
These units are subject to full subtitle C
design, operating, closure and post-
closure, and financial responsibility
requirements under subparts F, G and
H, and the unit specific requirements of
part 264 or 265. Regulated units thus
have a well defined regulatory identity,
and can be either operating, closing, or
closed units.
Although the 1990 CAMU regulations,
as proposed, provided for the
incorporation of regulated units into the
corrective action remedy at the facility
(see proposed § 264.526(c)), the
proposal did not explicitly address how
and under what circumstance regulated
units could be incorporated into
CAMUs. One commenter on the
proposal suggested that regulated units
should be able to be included within
CAMUs, if it were to make practical
sense. Another commenter suggested
that, while it might be advantageous to
include one regulated unit within a
CAMU, allowing more than one
regulated unit to be included within a
CAMU could create improper incentives
for owner/operators to mismanage
wastes so as to create contamination
between regulated, units, and thereby
obtain a larger CAMU. The same
commenter also argued that all
permitted regulated units should remain
separate units throughout the corrective
action.
EPA believes that in certain
circumstances, inclusion of one or more
regulated units as part of a CAMU may
be appropriate, and may enhance
implementation of sensible remedial
actions for a facility. One example could
involve a situation where a closing
regulated unit (e.g., a surface
impoundment) contained a volume of
hazardous waste sludges. Under the
existing subtitle C closure regulations,
the owner/operator could be required to
remediate the surface impoundment
(e.g., by removing and treating some or
all of the sludges). However, by
designating the surface impoundment as
a CAMU or as part of a CAMU, EPA
could allow treatment of the sludges
and redeposition of the treatment
residuals back into the impoundment
without triggering LDRs. Thus, use of a
CAMU could provide for more
flexibility in selecting among effective
and protective waste management
options for closing regulated units.
Another example might be a facility
undergoing remediation, that also
includes a closing regulated landfill unit
that was constructed in accordance with
the RCRA minimum technology
standards. By designating the regulated
unit as a CAMU or as part of a CAMU,
remediation wastes from elsewhere at
the facility could be placed into the
unit, which would then be closed. Thus,
use of this existing MTR unit would be
a highly protective, cost-effective, and
expeditious remedial solution for the
facility.
EPA believes that the Regional
Administrator should have the
discretion, in certain well defined
circumstances, to designate a regulated
unit as a CAMU, or to include a
regulated unit as part of a larger CAMU.
Today's final rule provides this
authority, under § 264.552(b). In
addition, this provision specifies two
important limitations to this authority.
First, only closed or closing units (i.e.,
those units required to begin the closure
process under § 264.113 or § 265.113),
would be able to be so designated.
Operating regulated units, including
regulated units continuing to operate
under delay of closure provisions (in
§ 264.113 or § 265.113), would not be
eligible for designation as CAMUs. Such
units will continue to receive and
manage non-remediation wastes, and
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EPA does not believe that designating,
as a CAMU, a regulated unit that would
subsequently continue operating, is
consistent with the general concept of a
CAMU being a unit that functions solely
for the purpose of facilitating
management of remediation wastes..
Second, the Regional Administrator
will have the authority to designate a
regulated unit as a CAMU, or as a part
of a larger CAMU, only if doing so will
enhance implementation of an effective,
protective and reliable remedy for the
facility (see § 264.552(b)(l)(ii)). As
illustrated in the examples described
above, EPA believes that there may be
a number of situations where this would
be the case. This requirement is
consistent with the overall objective of
CAMUs in implementing corrective
actions, as outlined in the decision
criteria for CAMUs specified in today's
rule (see § 264.552(c)).
Today's rule also provides that for any
regulated unit that is designated by the
Regional Administrator as a CAMU or as
part of a CAMU, the applicable part 264
or 265 ground-water monitoring, closure
and post-closure, and financial
responsibility requirements would
continue to apply to the unit as before.
(See § 264.552(b)(2).) Inclusion of a
regulated unit within a larger CAMU,
however, would not cause the entire
CAMU to become subject to the
standards applicable to the regulated
unit. In this case, the part 264 and 265
requirements would apply only to that
portion of the CAMU that was originally
the regulated unit.
EPA believes that maintaining the
applicability of part 264 or 265
standards to regulated units that are
included in CAMUs is a logical and
conservative approach, which will
provide substantial remedial benefits
while ensuring that the stringent
prevention-oriented requirements of
parts 264 and 265 will continue to apply
to such units.
EPA expects, on the other hand, that
there could be situations in which it
would be appropriate in remediating a
facility to include a regulated unit in a
CAMU, but where it would not make
sense to continue treating that specific
portion of the CAMU separately
according to the applicable part 264 or
265 regulated unit standards. In some
situations, therefore, it might be sensible
to allow the Regional Administrator the
discretion to prescribe requirements for
ground-water monitoring and closure/
post closure for that portion of the
CAMU in the context of the overall
remediation of the CAMU, rather than
continuing to strictly apply the part 264
or 265 requirements. However, there are
a number of issues associated with this
particular scenario that EPA believes
merit further consideration, and thus
EPA has not, in this final rule, provided
for such discretion. However, the
Agency intends to address this issue
and request comment in an upcoming
proposed rule addressing changes to
certain RCRA closure regulations for
regulated units, entitled "Standards
Applicable to Owners and Operators of
Closed and Closing Hazardous Waste
Management Units; Post-Closure Permit
Requirement; Definition of Unit for
Closure; Closure Process."
In situations where regulated units are
located within an area that has been
designated as a CAMU, but the
regulated unit will not be used for
remedial purposes and was therefore
not designated part of the CAMU, the
regulated unit will remain a distinct and
separate unit subject to all applicable
subtitle C requirements.
For situations where a regulated unit
is designated as or is incorporated into
a CAMU, issues may arise as to the
respective roles of EPA and the State
with regard to oversight and
enforcement of part 264 or 265
standards that remain applicable to that
portion of the CAMU. As a general rule,
the State would retain implementation
responsibility for the State analogues to
parts 264 and 265, that continue to
apply with respect to that area of the
CAMU that, prior to the CAMU
designation, was identified by the State
as the regulated unit. Further discussion
of Federal and State roles in
implementing CAMUs, and this role in
particular, is presented in section IV.C.
of this preamble.
3. Decision Criteria for CAMU
Designation (§264.552(c))
Section 264.552(c) specifies decision
criteria which will apply to CAMUs and
which will be the basis for the Regional
Administrator (RA) to make CAMU
determinations. These criteria in today's
rule are either clarifications of the
decision factors for CAMUs in the
proposed rule (in § 264.551(c)(3)) or are
outgrowths of the proposed subpart S
remedy selection decision framework
(in § 264.525(a)-(c)).
In the proposed subpart S, EPA
identified four main factors that an RA
would consider in designating a CAMU.
(Sections 264.551(c)(3)(i)-(iv), as
proposed.) In addition, under the
proposal, CAMUs would have been
subject to the overall remedy selection
decision framework. As proposed, the
remedy selection decision framework
presented four standards that remedies
must meet, five additional decision
factors, and six factors for review in
setting the remedy schedule. (Sections
264.525(a)-(c), as proposed.) A key
element of a selected remedy is the
decision as to how wastes are to be
managed during remediation. The
CAMU, as promulgated in today's rule,
is an important concept in
implementing remediation waste
management. Therefore, because the
remedy selection standards and factors
proposed in subpart S are not being
finalized today, the Agency believes it is
necessary to explicitly incorporate or to
capture the intent of several of the
proposed rule remedy selection factors
in today's rule so as to guide CAMU
designations. A number of commenters
voiced support for the remedy selection
standards and factors. One commenter
stated that EPA should retain the factors
in the final rule because they are a
reasonable and comprehensive mix of
considerations. The specific factors
addressed in today's rule are discussed
under each criterion as applicable.
Of the four CAMU decision factors
presented in the July, 1990 proposal,
three are not explicitly delineated in
this final rule (only the second factor
remains). (See proposed
§ 264.551(c)(3)(i), (iii), and (iv).) The
first factor specified in the proposal was
that the RA consider the nature, extent,
and location of surficial contamination
at the facility. As mentioned in today's
preamble discussion of the CAMU
definition, designation of a CAMU is not
determined by the presence of
contiguously contaminated areas at the
facility. Rather, CAMUs will be
designated according to where
remediation waste management will
occur at the facility. Therefore, although
the existing contamination may in some
cases be relevant to CAMU decisions
(see discussion of the third CAMU
decision criterion, § 264.552(c)(3)), there
is no longer a need for a specific
provision to dictate CAMU boundaries
according to the presence of surficial
contamination.
The third CAMU consideration in the
proposal was that the RA would
consider the practicability of alternative
remedial approaches. This factor was
originally included, because, in general,
remedial alternatives which did not
employ CAMUs would involve two
basic choices—in situ remediation or
excavation and treatment to best
demonstrate available technology
(BOAT) levels. In some cases, these
alternatives might have been considered
impracticable by the RA. However,
given today's expanded CAMU
definition, and the increased variety of
remedial options that will be enabled
under this final rule, EPA believes that
CAMU decisions will be more focused
on selecting the most appropriate
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8668 Federal Register / Vol. 58, No. 29 / Tuesday, February 16, 1993 / Rules and Regulations
remedial alternative(s) for the facility
from a wide range of potentially viable
approaches, rather than choosing
between CAMU vs. non-CAMU options.
The decision criteria in today's rule
provide a more comprehensive decision
framework for CAMUs than the
proposal; thus the tliird general factor
proposed in § 264.551(c)(3)(iii) is
unnecessary and has been deleted in
today's rule.
The fourth factor presented in the
July, 1990 proposal was to allow the RA
to consider "other relevant factors" in
designating a CAMU. Several
commenters requested that the Agency
clarify what will be considered by the
Regional Administrator in the
designation of a CAMU. They requested
that the Agency provide more
Information on the specific criteria that
will be used to determine a CAMU
designation and that these criteria be
promulgated in the final regulation. The
Agency agrees that replacing this
general catch-all consideration with the
more focused criteria presented today
will better guide the designation of
CAMUs. The Agency is therefore
promulgating, in § 264.552(c) of today's
rule, the more specific criteria for
designating CAMUs.
The RA will consider each of the
decision criteria under § 264.552(c) in
designating a CAMU. These decision
criteria are intended to clarify the
objectives that CAMUs should serve,
and the limitations that apply to their
scope and use. The RA will document
the rationale for designating a CAMU
and will explain the basis for such
designation. Such rationale will be
incorporated as part of the permit or
order modification documentation, or in
the remedy selection documentation
under a new order for that facility and
will be available to the public
(§264.552(f)). Documentation of CAMU
decisions is analogous to the
documentation the Agency must
currently make to support the selection
of a remedy. Therefore, if a CAMU is
selected as part of a final remedy, such
an explanation would be incorporated
into the Statement of Basis for that
remedy (See OSWER Directive Number:
9902.6). The rationale for a CAMU
decision will generally address only
those criteria that are considered
determinative for a given CAMU
designation. For example, when a
CAMU includes uncontaminated land
on which remediation waste
management will occur, the rationale
supporting this inclusion will be
specified. However, if remediation
wastes will only be managed on
contaminated land as defined by the
CAMU, this criterion need not be
addressed.
Section 264.552(c)(l): Facilitation of
Reliable, Effective, Protective, and Cost-
Effective Remedies.
The first decision criterion requires
that the Regional Administrator
determine that the CAMU will facilitate
the implementation of a reliable,
effective, protective, and cost-effective
remedy. This factor was specified in the
July, 1990 proposal as a CAMU
determination factor.
(§ 264.551(c)(3)(iiKB), as proposed.) No
comments were received specifically on
this factor as proposed. Therefore, the
Agency is finalizing this factor as a
criterion. By including this criterion, the
Agency is emphasizing that a CAMU is
not intended as a mechanism that will
undercut the protectiveness of remedies;
rather, CAMUs will facilitate the
implementation of more reliable,
effective, protective, and cost-effective
remedies. If an owner/operator cannot
provide information to support that a
CAMU will result in remediation
activities with these qualities, it will not
be designated by the Regional
Administrator. The Agency does not
intend that evaluation of this CAMU
decision criterion will require a detailed
cost/benefit or other quantitative
analyses. Protectiveness, effectiveness,
reliability and cost information
provided by the owner/operator will be
considered along with other relevant
information in making CAMU decisions.
Section 264.552(c)(2): Risks During
Remediation ^
The second decision criterion
specifies that remediation waste
management associated with CAMUs
cannot create unacceptable risks to
human health or the environment from
exposure to hazardous wastes or
hazardous constituents. The basis for
this factor is the remedy selection
decision factor addressing "short-term
effectiveness" (§ 264.525(b)(3)) as
presented in the July, 1990 proposal.
Remedies will often involve
management, including treatment,
storage or disposal, of large volumes of
wastes that could potentially lead to
exposure from windblown particulates,
air emissions during excavation and
transportation, Or other short-term risks
due to the implementation of CAMUs in
densely populated areas, or where waste
characteristics are such that risks to
workers are high and special protective
measures are needed. Since CAMUs are
likely to actually increase the amounts
of wastes that are remediated, this
provision is intended to ensure that
remediation waste management
activities are conducted so as to control
short-term risks that could potentially
occur from remedial activities. This
factor will ensure that potential short-
term risks from remediation activities
will be carefully examined as part of
any CAMU designation, and will be
carefully controlled during remedy
implementation.
In response to a commenter who
requested clarification, consideration of
this criterion does not require a
quantitative risk assessment. As with
the other criteria presented today,
qualitative assessments will generally be
sufficient unless the RA. deems that
more quantitative data are necessary.
Several commenters noted that the
short-term effectiveness remedy
decision factor in the proposal, and the
proposed remedy selection standard of
protectiveness of human health and the
environment, are redundant. The first
decision criterion in today's rule is
meant to embody the general RCRA
mandate of protection of human health
and the environment by including the
goal of facilitating protectiveness in
CAMU designations. However, even
though there may be some overlap
between some of the other criteria
finalized today and the general qualities
of effectiveness, protectiveness,
reliability and cost-effectiveness stated
in the first criterion, both the general
criterion and the clarification of
particular aspects of CAMUs under the
specific criteria are important and
necessary. The general criterion
specifies the critical objective of the
decision, while the more specific
criteria clarify the Agency's intent
regarding particular important aspects
of the decisionmaking process for
CAMUs.
Section 264.552(c)(3): Uncontaminated
Areas
The third decision criterion requires
the Regional Administrator to ensure
that any land area of a facility that is not
already contaminated (i.e., where there
is no soil contamination or where
wastes are not already located) will be
included within a CAMU only if
remediation waste management at such
an area will, in the RA's opinion, be
more protective than management of
such wastes at contaminated areas of the
facility. As explained in the preamble to
the proposed subpart S, EPA believes
that it is generally inadvisable to extend
a CAMU to include areas of facilities
that have not been environmentally
degraded by historic waste management
practices. The proposed rule, in fact,
prohibited the inclusion of
uncontaminated land areas in CAMUs.
Any waste management that occurred
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on such land would have needed to
meet all applicable subtitle C standards,
including the LDRs. However, EPA
received comments on this proposed
CAMU provision that offered
explanations as to why, in some
circumstances, the effectiveness of a
remedial action could be enhanced by
including such areas in CAMUs. These
comments fell into two main categories.
First, commenters noted that the Agency
was not being realistic in the proposal
by requiring contiguous contamination,
because this would mean that two
SWMUs with similar wastes, if
separated by a small strip of
uncontaminated land, could not be
considered one CAMU, thereby
arbitrarily limiting effective remediation
options. Second, commenters noted that
the Agency should allow the inclusion
of uncontaminated land areas within a
CAMU if such areas are necessary to
implement the remedial response.
The first category of comments has
been largely addressed by the expanded
definition of the CAMU being finalized
today. That is, movement of wastes
between CAMUs will not trigger the
land disposal restrictions; therefore,
either or both of the SWMUs, that are
separated by a small amount of
uncontaminated land area, could be
designated as individual CAMUs. Thus,
the transfer of waste from one CAMU (or
a SWMU) into a CAMU would not be
limited by application of RCRA disposal
requirements. However, the Agency
recognizes that the CAMU is a land-
based unit that must be designated by
actual physical boundaries identified in
the permit or order (see § 264.552(e)(l)).
EPA expects that it will not always be
realistic to designate a CAMU as an area
that is "completely" contaminated.
Small areas of uncontaminated land
may often exist within a broader area of
contamination. In such cases, as one
commenter suggested, the RA will
generally include permit or order
conditions preventing contamination of
this uncontaminated land during
remediation.
The second category of comments
addressed situations where it may be
desirable to include uncontaminated
land within a CAMU for the purpose of
using that land for remediation waste
management. For example, a SWMU at
a facility may be located within a flood
plain. The remedial option which makes
most sense could be to move this
SWMU to higher ground at the facility.
However, if the higher ground was not
historically "contaminated" (e.g.,
because it had been used only for
general commercial activities), it could
not have been designated under the
proposal as part of a CAMU. Today's
rule would allow the facility owner/
operator and the Regional Administrator
to consider options that involve
movement of wastes out of the flood
plain, and management of such wastes
in an uncontaminated area of the
facility.
It might also be appropriate to include
small portions of uncontaminated land
within a CAMU when remediation
activity cannot be conducted on or
within the contaminated area itself. For
example, remediation of a lagoon
containing sludges may not be possible
within the lagoon. If the Regional
Administrator included the lagoon and
a small portion of uncontaminated land
immediately adjacent to the lagoon
within the CAMU, remediation
activities, such as staging of wastes or
bioremediation, could take place. This
scenario may be especially relevant to
facilities composed of relatively small
land areas, where there may be few
options as to where remedial activities
can be conducted.
The Agency agrees with commenters
that the situations discussed above are
realistic and today's rule allows the RA
to consider such options on a case-by-
case basis. To include previously
uncontaminated land areas within a
CAMU, for the purpose of remediation
waste management, the Regional
Administrator will be required to
determine that such management in
these areas is more protective than
managing the remediation wastes in the
flood plain (as in the above example) or
in other areas of the facility that are
"contaminated". In addition, the
Agency may consider, as a part of this
determination, that movement of wastes
for remediation at contaminated areas of
the facility could involve greater risks of
exposure to human health and the
environment than protective
remediation options utilizing
uncontaminated land directly adjacent
to the contaminated area.
By specifying under this decision
factor that uncontaminated areas of the
facility may be included in a CAMU
only when doing so is "more
protective" than managing such wastes
at contaminated areas of the facility,
EPA does not intend that formal risk
assessments or other quantitative
analyses must be performed to support
such decisions. As a general rule, EPA
believes that more qualitative
assessments of the relative
protectiveness of remedial options will
be sufficient to support such decisions.
The Regional Administrator would have
the authority, however, to require that
more quantitative analyses be provided
by the owner/operator, if necessary.
By clearly defining, under this
decision factor, the circumstances in
which uncontaminated areas of a
facility may be included in a CAMU for
remediation waste management
purposes, EPA believes that the Agency
has alleviated the concern raised in the
July, 1990 proposal preamble, that
uncontaminated land should not be
included in a CAMU because it would
frustrate the remedial purpose of the
CAMU. Under today's rule, inclusion of
such areas within CAMUs will be
allowed only if doing so is consistent
with the overall remedial objective of
the CAMU and will, in fact, be more
protective than management of such
wastes at contaminated areas of the
facility.
Section 264.552(c)(4): Minimizing
Future Releases
The fourth decision criterion specifies
that areas within a CAMU where wastes
will remain in place after closure of the
CAMU are to be managed and contained
so as to minimize future releases, to the
extent practicable. This is a logical
outgrowth from the closure provisions
that were proposed in subpart S for
CAMUs. (See proposed § 264.551(c)(5)).
In the preamble to the proposed rule,
the Agency stated that the closure and
post-closure provisions were intended
to ensure that adequate long-term
controls are imposed for any wastes
remaining within the CAMU. 55 FR
30844. This decision criterion is
intended to make clear that the Regional
Administrator must consider at the time
of CAMU designation whether long-
term reliability and effectiveness will be
ensured through the implementation of
a CAMU, particularly when it is
necessary to leave wastes in place after
implementation of remedial activities.
One commenter suggested that the
Agency clarify the fact that final closure
of the CAMU must be examined very
carefully. Therefore, although this
decision criterion closely parallels the
closure provision for CAMUs, EPA
believes that eventual closure of the
CAMU is an important enough factor .
that it should be highlighted at the time
the Regional Administrator is making
the decision to designate a CAMU. Any
CAMU decision must consider, as a
primary objective, the long-term (i.e.,
post-closure) reliability and
effectiveness of CAMU-related remedial
actions.
Section 264.552(c)(5): Timing
The fifth decision criterion specifies
that the CAMU will expedite the timing
of remedy implementation, when
appropriate and practicable. This
criterion is an outgrowth of the
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8670 Federal Register / Vol. 58, No. 29 / Tuesday, February 16, 1993 /Rules and Regulations
requirement in the proposed rule that,
in designating a CAMU, the Regional
Administrator consider whether the
CAMU would benefit remediation at the
facility by expediting the timing of the
remedy implementation. (See proposed
§ 264.551(c)(3)(ii)(A)). No comments
were received on this proposed CAMU
decision factor. Therefore, the Agency is
finalizing this factor as a CAMU
designation criterion in today's rule.
The Regional Administrator is
encouraged to utilize CAMUs if they
will assist in eliminating unnecessary
delays and will encourage a faster pace
to remediation. However, it should be
understood that CAMUs may not always
result in remedies that take less time. By
allowing for on-site waste management
and use of innovative technologies, the
resulting remedial actions may take
longer to complete than, for example,
excavating all wastes and transporting
them to commercial treatment or
disposal facilities. Thus, this decision
criterion only requires that a CAMU
expedite remedial timeframes when it is
appropriate and practicable, in
consideration of the other remedial
objectives for the facility.
Section 264.552(c){6): Enhancing Long-
term Effectiveness
The sixth decision criterion requires
the Regional Administrator to use, as
appropriate, treatment technologies
(including innovative technologies) to
enhance the long-term effectiveness of
the remedial actions at the facility by
reducing the toxicity, mobility, or
volume of wastes that will remain in
place after closure of the CAMU. This is
an outgrowth from the remedy selection
decision factors relating to reduction of
toxicity, mobility and volume of wastes,
and long-term reliability and
effectiveness. (See proposed
§ 2G4.525(b)(l) and (b)(2)). It is also
analogous to the preference under
CERCLA for treatment-based remedies
(55 FR 8666, Mar. 6.1990). The
proposed rule preamble discusses two
Agency preferences supporting this
criterion: (1) "As a general goal,
remedies will be preferred that employ
techniques, such as treatment
technologies, that are capable of
permanently reducing the overall degree
of risk posed by the wastes and
constituents at the facility;" and (2)
"Source control technologies that
involve treatment of wastes, or that
otherwise do not rely on containment
structures or systems to ensure against
future releases, will be strongly
preferred to those that offer more
temporary or less reliable controls." (55
FR 30824). EPA believes as a general
rule that long-term reliability and
protectiveness of remedial activities is
directly tied to effective treatment of
wastes that pose future release threats.
EPA received comments requesting
clarification as to whether under this
decision factor; EPA was disallowing
caps or other forms of containment,
stabilization/fixation or other
technically sound remedies. The
Agency responds by stating that this
criterion does not preclude remedial
actions that do not employ treatment, as
long as they are capable of ensuring
long-term effectiveness. As a general
rule, the Agency believes that treatment
provides greater long-term effectiveness
than containment alone, but that in
certain circumstances, the Agency may
consider containment to be sufficiently
effective. A commenter also suggested
that the Agency add a new remedy
decision factor—the ability of the
remedy to leave hazardous wastes in
their least environmentally threatening
state. EPA believes the objective of such
a factor is consistent with this sixth
criterion, and therefore an additional
factor is not necessary.
Another compienter requested that
EPA clarify that there is no relative
preference between toxicity reduction,
mobility reduction or volume reduction.
The Agency agrees with this commenter
because the decision as to which
characteristic of the waste (i.e., toxicity,
mobility, or volume) can be reduced
will be a case-by-case determination. In
some cases, for example, a reduction in
volume will not be possible (e.g., with
metals), however, mobility reduction
may be possible. Therefore, any
preference between such types of
treatment will be determined by site and
waste specific characteristics that will
guide or limit remedial options.
One commenter stated that section
3004(u) provides no statutory basis to
establish a preference for remedies that
involve treatment or that otherwise do
not rely on containment systems or
structures. The Agency strongly
disagrees with this comment. As noted
in the preamble to the July 1990
proposal, EPA believes that long-term
reliability of remedies is an essential
element in ensuring that actions under
sections 3004(u) and 3008(h) satisfy the
fundamental mandate of RCRA to
protect human ^lealth and the
environment, and that the reduction of
toxicity, mobility or volume is a primary
means of achieving such long-term
reliability. 55 FR 30824. Moreover,
EPA's experience under the RCRA
program, and the primary focus of
Congress in enacting the 1984
amendments to RCRA, is that reliance
on containment structures rather than
treatment generally should be
discouraged, since land disposal of
untreated hazardous wastes cannot
provide reliable protection of human
health and the environment over the
long term. See, e.g., RCRA section
1002(b)(7).
Another commenter noted that the
factor addressing reduction in toxicity,
mobility, and volume should not be
applied to or should not be emphasized
in situations which involve high
volume, low toxicity wastes, e.g., broad
area-wide contamination. As discussed
earlier, the decision factor in the
proposal that addressed reduction of
toxicity, mobility, and volume was not
intended to preclude remedial
alternatives that did not employ
treatment, so long as such options could
ensure long-term effectiveness of the
remedy. Given the example, therefore,
of a situation involving large volumes of
low concentration contaminated soils or
other wastes, the RA would have the
discretion to evaluate containment-
based remedial approaches. However,
the final decision as to whether
treatment of such wastes is necessary
and appropriate, and if so what kind of
treatment should be done, will
necessarily be made on a case-by-case
basis.
EPA also encouraged, in the subpart
S proposal, that facilities consider
"utilizing emerging technologies not yet
widely available which may offer
significant advantages over currently
available technologies." (55 FR 30825;
proposed § 264.525(c)(4).) CAMUs may
be particularly helpful to the
implementation of effective innovative
treatment technologies, which in the
past have had limited application due to
the waste management constraints
imposed by the land disposal
restrictions.
Several commenters were very
supportive of EPA's encouragement of
innovative technologies. One
commenter, however, stated that the use
of an emerging technology should not be
compelled, because a particular
technology may not have been field
tested and may involve greater monetary
and time commitment than is necessary
to remediate a given facility. EPA did
not intend that this criterion mandate
the use of innovative technologies.
However, an RA, in conjunction with
the owner/operator, may decide to
utilize the flexibility of the CAMU to
implement an innovative technology
that could not have been used given the
waste management restrictions of
subtitle C, most notably the LDRs. This
criterion is intended to support and
encourage the implementation of
innovative technologies when they can
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Federal Register / Vol. 58, No::29 / Tuesday, February 16, 1993 / Rules and Regulations 8671
be utilized to reach the overall
remediation goals at the facility.
Section 264.552(c)(7): Minimizing Land
Areas Where Wastes Will Remain in
Place
The seventh decision criterion
requires the Regional Administrator to
determine that the CAMU will minimize
the land area of the facility upon which
wastes will remain in place after
closure, to the extent practicable. The
CAMU, as presented in today's rule,
will promote consolidation of
remediation wastes into smaller,
discrete areas of the facility, that are
suitable as long-term repositories for the
wastes, and which can be effectively
managed and monitored over the long
term.
EPA believes that the objective of
minimizing the land area at which
remediation wastes will remain in place
at a facility after closure of the CAMU
is consistent with the overall goal of
achieving effective, protective remedies
with long-term reliability. In some
cases, broad areas of a facility (such as
a series of large impoundments) could
be capped without consolidation of the
wastes. However, this approach could
complicate monitoring for ground-water
releases and could require an extensive
maintenance program (e.g., for the cap
and for other containment systems). In
addition, as a practical matter
development of the facility property (for
future beneficial uses or by the owner/
operator) may be less constrained if a
relatively small area of the facility were
dedicated to continued long-term
containment of remediation wastes.
EPA believes that the objective of
minimizing the land-area in which
wastes will remain in place is consistent
with, and complements, the other
objectives for CAMUs that are expressed
in the other six CAMU decision factors.
In particular, it is consistent with one of
the important objectives stated in the
proposed subpart S regulations, which
stated that "[t]he Agency intends to
place special emphasis in selecting
remedies on the ability of any remedial
approach to provide adequate protection
of human health and the environment
over the long-term."(55 FR 30824) The
comments received regarding long-term
reliability and effectiveness did not
oppose, this overall objective, but raised
issues as to how the Agency meant to
implement it. These comments were
discussed under the above criteria. With
regard to this criterion, reducing the
land area of wastes remaining in place,
in conjunction with a reduction in
toxicity, mobility, and volume, is ,
intended to clarify this means of
improving long-term effectiveness and
reliability.
4. Information Required To Support
CAMU Designation (§ 264.552(d))
An owner/operator must provide, as a
result of facility investigations, remedial
studies, or other site-specific analyses,
information sufficient for the Regional
Administrator to assess the decision
criteria specified in § 264.552(c) as they
relate to the implementation of a CAMU
at a given facility. This information can
be requested under the authority the RA
already possesses under § 264.101.
This requirement of today's rule was
not explicitly provided for in the
proposed rule; under the proposal such
information was to have been furnished
to the RA as part of the documentation .
of the remedial studies (e.g., RCRA
Facility Investigations, Corrective
Measures Studies) required under the
subpart S proposal. Since today's rule
finalizes only a portion of the proposal,
a specific requirement relating to
submission of information to support
CAMU decisions is necessary. As such,
this requirement is simply an
expression of the general authority
under 3004(u) and 3008(h) to require
information from owner/operators to
support corrective action
implementation decisions.
5. CAMU Requirements To Be Specified
in Permits or Orders (§ 264.552(e))
The proposed subpart S CAMU
provisions outlined explicit
requirements for closure and post-
closure of CAMUs that the Regional
Administrator would be required to
include in the permit or order. Some
commenters on the proposal suggested
that the regulation should provide a
more comprehensive listing of the
requirements that would have to be
specified in the permit (or order). EPA
agrees that a more comprehensive
listing of these requirements will clarify
the specific requirements that must be
addressed for CAMUs in permits and
orders. Thus, § 264.522(d) outlines
additional features of CAMUs that will
be contained in permits or orders.
Section 264.552(e)(l) clarifies that in
designating a CAMU at a facility, the
Regional Administrator will specify in
the permit or order the actual areal
extent or configuration of the CAMU.
This is a logical outgrowth of one of the
fundamental issues involved with
designating CAMUs; that is,
determining where at the facility the
CAMU is to be physically located, and
the specific configuration of the CAMU.
EPA expects that permits and orders
will generally identify the physical
boundaries of CAMUs on a facility map,
together with a specific description of
the physical boundaries or dimensions
of the CAMU.
Section 264.552(e)(2) clarifies that the
permit or order will specify how
remediation wastes will actually be
managed in or as part of a designated
CAMU, including specification of
design, operating and closure
requirements. This is also a logical
outgrowth from the proposal. The
subpart S proposal anticipated that
these types of requirements would be
specified for CAMUs in a permit
modification as part of the overall
remedy selected for the facility. Since
that portion of subpart S is not being
finalized in today's rule, EPA believes
that it is appropriate to clearly specify
in this rule that these types of
requirements must be delineated in
permits or orders which establish
CAMUs.
As specified in § 264.552(e)(2),
requirements will generally be specified
for those areas of a CAMU that are to be
used for treatment or storage of
remediation wastes. Thus, if wastes
were to be excavated and bioremediated
in an enclosure located within the
CAMU, the permit or order would
specify the requirements for the
bioremediation technology, the design
and operation of any structures used for
the bioremediation process, the
disposition of the treatment residuals,
and other associated requirements for
those wastes and the areas of the CAMU
to be used in managing them. However,
as the regulations specify, where a
treatment or storage unit separate from
a CAMU is already adequately regulated
under a facility permit, it would not be
necessary to repeat those requirements
in the CAMU provisions of the permit.
Under § 264.552(e)(3), the permit or
order must also establish the ground-
water monitoring requirements for each
CAMU. This requirement also derives
generally from the subpart S proposal;
under the proposal, ground-water
monitoring requirements were to be
specified as part of the overall facility
remedy (see proposed § 264.525(e) and
§ 264.526). Given that today's rule
finalizes only specific portions of the
proposal, the Agency believes that it is
useful to specify in this rule that
ground-water monitoring requirements
for CAMU must be specified in the
permit or order.
EPA expects that CAMUs will
typically be implemented following
studies of surface and subsurface
contamination at the facility, conducted
as part of required remedial
investigations. Thus, in most cases,
ground-water monitoring systems will
already have been installed to
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8672 Federal Register / Vol. 58, No. 29 / Tuesday, February 16, 1993 / Rules and Regulations
characterize releases to ground water at
the facility. Section 264.552(e)(3) is
intended to clarify that there will he a
continuing responsibility for owner/
operators to monitor ground-water
quality in the vicinity of the CAMU to
ensure that any releases of contaminants
from within the CAMU are detected.
This provision does not address the
responsibilities of the owner/operator to
continue monitoring of releases that are
not associated with CAMUs; nor does it
address the question of whether ground-
water remediation is necessary. Due to
the limited scope of today's final rule,
those broader remedial requirements
(i.e., that are not specifically associated
with CAMUs) have not been addressed.
EPA expects that those requirements
will be included in the final,
comprehensive subpart S rulemaking.
The ground-water monitoring
requirements as specified in today's rule
are not detailed, specific requirements
addressing the numerous technical
elements of installing and operating an
effective ground-water monitoring
system. Rather, they provide a general
standard of performance for such
systems; detailed specifications or
performance standards for ground-water
monitoring will be specified in the
permit or order, based on site-specific
information and conditions.
Today's rule promulgates the
provisions of the proposed rule that
specified closure and post-closure
requirements for CAMUs that must be
incorporated in permits or orders, with
few changes from the proposal. [See
§2B4.552(e)(4).) This rule also finalizes
the decision factors to be considered in
making CAMU closure decisions, as
proposed. The specific closure and post-
closure provisions have been
reorganized for the sake of clarity and to
fit within the organization of this
section of today's regulation.
The only significant difference
between the final and proposed closure
and post-closure provisions is that
today's rule identifies certain specific
requirements for CAMU closure to be
included in permits or orders that were
not explicitly identified in the proposal.
(Soa 264.552(d)(4)(ii)). These
requirements address such closure
activities as excavation, removal,
treatment, capping or containment of
wastes, capping of areas where wastes
will remain in place, and removal and
decontamination of equipment, devices,
and structures used for remediation
waste management. These provisions
specify activities that are normally part
of closure for other types of land-based
units, and that would, in any case, be
incidental to implementing CAMU
closure activities under today's rule.
This new provision is, thus, intended to
clarify the specific types of activities
that should be included in the permit or
order encompassing CAMU closure.
6. Documentation for CAMUs
(§ 264.552(f))
This provision requires the RA to
document the rationale for designating a
CAMU, and to make the documentation
available to the public. (See also section
m.B.3.) This will typically be done in a
Statement of Basis in a permit, permit
modification, order, or order
modification. Further explanation of
public participation requirements for
CAMUs (and TUs) designated under
orders, is presented in section IV.A. of
this preamble.
7. Permit or Order Modification for
CAMUs (§ 264.552(g) and § 270.42)
As outlined in the subpart S proposal,
remedies tentatively selected or
approved by the Regional Administrator
would be incorporated into the permit
according to the Agency-initiated
modification procedures of § 270.41,
which provide for thorough public
review and comment. Thus, under the
proposal, designation of a CAMU was
presumed to be implemented as part of
the overall remedy selection process,
and incorporation of specific CAMU
provisions into the permit would be
done under the overall modification for
the remedy (see proposed § 264.526).
Several comipenters on the proposal
argued that there should be a provision
for allowing CAMUs to be designated
earlier in the corrective action process
than at the time of the permit
modification for final remedy selection.
These commenters elaborated that in
some cases remedial activities that may
precede implementation of the final
remedy could be facilitated by the use
of a CAMU. EPA provided for and
encouraged implementation of certain
remedial activities prior to final remedy
selection decisions under the proposed
"interim measures" provisions of the
subpart S proposal (§ 264.540). A
number of comments were received
regarding the appropriate permit
modification provisions for interim
measures, with several commenters
suggesting that the Agency clarify the
type of permit modification (i.e., Class
I, II or EH) that would be used to
incorporate interim measures into
permits.
EPA agrees with the commenters that
the regulations should explicitly
provide for situations where CAMUs
may be appropriate for remediation
waste management prior to final remedy
implementation. This is consistent with
EPA's current implementation strategy
for the corrective action program, which
emphasizes early implementation of
interim or "stabilization" measures at
RCRA facilities, with relatively lesser
emphasis over the next several years on
pursuing "final" cleanups at all
facilities.2 Certain stabilization actions
may involve extensive waste
management activities, for which
CAMUs may be useful and appropriate.
To facilitate early use of CAMUs
designated pursuant to permits, today's
final rule specifies (in § 264.552(g)) that
a CAMU may be approved under an
Agency-initiated modification
(§ 270.41), or according to the permit
modification procedures of § 270.42, for
owner/operator initiated modifications.
As discussed elsewhere in today's
preamble, EPA is amending appendix I
of § 270.42 to specify that, when
incorporation of a CAMU into a permit
is initiated by an owner/operator, a
CAMU will generally be approved (or
disapproved) according to the Class III
permit modification procedures. Class
III permit modifications are similar to
Agency-initiated modifications in terms
of the amount and type of public review
and comment that is provided. EPA
believes that specifying Class III
modifications for CAMUs under
§ 270.42 is therefore consistent with the
proposal, and addresses commenters'
concerns that there be an explicit
provision for approval of CAMUs, when
appropriate, early in the corrective
action process.
CAMUs may also be implemented
through the use of section 3008(h)
orders. Such orders will generally
require the same information as
required in permits under § 264.552(e).
The need to approve a CAMU early in
the process (e.g., to support an interim
measure or "stabilization" action) will
pertain to facilities subject to section
3008(h) orders, as well as permitted
facilities. Thus, to implement a CAMU
under an existing section 3008(h) order,
the order may need to be amended to
reflect the addition of the CAMU. It is
the Agency's current policy that order
modifications regarding remedy
selection VR/AP provide a level of
public participation and comment
comparable to that provided for permit
modifications. Section IV. A. of this
preamble provides further discussion of
the public participation procedures that
will be used for CAMU designation
under orders.
EPA notes that, in today's rule, the
only mechanism for designating a
2 Guidance on EPA':; Stabilization Initiative for
the RCRA Corrective Action program may be
obtained by contacting the RCRA/Superftmd
Hotline at 1-800-424-9346.
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Federal Register / Vol. 58, No. 29 / Tuesday, February 16, 1993 / Rules and Regulations 8673
CAMU at interim status facilities is a
section 3008(h) order (or possibly a
§ 7003 order). The Agency recognizes
that owner/operators of interim status
facilities may prefer another mechanism
(e.g., the closure plan approval process),
which would allow accelerated
cleanups to proceed outside the context
of an enforcement order. While EPA
acknowledges that there may be
advantages to such an approach, it
raises issues that are outside the scope
of today's rulemaking. EPA will
consider possible options as it develops
the final subpart S rulemaking.
8. Effect of CAMU Designations on
Other Remedy Selection Decisions
(§264.552(h))
As is discussed earlier in this
preamble, the designation of a CAMU
does not change EPA's authority to
address clean-up levels, media-specific
points of compliance to be applied to
remediation at a facility, or other
remedy selection decisions. This point
is clarified in § 264.552(h).
C. Temporary Units (TVs) (§264.553)
The temporary unit provisions
(§ 264.551(b)) as proposed in July, 1990,
would have provided the Regional
Administrator with the authority to
modify 40 CFR part 264 or 265
regulatory design, operating, or closure
standards for units (except incinerators
and non-tank thermal treatment units)
used for the storage or treatment of
hazardous waste during corrective
action, as long as those alternative
standards were protective of human
health and the environment and
complied with statutory requirements.
Under this proposal, the operation of
such units would have been restricted to
180 days; however, the Regional
Administrator could grant extensions to
the operating life of such unit(s) in
situations where unforeseen, temporary,
and uncontrollable circumstances
occurred, and where the owner/operator
was actively seeking alternatives to
continued use of the unit. See 55 FR
30842 (July 27, 1990). If the owner/
operator failed to seek alternatives to the
continued use of the temporary unit, the
Agency would deny further extensions
and require the owner/operator to
retrofit the unit to meet applicable part
264 and part 265 standards, or remove
the waste and close the unit.
In modifying 40 CFR part 264 and
part 265 design, operating, and closure
regulatory standards for temporary
units, proposed § 264.55 l(b) required
the Regional Administrator to consider
certain factors relating to the length of
time that the unit would be in place, the
amount of wastes to be managed, the
physical and chemical characteristics of
the wastes, and the site characteristics
that might influence the migration of
any potential releases. The alternative
standards developed based on these
factors would be specified in the
facility's permit or order.
Today's rule finalizes the temporary
unit provisions in § 264.553, with minor
changes. EPA believes that the
temporary unit concept is both sensible
and practical within the context of
remediation, and will facilitate
implementation of RCRA sections
3004(u), 3004(v), and 3008(h). EPA
believes that the site-specific review and
oversight that is provided in the context
of investigating and making remedial
decisions for corrective action allows
the Agency to ensure protection of
human health and the environment for
short-term operation of units that may
not meet the full set of standards
specified for long-term use of such units
under current RCRA regulations.
As a general matter, EPA believes that
the flexibility provided for in today's
rules for CAMUs and temporary units
will also encourage the development of
new and innovative treatment
technologies. In particular, this rule will
help further the Administrator's
commitment to remove barriers to the
use of bioremediation. Consistent with
this goal, in the Land Disposal
Restrictions for Newly Listed Wastes
and Hazardous Debris proposed rule (57
FR 958, Jan. 9,1992), the Agency
solicited comment on a temporary
version (57 FR 981) of the containment
building (later promulgated in the final
Debris Rule on 8/18/92). As proposed,
these temporary containment buildings
would have allowed for the treatment of
hazardous waste in temporary structures
that would not have been subject to the
same stringent design and construction
requirements of the containment
building promulgated on August 18,
1992. (See 57 FR 37268). Comments on
the proposal were almost universally
favorable. However, EPA decided to
defer a final rule on such buildings
pending further analysis.
The CAMU provisions promulgated
today achieve most of the objectives of
the temporary containment building
proposal (e.g., within a CAMU,
structures may be used to implement
bioremediation systems as an integral
part of a remediation). The design and
operating plans for such systems will be
approved on a case-by-case basis within
the context of other waste management
activities that will take place within a
CAMU. The use of bioremediation
technologies as part of CAMUs should
greatly expand the base of experience
with the use of these treatment
technologies. EPA will consider
whether separate regulations for
temporary containment buildings, as a
distinct type of RCRA unit, should be
developed in the future.
1. Scope and Applicability of Today's
Rule (§ 264.553(a))
Today's rule narrows the applicability
of the temporary unit provision. The
proposed rule for temporary units
would have allowed any unit (except
incinerators and non-tank thermal
treatment units) used for the treatment
or storage of hazardous wastes during
corrective action to be designated as a
temporary unit. This would have
included land-based units such as waste
piles. Today's final rule specifies that
only tanks and container storage units
used for the treatment or storage of
remediation wastes will be eligible for
designation as temporary units.
EPA expects that land-based waste
management activities are more
effectively addressed under today's
CAMU provisions. For example, under
today's CAMU provisions, a waste pile
could be designated as part of a CAMU.
This would enable the Regional
Administrator to specify protective liner
requirements and other design/
operating requirements for the pile that
are appropriate to waste and site
conditions, and the length of time the
unit may operate. Further, remediation
wastes could be placed into the pile
without triggering LDRs, thereby
enabling one of the most frequent uses
of piles, the temporary staging of wastes
prior to on-site treatment, or
transportation to off-site disposal (in
which case, the land disposal
restrictions would apply). Thus,
designating the pile as part of the
CAMU will enable sensible and
protective waste management actions to
be implemented. Because the provisions
already allow flexibility for waste
management in land-based units, the
temporary unit provisions for those
units are unnecessary and thus have
been omitted in the final rule.
In addition, the temporary unit
provisions will not apply to subpart X
units (e.g., "modu-tanks"). EPA believes
that the subpart X standards already
provide sufficient flexibility for the
Regional Administrator to set conditions
appropriate to short-term use of a
miscellaneous unit at a remediation site.
Also, some miscellaneous units involve
land-based waste management
activities; such activities could be
addressed and included as part of a
CAMU, in a manner similar to waste .
piles.
The temporary unit proposed rules
specified that the Regional
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8674 Federal Register / Vol. 58, No. 29 / Tuesday, February 16, 1993 / Rules and Regulations
Administrator could modify standards
applicable to such units "solely by
regulation." Since today's rules for
temporary units are limited to tanks and
container storage units, and since these
units are not subject to the statutory
MTR and LDR requirements, the phrase
"solely by regulation" has been omitted
from § 264.553(a) of today's final rule, as
it is no longer applicable or necessary.
Several commontors requested
clarification of the applicability of
temporary units to corrective actions
under 3008(h) orders. Section
264.553(a) of today's final rule clarifies
that the temporary unit concept is
applicable to these actions. This change
parallels the clarifying change to the
definition of CAMU, as discussed
previously in this preamble.
2. Restrictions on Temporary Units
(§264.553(b))
The proposed temporary units
provisions specified that such units
could only be used for treatment or
storage of waste"* * * that [had]
originated within the facility
boundary." Commenters on the
proposal requested that EPA clarify
more explicitly the types of wastes that
could be managed in temporary units
and CAMUs. Accordingly, EPA is
promulgating in today's rule a definition
of remediation waste, and, in
§ 264.553(b)(2), a clarification that
temporary units shall be used only for
treatment or storage of remediation
wastes. Although the definition of
remediation wastes includes non-
hazardous solid wastes, management of
such wastes would not require the
designation of a temporary unit, since
subtitle C requirements would not apply
to management of those wastes. The
definition of remediation wastes is
discussed in section II.A. of this
preamble.
In addition, today's rule specifies that
temporary units must be located at the
facility. One individual who
commented on the proposal, supported
the restriction that temporary units not
be allowed outside the facility, since the
owner/operator would not have direct
operational control over such units. EPA
agrees with this commenter and believes
that this requirement will ensure that
the Agency maintains direct oversight
control over the unit and that the
alternate standards specified for the unit
by the Regional Administrator are
appropriate given the context of the site-
specific assessment, EPA believes that
allowing temporary units only within:
the facility is consistent with the overall
intent of this provision and, thus, has
finalized this requirement as proposed.
3. Temporary Unit Decision Factors
(§264.553(c))
The proposed TU provisions specified
seven factors that the Regional
Administrator would consider in
establishing standards for temporary
units. These factors were:
(1) Length of time the unit will be in
operation;
(2) Type of unit;
(3) Volumes of waste to be managed;
(4) Physical and chemical
characteristics of the wastes to be
managed;
(5) Potential for releases from the unit;
(6) Hydrogeolpgical and other relevant
environmental conditions at the facility
which may influence the migration of
any potential releases; and
(7) Potential for exposure of humans
and environmental receptors if releases
were to occur from the Unit.
EPA did not receive any comment on
these specific decision factors. The
Agency believes that these factors are
reasonable and will result in sound
decisions for temporary units; these
decision factors have, therefore, been
finalized as proposed.
4. Permit or Order Specifications for
Temporary Units (§ 264.553(d))
As required under § 264.553(d), the
Regional Administrator will specify
requirements for temporary units in the
permit or order. These requirements
will include the design, operating, and
closure requirements for such units, as
determined by the Regional
Administrator in accordance with the
decision factors described above.
This section also specifies operating
time limits for temporary units. The
proposed provisions for temporary units
specified a 180-day time limit for the
operation of temporary units, with
allowance for EPA to extend that time
period in certain circumstances. EPA
expects that in many cases 180 days
would be sufficient for a temporary unit.
However, EPA also recognizes that in
many other cases involving the storage
or treatment of large volumes of wastes,
units may need:to be operated for
periods longer than 180 days. As argued
by a number of pommenters on the
proposal, remediation of facilities will
often be a lengthy process, and a 180-
day limit for temporary units could
impose an unnecessary and artificial
constraint on units whose operation
beyond 180 days could nevertheless be
protective of human health and the
environment. An example of such a unit
might be a tank that is brought to a
remedial site for the treatment of
inorganic sludges and that meets or
exceeds all part 264 requirements,
except for secondary containment. The
operation of that tank could be
protective for considerably longer than
180 days, given frequent inspections,
sound operating procedures, and
extensive Agency oversight.
Many commenters argued that there
should be no time limit for the
operation of temporary units, and that
the Regional Administrator should have
the discretion to establish operational
time frames for temporary units on a
case-by-case basis. Other commenters
believed that one to two years would be
a more reasonable time limit.
EPA agrees with the commenters who
argued that the proposed 180-day limit
for temporary units may be
unnecessarily restrictive in many cases,
and would complicate the use of
temporary units for potentially
beneficial waste management activities,
such as certain treatment systems that
often require timeframes longer than
180 days. Today's rule, therefore,
specifies a one-year time limit for
operation of temporary units. Based on
an evaluation of the comments to the
proposal, EPA believes that a one-year
limit for temporary units is reasonable
and appropriate. Such a time limit will
allow the use of temporary tanks and
containers for somewhat lengthier
treatment technologies (e.g.,
bioremediation) while assuring the
protectiveness of such units. In
addition, the one-year time limit
confirms EPA's intent that the alternate
standards only be applied to units
which are truly "temporary" in this
context.
At the end of the specified time limit
for a temporary unit, or at the end of an
extension if granted by the Regional
Administrator, the owner/operator will
be required to cease management of
remediation wastes in the temporary
unit and to initiate the closure
requirements prescribed for the unit
under § 264.553(d). In cases where it is
necessary or desirable to continue the
waste management activity that was
conducted in the temporary unit, the
owner/operator will be required to
retrofit the unit to meet applicable part
264 or part 265 standards for that type
of unit, arrange for an alternative unit in
which to continue conducting the
activity, or otherwise modify the
remedial practices so that the unit is not
used in the remediation at the facility.
If the owner/operator chooses to retrofit
the unit, but such changes to the unit
cannot be made before the end of the
extension period, the owner/operator
will be required to cease management of
the waste until the retrofitting has been
completed. Changes to temporary units
(e.g., retrofitting) or to other remedial
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Federal Register /Vol. 58, No. 29 / Tuesday, February 16, 1993 / Rules and Regulations
8675
operations at the end of the operating
time limit for a temporary unit will be
subject to approval through
modifications to the permit or order.
5. Time Limit Extensions for Temporary
Units (§264.553(e))
Section 264.553(e) specifies the
criteria the RA must consider prior to
approving an extension to the time limit
originally specified for a temporary unit.
EPA recognizes that in some cases a
temporary unit may have to remain in
service beyond the limit originally
specified in the permit or order by the
Regional Administrator due to
unexpected circumstances. Today's rule
finalizes the provisions for extensions as
proposed in § 264.551(b)(3), with minor
changes. Proposed § 264.551(b)(3)
specified that an extension to the
operating period originally specified for
the unit could only be granted if
hazardous wastes had to remain in the
unit due to "unforeseen, temporary, and
uncontrollable" circumstances. One
commenter who suggested that the 180-
day time limit was too restrictive also
suggested that the regulation be revised
to eliminate these criteria as a condition
for approving an extension for a
temporary unit. Today's final rule does
not specify these criteria for the
approval of an extension. EPA believes
that decisions as to whether or not
certain circumstances were unforeseen
and uncontrollable could be difficult
and contentious, could put the Agency
in the position of having to speculate as
to whether or not the owner/operator
might have seen or might have
controlled a circumstance relating to a
temporary unit, and are ultimately
irrelevant to the issue of the
protectiveness of the unit.
Accordingly, §264.553(e) of today's
rule specifies new criteria for approval
of time extensions for temporary units.
These new criteria are based on an '
evaluation of the comments received on
the proposal. One commenter expressed
concern that the standards applied to
temporary units may be based on the
time limit originally specified for the
unit and therefore may not be
adequately protective of human health
and the environment if the operating life
of the unit were extended. EPA agrees
with this comment and has specified in
§264.553(e)(l) of today's final rule that
in order to grant an extension, the
Regional Administrator must determine
that continued operation of the unit will
not pose a threat to human health and
the environment. In addition,
§ 264.553(e)(2) specifies that the
Regional Administrator must also
determine that continued use of the unit
is necessary to ensure the timely and
efficient implementation of remedial
actions at the facility. This criterion is
^essentially a restatement of the overall
objective of,temporary units and a
clarification that the overall objective
should be a, condition for the approval
of an extension. Upon approval of an
extension the Regional Administrator
will identify the specific time limit for
the extension in the permit or order or
modification to the permit or order.
Proposed § 264.551(b)(3) did not
specify limits as to the time allowed
under an extension or the number of
extensions that could be approved.
Under today's rule § 264.553(e), the
Regional Administrator has the
authority to grant up to a one-year time
extension beyond the time limit
originally specified for the unit, in cases
where it is necessary to ensure timely
and efficient implementation of
remedial actions at the facility, and
where the continued operation of the
unit will not pose a threat to human
health and the environment. The
Regional Administrator may grant only
one, extension of up to one year. Based
on the comments received on the
proposal, EPA believes that these limits
are both reasonable and appropriate,
and are consistent with the Agency's
intent to allow alternative standards
under this provision only for truly
"temporary" units. In addition, given
the increased operational time limit for
temporary units provided under today's
rule, the need for an extension of more
than one year should be eliminated. The
Agency also believes that this limit to
extensions will reduce the potential
administrative burden that .could be
created by owner/operators seeking
multiple extensions for temporary unit
operations.
6. Permit and Order Modification
Procedures (§264.553(0)
In the subpart S proposal EPA
expected that in cases where a
temporary unit is part of a selected
remedy, the approval for that unit
would normally be a part of the Agency-
initiated major permit modification for
the remedy. Similarly, in cases where a'
temporary unit is a part of a
stabilization action or interim measure
which requires a Class III modification
or an Agency-initiated permit
modification, the approval for that unit
would also be included in the
modification for that action. Thus, the
language in the proposal concerning '
permit modifications only addressed the
situation where approval for a
temporary unit was included under a
Class III or Agency-initiated permit
modification for an overall remedy, or
interim measure or stabilization action
for a facility. EPA recognizes that there
may be cases in which a temporary unit
is not part of a larger permit
modification procedure for a selected
remedy, or interim measure or
stabilization action (i.e., the unit will be
used prior to remedy selection to handle
investigation-derived waste or
remediation waste generated from
remedial activities that do not require a
Class III or Agency-initiated permit
modification). In such cases, the Agency
believes that given the longer
timeframes for temporary units
provided for in today's rule, opportunity
should be provided for the public to be
informed of and participate in decisions
that affect them and their communities.
Thus the owner/operator of a permitted
facility will be expected to request
approval for a temporary unit as a Class
II permit modification according to the
procedures under § 270.42. EPA also
recognizes, however, that there may be
cases where operation of the temporary
unit is necessary to contain releases or
otherwise protect human health and the
environment, before action is likely to
be taken on a modification request. In
such cases, the Regional Administrator
may approve a 180-day temporary
authorization for the unit upon request
by the owner/operator according to the
procedures under § 270.42. Today's rule
modifies § 270.42 to classify permit
modifications for temporary units as
Class II modifications (unless otherwise
addressed under a Class m or Agency-
initiated permit modification).
, The proposed temporary unit
provision(s) specified that any extension
to the operating period originally
specified for a temporary unit would be
processed as a Class I permit
modification. One commenter suggested
that such extensions should be given
more thorough public review and
comment than is provided by Class I
permit modifications. EPA agrees, since
temporary units may in some cases be
used to manage large volumes of wastes,
and could be a key feature of a selected
remedy. In addition, the longer
timeframes for temporary units allowed
in today's rule support the idea of
providing somewhat greater public
review and comment of temporary unit
decisions. Therefore, today's rule
specifies that approval for extensions for
temporary units that are not addressed
under a Class III permit modification or
are not part of an Agency-initiated
permit modification, will be processed
as Class II permit modifications. Section
IV of this preamble provides further
information regarding public
participation procedures that will be
used for approval of temporary units
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8676 Federal Register / Vol. 58, No. 29 / Tuesday, February 16, 1993 / Rules and Regulations
and time extensions for temporary units
pursuant to corrective action orders.
7. Documentation of Temporary Unit
Designations and Time Extensions
(§264.553(g))
Section 264.553(g) requires the
Regional Administrator to document the
rationale for designating a temporary
unit or time extension for a temporary
unit and to explain the basis for such
designation. This new requirement in
§ 264.553(g) is intended simply to
clarify and emphasize that temporary
unit decisions must be documented and
explained as part of the notice and
comment procedures for orders and
permits. The rationale for such
decisions will be incorporated as part of
the Statement of Basis in a permit or
order modification. Documentation of
temporary unit decisions is analogous to
the documentation the Agency must
currently make to support the selection
of a remedy. Therefore, if a temporary
unit is incorporated as part of a final
remedy, such an explanation would be
incorporated into the Statement of Basis
for the remedy under a permit
modification or under a new order.
IV. CAMU and TU Implementation
A. Public Participation in CAMU/TU
Designations ana TU Time Extensions
Under Orders
The Agency is committed to
providing a meaningful opportunity for
the public to be informed of and
participate in cleanup decisions that
affect them and their communities.
Public input on proposed facility-
specific corrective action decisions at
permitted facilities is obtained through
the permit issuance and modification
procedures prescribed in 40 CFR parts
124 and 270. Current Agency policy for
final remedy selections at interim status
facilities under corrective action orders
outlines public participation procedures
similar to those detailed in 40 CFR part
124. In conjunction with this
rulemaking, the Agency is expanding its
public participation requirements for
corrective action decisions made under
corrective action orders to address the
proposed designation of CAMUs and
temporary units.
Pursuant to this rulemaking, CAMU
designations made through the permit
process will generally be approved (or
disapproved) according to Agency-
initiated permit modifications (§ 270.41)
or the Class III permit modification
procedures under § 270.42 (see section
1U.B.7.). The designation of CAMUs or
temporary units, or the granting of a
time extension for a temporary unit
made pursuant to a corrective action
order, will follow similar public
participation procedures, although
modified to suit the corrective action
order process. Prior to designating a
CAMU or temporary unit, or approving
a time extension for a temporary unit in
a corrective action order, the Agency
will prepare draft CAMU and/or
temporary unit specifications. The
Agency will then notify and provide the
public with an opportunity to comment
on the CAMU, temporary unit, or time
extension for a temporary unit. If a
public hearing is requested, the Agency
will hold a hearing and provide the
public with a notice of the hearing. The
Agency will also consider and respond
to all significant comments received by
the public on the CAMU or temporary
unit. ;
As required in the permit process, the
Regional Administrator will document
the rationale used to designate CAMUs
(§ 264.552(f)), temporary units
(§ 264.553(g)), or time extensions for
temporary units !(§ 264.553(g)), when
such designations are made through
corrective action orders. A brief
discussion of the applicable decision
factors used to support the creation of
a CAMU or temporary unit will be
included in the documentation. If the
CAMU or temporary unit is proposed as
part of a final remedy, such
documentation can be incorporated into
the Statement of Basis presenting the
Agency's justification for a proposed
comprehensive remedy proposal.
Under orders, a 30-45-day public
comment period generally will be
provided to the public to comment on
the designation of a CAMU, temporary
unit, or time extension for a temporary
unit. However, because corrective action
orders may be issued to address
immediate threats, the public comment
period may be reduced or eliminated if
the Regional Administrator determines
that even a short delay in the
designation of a CAMU or temporary
unit would adversely impact human
health or the environment. The Agency
anticipates needing to use this
discretion in rare circumstances.
, The Agency will provide additional
guidance on public participation
procedures for the designation of
CAMUs and temporary units under
orders. While guidance is pending, EPA
will continue to use the guidance
provided in RCRA Corrective Action
Decisions Documents: The Statement of
Basis and Response to Comments
(Directive #9902.6).
B. Continuation of Permits for
Corrective Action Purposes
Although EPA today is not finalizing
most portions of the comprehensive
proposed Subpart S rule, several issues
have arisen in connection with that rule
that deserve further discussion pending
its completion. First, the proposed rule
reflects Agency policy concerning
facility-wide corrective action at RCRA
facilities. As a result, EPA's Regional
offices are following the proposal,
where appropriate, as guidance pending
development of the final rule. Several
aspects of that proposal, however,
require rule changes for
implementation; those aspects of the
proposal cannot be implemented even
as guidance pending development of the
final rule. Many of these rule changes
are made through today's rulemaking
and thus can now be implemented.
One important aspect of the proposal
that EPA now believes is a clarification
rather than a necessary rule change
concerns the scope of the permit
requirement. EPA had proposed to
revise 40 CFR § 270.1 specifically to
require RCRA permittees to have
permits during the course of any
corrective action required under the
permit. Upon further review, EPA
believes that this rale change, while a
desirable clarification, is not absolutely
necessary and that section 3004(u) of
RCRA and 40 CFR 264.101 (b) and
270.33 already require that RCRA
facilities complete any corrective action
schedule of compliance prior to
termination of permit responsibilities.
The clear intent of Congress in
enacting Section 3004(u) was that the
price for obtaining a RCRA permit for
hazardous waste management is
cleanup of the entire property at which
the permitted activity occurs. (See
HSWA Conference Report, H. Rep. 1133,
98th Cong., 2d Sess. at 92 (1984). See
also definition of facility as defined in
today's rule.) Congress allowed such
cleanup to occur under a schedule of
compliance only where such cleanup
could not be completed prior to permit
issuance. As a result, section 3004(u) of
RCRA (and 40 CFR 264.101) clearly
require that a facility that obtains a
schedule of compliance for corrective
action must complete the corrective
action prior to termination of permit
responsibilities. Similarly, EPA's
general regulations concerning
schedules of compliance specify that a
facility may not simply terminate its
operations and thereby avoid
compliance with applicable
requirements (40 CFR 270.33; see also
45 FR 33310 (May 19, 1980)), including
corrective action.
This means that a RCRA permitted
facility that is undergoing corrective
action under a schedule of compliance
and that wishes to cease operations has
two choices with respect to its
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8677
corrective action responsibilities. First,
the facility may choose to accelerate
corrective action so that it is completed
at the same time as hazardous waste
operations at the facility cease,
§ 270.33(b)(l)(i). Alternatively, where
the regulated activities cease prior to
termination of a permit which includes
corrective action, the facility may
complete corrective action under a
permit schedule of compliance that
extends beyond the date of cessation of
hazardous waste operations,
§ 270.33(b)(2). In the latter case, the
facility must continue to comply with
applicable permit conditions and
requirements, including permit renewal
requirements, even though hazardous
waste activities at the facility have
ceased. See 45 FR 33310-11 (May 19,
1980).
As part of the comprehensive final
subpart S rule, EPA will determine
whether further regulatory clarification
of this issue is necessary. At that time,
EPA will respond to comments received
on the proposed regulatory changes
addressing this issue, and the related
issues discussed in the preamble. See 55
FR 30846-49.
In the meantime, EPA, on a case-by-
case basis, can improve the clarity of the
applicability of this requirement to
maintain a permit through the
completion of corrective action
activities at a specific facility in several
ways. First, at the time of permit
issuance or when the CAMU or
temporary unit is incorporated into the
HSWA permit, EPA can establish a
schedule of compliance that reflects the
responsibility of the permittee to
complete corrective action under the
permit, even if the permit does not
specifically identify the nature or timing
of the corrective actions to be required.
In addition, the permit as issued or
modified could include an express
condition requiring the facility owner/
operator to submit a permit
reapplication prior to permit expiration
unless and until all corrective action
obligations for the facility have been
completed.
C. State and Federal Implementation
1. State Authorization
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 standards and requirements
for authorization.) Following
authorization, EPA retains enforcement
authority under sections 3008, 7003,
and 3013 of RCRA, although authorized
States have primary enforcement
authority.
Prior to the Hazardous and Solid
Waste Amendments of 1984 (HSWA),
EPA administered the RCRA hazardous
waste program in individual States until
the States were formally authorized by
the Agency to implement their own
programs. Once a State had final
authorization, it administered its
hazardous waste programs entirely in
lieu of EPA. The Federal RCRA
requirements no longer applied in the
authorized State, and EPA could not
issue permits in the State for any
facilities that the State was authorized
to permit. When new, more stringent
Federal requirements were promulgated
or enacted, the State was obliged to
enact equivalent and consistent
authority within specified timeframes.
However, the new Federal requirements
did not take effect in authorized States
until the States adopted them as State
law.
The HSWA amendments, however,
altered this system. Under section
3006(g)(l) of RCRA as amended by
HSWA, 42 U.S.C. 6926(g), new
requirements and prohibitions imposed
under HSWA authority take effect in
authorized States at the same time that
they take effect in unauthorized 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. To retain
final authorization, States must still
adopt HSWA-related provisions that
increase the stringency of the RCRA
program. However, such HSWA
provisions apply in authorized States
and are implemented Federally in the
interim.
Today's rule is promulgated pursuant
to section 3004(u), section 3004(v), and
section 3005(c) of RCRA, all of which
are provisions added through HSWA.
(EPA will also use the standards of
today's rule in implementing section
3008(h).) Therefore, the Agency is
adding today's rule to Table 1 in 40 CFR
271.l(j), which identifies the Federal
program requirements that are
promulgated pursuant to HSWA.
Because, in EPA's view, today's rule is
integral to the HSWA corrective action
program, EPA intends to implement it
immediately in all States and territories
in which the Agency now administers
the HSWA section 3004(u) and (v)
corrective action authorities. Thus, the
rule takes effect immediately in (1)
States that are unauthorized for the
RCRA base program, and (2) States that
are authorized for the RCRA base
program, but are not yet authorized for
the HSWA corrective action program.
(The issue of more stringent State
standards in these States is discussed in
the following section.)
Today's rule does not apply in States
that are authorized for the HSWA
corrective action requirements. (Fifteen
States now fall into this category.)
Under section 3009 of RCRA, States may
impose more stringent or broader
regulations than the Federal program.
Because the regulations promulgated
today reduce regulatory requirements
for certain types of waste management
conducted during corrective action, EPA
considers them to be less stringent than
or reduce the scope of the existing
Federal corrective action requirements.3
Therefore, they will not apply in States
authorized for corrective action until
those States have adopted comparable
provisions under their own State law.
Furthermore, because today's rule is less
stringent than existing corrective action
requirements, authorized States are not
required to adopt the rule, and States
not yet authorized for corrective action
are not required to include its
provisions in their programs when they
seek authorization.
Even though States are not required to
adopt today's rulemaking, EPA strongly
encourages them to do so. As already
explained elsewhere in this preamble,
today's rule is needed to expedite
hazardous waste remediation at RCRA
corrective action facilities. States are
therefore urged to adopt today's rule
and to submit to EPA the modification
for approval on the schedule for
mandatory program revisions, according
to 40 CFR 271.21(e).
States are also encouraged to use
existing authorities, where available, to
allow comparable remedial activities
prior to adopting and receiving
authorization for today's rule. Some
States may have authority comparable to
section 7003, which allows EPA to order
response action in the case of imminent
and substantial endangerment to health
or the environment "notwithstanding
any other provision in this Act." An
authorized State may use a comparable
section 7003 authority to authorize
activities consistent with today's
rulemaking. Other States may have
comparable authority under State
Superfund programs or may have
comparable flexibility for cleanups
under their own hazardous waste
regulations. EPA encourages States to
make use of such flexibility to expedite
cleanups. In addition, States with
comparable authorities may be eligible
to receive interim authorization and to
3 EPA is considering whether the concept of
stringency should be reevaiuated with respect to
remediation wastes and will address this approach
in a separate rulemaking.
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8678 Federal Register / Vol. 58, No. 29 / Tuesday, February 16, 1993 / Rules and Regulations
implement their provisions under 40
CFR 271.24.
2. Implementation of Rules in
Unauthorized and Authorized States
The implementation of today's rule
will vary, depending on the
authorization status of the State in
which a particular facility suhject to
cleanup requirements is located.
Regardless of the situation in individual
States, however, EPA's major goals in
implementing today's rule are: (1) To
onable the use of the CAMU and TU
concepts as rapidly as possible for
specific RCRA corrective actions,
consistent with State requirements, (2)
to encourage States to adopt these
concepts promptly in their own cleanup
programs and regulations, and (3) to
work cooperatively with individual
States, regardless of their authorization
status, to promote the flexible
approaches in today's rule. This section
briefly discusses implementation of the
rule in States at different stages of the
authorization process.
A few States and territories have not
yet been authorized for either the "base"
(i.e., non-HSWA) RCRA program, or the
RCRA section 3004(u) and (v) corrective
action program under § 264.101. In
these States, permits and orders are
issued by EPA under the Federal statute
and implementing regulations. Any
modifications to permits or orders to
allow the use of CAMUs or TUs would
also be the responsibility of EPA. Of
course, it is possible that an
unauthorized State has adopted
standards addressing CAMUs or TUs
that have independent effect. The
possibility for a dual program always
exists in States that have not applied for
or obtained authorization. Although
EPA's permit would establish the
Federal RCRA standards applying to
such a unit, State law might impose
additional requirements.
Most States have been authorized for
the RCRA base program, but are not yet
authorized for HSWA corrective action.
In these States, permits are generally
issued jointly; that is, the State issues
the portion of the permit that addresses
compliance with base-program
requirements, while the EPA Region
issues the HSWA portion of the permit,
including corrective action
requirements. Together, the base-
program and HSWA portions make up
the RCRA permit for the facility.
Under this arrangement, EPA is
responsible for implementing the
HSWA corrective action requirements
for permitted facilities. This includes
the responsibility of requiring or
approving modifications of the HSWA
portion of the permit to incorporate new
units (including CAMUs and TUs) that
are necessary to implement corrective
action at the facility. In this case, the
new unit would be permitted under the
modification to the HSWA portion of
the permit, and a separate State action
would not be necessary. The process
would work similarly for section
3008(h) orders, although procedures for
changes in interim status, rather than for
permit modifications, would apply.
Thus, facility modifications to allow
corrective action would not require
State approval or use of State permit
modification or interim status
modification procedures. Rather, under
section 3006(g), Congress authorized
EPA to implement the corrective action
program in each State prior to State
authorization. If permit modification or
interim status changes are necessary to
implement corrective action in States
not authorized for corrective action, the
Federal rather than the State procedural
requirements apply to the changes.
In some cases, a land-based regulated
unit already subject to State interim
status or permit conditions may be
incorporated into a CAMU. In such
cases, today's rule provides that the
subpart F, G, and H requirements and
the unit-specific requirements of 40 CFR
part 264 or 265 previously applying to
the regulated unit would continue to
apply after designation of the CAMU.
Authority for implementing and
enforcing these requirements could fall
either to EPA or to the State. Generally,
EPA anticipates that the State would
retain direct implementation authority,
since it had previously been regulating
the unit. However, in some cases it
might be more efficient for EPA to
assume overall authority over the entire
cleanup.4 In either case, EPA would
seek to work out oversight authority
with the State through formal or
informal agreement. Because the State
would retain authority over the
regulated unit through its own permit or
interim status requirements, unless it
modified the permit or allowed a change
in interim status, State agreement with
EPA's approach to corrective action
would be necessary.
As in the case of unauthorized States,
States authorized for the base program
may have more stringent requirements
(e.g., State land ban provisions) that
would affect a particular remedy that
EPA wished to implement under today's
rule. In this case, EPA might modify the
remedy so that it was consistent with
4 In this case, the State might choose to modify
the State permit or the facility Part A to remove the
unit as a State-regulated unit. Alternatively, the unit
could remain on the State permit or Part A, but EPA
could be given lead oversight over the unit through
a State-Regional agreement.
State law, or structure it so that it
mirrored an existing State waiver
provision (e.g., waiver of land ban
provisions for contaminated media);
alternatively, the State might use a
waiver authority under its own laws or
enforcement discretion to allow the
remedy to proceed,
In any case, EPA emphasizes that its
goal in implementing the CAMU and
TU concepts in States not authorized for
corrective action is to facilitate prompt
and protective cleanups at RCRA
facilities. This rule does not preempt
existing State authorities, nor does EPA
intend to impose cleanup requirements
at specific sites under this rule that the
State considers to be unprotective,
inadequate, or inconsistent with the
State's regulatory requirements. Rather,
today's rule provides EPA (and States)
greater flexibility in making use of a
new type of remediation unit created
during the course of corrective action. If
a State not yet authorized for corrective
action believed a different approach was
preferable, either as a general rule or at
a specific site, EPA would work with
the State—for example, through a
Memorandum of Understanding, joint
order, or an informal agreement—to
ensure that any remedies required were
acceptable to the State.
As of October 1992, fifteen States
were authorized for corrective action
under § 264.101. Until these States
develop their own CAMU and TU
regulations, these provisions would
generally not be available to them in
implementing their corrective action
program. It is possible, however, that a
State authorized for corrective action
may wish to have a CAMU or a
temporary unit approved for a facility
cleanup. In some cases, the State may
have a general waiver authority under
its own State law, or State enforcement
or State Superfuncl authorities that
provide it some flexibility. If the State
were to exercise this authority in a way
that is consistent with today's rule, EPA
would not consider the State's program
to be less stringent than the Federal
program. Alternatively, the State could
request EPA to issue an order under
RCRA section 7003, which could be
used to override specific Federal or
authorized State authorities where
necessary to implement a cleanup. In
any case, however, these approaches
should be used only to cover the
transition period during which the State
amends its regulations and obtains
formal authorization for today's rule.
Even though a State is authorized for
§ 264.101 or (in the future) subpart S
corrective action, EPA retains the
authority to issue section 3008(h) orders
at interim status facilities. If EPA were
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Federal Register / Vol. 58, No. 29 / Tuesday, February 16, 1993 / Rules and Regulations 8679
to issue such an order in a State
authorized for corrective action, it
would have the authority to require and
approve modifications of the facility
part A to accommodate a new CAMU or
TU. EPA's authority in this case is
analogous to its authority in States not
yet authorized for corrective action. Just
as in that case, however, EPA
emphasizes once again that its goal is to
expedite cleanup, and it does not claim
the authority to preempt existing State
requirements.
D. Effective Date
RCRA section 3010(b)(l) allows EPA
to promulgate an immediately effective
rule where the Administrator finds that
the regulated community does not need
additional time to come into compliance
with the rule. Similarly, the
Administrative Procedures Act (APA)
provides for an immediate effective date
for rules which relieve a restriction. 5
U.S.C. 553(d)(l). Today's rule provides
additional flexibility for facilities
undergoing corrective action. As a
result, the regulated community does
not need significant additional time to
come into compliance. In order to allow
near term use of the less restrictive rules
promulgated today, and yet to provide
effective communication regarding the
purpose and implementation of this
rule, EPA has set an effective date of 60
days from today.
V. Relationship to Other Programs
A. CERCLA
The substantive requirements of
today's regulations for CAMUs and
temporary units are expected to be
applicable or relevant and appropriate
requirements (ARARs) for the
remediation of many CERCLA sites,
especially those sites where CERCLA
remediation involves the management
of RCRA hazardous wastes. In the
CERCLA context, CAMU and temporary
unit requirements that are designated to
be ARARs would be incorporated into
CERCLA decision documents, rather
than RCRA permits or orders. Based on
EPA's experience in managing the
Superfund program, it is anticipated
that the increased flexibility provided in
today's rule will have an important and
positive impact on the Agency's ability
to expeditiously implement protective
and cost-effective remedies at CERCLA
sites. This would include remediation
under CERCLA of RCRA hazardous
wastes at Federal facilities that are listed
on the National Priorities List.
B. State Remedial Programs
Many States have enacted remedial
laws and programs to address
environmental problems that may not be
addressed under RCRA or CERCLA
authorities. State remedial programs
typically follow a process similar to
RCRA and CERCLA for investigating
releases, and selecting and
implementing remedial measures. As a
general rule, since CAMUs are defined
as units to be used in connection with
§ 264.101 or 3008(h) actions, they can be
employed only at a facility regulated
under subtitle C of RCRA, or at CERCLA
sites where determined to be ARARs.
However, some states may have
enforcement authorities analogous to
RCRA section 7003 which provide an
implied or explicit waiver from
otherwise applicable State RCRA
requirements. Thus, in such a State,
where cleanup is being compelled at a
non-RCRA or CERCLA facility, such
enforcement authority could be used to
approve and designate a CAMU or a TU
in a manner consistent with today's
final rules. Note, that a State cannot
waive applicable federal requirements;
thus, if a State is not authorized to
implement the LDR program in the
State, for example, then a CAMU will
not operate to affect the scope of the
LDRs at that site, when implemented
under a State remedial program.
However, if a State is authorized for
LDRs, it may be able to waive such
requirements under State law (as
indicated above).
C. RCRA Section 7003
CAMUs and temporary units may be
available, at the Regional
Administrator's discretion, for the
purpose of remediation under RCRA
section 7003 authority, even if the
remediation is not at a RCRA subtitle C
regulated facility. Under section 7003,
EPA has the discretion to waive any
RCRA requirements at a site where
appropriate to implementing remedial
actions. Thus, the order could provide
for and designate a CAMU with or
without the use of today's rules, and
regardless of the permit status of the
facility. As mentioned previously, some
States may have enforcement authorities
analogous to RCRA section 7003 that
would provide similar relief from
administrative requirements in
implementing cleanups.
D. Corrective Actions at Facilities not
Currently Remediating Under Federal
RCRA/CERCLA or State Authorities
Since a CAMU or a TU is a RCRA
subtitle C unit, it can be utilized only at
a facility that is regulated under subtitle
C. Therefore, in order to manage
hazardous remediation wastes in
CAMUs or TUs, a responsible party
would have to voluntarily seek
regulation by subtitle C by obtaining
either a corrective action order issued
by the Agency (or by a State—see
above), or a RCRA permit, which
contains the necessary approvals from
the Regional Administrator.
E. RCRA Section 3004(n) Air Emission
Standards
EPA is currently developing a
comprehensive set of air emission
regulations for RCRA hazardous waste
management units, as mandated under
section 3004(n) of RCRA. Phase I air
emission standards for process vents
and equipment leaks were promulgated
on June 21,1990. Phase II unit-specific
standards are expected to be
promulgated in 1993. '
If remediation waste management
activities associated with CAMUs will
involve the use of non-land-based
equipment or units for which air
emission standards have been
promulgated (e.g., air strippers or other
treatment devices), such equipment or
unit(s) would have to comply with those
applicable standards. These
requirements will be specified in the
permit or order. However, EPA does not
intend to promulgate air emission
standards specific to CAMUs. EPA
believes that the decision criteria for
CAMUs in today's rule, and the site-
specific oversight provided under the
corrective action process, will ensure
that adequate air emission controls are
imposed on remediation waste
management activities.
VI. Regulatory Impact Analysis
A. Executive Order Requirements
Under Executive Order 12291 (issued
February 17,1981), a Regulatory Impact
Analysis (RIA) is required for every
major Federal regulation. Executive
Order 12291 defines a major rule as one
that is likely to result in: (1) An annual
effect on the economy of $100 million
or more; (2) a major increase in costs or
prices for consumers, individual
industries, Federal, state, or local
government agencies, or geographic
regions; or (3) significant adverse effects
on competition, employment,
investment, productivity, innovation, or
on the ability of United States-based
enterprises to compete with foreign-
based enterprises in domestic or export
markets. The Agency has determined
that this rule is not a major rule because
the rule does not negatively impact the
economy, increase costs or prices, or
adversely impact businesses.
Nevertheless, EPA recognizes that this
rule may have significant positive
economic impacts and therefore, at the
request of the Office of Management and
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8680 Federal Register / Vol. 58, No. 29 / Tuesday, February 16, 1993 / Rules and Regulations
Budget, has prepared a Regulatory
Impact Analysis (RIA).
B. Background
In preparation for the final subpart S
rulemaking, EPA is currently
conducting a revised RIA that includes
a comprehensive evaluation of the costs
and benefits of regulatory alternatives
for RCRA Corrective Action. As part of
this comprehensive analysis, EPA has
conducted a preliminary evaluation of
the costs and benefits of the proposed
rule provisions concerning CAMUs, and
has evaluated several alternatives to the
proposed rule CAMU provisions. On
October 22,1992, EPA published a
notice of data availability in the Federal
Register announcing the availability of
a report, "Supplemental Information on
Corrective Action Management Units,"
which summarized the preliminary
results of EPA's analyses of the costs
(expressed as cost savings) and expected
environmental benefits of regulatory
alternatives for the CAMU. The RIA
prepared for this rulemaking provides
additional detail on EPA's evaluation of
the cost savings of key regulatory
alternatives for the CAMU and the
expected impacts of the alternatives on
the human health and environmental
benefits derived from cleanup under the
Subpart S framework. (See sections H
and III of this preamble for further
discussion of the subpart S rule, the
CAMU and temporary unit rule, and the
notice of data availability.) Both the
report summarizing preliminary results
and the RIA for today's rule are
available in the RCRA docket.
The Agency conducted the CAMU
RIA in order to assess the costs and
benefits of certain alternative
approaches to regulating remedial waste
management at facilities subject to
RCRA corrective action. Discussion of
the RIA is organized as follows: The
CAMU regulatory alternatives that were
analyzed are presented first, followed by
the general methodology for the
analysis, cost results, and finally a
qualitative analysis of benefits.
Temporary units (TUs) were not
addressed in the CAMU RIA. Based on
the preliminary analyses conducted for
the RIA, EPA believes that TUs will not
ba used with great frequency, and the
resulting cost and benefit impacts of
TUs are expected to be relatively minor
compared to CAMUs.
C, Regulatory Alternatives
This RIA evaluates three CAMU
regulatory alternatives: The Proposed
suopart S CAMU, the Expanded CAMU
(the CAMU alternative which EPA has
decided to finalize), and, the No CAMU
alternative. (The Proposed subpart S
CAMU and the Expanded CAMU are
defined and discussed further in section
n of this preamble.) Based on the results
of the analysis presented here and the
anticipated remedial benefits of the
expanded CAMU option, the Agency
has decided to finalize the expanded
CAMU option.
The analysis of the No CAMU
alternative was conducted using two
different sets of assumptions. This
means that the cost savings and effects
on benefits associated with the
Proposed and Expanded CAMU options
are presented relative to a range of
"baseline" No GAMU outcomes. EPA
evaluated the No CAMU alternative in
this manner because EPA recognized
that under the No CAMU alternative
remedial decisionmakers could either
choose to maximize removal and
treatment of hazardous wastes to LDR
standards, or, alternatively, choose to
minimize the extent to which wastes
would be required to be removed from
SWMUs and therefore treated to LDR
standards prior to land disposal.
D. Approach to Analysis
To estimate the costs and benefits
associated with the various aspects of
the subpart S final rule, including the
CAMU provisions, EPA selected a
random sample of 79 facilities
potentially subject to corrective action.
The sampling frame was stratified and
sampled in order to accurately reflect
the composition of the potentially
affected universe and to over-sample
facilities likely to require corrective
action.
As proposed, the subpart S rule
provides a regulatory framework to
guide site-specific remedial
decisionmaking at RCRA facilities. The
proposed rule provisions are not,
however, overly prescriptive; EPA
recognized the site-specific nature of
remedial decisionmaking and.sought to
strike an appropriate balance in the
proposed regulations between explicit
regulatory standards and requirements
and site-specific flexibility and
discretion. To develop estimates of the
costs and benefits of cleanup under the
proposed rule jind under different
regulatory alternatives, EPA simulated
remedy selection at the sampled
facilities.
In order to simulate remedy selection
at the sample facilities, EPA first
collected facility-specific data from a
wide variety of sources, including RCRA
Facility Assessments (RFAs) and RCRA
Facility Investigations (RFIs). RFAs and
RFIs provided EPA with the following
information: General facility
descriptions; SWMU- and waste-specific
characteristics; details about the
environmental setting; and human
exposure information. When facility
sampling data were not available for a
particular facility, an EPA contaminant
fate and transport model, MMSOILS,
was used to simulate releases to ground
water, surface water, air, and off-site
soils. EPA also used the MMSOILS
model to simulate releases into the
future in order to determine the nature
and extent of contamination over time,
in the absence of corrective action.
Next, the available data on the nature
and extent of contamination (present
and future) and facility characteristics
were presented to expert panels
convened by EPA and comprised of
regional EPA staff, state representatives,
and experts in the fields of
hydrogeology, geology, geophysics, soil
science, engineering, and chemistry.
Based on their evaluation of the data
and their experience in making remedial
policy decisions at the state and
regional levels, the policy expert panel
(made up of regional and state program
policy representatives) developed
remedial objectives under the proposed
subpart S rule framework for each
facility in the sample. Accordingly, the
policy panel used the proposed subpart
S CAMU definition and provisions and,
where appropriate, designated areas of
facilities as CAMUs.
The remedial objectives, including the
policy decision on the use of a CAMU,
were then transmitted to the technical
expert panel, which was responsible for
defining and determining specific
remedial activities to meet these
objectives. Where more than one
alternative was available to meet the
policy panel objectives, options were
presented and the policy panel made
their choice of preferred approach.
The remedial activities identified/
selected by the expert panels, for the
facilities in the sample that required
corrective action, were the foundation
for analyses of the proposed CAMU
regulatory alternative. To assess the two
other CAMU RIA regulatory alternatives
(the Expanded CAMU and the No
CAMU options), a CAMU expert panel
(consisting of civil, chemical, and
environmental engineers, risk assessors,
RCRA policy analysts, and ecologists)
was convened to determine objectives
and select remedies.
E. Cost Analysis
In addition tc defining and
determining remedial activities to meet
remedial objectives, the technical
experts convened by EPA were also
responsible for providing remedial cost
estimates which served as the basis for
calculating facility-level costs. As
discussed above, the expert panels
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Federal Register / Vol. 58, No. 29 / Tuesday, February 16, 1993 / Rules and Regulations 8681
reviewed each facility in the RIA sample
and selected remedies to address
releases at the sample facilities. The
panels then estimated a cost for each
remedial activity at each SWMU
addressed. The Agency compiled
remedial costs at the SWMU and facility
level under each of the three CAMU
regulatory alternatives. After the total
costs were adjusted to include design,
oversight, and contingencies, the costs
were discounted to account for the
timing of remediation.
On a national basis, a total of
approximately 5,800 facilities are
potentially subject to RCRA subpart S
corrective action requirements. Under
the Proposed CAMU alternative,
CAMUs would be expected to be used
at a total of 200 facilities in the course
of remediating 1,360 SWMUs. Under the
Expanded CAMU alternative, CAMUs
would be expected to be used at 1,500
facilities in the course of remediating
6,000 SWMUs.
The use of CAMUs under the
proposed CAMU option results in total
present value cost savings of $15.2
billion to $25.2 billion (the range
reflects the use of two different
assumptions regarding the degree of
waste removal and treatment to LDR
standards under the No-CAMU option).
The present value cost savings of the
expanded CAMU option ranges from
$16.6 to $26.6 billion. The cost savings
under both of the CAMU options are
primarily attributable to avoided costs
of off-site incineration and disposal. The
proposed CAMU option allows for
protective management of waste on-site,
possibly combined with in-situ
treatment. The expanded CAMU option
promotes even more protective on-site
management by allowing ex-situ
treatment of hazardous waste combined
with protective on-site management.
F. Qualitative Analysis of Effects on
Benefits
Several criteria can be used to
qualitatively analyze the relative
benefits of the CAMU regulatory
alternatives: Expectations regarding the
long-term effectiveness of remedies;
short-term impacts of implementing the
remedies; and, effects on corrective
action program implementation.
1. Expectations Regarding Long-Term
Effectiveness
Under either the proposed CAMU or
the Expanded CAMU alternatives
CAMUs may be permitted by the
Regional Administrator only if the RA
decides that designation of a CAMU
would be protective of human health
and the environment. However, the
types of remedies selected under the
different CAMU regulatory alternatives
may differ with regard to expectations of
long-term effectiveness.
For example, ex-situ treatments
(which were selected much more
frequently under the Expanded CAMU
alternative than under the proposed
CAMU alternative) generally provide
greater certainty of long-term
effectiveness than do in-situ treatments
or management without treatment.
Treatments, such as stabilization for
wastes or media containing inorganic
constituents, are employed much more
effectively ex-situ than in-situ due to
improved mixing and the ability to
ensure through sampling that all waste
and contaminated media are thoroughly
treated. Incineration (which was used
much more frequently under the No
CAMU alternative than under the
CAMU alternatives) provides a high
degree of long-term effectiveness for
remediation of wastes or media
containing organic constituents.
In contrast, containment of wastes
without treatment (e.g., by capping the
unit) is generally viewed as providing
less certainty of long-term effectiveness
than alternatives which involve actual
removal from the unit and/or treatment.
Although EPA believes that engineered
containment structures can be highly
effective, assuming adequate monitoring
and maintenance, few would dispute
the general conclusion that there is less
certainty regarding long-term
effectiveness with remedies which rely
solely on containment in contrast to
those which involve some degree of
removal and/or treatment.
As shown in Exhibit 1, the Expanded
CAMU alternative is expected to employ
ex-situ treatment at more SWMUs and
to employ in-situ treatment or no
treatment at fewer SWMUs than is the
case for the two other CAMU regulatory
alternatives. As a result, the Expanded
CAMU alternative appears likely, in
actual implementation, to provide
greater long-term certainty of remedy
effectiveness.
EXHIBIT 1.—NATIONAL ESTIMATES OF THE NUMBER OF SWMUs BY TYPE OF TREATMENT UNDER CAMU REGULATORY
ALTERNATIVES
Type of treatment
Ex-Situ
In-SItu
Ex-Situ and In-Situ
No Treatment
Total
No. of SWMUs affected
Expanded CAMU
4,400
700
130
730
6,000
Proposed CAMU
2,800
1,700
570
1,000
6000
No CAMU-(as-
sumes more LDR
treatment)
2,800
1,400
920
910
No CAMU-(as-
sumes more man-
agement in place)
2,200
1,900
920
1,000
• Numbers may not total due to rounding.
• CAMU regulatory alternatives discussed in text.
CA^Ualfemat&sfor^mparab™ "* expanded °AMUS ""<""th8 Expanded CAMU altematlve' The same 9rauP of SWMUs was ««nlned under the other
The Agency developed more detailed
comparisons of remedies selected under
the three CAMU regulatory options.
These comparisons are presented in the
document "Supplemental Information
on Corrective Action Management
Units" and in the Regulatory Impact
Analysis for today's final rule; both
documents are available in the RCRA
docket. A few key findings are
discussed in the sections below.
Incineration is estimated to be
employed most often (at 3,100 SWMUs)
under the No CAMU alternative, when
EPA assumes that LDR treatment is
required and occurs; least often (at 1,400
SWMUs) under the Expanded CAMU
alternative; and in between (at 1,900
SWMUs) under the Proposed CAMU
alternative. Incineration is employed at
2,300 SWMUs under the No CAMU
alternative when EPA assumes that less
LDR treatment occurs and more wastes
are left in place and contained.
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