Federal Register: June 7, 1994. 40 CFR Part 270. Extension of Date for Submission of Part a Permit Applications for Facilities Managing Ash From Waste-To-Energy Facilities; Notice

29372 Federal Register / VoL 59. No. 108 J Tuesday. June 7. 1994 /Rules and Regulations

Paperwork Reduction Act 144 ttSX^
3501). ' ' ;;•: -•• . ;•• ... •*-..
vernhig
165.23
• The Coast Guard has analyzed this
proposal in accordance with the
principles and criteria contained in
Executive Order12612 and has :.
determined that this proposal does not
have sufficient federalism implications
to warrant the preparation of a
Federalism Assessment ~
Environment '
The Coast Guard considered the .
environmental impact of this proposal
and concludes that under § 2.B.2.C of
'Commandant Instruction M16475.1B,
this proposal is an action to protect
public safety and is categorically
excluded from further environmental
documentation. A Categorical Exclusion
Determination will be made available in
the docket.

List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation
(water), Reporting and recordkeeping
requirements, Security measures.
Waterways.
Final Regulation
For the reasons set out in the .
preamble, the Coast Guard amends 33
CFR part 165 as follows: ,

PART 165—[AMENDED]

1. The authority citation for part 165
continues to read as follows: .
Anthoritv: 33 U.S.C. 1231. 50 U.S.C 191.
33 CFR l.O5-l(gJ. 6.O4-1.6.O4-6 and 160.5:
49 CFR 1.46.
2. A temporary section 165.T01-Q49 ~
is added to read as follows:

§165.701-049 'Safety Zone: Onset, MA.
Fireworks Display. • -•< •
• • (a) Location. The following area is a
safety zone: All waters of Onset Harbor,
MA., from the Shell Point-Beach south
to buoy C "1" then southwest to a
danger buoy at position 41 degrees
44.13' North and 7O degrees 39.83' West
then northwest lo the mouth of Sunset
Cove. ' „'".•;.,
(b) Effective date. This section
becomes effective at 9 p.m. on July 2,
1994. It terminates at 10 pjn. on Jury 2,
1994, unless terminated sooner or by the
Captain of the Port, hi the event of
inclement weather, this section will be
in effect on the rain date of July 3,1994
at the same times.
(c) Regulations.
(1) While this safety zone is in effect,
no vessel traffic will be allowed into or
out of Sunset Cove unless authorized by
the COTP or the COTP representative
on-scene.
*• 42) The^eneral Tegufathms
safety zones contained in 33
apply.
. -Dated: May 24.J994. .."> ^.
HJX&obinsoa. , - » -"• -*-
•**"*^-""""""*»*««» ^- - » • y •; • - ,•%•**• ,,_ _ • •
Captain. L'S. Coast Guard, Captain of the ,
-Port, Providence. Rl.
(PR Doc. 94-13803 Hied 6-6-94.6:45 ami
BILLING. CODE 4tt»-
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Federal Register /. VoL 59, No. 108 / Tuesday, June 7. 1994 / Rules and Regulations 29373
EPA also is announcing today that It
considers ash trom these combustion
facilities to be a newly identified waste
for purposes of the land disposal •
restrictions under sections 3004(dMm)
of RCRA. Current land disposal
restrictions do not apply. Rather, the
Agency has a duty to promulgate ash-
specific restrictions 6 months from the
date of today's document. All other
hazardous waste regulations will apply;
to hazardous ash when the decision •'
takes effect.

EFFECTIVE DATE: June 7.1994.

ADDRESSES: Docket Clerk. OSW (OS- '
305). Docket No. F-94-XAPN-FFFFF.
U.S Environmental Protection Agency
Headquarters. 401 M Street SW.;
Washington. D.C. 20460. The public
docket is located in M2616 at EPA
Headquarters and is available for .
viewing from 9:00 a.m. to 4:00 p.m..
Monday through Friday, excluding
Federal holidays. Appointments may be
made by calling (202) 260-9327. Copies
cost 50.15/page. Charges under S2S.OO
are waived.

FOR FURTHER INFORMATION CONTACT: For
general information, contact the RCRA/
Superfund Hotline, Office of Solid
Waste. U.S. Environmental Protection
Agency.'401 M Street SW., Washington.
DC. 20460. (800) 424-9346. TDD (BOO)
553-7672 (hearing impaired): in the
Washington. DC metropolitan area the
number is (703) 920-9810. TDD (703)
486-3323. .
For more detailed information on
specific aspects of this Notice, contact
Scott Ellinger. Office of Solid Waste
(5306). U.S. Environmental Protection
Agency. 401M Street SW.. Washington.
DC 20460. (202) 260-1099.

SUPPLEMENTARY INFORMATION:
Preamble Outline
! Authority
It Background
A, Overview
B Nature of Ash From U'aste-To-Energy
Facilities
111 Extension of Permit Deadline Due to
Substantial Confusion
A, Permit Requirements and Deadline
Extensions
B, Regulatory History of Waste-To-Enwgy
Ash
C, Findings
IV Land Disposal Restrictions
V Other Subtitle C Requirements
VI State Authorization and Implementation
A. Permit Deadline Extension
B. Land Disposal Restrictions
VII, Good Cause Finding
VIII, Regulatory Requirements
A. Executive Order 12866
B. Regulatory Flexibility Act
^ Paperwork Reduction Act
I.Authority - T.
These actions interpreting the ..
hazardous waste regulations in 40 CFR
parts 260-271 are being taken under the
authority of sections 2002.3004.3005
and 3006 of the Solid Waste Disposal
Act of 1970 as amended by the Resource
Conservation and Recovery Act of 1976.
as amended (42 U.S.C. 6912.6924.6925.
and 6926).

II. Background

A. Overview .
On May 2.1994 the Supreme Court
issued an opinion interpreting Section
3001(i) of the Resource Conservation
and Recovery Act (RCRA). 42 USC
6921(i). City of Chicago v. EOF, No. 92-
1639 ( U.S. , decided May 2.
1994). The Court held that this
provision does not exempt ash
generated at resource recovery facilities
burning household wastes and
nonhazardous commercial wastes
(hereafter "waste-to-energy facilities")
from the hazardous waste requirements
of Subtitle C of RCRA. The Court also
held that Section 3001(i) terminated a
1980 regulatory exemption for ash
generated at waste-to-energy facilities
that burn only household wastes. The
•opinion requires EPA to revise its prior
position that both types of ash were
exempt from hazardous waste
regulation. It abruptly ends nearly a '
decade of controversy over the
regulatory status of ash from these
facilities.
As a result of this decision, ash from
waste-to-energy facilities has the same
status as other solid wastes. Persons
who generate such wastes must
determine whether that waste is a
hazardous waste under EPA's hazardous
waste identification rules at 40 CFR part
261. Since EPA has not listed ash as a
hazardous waste, generators must
determine whether ash exhibits any of
the characteristics of hazardous waste at
40 CFR 261.21-.24. Ash that exhibits a
characteristic must be managed in
compliance with Subtitle C
requirements.
As explained below, the regulatory
status of ash has been the subject of
confusion for several years. EPA's action
today responds by giving owners and
operators of facilities that manage ash
that is determined to be
characteristically hazardous a
reasonable opportunity to obtain interim
status by applying for a RCRA
hazardous waste permit. Without this
opportunity, persons managing
hazardous ash would be out of
compliance with RCRA's permit
. requirements and face potentially
significant civil and criminal penalties.,
In this notice EPA is also announcing
that it will consider ash that is
characteristically hazardous to be a ,
"newly identified" waste underthe. land
disposal restrictions. EPA needs time to
determine what treatment standards
would be appropriate. By considering
such ash to be a newly identified waste
under the land disposal restrictions.
EPA will have an opportunity to
evaluate the efficacy of the existing
standards and. if necessary, develop -
new ash-specific standards.
EPA notes that all other applicable
Subtitle C regulations will apply to ash
on the date that the Court's decision
takes effect. See the discussion of state
authorization below for assistance in
determining when the Court's decision
will affect particular facilities. The
Agency interprets the Court's decision
to cut-off the exemption for waste
management at waste-to-energy facilities
at the point that ash is generated.
Subsequent management of hazardous
ash on-site is subject to regulation under
Subtitle C.

B. Nature of Ash From Waste-to-Energy
Facilities
Combustion of municipal solid waste.
particularly through waste-to-energy
facilities, can be an important
component of a local government's
waste management practices. As of
1990. approximately 196 million tons of
municipal solid waste were generated .
annually in the U.S.. 16 percent of
which (32 million tons) was combusted.
The states with the greatest municipal
waste combustion capacity are Florida.
New York and Massachusetts. There are
approximately 150 municipal waste
combustors in the U.S.. 80 percent of
• which are waste-to-energy facilities. The
remaining 20 percent incinerate waste
without recovering energy.
Approximately 25 percent (by weight)
of the waste thatjis combusted remains
as ash. amounting to around eight
million tons of municipal waste
combustor ash generated annually.
Generally, these combustion facilities
generate two basic types of ash—bottom
ash and air pollution control residuals.
commonly referred to as "fly ash."
'Bottom ash collects.at the bottom of the
combustion unit arid comprises
approximately 75-80% of the total ash.
Fly ash collects in the air pollution
control devices that "clean" the gases
produced during the combustion of the
waste and comprises around 20-25% of
the total. Based on several analytical
studies, fly ash generally contains the
highest concentrations of inorganic
chemical constituents.
Studies also show that ash (usually fly
ash) has sometimes exhibited EPA's
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29374 Federal Register I, Vol. 59, No. 108 / Tuesday. June 7. 1994 / Rules and Regulations:
Toxidty Characteristic ("TC").
Typically, ash that "fails" the TC
leaches lead or cadmium above levels of
.concern. Because & number of factors
can influence whether ash passes or
fails the TC (e.g., the nature of the
incoming waste stream, the type of
combustion unit, the nature of the air
pollution control device and the ash
sampling location), EPA cannot predict
an overall failure rate for ash from
. municipal waste combustors. . .
III. Extension of Permit Deadline Doe to
'Substantial Confusion • •'•'•'> • •.-•'.*'•.'•,

A. Permit Requirements and Deadline .
Extensions '•:.:, .*•••.-,••••
RCRA requires any person treating,
storing or disposing of hazardous waste
to obtain a permit or a pre-permit
authorization called "interim status."
Section 3005; 4Q CFR ?f M{b). To
qualify for interim status a facility must
meet criteria set out in RCRA section
3005(e), which include filing a permit
-application. .
When EPA promulgates RCRA rules
subjecting a new group of facilities to
•hazardous waste permitting
requirements, the permit regulations
provide 6 months for the filing of part
A of the permit application. 40 CFR \
270.10 (e). EPA routinely publishes in
the Federal Register the specific permit
deadline for persons regulated by the
new rules. See 270.10 (e), note. Section
270.10(e)(2) provides that EPA can
extend the date for permit applications
by Federal Register notice if it finds that
there has been "substantial confusion"
. as to whether the owner or operator was
required te Hie a permit application and
the confusion was due to ambiguities in
EPA's regulations. For the reasons
explained below, EPA today is '•-.
. exercising its discretion to extend the
submission dates for part A permit
applications for facilities treating,
storing and disposing of ash from waste-
to-energy facilities that exhibits a
characteristic of hazardous waste.

B. Regulatory History of Waste-to-Energy
Ash

In 1980, EPA promulgated a rule
exempting household wastes from all
RCRA requirements for hazardous
wastes. 40 CFR 2gl.4(b)(l). EPA
interpreted this exemption to extend to
residuals from the treatment of
household wastes, including ash from
the combustion of household wastes.
The exemption, however,- did not
address ash from the combustion of
household wastes combined with
nonhazardbus commercial and
industrial wastes.
In 1984 Congress added to RCRA a
new Section 3001(i), entitled
"Clarification of Household Waste :
"Exemption." This provision addressed
waste-to-energy facilities burning
household wastes and nonhazardous
commercial and industrial wastes to
produce energy ..In July 1985.EPA
promulgated a rule that codified this
provision. Ira the preamble ' •
accompanying this rule, EPA
announced that it interpreted the statute
and the rule to exempt the facilities—.. .
but not their ash—from Subtitle C, 50
FR 28702, 28725-26 (July 15, 1985).
'EPA did not publish any statement .
informing owners of facilities managing
ash of any deadline for obtaining RCRA
permits. :' . ''..-'. .
In the late 1980's, various EPA
officials began talcing the position that
Section 3001(i) could be interpreted to
exempt ash from Subtitle C. They also
expressed the opinion that ash could be
managed safely in nonhazardous waste
disposal facilities'. The Environmental
Defense Fund (EDF) filed citizen suits in
two separate U.S. District Courts to
enforce the 1985 interpretation of the
statute against two .specific waste-to-
energy facilities. EDF v. City of Chicago,
727 F. Supp. 419 (N.D. 111. 1989); EDF
v. Wheelabrator Technologies, Inc., 725
F. Supp. 758 (S.D.N.Y. 1989). Both
courts held that Section 3001(i)
exempted ash. On appeal, the Second
Circuit ruled in favor of the exemption.
but the Seventh Circuit reversed,
finding that the statute did not exempt
ash. EDF\. City of'Chicago, 948 F.2d
345 (7th Cir. 1991); EDF v. Wheelabrator
Technologies, Inc., 931 F.2d 211 (2d Cir.
1991), cert, denied 112 S.Ct. 453 (1991).
The' City of Chicago, which operated the
facility adversely affected by the 7th
Circuit's decision, appealed to the
Supreme Court.
Also in the late 1980's, Congress
considered a number of bills that would
have explicitly exempted ash from
•Subtitle C requirements. In November
1990, Congress enacted an uncodified
amendment to the Clean Air Act
prohibiting EPA-from regulating ash as
a hazardous waste under Section-3001
of RCRA for a period of two years. Clean
. Air Act Amendments of 1990, Pub.L.
No. 101-549,104 Stat. 2399.
In response to these events, a number
of states authorized to implement -
Subtitle C programs in lieu of EPA
began treating ash from waste-to-energy
facilities as^ exempt. Some interpreted
their own regulations,virtually identical
to Section 3001 (i).-Others promulgated
specific ash exemptions. Many of these
specific exemptions were accompanied
by detailed regulations for the
management of ash as a nonhazardous
waste. Consistent with the evolving
federal position on the regulation of ash,
"EPA took no action affecting these state '
programs. .
Finally, in September 1992, just
before the expiration of the Clean-Air
Act ash "moratorium," EPA
Administrator William Reilly signed a
memorandum announcing that the
Agency now interpreted Section .3001(i)
to exempt ash from waste-to-energy . ,
facilities burning household wastes and .
.nonhazardous wastes from Subtitle C
requirements. This memorandum also
announced that EPA believed that ash
could be disposed of safely in landfills ,
meeting new standards for municipal. .
solid waste facilities promulgated in
1991 and codified at 40 CFR part 258.

C. Findings
. EPA finds that the events above have
created substantial confusion about the
status of ash under the rule EPA wrote
to codify the exemption in Section
3001(i). Although EPA'S 1980 and 1985
preambles indicated that there was no
exemption for ash from combined '
sources, later events suggested that ash
was not regulated. Persons may have
relied on the two District Court
decisions, the 1990 ash moratorium, or
the 1992 Reilly memorandum to
conclude that Section 3001(i) and 40
CFR 261.4(b)(2) were ambiguous about
the status of ash from combined sources.
They could quite reasonably have
concluded that they could manage ash
from combined sources without
obtaining hazardous waste permits. If
EPA did not act to extend the Part A
deadline, however, these facilities
would be unable to obtain interim status
because the Court's action is not a
statutory or regulatory change
establishing a new.period for obtaining
interim status under RCRA section . '
3005(e). Such facilities would have to
cease handling hazardous ash until EPA
took final action on their completed
permit applications—a process that ,.. .
typically takes several years.
Section 270.10(e)(2) was written to.
prevent such harsh results. EPA is today
invoking its authority to provide a
reasonable opportunity for persons
managing combined ash to satisfy
RCRA's permitting requirements.
Applying the substantial confusion
approach to facilities managing this ash
is consistent with previous precedents.
See, e.g., 52 FR 34779-81 (Sept. 15,
1987) (notice of substantial confusion
for big city cement kilns).
Persons handling ash from the
combustion of 100% household waste
could have relied with even greater
justification on the Agency's 1980
interpretation of the hopsehold ,wast«v
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Federal Register /Vol. 59, No. 108 /Tuesday, June 7, 1994 / Rules and Regulations 29375
exemption to .handle such waste ';
without a hazardous waste permit. They
are also entitled to an opportunity to
satisfy the permit .requirement Since '•
they are becoming subject to Subtitle C .
without the enactment of a statute or the
promulgation of a rule,'they dp not.'
technically qualify for the normal 6
months provided for persons newly
subject to Subtitle C regulation. See '
section 40 CFR 270.10(e}(l)I Section
270.1Q(e)(l)(ii). which provides 30 days
for filing a Part 'A after a'facility "firsi
becomes subject to the {Subtitle C]
standards" could apply to these
facilities. EPA, however, interprets this
provision to apply to facilities whose
own actions subject them to Subtitle C
rather than to facilities affected by
regulatory events. (An example ivould
be a generator that exceeded the small ,•
quantity generator month* waste ...
generation limit.) See generally 45 FR
76830,76633,(November 19.1989). ..
Consequently. EPA believes the
"substantial confusion" approach is also
appropriate for persons who manage
100% household waste. Moreover, it <.
reduces confusion by establishing a, ,
single deadline for both types of ash
from waste-to-energy facilities.
Accordingly. EPA today establishes1
that facilities that are handling
hazardous ash from waste-to-energy
facilities that wish to continue to do so
may file Part A applications anytime
before December 7.1994. See the
discussion of state authorization below
for guidance on where to request and
submit an application.
Another statutory requirement -for
obtaining interim status is the filing of
any notification required under section
3010(a) of RCRA. Under section 3010,
EPA may require all persons that handle
hazardous wastes—including generators
and transporters—to notify EPA of the
location of their activities within 90
days of the promulgation of a new rule
identifying additional characteristics or
listing a waste. This provision does not
literally apply because EPA is not
promulgating or revising a rule.
However, failure to satisfy it could
cloud a facility's claim that it obtained
interim status. In ordefto prevent this
result, EPA is exercising its discretion to
waive filing of section 3010
notifications by facilities managing ash
from resource recovery facilities. EPA
notes that persons who manage ash will
be required to obtain EPA identification
numbers in the near future. This process
will furnish the information that the
notifications would have provided. . .
IV. Land Disposal Restrictions • • • • •
The RCRA land disposal restrictions
(LDRs) prohibit land disposal of
. hazardous wastes unless those wastes
are first treated to substantially reduce ;
toxicity br.mpbility of the hazardous
constituents in the wastes so as to
. minimize threats to human health and •
the environment. RCRA sections 3004.
(d), (e), (g). (in). The restrictions'specify
dates on which particular groups of. •
wastes are prohibited from land . .
disposal unless they are treated. RCRA
: sections 3004 (d). (e), (g).'For wastes . .
which are ''newly .identified or listed". .
Rafter November 8,1984. EPA must
promulgate treatment standards within
6 months of the date of identification or
listing. RCRA section 3004(g)(4).
• On June 1,1990, EPA promulgated
treatment standards for constituents in
wastes identified as hazardous under
> the "EP toxicity" characteristic, the . .
predecessor to the current TC 55 FR '.
22520. The treatment standards for
. metal constituents are levels identical to
.. the EP toxicitv standards themselves. 40 .
CFR 268.41. (EPA notes'that it must '!
revise these standards under Chemical
Waste Management', Inc. v. EPA, 976
F.2d 2 (D.C. Cir. 1992) (the "Third .. \ '_
Third" decision).) Persons generating ' .
wastes that fail the current TC test must
determine whether their TC wastes
exceed these EP levels, and, if they do,
comply with the treatment standards.
EPA, however, beliex'es that ash from
waste-to-energy facilities is "newly
identified" for purposes of the land
disposal restrictions. Although
technically ash would be identified as
hazardous under the existing TC rather
than a new characteristic rule, the
Supreme Court's decision is bringing
ash into the Subtitle C system for the
first time (for ash from 100% household
waste) or returning it to the system after
a period of Uncertainty and actual
legislative exemption (for ash from
combined sources).
EPA dealt with a similar situation in ,
a 1990 LDR rule. In that notice, EPA
interpreted section 3004(g)(4) for
• mineral processing wastes brought into
RCRA by a decision of the U.S. Court of
• Appeals for the District of Columbia
Circuit holding that EPA had
improperly considered them to be
exempt from Subtitle C under the
statute's "Bevill amendment". (The
mineral processing wastes also
sometimes exceed the TC and EP
toxicity levels for metals.) In that notice,
EPA explained that section 3004(g)(4) is
' ambiguous as to whether it applies to
wastes brought into the system after
1984 due to regulatory reinterprelation.
See 55 FR 22667 (June 1,1990). EPA
determined that it was preferable to read
section 3004(g)(4) to Include such
wastes because that reading was more
consistent with the policy goals that
prompted Congress to establish a. '.' .,
separate schedule fpr new wastes in the .;
first place: the need to study such ''.. , y
wastes separately tp set appropriate.'.
treatment standards, and the established
priority of subjecting older wastes to trie
land ban first, td. "'•'-. •• "
EPA also noted that, before it
developed specific treatment standards '
for the newly-identified mineral
processing wastes, die wastes could be
regulated under existing treatment
standards for EP toxicity metals. EPA
determined that it would not be •
appropriate to apply those treatment
standards, however, because it had not .
analyzed and tested the wastes to
determine whether those standards
would meet the statuary requirements of
reduced toxicity,and mobility. Id. ;. •. ...
Ash from 100% household waste ..• '..
clearly fits this precedent. It, too, is
being regulated .under Subtitle C for the
first time as the result of a court.' . . ,;
decision narrowing an Agency .
interpretation of an existing Subtitle C'
exemption. Further, as explained in :
more detail below, EPA needs to :
determine whether exiting EP toxicity
treatment standards will meet,land •
treatment standard requirements for this
ash. Accordingly, EPA interprets section
3004(g)(4) to apply to this ash. EPA will
not apply the current treatment
standards for the EP toxicity
characteristic to ash which is identified
as hazardous under the TC. Section
3004{g){4) will require EPA to
promulgate treatment standards for this
ash within 6 months of the date of this •
notice. •
Ash from combined sources is not •
entering Subtitle C jurisdiction for the
first time—it was not exempt under =
EPA's original household waste
exemption, and was not originally
viewed as exempt under section 3001(i).
Nevertheless, EPA believes that it would
be appropriate and consistent with the
goals of the LDRs to view it as a newly
identified waste under section
3004(g)(4). Section 3004(g)(4) is
ambiguous as to wastes reentering
Subtitle C after several years of
confusion and two years of clear
statutory exemption. Moreover, EPA has
not studied ash to determine what
treatment standards would meet the
requirements of Section 3004(m) of
RCRA, and in fact is reviewing what the
appropriate treatment standards are for
all of the wastes with metal constituents
exhibiting the Toxicity Characteristic.
58 FR 48116 (Sept. 14,1993). Congress
priority scheme for land disposal
restrictions directs EPA to promulgate
standards for post-1984 wastes in
chronological order. If EPA were
required to immediately determine
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29376 ' Federal Register / Vol. 59, No. 108 7 -Tuesday, June 7, 1994 / Rules .and Regulations
whether the current EP toxicity
standards for ash were appropriate, it
would have to postpone work on
, treatment standards for new listings and
a new characteristic promulgated
several years prior to the City of Chicago
decision. Additionally, EPA needs time
to determine whether current treatment
-standards are appropriate for ash. . ,
For these reasons, EPA will also
consider ash from combined sources to
be newly identified for purposes of the
land disposal restrictions. Furthermore,
it will not apply the existing treatment
standards for EP toxicity. As a result of
this decision, Section 3004(g)(4)
requires EPA to promulgate treatment
standards for combined ash within 6 . .
months of the date of this notice.

V. Other Subtitle C Requirements
EPA is not extending compliance
dates for any other aspect of the
hazardous waste regulations. Facilities
generating, transporting, or treating,
storing or disposing of hazardous ash
must, as a matter of federal law, comply
with die substantive requirements of 40
CFR parts'260-270 on the effective date
of the Court's decision. (See the
discussion of state authorization below
to determine when the decision takes
effect under authorized state RCRA
programs.) EPA reminds generators,
transporters and treatment, storage and
disposal facilities that they must
promptly obtain EPA identification
numbers. See, e.g., 40 CFR 262.12. EPA
intends to issue an implementation
strategy in the near future that will
provide additional information on
complying with other RCRA
requirements.
To facilitate compliance with Subtitle
C, EPA has developed draft guidance for
the sampling of ash from waste-to-
energy facilities. EPA has already
released this draft. Interested parties
may obtain a copy by calling die RCRA/
Superfund Hotline, Office of Solid
Waste, U.S. Environmental Protection
Agency, 401M Street, SW., Washington,
DC 20460, (800) 424-9346, TDD (800)
553-7672 (hearing impaired); in the
Washington, DC metropolitan area, the
number is (703) 920-9810, TDD (703)
486-3323. EPA soon will publish a
separate Federal Register notice . ,
requesting comment on the draft.
EPA notes that by following certain
waste management practices, some
facilities may not need interim status or
a RCRA permit. For example, under
federal regulations, generators of
hazardous ash may accumulate and treat
ash onsite in tanks or containers for up
to 90 days without obtaining hazardous.
waste permits under 40 CFR 262.34. See
also 51 FR10186 (May 24,1986.)
VI. State Authorization and '
Implementation V • • - •

A.'Permit Deadline Extension . . .
1. General Principles
Section 3006(b) of RCRA allows states ,
to obtain authorization to implement
state hazardous waste programs in lieu
of federal law. To obtain authorization,
a state must show that its program is
equivalent to the Federal program. EPA
interprets this requirement to mean that
state laws and rules must be no less
stringent than federal requirements.
Section 3009, however, expressly allows
states the option of establishing more
stringent requirements.
Forty-eight states arid territories are'
now authorized for all of the RCRA
requirements established prior to
November 1984 f»he RCRA "base .
program"). In th >a states, the state's
definition of hazardous waste— ;
including any exemptions—operates^ in
lieu of the federal definition. Changes to
the federal definition do not '
automatically revise independently
promulgated state regulations. Rather,
the states are required to revise their
programs and submit the revisions to
EPA for approval. The revision does not
take effect under federal law until EPA
approves the revision. As explained
below, in a lew of these states, the .
Court's decision may not take effect on
its federal law effective date. EPA
believes that there are very few states in
this category.
Where the Court's decision does
eliminate art exemption for ash, the
hazardous waste characteristic most . •
likely to apply to ash is the TC as
determined by the Toxicity
Characteristic Leaching Procedure
("TCLP") promulgated by EPA in 1990.
This rule was promulgated under one of
the Hazardous and Solid Waste
Amendments of 1984 ("HSWA").
Section 300 5(g) provides that rules
promulgated under HSWA take effect in
all states at the same time, displacing
state rules unless the state rules are
more stringent. EPA implements the
new HSWA rule until the state adopts
ah equivalent provision, submits it to
EPA, and obtains EPA approval. 50 FR
28728-30. (July 15,1985). The TC and
TCLP displaced the 1980 EP toxicity
characteristic and leaching procedure.
The EP, however, also remains in effect
as a matter of state law in many states.
Sixteen states are now authorized for
the TC and TCLP (see list in Table 1).
EPA continues to implement the TC and
the TCLP in the remaining states. EPA
takes the position that, where it :
implements the TC, it uses federal >
permitting procedures. Consequently,;,
EPA will implement the permit .
deadline extension announced today in
all states where it implements the TC.
Owners and operators in those states - ••
would file Part A applications wijh EPA
Regional Offices. (See list in Table 2.)
Where a state has been authorized to
implement the TC, however, state
permit procedures are in effect. Today's
deadline extension is not in effect in
those states; Moreover, since the
.extension makes permit requirements
less stringent', states are not required to
adopt equivalent extensions. If any of
these states chooses to provide
equivalent relief, owners and operators
would file permit applications with the
state agency.
'' To summarize, in order to determine
the impact of today's action, persons
handling ash must determine (1) the
impact of the Court's decision on the
RCRA program in each state (primarily
an issue of whether a state's base
program contains an authorized
exemption for ash) and (2) whether the
entity authorized to implement the TC
and TCLP has extended its permit
deadline.
2. Application of Principles: Status of
Court Decision and Permit Exemption in
Individual States

a. Unauthorized states. In the eight
states and territories where EPA
implements all portions of the RCRA
program (see Table 1 for a list of these,
states and territories), including the base
program, the Court's decision will
eliminate EPA's interpretative ash
exemption on the opinion's effective'
date. Since EPA implements the TC, the
permit deadline extension will take
effect today. Owners and operators of
facilities who wish to obtain interim
status to manage hazardous ash may file
Part A applications with EPA Regional
Offices. (See list in Table 2.) ,
b. Authorized states. The issues in
authorized states are very complex.
Table 3 summarizes the status of the
decision and the permit deadline for
major categories of states. This text
presents a few explanatory notes.
Table 1.—List of States and Territories
Without RCRA Subtitle C Base Program
Authorization

Wyoming
Hawaii .
Alaska
Iowa
Puerto Rico^ . • ' -
Virgin Islands , '..
.. .American Samoa . .
Northern Mariana Islands ; . • •
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Federal Register / VoL 59. Np. 108 / Tuesday, June, 7, 1994 / Rules and Regulations 29377
list of States and Territories ,.
Authorized for the Toxicity .
Characteristic , .„ v ' .
Alabama = »; • . • .. ••
Florida - ,--
Georgia -• «•• . '-
Kentucky • i .--i
Mississippi
North Carolina , •
South Carolina , ,; - , .... ,-'
Tennessee ." ,..-'..••.. .- ,
Minnesota. ,:-..... ,-.-. - ; ..
Arkansas, ,; , .-, • . ,
Texas . :
Arizona . - ' .
California ' •
Guam , :
Nevada
Idaho .....
Table 2.—U.S. EPA Regional Contacts
for the Part A Permit Application .'•:'•.
U.S. EPA Region 1, RCRA Support ' ' ; -
Section, JFK Federal Building/Boston,
MA 02203-2211, (617) 573-5750. CT.
ME,MA,NH.RI,VT :. . ,,. .
tLS. EPA Region 2, Air .and .Waste •
Management Division, Hazardous.
Waste Facilities Branch, 26 Federal
Plaza, room 1037, New York, NY
10278..(2i2) 264-0504, Nj, NY, PR. VI
U.S. EPA Region 3, RCRA Programs .
Branch (3HW50), 841 Chestnut Street.
Philadelphia. PA 19107, (215) 597-
8116 (PA. DC), 0215) 597-3884 (VA,
WV. DE, MD), DE, DC, MD, PA. VA,
WV ..-,"•: . • .
U.S. EPA Region 4, Hazardous Waste
Management Division, RCRA
Permitting Section, 345 Courtland
Street, NE. Atlanta, GA 30365, (404)
347-^3433; AL, FL. GA. KY, MS, NC, '
•SC.TN ->: •' ; • - ' •' :• -
U.S. EPA Region 5. RCRA'Activities,
P.O. Box A3587, Chicago, IL 60690 ':
(Call State Offic ,, IL, IN, MI. MN,
OH.WI • " •-''•
U.S. EPA Region 6, Hazardous Waste
Management Division, First Interstate
Bank Tower, 1445 Ross Avenue, Suite
1200, Dallas, TX 75202-2733, (214)
655-8541/AR/LA. NM.OK. TX
U.S. EPA Region 7, RCRA 'Branch,
Permitting Section, 726 Minnesota
Avenue, Atth: WSTM/RCRA/PRMT,
Kansas City, KS 66101, (913) 551-"
7654,IA,KN,MO.NE
U.S. EPA Region 8, Hazardous Waste -.';
Management Division, 999 18th
Street, Suite 500, Denver. CO 80202-"
2405, (303) 294-1361, CO, MT, ND.
SD.UT.WY .•••••'• • '
U.S. EPA Region 9, Hazardous Waste
Management Division, Attn: H-2-3,
75 Hawthorne Street, San Francisco, •
CA 94105, (415) 744-2098, AZ, CA,
HI, NV, AS, GU, No. Mariana Is.
U.S. EPA Region 10, Waste Management'
Branch, HW-105,1200 Sixth Avenue,
Seattle. WA 98101, (206) 553-0151,
AK.ID, OR, WA
TABLE 3.—PERMIT DEADUNE: IMPLEMENTATION IN AUTHORIZED STATES
State has no ash exemption '
1 1
1. Court decision hi effect -. :
2. No deadline extension needed
3. No state program revision needed .:

. . . • ' • . -•-.
1. Court decision in effect
2. No deadline extension needed .'.
3. No state program revision needed

State has unauthorized ash exemption '
TC Authorization: EPA1
1 . Court decision in effect
2. Deadline extension in effect .... '
3. State must revise state law and inform EPA
informally. -
4. Owners/operators file notifications and Part
A's with EPA Regional Office.
TC Authorization: State
1 Court decision in effect ... • • '
2 Deadline extension not in effect State may
provide equivalent relief.
3. State must revise state law and inform EPA
informally. '
4. Owner/operators file with State if State
grants relief. .
'' State has authorized ash exemption ' ''
' . i, • . ' •

issue).
extend deadline when it approves program
revision.
review under 40 CFR 271.21(e)(2)(ii).
4. Owners/operators file notifications and Part
A's with EPA Regional office.

issue). . • . :
provide equivalent relief -when ft eliminates
exemption.
review under 40 CFR 271.21(e)(2)(ii).
4. Owner/operators file with State if State
grants reliefi • • :' • •
1 Note: EP toxtefty characteristic may still be in effect under'state law. States that have ash exemptions may determine whether they want to
provide similar relief for EP permitting deadline. • • v . .
(i) States with no ash exemption.
Since states may maintain more
stringent RCRA programs, some states
may never have exempted ash from
hazardous waste requirements. The City
of Chicago decision has no impact in .
these states. No permit deadline
extensions are needed.
(ii) States with unauthorized ash
exemptions.
EPA knows that, during the years of
confusion over the status of ash, some
states exempted ash from their Subtitle
C programs. Most of these states,-: ••• • • '
nowever, did not submit these ...... ;•.
provisions to EPA for authorization
reviews. Although they arguably may '
have made the state programs less
stringent than the federal program, EPA
would have taken no action to force the
states to eliminate them.
(A) Effect of court's decision.
Some of these states adopted . :
provisions resembling 3001 (i) and
Interpreted them to exempt ash.
Whether the City of Chicago decision ' •
'requires these states to abandon these
interpretations is an issue of state law
that can'be answered authoritatively •
• only by stateiofficials. • .-•- -
Other states promulgated rules under
their solid waste authorities that
established ash-specific management
standards that implicitly—or
explicitly—transferred ash management
from their hazardous waste programs to
their solid waste programs. The status of
these provisions is again an issue of
state law.
(B) Effect of today's deadline
'extension. '• : ' :' ;
Since the state never obtained
authorization for its exemption for ash. •
its authorized program still regulates
ash as a hazardous waste. The regulated
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29378 Federal Register / Vol. «9, No. 108 /Tuesday, June 7, 1994 / Rules and Regulations
community, however, could Lave been
confused about the status of ash, so the
relief provided by the deadline
extension would be appropriate.
Whether or not the extension is in
. effect, however, depends on which
entity is authorized to implement the
TC. As explained above, where EPA "
implements the TC, it will apply today's
notice. Where states implement the TC,
today's notice cannot operate to revise
state permit rules, The state would need
to determine whether it wanted to
provide equivalent relief. '
• (C) Requirements for program.
revision. :
As a result of the court's decision, -
states with unauthorized ash
exemptions now have state law
requirements that are less stringent than
the federal Subtitle C program. EPA is '
today notifying those states that they
must revise their laws and regulations to
' eliminate the less stringent provisions.
Although EPA is not today initiating
any withdrawals of state programs, it
advises states to take timely action to
eliminate their ash exemptions. Since
these provisions are not part of states'
authorized RCRA programs, no Subtitle
C program revisions will be necessary.
Rather, EPA advises states to notify
Regional Offices informally by letter
when they have eliminated their
exemptions.
(D) Where to file Part A applications.
, Where EPA implements the TC,
owners and operators must file Part A
applications with the appropriate EPA
Regional Office.
Where a state .that is authorized to
implement the TC decides to extend the
filing deadline, owners and operators
must file with the state hazardous waste
agency.
(iii) States with authorized ash
exemptions.
EPA may have authorized a few ash
exemptions during the late 1980's and
early 1990's. EPA has not found any
such authorization during a limited .
review prior to the publication of this
emergency notice. Consequently, EPA
. believes that there are very few states in
this category. Nevertheless, in case such
states exist, EPA is explaining their
obligations. ; .
(A) Effect of court decision.
Whether or not the decision affected
the state law or rule that EPA authorized
is a state law issue. State officials will
need to make that determination. If a
state determines that its state provision
is still in effect, both the state law and
the authorized RCRA program will
continue to exempt ash until such time
as the state revises its program and
obtains EPA approval for its revision.
4B) Effect of today's permit deadline
extension. •;
If ash is still exempt under both state
law and the authorized program, no
permits are currently required. Today's
filing date extension would not take
effect. As explained in (D.) below, in
some cases EPA will announce an
extension when it approves a revision
eliminating an ash exemption. ,
(C) State program revisions.
Where ash exemptions remain in.
effect, state programs will be less
stringent than Ae federal program.
Formal state program revisions,
including notice and comment
rulemaking, will be required under '40
CFR 271.21(e)(2)(ii). The deadline for
these revisions will be July 1,1995
under 40 CFR 271.21(e)(2)(ii). An
additional' year is available where states
must make statutory changes. 4OCFR
271,21(e)l[2)(v).
(D) Where to file Part A applications.
At the time that the state receives EPA
authorization for the revision that
'eliminates its ash exemption, if EPA is
still implementing the TC, it will-make
a finding of substantial confusion and
extend the Part A deadline for that state.
Owners and operators desiring interim
status will need to file applications with
the appropriate EPA Regional Office.
EPA will not be able to provide this
relief where a state is authorized to
implement the TC. Those states must
determine whether they want to extend
permit deadlines. If they do, owners and
operators wishing to obtain interim
status will need to file applications with
the appropriate state agency.
B. Land Disposal Restrictions
The LDRs are HSWA rules initially •
implemented by EPA. Moreover, EPA
has established that it will not delegate
its authority to set treatment standards
to states. EPA views determinations
linked to the need for and scope of
treatment standards as similarly
nondelegable. This includes today's
interpretation that ash from waste-to-
energy facilities is a newly identified
waste under section 3004(gM4). This
interpretation is effective in all states,
including those authorized to
implement the delegable portions of the
land disposal restrictions.

VII. Good Cause Finding
Section 270.10(e)(2) does not require
notice and comment rulemaking for
substantial confusion notices. Rather, it
simply requires EPA to publish a
"notice" in the Federal Register. To the
extent that this notice is a.rulemaking
for the purposes of section 553 of the
Administrative Procedure Act (APA),
EPA believes that it has "good cause"
under section 553(b)(3)(B) of the APA to
extend the permit application deadline
without prior notice and opportunity for
comment. First, EPA believes that its
determination regarding the existence of
regulatory confusion is an
"interpretative rule" for which notice
and comment is not required under
section 553(b)(3)(A) of the APA. It . .
clarifies and explains existing law rather
than creating new duties. Moreover, the
establishment of a due date for Part A
permit applications is a procedural rule
also exempt from notice and comment
under section 553(b)(3)(A) of the APA.
The effect of establishing this new date
is that EPA will not take enforcement
action for operation without a RCRA
permit against a facility .that submits its
application in compliance with this
notice "id that meets the other
condiv. _,ns of RCRA section 3005(e).
Finally, EPA views the issues of
whether confusion existed and whether
it was "substantial" as subjects on
which comment would not be useful
and would not serve the public interest.
EPA's findings concerning the land .
disposal restrictions are also
"interpretative rules" exempt from
notice and comment requirements. They
provide EPA's views on the scope of
section 3004(g)(4) of RCRA. Moreover,
EPA would have good cause to
eliminate notice and comment even if
these determinations are regarded as
legislative rules. The land disposal
restrictions would take effect for ash
approximately 25 days after the Court
issued its opinion. It would be
impossible for facilities managing ash to
come into compliance with the
restrictions in that short time. See 55 FR
22521 (June 1,1990) (Third Third LDR
rule—EPA provides 90 days for persons
managing wastes subject to new
treatment standards to come into
compliance} The Court's decision thus
creates an emergency justifying use of
the "good cause" exemption under
section 553(b)(3)(B) of the APA.

VIII. Regulatory Requirements

.A. Executive Order 12666
Pursuant to the terms of Executive
Order 12866, it has been determined
that this rule is a "significant regulatory .
action" because it involves novel policy
issues arising out of legal mandates.
However, OMB waived review of this
action.
B. Regulatory Flexibility Act :.-..... •
The Regulatory Flexibility Act (5
U.S.C 601 et seq.) requires the Agency
to prepare and make available for public
comment, a regulatory flexibility
analysis that describes the impact of a
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.Federal .Register /,Vol. 59. No. 108 / Tuesday, June 7. 1994 / Rules and Regulations 29379
proposed or final rule on small ei titles
(i.e., small businesses, small . . .
organizations, and small governmental
jurisdictions). No regulatory flexibility
analysis is required if the Administrator
certifies that the rule will not have a .
significant economic impact on a .''.,
substantial number of small entities, .
The ruling of the Supreme Court in
City of Chicago v. Environmental ' '
Defense Fund, Inc. will result in
additional costs for waste management
facilities and some of those costs will be
borne by small entities. The Agency
does not have estimates of those costs.
Today's rule extends the date by which
affected facilities must submit a Part A
permit application. This action will
lower the costs to small entities that will
have to comply with the Court's ruling.
Therefore, pursuant to 5 U.S.C. 605b, I
certify that this regulation will not have
a substantial impact on small entities.
C. Paperwork Reduction Act
The Office of Management and Budget
(OMB) has approved the information
collection requirements contained in
this rule under the provisions oT-the
Paperwork Reduction Act; 44 U.S.C.
3501 et seq. and has assigned OMB
control numbers 2050-0009; 2050-0120;
2050-0028; 2050-4)034; 2050-0039;
2050-0035 ; 2050-0024.
This collection of information ha:s an
estimated average burden per
respondent as stated below:
OMB No.
2050-0009
2050-0120
2050-0028
2050-O034
2050-0039
2050-0035
2050-0024
•'•; Title
Part B Permit Application - ....;. . ; „"...„'
General Facility Standards „...„........„.._.„_.„.„
Notification (for EPA ID) _..;.
Part A Permit Application ...................................... .....„„..„.„„....„..
Hazardous Waste Manifest ...'. ...-...;.„. ............™
Generator Standards ...........;. .
Biennial Report ."......
New re-
spondents
6
6.
62
68
•»
o2
62
Average bur-
den (hours)
242
01
4.35
72
1 8
1 1
20
Total addi-
tional bur-
den (hours)
14S7
K47
270
4903
22
Aft
1240
These estimates include time for
reviewing instructions, searching.
existing data sources, gathering and
.maintaining the data needed, and
completing and reviewing the collection
of information.
Send comments regarding the burden
estimate or any other aspect of this,
collection of information, including
suggestions for reducing this burden to
Chief, Information Policy Branch; EPA;
401 M St., SVV. (Mail Code 2136);
Washington, DC 20460; and to the
Office of Information and Regulatory
Affairs, Office of Management and.
Budget, Washington, DC 20503, marked
"Attention: Desk Officer for EPA." "
Dated: May 27.1994.
Carol M. Browner,
Administrator
1FR Doc. 94-13668 Filed 6-6-94; 8:45 am]
wuma
DEPARTMENT OF TRANSPORTATION

Research and Special Programs
Administration

49 CFR Part 195
Pocket No. PS-12J; Amdt 195-61]
RIN2137-AB46

Pressure Testing Older Hazardous
Liquid and Carbon Dioxide Pipelines
AGENCY: Research and Special Programs
Administration (RSPA), DOT.
ACTION; Final rule. . " •

SUMMARY: This final rule provides that
operators may not transport a hazardous
liquid in a steel interstate pipeline
constructed before January 8,1971, a
steel interstate offshore gathering line
constructed before August 1,1977, or a
steel intrastate pipeline constructed
before October 21,1985, unless the
pipeline has been pressure tested
hydrostatically according to current
standards or operates at 80 percent or
less of a qualified prior test or operating
pressure. In addition, this final rule
creates a comparable requirement for
carbon dioxide pipelines constructed
before July 12,1991, except for
production field distribution lines in
rural areas. The purpose of this final
rule is to ensure that the affected
pipelines have an adequate safety
margin between their maximum
operating pressure and test pressure.
This safety margin is essential to
prevention of particular kinds of
pipeline accidents.
EFFECTIVE DATES: The changes to part
195, except § 195.306(b), take effect July
7,1994. The final rule under
§ 195.306(b) takes effect August 8,1994,
unless RSPA receives, by July 7,1994,
comments that illustrate that
disallowing the use of petroleum as a
test medium for pressure testing
required by this rulemaking is not in the
public interest. Upon receipt of such
comments, RSPA will publish a
document in the Federal Register
withdrawing the final rule under
§195.306(b).
ADDRESSES: Written comments must be
submitted in duplicate and mailed or
hand-delivered to the Dockets Unit,
room 8421, U.S. Department of
Transportation, 400 Seventh Street,
S\V., Washington, DC 20590-0001.
Identify the docket and amendment
number stated in the heading of this .
notice. Comments will become part of
this docket and will be available for
inspection or copying in room 8421
between 8:30 a.m. and 5 p.m. each
business day.
FOR FURTHER INFORMATION CONTACT: L. •
M. Furrow, (202) 366-2392, regarding
the subject matter of this final rule
document, or Dockets Unit (202) 366-
4453, for copies of this final rule
document or other material in the.
docket.

SUPPLEMENTARY INFORMATION:
Background
Any steel pipeline may contain
hidden physical defects that result from
the manufacture or transportation of
pipe and from pipeline construction.
Over the operational life of the pipeline,
new physical defects can be created by
external forces acting on the pipeline.
When a physical defect is large enough,
it can cause the pipeline to fail during
operation. Also, during pipeline
operation, internal or environmental
stresses can cause smaller defects to
grow and become large enough to cause
the pipeline to fail.
Adequate pressure testing can
disclose hidden physical defects in a
pipeline. Pressure testing involves
raising a pipeline's internal pressure
above its maximum operating pressure
(MOP) for a time sufficient for leaks to
develop from defects. A test that is
adequate in pressure level and duration
will disclose physical defects that are
large enough to cause pipeline failure
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